The Voting Rights Act challenge.

Plus, I admit to being wrong about an immigration policy.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.

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Quick hits.

1. The political network backed by the Koch brothers has endorsed Nikki Haley in the Republican primary. (The endorsement)
2. Former First Lady Rosalynn Carter was honored at a memorial service attended by all living former first ladies, her 99-year-old husband and former President Jimmy Carter, former President Bill Clinton, and President Joe Biden. (The ceremony)
3. Today is the final day of the Israel-Hamas ceasefire. Negotiators are making progress on extending the pause in fighting while encouraging Hamas to continue releasing hostages. (The latest) 
4. Hunter Biden said he is open to testifying publicly before the House Oversight Committee on December 13, his lawyer said. (The testimony)
5. Rep. Robert Garcia (D-CA) filed a resolution on the House floor to expel Rep. George Santos (R-NY). A vote will be scheduled in the next two days. (The measure)

Today's topic.

The Voting Rights Act. Last week, a federal appeals court issued a ruling that only the U.S. government, not private citizens or civil rights groups, can sue under the Voting Rights Act (VRA). If the ruling is appealed to and upheld by the Supreme Court, or adopted by other courts, the decision would have a sweeping impact on voting rights across the country. The Eighth U.S. Circuit Court of Appeals issued the ruling in a 2 to 1 decision. 

Specifically, the ruling holds that only the U.S. attorney general can bring legal challenges under Section 2 of the VRA, which prohibits practices or procedures that discriminate on the basis of race, color or language of minority groups. The decision followed a suit brought by the Arkansas branch of the NAACP, which claimed that district lines drawn for the Arkansas House of Representatives unfairly reduced the number of majority-black districts.

“After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce Section 2,” the Eighth Circuit judges wrote. “The enforcement power belonged solely to the Attorney General of the United States.”

Judge David Stras, a Trump appointee, acknowledged in his majority ruling that such private lawsuits have been brought for decades but argued that the text and structure of the VRA did not permit them.

“If the 1965 Congress ‘clearly intended’ to create a private right of action, then why not say so in the statute?” Stras said.

Chief Judge Lavenski R. Smith, a George W. Bush appointee, wrote in dissent, saying a long line of precedent allowed citizens to seek judicial remedies for discriminatory voting practices.

“Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection,” Smith wrote. 

Legal experts expect the case to be appealed and eventually arrive at the Supreme Court, which has limited the scope of the VRA in the past but has always assumed private voting litigants have a right to sue. However, Clarence Thomas and Neil Gorsuch have both questioned whether citizens are granted that right under Section 2 of the Voting Rights Act in recent cases.

Republican attorneys general from 14 states joined Arkansas in the case’s appeal to the Eighth Circuit. Arkansas Attorney General Tim Griffin said courts have allowed “political activists to file meritless lawsuits seeking to seize control of how states conduct elections and redistricting" for too long, while Texas Attorney General Ken Paxton said private enforcement of federal voting rights laws incurs heavy costs on states and intrudes on state sovereignty.

Meanwhile, Sophia Lin Lakin, the director of the American Civil Liberties Union’s Voting Rights Project, called it a "travesty for democracy" and a radical decision that contradicts decades of precedent.

Today, we're going to examine some arguments from the left and right about the decision and what it means for the Voting Rights Act. Then, my take.

What the left is saying.

• The left is outraged by the decision, which it says brushed aside clear precedent to deliberately undercut the Voting Rights Act. 
• Some frame the outcome as an ongoing consequence of Trump’s time in office and the judicial appointments he made.
• Others think Congress should take action to protect the Voting Rights Act before the Supreme Court rules on the case.

In Slate, Mark Joseph Stern said “the dead hand of the Trump Administration is still strangling the right to vote.”

“Why is this such a problem? Since the U.S. attorney general has limited resources—and because Republican attorneys general no longer bring VRA suits, the main counter to infractions to the VRA is private entities. And indeed, private plaintiffs have been filing lawsuits under the relevant provision of the VRA, known as Section 2, since it was enacted in 1982,” Stern wrote. “The University of Michigan’s Voting Rights Initiative has counted well over 400 suits challenging discriminatory election laws, and the overwhelming majority of these lawsuits have been brought by private plaintiffs, not the attorney general. And not one of them was thrown out on the grounds that private plaintiffs cannot sue under Section 2 of the VRA.”

“Stras’ conclusion defies the plain text of the statute, history, and common sense. It rejects real SCOTUS precedent in favor of the fringe views of two far-right justices, Clarence Thomas and Neil Gorsuch,” Stern added. “Stras’ opinion also flies in the face of Congress’ stated intent to let private parties sue under the VRA. He seems motivated not by law or facts, but by annoyance that Black Americans would dare defend their right to equal representation.”

In Bloomberg, Stephen L. Carter wrote “the 8th Circuit ignored decades of precedent” in its ruling.

The court’s decision “disrupts settled expectations. Private plaintiffs have sued under Section 2 for decades, and, until recently, their right to sue has gone unchallenged,” Carter said. “If a regulatory regime has been working — and this one has — there’s little reason for judges to disturb it unless some fundamental constitutional value is being undermined.” Additionally, the ruling shows “tone-deafness. Even if one thinks the 8th Circuit is correct, we might expect an opinion restricting the reach of the Voting Rights Act to be delivered in solemn tones. Instead, we’re treated to what can only be called snark.”

“Even the US Supreme Court gets a healthy dose of skepticism. Here’s what the 8th Circuit has to say about the five Supreme Court justices who in 1996 agreed that Section 2 creates a private right to sue, but did not ultimately agree on a single opinion: ‘Assumptions and statements of belief… are not holdings, no matter how confident the court making them may sound.’ Those statements by the justices, wrote the panel, ‘are the least valuable kind.’ Well, that’s one way to deal with inconvenient precedent.”

In The Hill, Maureen Edobor argued “Congress should preempt the Supreme Court” and protect the Voting Rights Act. 

“The 8th Circuit gives the Supreme Court yet another opportunity to finish the task they’ve embarked upon since Shelby v. Holder in 2013: to invalidate the most effective enforcement mechanisms of the VRA. If the Supreme Court takes the case, agreement with the 8th Circuit will have immediate nationwide implications on minority voters’ ability to sue under other VRA provisions, like the prohibition against poll taxes, and Congress’ ability to create rights that protect minority voters.”

“Certainly, Congress needs to act, while it still can send a clear rebuke of the Supreme Court’s decision, drawing upon its legacy when it did the same in 1982, after the Supreme Court intentionally misstated Section 2’s standard of proof in Mobile v. Bolden. This is the least Congress can do, and not beyond the realm of reality as last Congress, a bipartisan and narrow revision to the Electoral Count Act was made to clarify the vice president’s role in the counting of electoral votes after the atrocities of Jan. 6.”

What the right is saying.

• The right is subdued in its reaction to the ruling and skeptical that the Supreme Court will support the Eighth Circuit’s reasoning.
• Some say the Eighth Circuit is forcing the Supreme Court’s hand on this issue but hope Congress will intervene instead.
• Others suspect the decision will be used by the left for political fundraising. 

In PJ Media, Rick Moran suggested the Supreme Court will nullify the decision but criticized Democrats for trying to influence elections “in the courtroom, not at the ballot box.”

The court “found no specific language for a ’private right of action’ on voting rights cases, meaning that individuals and groups like the NAACP will be unable to sue based on the Voting Rights Act,” Moran said. Now, “the Supreme Court will hear the case and even though the court's conservative majority has weakened the Act in the past, they're not likely to allow this kind of radical change to go forward. 

“While no explicit language in the Act allows for a ‘private right of action,’ there is certainly an implied right given the subject is elections and the problems at the time the law was passed cried out for individuals to have the ability to sue,” Moran wrote. “In the meantime, Democrats' challenges in other redistricting cases could give them a big advantage in the 2024 election. They are likely to prevail in several of these race-based challenges, flipping red seats to blue based on where the lines are drawn.”

In The Federalist, Margot Cleveland outlined the “two choices” facing the NAACP after the Eighth Circuit’s decision.

“The decision left Democrats and the left-wing press deriding the decision as rolling back ‘increased minority power and representation in American politics,’ while Republicans and conservative media outlets praised the decision as protecting election-integrity efforts. In reality, though, the opinion concerned solely a question of statutory interpretation and the role of the courts in creating claims omitted by Congress,” Cleveland said. “The majority’s analysis proved solid. Yet, given that for approximately 50 years courts have assumed private parties could sue under Section 2 of the VRA, the split 2-1 decision seems likely to be reconsidered by the entire federal circuit court.”

“The NAACP has two choices now: It can ask the entire Eighth Circuit to rehear the case — what is called an en banc hearing — or it can seek review by the United States Supreme Court. If the Eighth Circuit does not rehear the case, or does and adopts the majority’s view that no private right of action exists, the Supreme Court’s hand will be forced, as there will now be a split in the circuits on the meaning of federal law — something only the high court can resolve, unless Congress speaks. Of course, the better and more appropriate route would be for Congress to address the issue, and at its core, that is really what this VRA case is about: who makes the law.”

In The Daily Signal, Fred Lucas explained why the Supreme Court “may knock out ruling on [the] Voting Rights Act.”

“The Supreme Court likely will reject an appeals court’s decision to eliminate private lawsuits intended to enforce part of the Voting Rights Act,” Lucas wrote. “Justice Samuel Alito, a member of the Supreme Court’s conservative majority, has rejected the notion in past oral arguments that only the government may act to enforce the Voting Rights Act.” Further, “liberal activist groups will find other means to bring voting litigation,” and “the 8th Circuit’s flawed ruling will be little more than a means to engage in more fundraising.”

The decision also “clashes with a recent ruling by the 5th Circuit Court of Appeals upholding the private right of action and covering Alabama, Florida, Georgia, Texas, Louisiana, and Mississippi,” and such conflicting rulings “would almost ensure Supreme Court review.” If it comes to that, legal experts on both sides are signaling that “the ruling likely won’t survive."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• As confusing as Jarkesy was, this one is simple — the Eighth Circuit got it wrong.
• The commentary from the right and left both make it pretty clear how extreme and absurd the decision is.
• Maybe Congress passes clarifying legislation, but it shouldn’t need to; I expect the Supreme Court to throw this decision out. 

While covering the Supreme Court case SEC v. Jarkesy yesterday, I said there was a lot I didn't know, and that I felt unsure about the law and what would happen.

Today, the opposite is true: I think it's pretty clear this is a radical ruling that shouldn’t stand. It's hard to square it with the years of precedent, the intent of the legislation, and the reality of how Section 2 has been used since its inception. I am very confident the Supreme Court will throw this ruling out if the case is appealed to them.

First, it should be acknowledged from the outset that the judge's plain explanation here — that no explicit language in the act allows for a private right of action — is accurate. There's no point in disputing that; you can read Section 2 here, it isn't very long. But the idea that such a thing needs to be explicitly permitted by the law is more than a little obtuse. 

It seems obvious that a law designed to give citizens a remedy if their right to vote is infringed is intended to allow those citizens to challenge the law themselves. The entire point of Section 2 of the Voting Rights Act is to protect citizens from the state. Rick Moran even concedes this in his criticism of Democrats under "What the right is saying." 

"There is certainly an implied right given the subject is elections and the problems at the time the law was passed cried out for individuals to have the ability to sue," Moran writes.

It's really not that complicated. That's why, despite the vast majority of the over 400 challenges to voting rights laws under Section 2 coming from private citizens or groups, not one has ever been thrown out based on the fact they came from a private citizen. Ever.

Of course, it'd be one thing if Section 2 were being abused to the point that some other right were being infringed. As Stephen L. Carter wrote under "What the left is saying," if a "regulatory regime has been working — and this one has — there’s little reason for judges to disturb it unless some fundamental constitutional value is being undermined." But that just hasn't happened, and there is nothing about this aspect of the VRA that needs to be remedied.

Instead, we have over 40 years of people using the law exactly how it was intended to be used. The outcome the Eighth Circuit seeks here is one where challenges to voting rights violations come solely from the attorney general — an aim that is far from self-evidently beneficial and should be absurd to everyone. The attorney general doesn't have the time or resources to properly represent all the people whose right to vote has been violated, nor are the AG’s priorities always aligned with those of private citizens. It's akin to state attorneys general relying on the president to file lawsuits on their behalf — that process would undermine their existence in the first place.

The most jarring thing about this decision is that there are two judges sitting in a federal court who opted to take a swing at this. It's hard to come up with any other reason why they’d do so aside from wanting to limit challenges to voting rights violations and to make it easier for restrictive laws to proliferate. If I’m being charitable, maybe I could say that they are prompting Congress to clarify the law.

While it’s true that Congress could provide more clarity to the VRA or preemptively solidify it, it really shouldn’t have to. The general silence from columnists on the right, and the evasiveness from those who did respond, is a good indication of just how radical this decision is. I'm pretty dismayed this ruling came down in the first place, but I'm happy to see the reaction to it — and confident it won't ever become the law of the land.

Your questions, answered.

Q: How has Biden’s immigration rule impacted encounters at the southern border six months later?

— Myself, from the past

Tangle: On March 3 of this year we covered a new immigration rule from the Biden administration, and several readers pushed back on the way we summarized it at the time. I wrote that the number of border encounters was so high that even the most pro-immigration person would admit that it made efficient processing of asylum claims impossible. Because of that, I said that one of the goals for any new immigration policy should be to decrease border encounters in the Southwest. After a few new policies from Biden, I saw that encounters were down, so I credited the administration accordingly. A few readers said it was too early to tell if that data was conclusive and we should revisit the numbers later on.

I thought that was a good point, so I promised those readers that I would look back at the data six months later. It’s now six months later, so it’s time to make good on that promise. First, let’s back up. What were those rule changes? 

To fill the gap left when the pandemic-era immigration restriction of Title 42 expired earlier this year, the Biden administration implemented a policy that penalizes asylum seekers who either: 1) didn’t apply for asylum in countries they passed through to get to the U.S.; or 2) crossed the border illegally. Simultaneously, the administration opened the door to more legal immigration by creating a mobile app to make applying for immigration or asylum easier. In January, Biden instituted a rule that the U.S. would cap the total number of legal immigrants from Cuba, Haiti, Nicaragua, and Venezuela at 30,000 per month — after a background check, U.S. sponsorship, and an application received through the app. We covered that, too, highlighting the arguments from the right and left about the rule change.

In “my take” in March, I said that we should judge the plan based on its results. “For me, a ‘win’ would be to see a reduction in southwestern land encounters, a more orderly system for adjudicating asylum claims, and more readily available legal pathways for migrants to come here and work temporarily,” I wrote at the time.

So, have Southwestern land encounters decreased? Well, it looks like they’ve actually increased. The data we have from the last six months shows a similar trend of encounters peaking in March and April, then gradually decreasing over the summer. However, encounters started to spike again in August — against trends from previous years — and appear to still be elevated over that time, resulting in more total encounters so far this year than by the same time last year. 

Now, Biden can argue that immigration is down based on where it would have been had these rules not been put into effect. That’s a fine argument, but since conditions preceding the rule were partially created by Biden’s administration in the first place, at the end of the day it just doesn’t look like a win for Biden. Here’s all of the Southwestern land encounters through September.

And here are all the encounters with Cubans, Haitians, Nicaraguans, and Venezuelans through September this year, which you can filter here.

So, based on this data alone, it looks like I was wrong. Points for you, the skeptical readers. When we do our end-of-year review and grade our issues, this take — and its wrongness — will certainly be included.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

ChatGPT has made waves across countless industries since it launched last year, with the medical industry among the most impacted. Across the U.S., doctors and other medical professionals are reporting remarkable breakthroughs with the technology: It passes the U.S. Medical Licensing Exam, writes discharge summaries and radiology reports, analyzes new research, and helps doctors document patient visits. The pharmaceutical industry is also using these generative AI models to make drug discovery more efficient. While some are concerned about the potential for ChatGPT to generate misinformation and undermine medical education, the industry as a whole appears to be charging forward with adopting the technology in all facets of its work. Axios has the story on what’s ahead for AI and medicine. 

Numbers.

• 153. The number of years since the 15th Amendment was ratified.
• 58. The number of years since the Voting Rights Act was signed into law. 
• 18. The number of state voting laws objected to by the Department of Justice under Section 5 of the Voting Rights Act since 2010. 
• 44. The number of cases brought by the Department of Justice to enforce Section 2 of the Voting Rights Act since 1988.
• 182. The number of Section 2 cases won in the past 40 years.
• 15. In that time, the number of successful Section 2 cases that were brought solely by the attorney general.
• 1. The number of lawsuits alleging discrimination under the Voting Rights Act brought by the Department of Justice during the Trump Administration.

The extras.

• One year ago today we covered the Covid-19 protests in China.
• The most clicked link in yesterday's newsletter was the accidental magpie shrine.
• Readers also don't know: An all-time low of 229 Tangle readers responded to our poll asking which parts of the challenge in SEC v Jarkesy were convincing. In a poll that allowed multiple selections, 68% said they found the "unitary executive" challenge convincing, 48% said the "nondelegation" challenge, 44% said the "public rights" challenge, and 32% weren't convinced by any. "I don't know anything about this subject, but if it stops Jarkesy from going to jail, it's wrong," one respondent said.
• Nothing to do with politics: Check out the winners of The Comedy Wildlife Photography Awards for the past year.
• Take the poll. What do you think about the Eighth Circuit's decision on the Voting Rights Act? Let us know!

Have a nice day.

For two and a half weeks, 41 construction workers were trapped in a collapsed highway tunnel under the Himalayan Mountains. Then on Tuesday, after weeks of delays and complications, all 41 were rescued. The intense effort to free the crew in the Uttarakhand state in Northern India had been going on for 17 days when rescue teams achieved a literal breakthrough, breaching the collapsed debris to access the area where the workers had been trapped. Rescuers were then able to bring out the workers one by one through a three-foot escape pipe. "I want to say to the friends who were trapped in the tunnel that your courage and patience is inspiring everyone," Indian Prime Minister Narendra Modi said on X/Twitter.  "I also salute the spirit of all the people associated with this rescue operation... Everyone involved in this mission has set an amazing example of humanity and teamwork." United Press International has the story.

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