“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In the February 2020 decision in Alabama State Conference of the NAACP  v. State of Alabama, the 11th Circuit rejected claims by Alabama that people or organizations cannot sue the state for violating the Voting Rights Act (VRA). The ruling also upheld Congress’ authority to hold states responsible for racially discriminatory voting practices, regardless of whether there is discriminatory intent. The majority included Judge Roger Vinson, a Reagan appointee who in 2011 declared the Affordable Care Act (ACA) unconstitutional. Trump appointee Elizabeth Branch dissented, however, supporting Alabama’s claim that it cannot be sued and arguing that the discriminatory effect test may well be unconstitutional. As one commentator has noted, Branch’s views would make the landmark VRA “toothless.”

In 2016, the state NAACP and a number of individuals sued the state of Alabama, contending that its system of electing state appellate judges violated the VRA. The district court rejected Alabama’s sovereign immunity claim, and Alabama appealed that to the 11th Circuit.

The 11th Circuit majority, including Judge Vinson, affirmed the district court and rejected Alabama’s claim. After carefully reviewing the language and history of the VRA, as well as two other federal appellate courts’ decisions that also rebuffed such state arguments, the majority explained that the Constitution clearly gave Congress the authority to override state claims of immunity in this area. They also concluded that it is “not a great intrusion into state sovereignty to require the States to live up to their obligation to avoid discriminatory practices in the election process.”

Trump judge Elizabeth Branch dissented, asserting that in passing the VRA, Congress had not sufficiently made clear that it was exercising its authority to waive states’ immunity from suit. The majority explicitly rejected this argument, pointing out that it was “simply not true based on the language of the statute” as well as prior court decisions.

In her dissent, Branch flagged, but ominously stated that she would “not consider” whether Alabama’s additional argument — that the “effects test” adopted by Congress in Section 2 of the VRA, which outlaws state or local practices that have the effect of discriminating against communities of color, regardless of whether there is discriminatory intent – is unconstitutional. The majority rejected that argument as well, pointing out that Section 2’s constitutionality “has been conclusively resolved in precedent binding on this Court.” Half of the judges who sit on the 11th Circuit are Trump appointees, and as Slate’s Mark Joseph Stern pointed out, if the full 11th Circuit (or the Supreme Court) rehears the case, it could “adopt” Branch’s views on suing states under the VRA and also determine that the effects test is unconstitutional.

Branch’s radical dissent is extremely dangerous. Fifty-five years after the Voting Rights Act was signed into law, Black voters’ access to the ballot box remains on perilous ground. But rather than protect that constitutional right, Elizabeth Branch and many other Trump judicial appointees are instead determined to leave the landmark legislation in tatters.

NOTE: On May 14, 2020, Branch filed another dissent in this case, this time arguing that the decision that rejected her Voting Rights Act dissent should be vacated as moot. See Alabama State Conf. of the NAACP v Alabama, 2020 US App Lexis 16080 (May 14, 2020).