Branching Out on Her Own, this Eleventh Circuit Judge Dissents in Civil Rights Case

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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.

Judge Elizabeth Branch, a Federalist Society member, 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.

ELEVENTH CIRCUIT JUDGE JILL PRYOR’S EMPTY PROPERTY LLC’s