After twice failing to convince the courts that Alabama had complied with Section 2 of the Voting Rights Act, Steve Marshall gave his opinion in a Louisiana suit that private individuals shouldn’t even be able to bring such suits.
The U.S. 5th Circuit Court of Appeals rejected that claim Friday, allowing the Louisiana redistricting case to continue and setting up a potential clash at the U.S. Supreme Court.
The argument came after the 8th Circuit Court of Appeals affirmed that only the U.S. attorney General can file challenges against redistricting maps.
Neither decision directly affects Alabama—which is in the 11th Circuit—but the argument could have future impacts for challenges to unfair maps.
“There is no Section 2 liability unless ‘it is shown that’ members of a protected class ‘have less opportunity’ not just ‘to elect representatives of their choice’ but also ‘to participate in the political process,’” the motion argued.
Zephyr Scalzetti, senior digital organizer at Alabama Values, said the move appears to be a response to Alabama’s redistricting case Allen v. Milligan and the “spate of wins” that immediately followed in other states.
“It’s a way to kill Section 2 without overtly killing Section 2,” Scalzetti said.
With the two circuit courts now in disagreement over whether there can be a private right of action, the Supreme Court could weigh in.