Legalizing Vote Dilution

A recent decision in the 8th?Circuit Court of Appeals may have passed under your radar, but this ruling is incredibly significant. It involves vote dilution and could shape the fabric of democracy foundational to the United States. But the court didn't rule on anything about vote dilution itself. Instead, it knocked some teeth off of voting rights laws by deciding that citizens cannot sue for violations — only the government can enforce them. Let's understand why this decision is so controversial.

Vote dilution" is a buzzword you may have heard in the past decade, especially around national elections. This type of voting rights violation occurs when the structure or process established around an election does not give certain demographic groups an equal opportunity to elect candidates they support. This means that their votes have different power to influence the outcome of elections. The debate often centers on whether voters of color are being disadvantaged.

Vote dilution has several harmful consequences. When minority votes are diluted, they are less likely to have their voices heard in government, which can lead to policies that are not reflective of the needs of minority communities. It's also a self-perpetuating cycle: when voters feel like their votes do not matter or that the system is rigged against them, they are less likely to participate in elections, making it more challenging to hold their elected officials accountable. Further, this system creates distrust in election results, which can erode faith in democracy and lead to civic unrest.

How does vote dilution happen? It can take many forms, and a major one, “gerrymandering," is done through redistricting. Redistricting to the point of gerrymandering involves drawing electoral districts in a way that vastly favors one party. There are a couple of ways to gerrymander, and the complaint in this case brings up two: packing and cracking.

The Voting Rights Act of 1965 prohibits discrimination against racial or language minority voters in voting. It was passed to address entrenched racial discrimination in voting; states with a history of discrimination had to “preclear" any voting-law changes with the Attorney General or a three-judge court in D.C. Other provisions of the act had to be followed regardless of the state. Notably, section 2 of the VRA prohibits states and their subdivisions from enacting any “standard, practice, or procedure" that denies or abridges “the right of any citizen of the United States to vote on account of race or color ."

One such battle was waged in Arkansas recently, brought by the Arkansas State Conference NAACP and the Arkansas Public Policy Pane, two advocacy groups with members in the state. The law needed to make the answer to the question of whether parties like the advocacy groups from Arkansas had a right to action. When statutes are murky on questions, it means Congress failed to write the answer into the regulation's text (or failed to report it clearly) when they wrote the law in the first place. It also means that the question is passed to the courts to answer.