Judge Elizabeth Branch, in a Dissent, Says Citizens Can't Sue States to Enforce Voting Rights Act
The 11th Circuit majority said Branch, a Trump appointee, would undermine 50 years of civil rights litigation.
February 05, 2020 at 03:22 PM
4 minute read
A federal appeals judge nominated by President Donald Trump had a sharp dissent this week challenging the right of individuals and organizations to sue state governments over Voting Rights Act violations.
The majority opinion from the U.S. Court of Appeals for the Eleventh Circuit said Judge Elizabeth "Lisa" Branch's dissent would upend more than 50 years of civil rights litigation by private litigants who sue state governments over discriminatory election practices. Branch, who embraced constitutionalism and textualism during her 2017 confirmation hearing, came down squarely on the side of Alabama Monday, citing an Eleventh Amendment prohibition barring citizens from suing a state without that state's express permission.
Branch said the majority opinion written by Judge Charles Wilson, which upheld the trial court, "erodes" the constitutional principle of state immunity from suits brought by private parties. Branch said the Alabama State Conference of the NAACP's case should be remanded and the state of Alabama dismissed as a defendant.
The suit challenges the statewide election of judges to Alabama's three appellate courts as racially discriminatory. All of the state's 19 appellate judges were white when the suit was filed in 2016.
Wilson, who was appointed by President Bill Clinton, was joined in his opinion by Senior Judge Roger Vinson of the U.S. District Court for the Northern District of Florida, sitting by designation. Vinson, the first judge to declare the Affordable Care Act unconstitutional under the Obama administration, was appointed by President Ronald Reagan in 1983.
Trump renominated Branch, a former Georgia Court of Appeals judge, to the Eleventh Circuit in 2018 after her nomination expired at the end of 2017.
Branch's dissent Monday argued a state may not be sued without its express consent or a congressional action specifically revoking its sovereign immunity. She also contended that Section 2 of the 1965 Voting Rights Act, "did not unequivocably abrogate state sovereign immunity."
While acknowledging that the text of Section 2 does forbid a state from imposing racially discriminatory voting practices, "The text of Section 2 contains no language whatsoever—either explicitly or by implication—that allows private plaintiffs to sue a state in federal court," Branch wrote.
Branch also said Section 3 of the Voting Rights Act "contemplates lawsuits by the U.S. Attorney General" against a state over alleged voting rights violations instead of suits brought by private citizens or citizen groups.
Taking specific aim at the majority, Branch said that, although Wilson found it "difficult to conceive of any reasonable interpretation of Section 2 that does not involve abrogation of the state's immunity," his ruling was based "on an erroneous assumption that a legislature never adopts half-way measures."
Branch's scrutiny of the text of Section 2 reflects her assurances to the Senate Judiciary Committee prior to her 2018 confirmation that a judge's role "is not to usurp the role of the legislature and come up with a result they deem just under the circumstances that does not maintain fidelity to the [constitutional] text."
In an apparent slap at Branch's textualist bent, Wilson said her dissent "suggests that the [Voting Rights Act] use of compound phrases to prohibit the conduct of both a state or political subdivision and to permit proceedings by both the Attorney General or an aggrieved person makes Congress's intent to abrogate state sovereign immunity unclear."
"That is simply not true based on the language of the statute, which clearly indicates that both the Attorney General and aggrieved persons may institute proceedings against a state or a political subdivision," he concluded.
Wilson said that for more than 50 years the VRA has been effective "largely due to the work of private litigants battling states and other jurisdictions from imposing discriminatory election practices."
While the majority's interpretation is based on considering the text of the Voting Rights Act "as a whole" rather than reading its sections "in isolation from one another," Branch's interpretation, "takes at least one too many creative leaps from the text of the statute," Wilson said.
Attorneys with Crowell & Moring and the Lawyers' Committee for Civil Rights in Washington, D.C., joined with NAACP lawyers in Baltimore, New York's Stroock & Stroock & Lavan, Montgomery attorney Joseph Mitchell McGuire of McGuire & Associates, and Birmingham attorneys James Blacksher and Charles N. Dorman of Whatley Kallas on behalf of the Alabama NAACP. Attorneys with the Office of Alabama Attorney General Steve Marshall represented the state.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrump Election-Interference Prosecution Appears on Course to Wind Down
4 minute readBig Law Practice Leaders 'Bullish' That Second Trump Presidency Will Be Good for Business
3 minute readWhere May Vacancies for Trump Arise? These GOP-Appointed Circuit Judges Qualify for Senior Status
Big Law Lawyers Fan Out for Election Day Volunteering in Call Centers and Litigation
7 minute readTrending Stories
- 1Will the 9th Circuit Still be Center Stage in Trump Policy Challenges?
- 2Obtaining Reimbursement from Medicaid
- 3NY Requiring Lawyers to Report Out-of-State Admissions, Public Discipline
- 4Man Hits Cow in Case That Tests 'Unrealistic Delivery Times'
- 5DC Judge, Applying 'Loper Bright,' Dismisses Complaint in Medicare Drug-Classification Dispute
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250