Crazy news on the 150th anniversary of the Fifteenth Amendment.

States ordinarily have sovereign immunity against lawsuits without their consent. But Congress has the power to “abrogate” (or eliminate) that immunity through a statute. For decades, it has been unquestioned (and at least 2 Circuit courts have agreed) that Congress abrogated state sovereign immunity for lawsuits brought by DOJ or private plaintiffs to enforce Section 2, a key provision of the Voting Rights Act.

An 11th Circuit panel agreed that Congress did so in Section 2 of the VRA, rejecting the state of Alabama’s contrary argument.

But recently appointed 11th Circuit Judge Elizabeth Branch disagreed, saying Congress only abrogated the immunity when DOJ sues. Given that most Section 2 VRA suits are brought by private plaintiffs (the Trump DOJ has brought ZERO Section 2 cases so far), Judge Branch’s decision would essentially eliminate liability under Section 2 of the Act.

Just wow.

I wonder if Alabama will see if there are 5 votes at the Supreme Court for this position.