Three-judge panel in Arkansas finds Congress did not abrogate state sovereign immunity under the Voting Rights Act

I failed to blog about this opinion that was released last fall (in October), Simpson v. Hutchinson. A three-judge district court issued the decision, Circuit Judge Stras, joined by District Judges Marshall and Moody. The court dismissed the complaint for failure to state a claim on racial vote dilution, but it included this analysis of state sovereign immunity. The court concluded neither the State of Arkansas nor the governor could be sued (but the Secretary of State, responsible for enforcing the election laws, could face a lawsuit.) (The analysis on this issue, with light revisions, below.)

One loose end remains. The State of Arkansas and Governor Asa Hutchinson each argue they are immune from suit under the doctrine of sovereign immunity, which limits our authority to hear lawsuits brought by private parties against states and their officials. Seminole Tribe of Fla. v. Florida (1996). The question we must answer is whether Congress abrogated sovereign immunity through the Voting Rights Act.

Congress has the authority to abrogate sovereign immunity under some of its constitutional powers. The enforcement power under § 5 of the Fourteenth Amendment is one of them. See Kimel v. Fla. Bd. of Regents (2000) (explaining that the Supreme Court has “reaffirmed” the ability of Congress to abrogate sovereign immunity under § 5 “on numerous occasions”). That power, which is exercised through “appropriate legislation,” allows Congress to “provide for private suits against States or state officials which are constitutionally impermissible in other contexts.” Fitzpatrick v. Bitzer (1976); see also U.S. Const. amend. XIV, § 5; U.S. Const. amend. XV, § 2.

The problem for the plaintiffs, however, is that Congress must abrogate sovereign immunity with “unmistakable clarity.” Dellmuth v. Muth (1989) (quoting Atascadero State Hosp. v. Scanlon (1985)). There is no mention of sovereign immunity in the Voting Rights Act nor any explicit authorization for a cause of action against states. So nothing, in other words, “unmistakably” abrogates it. Id.

The plaintiffs’ strongest argument to the contrary comes from §§ 3, 4, and 12 of the Voting Rights Act. Relying on six passages in total, they piece together what they believe is a clear legislative intent to permit suits against states. One set allows an “aggrieved person” to institute proceedings “to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision.” 52 U.S.C. § 10302(a), (b), (c) (emphasis added). Another provision allows the Attorney General to consent to the entry of judgment if “the plaintiff” makes a “showing of objective and compelling evidence . . . that the State or political subdivision has complied with the requirements of subsection (a)(1).” Id. § 10303(a)(9) (emphasis added). The plaintiffs pose an important question: why mention states and political subdivisions at all if no one can sue them?

Recognizing the possibility of a lawsuit against a “state or political subdivision” is different from specifically authorizing it. The Voting Rights Act may very well, as the Supreme Court put it, “lend[] force to the inference that the [s]tates were intended to be subject” to liability. Dellmuth. But an inference is not an “unequivocal declaration,” and only the latter allows us to say “that Congress intended to exercise its powers of abrogation.” Id. With no “unequivocal declaration,” Arkansas cannot remain in the lawsuit. See Atascadero.

Neither can Governor Hutchinson. Under Ex parte Young (1908), a state official is “not the State for sovereign-immunity purposes” if the lawsuit seeks only injunctive relief for violations of federal law. Va. Off. for Prot. & Advoc. v. Stewart (2011). With important limits, it allows courts to remedy ongoing violations of federal law through the “fiction” of directly suing a state official. Idaho v. Coeur d’Alene Tribe of Idaho (1997). One important limit is that the officer sued must have “some connection with the enforcement of the act.” Ex parte Young. Otherwise, as Ex parte Young warns, “the constitutionality of every act passed by the legislature could be tested by a suit against the governor . . . , based upon the theory that . . . as the executive of the [s]tate[, he] was . . . charged with the execution of all its laws.” Id. (quoting Fitts v. McGhee (1899)).

We cannot allow Governor Hutchinson to remain in the case based on little more than a general duty to enforce the law. Consider the allegations in the complaint, which describe his obligation to “administer[] and enforce[] the state’s law and Constitution, including those related to elections, and including the rights of citizens of the State to vote and to equal protection of the laws.” [Compl. ¶ 9.] These are nothing more than legal conclusions, and even then, they do not suggest that he has any “special” role in elections. Ex parte Young.

The “special” role instead belongs to the Secretary of State. Ex parte Young. As a separately elected official with his own set of duties, he “is responsible for administering and overseeing the state’s elections and implementing election laws and regulations, including Arkansas’s congressional plan.” [Compl. ¶ 10]; see also Ark. Const. art. 6, §§ 2, 21. In light of this specific delegation of authority, we can only conclude that Governor Hutchinson’s role in elections, if any, is too tenuous to allow a prospective injunctive action to be brought against him. See Tex. Democratic Party v. Abbott (5th Cir. 2020) (holding that “the connection between the [Texas] Governor and enforcement of the challenged [voting] provisions [was] insufficient” for Ex parte Young to apply).

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