I am more than a bit disturbed by this dissent on a Voting Rights Act case at the 11th Circuit

This is the Opinion of the Court and the dissent in the case. This is from an interlocutory appeal from a decision out of the Middle District of Alabama.

The underlying case, NAACP of Alabama v State of Alabama & the Secretary of State of Alabama is not of interest in the details, other than it was brought under the Voting Rights Act. Rather, it is a decision made by the Judge in the Middle District of Alabama, which was immediately appealed by the State of Alabama.

The State of Alabama moved to dismiss the State of Alabama as a defendant on Sovereign Immunity grounds, claiming the Plaintiffs, which include individuals as well as the NAACP, lacked Article III Standing based on Alabama’s Sovereign Immunity. The Judge in the case immediately rejected that claim, as United States District Judges have been doing since the very moment the Voting Rights Act was enacted in 1965.

The State of Alabama’s spurious argument, that the plain text of the VRA did not EXPLICITLY abrogate State Sovereign Immunity does not hold up very well. The STATUTE does not NEED to abrogate State Sovereign Immunity, explicitly or otherwise. State Sovereign Immunity to lawsuits in regards to voting rights and civil rights was permanently abrogated by the passage of the 14th and 15 Amendments. Any Act of Congress enforcing these two amendments, including the Civil Rights Act of 1964 and the VRA of 1965 do not need to abrogate State Sovereign Immunity, as that was accomplished in 1868 and 1870, respectfully.

The State of Alabama’s argument thus fails and the 11th Circuit Panel properly upheld the District Court’s judgement. The underlying case against the State of Alabama can proceed.

Since 1965, it has been undisputed that private citizens and their advocates may sue States to enforce the VRA and in fact that is the PRIMARY METHOD of enforcing Voting Rights in the United States, from 1965 to the present.

Now with all that said, we get to the dissent.

United States Circuit Judge Elizabeth Branch, incredibly, authored a dissent to a principle that has been accepted by the courts and by the United States Supreme Court since 1965. She does this by taking an incredibly tortured and narrow reading of Section 2, but totally ignoring the history and scope of the 14th and 15th Amendments. As I said above, Congress did not need to explicitly waive State Sovereign Immunity in the statute, as that had long been accomplished by the 14th and 15th Amendments. Congress can thus grant to private citizens the ability to sue States on their own behalf for Voting Rights Act violations. This has been the uncontested norm since 1965.

Even in Shelby v Holder, the Chief Justice uphold the sanctity of Section 2 of the VRA.

I fully support the majority ruling of the 11th Circuit Panel and the original judgement of the United States District Court.

I CONDEMN in the strongest possible terms the dissent by United States Circuit Judge Elizabeth Branch.

Thankfully, I have seen no other Judges that have even remotely expressed interest in supporting this incredibly wrongheaded viewpoint. Hopefully, this is a one and done dissent that will disappear into the dustbin of history.

For those interested, below is the original complaint by the Alabama NAACP and the private plaintiffs, which allege unfairness in the mode of election of Alabama’s top appellate courts.


For those that feel tl;dr here is the cliff notes version.
People have the right to vote.

This judge thinks that when that right is infringed that people don’t have the right to sue the government doing the infringing.


And a couple of days after the NAACP won the larger battle, the State of Alabama won the smaller battle.

The Judge from the Middle District of Alabama ruled that Alabama’s at-large elections for its appellate courts do not violate the Voting Rights Act and ruled for Alabama.

This will obviously go up to the 11th Circuit on appeal.

While there appears to have been no deliberate discriminatory intent when this procedure was drawn up decades ago, this would fall under the disparate impact doctrine IF it had been elections for a city council or county council. Disparate impact as it relates to judicial races is still very much an undeveloped doctrine.

I will watch this case as it moves through appeals.

Of course, the solution is to end judicial elections altogether and adopt merit selection, which would render this whole case moot.

She must be happy with her place in the judiciary and has no plans to be advanced.

Trump’s legacy.

Interesting. I agree she is reading this too narrowly.

Thanks for posting this!



only the best are nominated by Trump

Must of Trump’s nominees actually are quality. Hopefully her viewpoint on this issue remains an outlier.

Carter put Stephen Reinhardt on the court and he remained a 100% train wreck on the 9th Circuit for the better part of 40 years.

Most of Carter’s appointees were decent, but he sent up a few train wrecks.

As has every President.

It will be at least five years before we can really even BEGIN to judge Trump’s judicial legacy.

She couldn’t survive a congressional hearing on a new appointment.

I wouldnt put it past this senate to confirm her to SCOTUS if trump nominated her.