The Voting Rights Act, which Congress passed to enforce the 15th Amendment, has been targeted by the right wing since it was enacted in 1965. In the last few years, the Supreme Court has weakened the Voting Rights Act but has never ruled that civil rights organizations and aggrieved individuals could not sue to enforce its provisions.
On November 20, 2023, a panel of the Eighth United States Circuit Court of Appeals ruled two-to-one in a racial gerrymandering case that only the Department of Justice (DOJ) can file lawsuits to vindicate voting rights under Section 2 of the Voting Rights Act. In Arkansas NAACP v. Arkansas Board of Apportionment, the appellate panel dismissed a lawsuit filed by Black Arkansas voters who claimed that the state’s congressional map would illegally “undermine the voting strength of Black Arkansans.”
This case is likely headed to the Supreme Court. Although the Eighth Circuit’s ruling flies in the face of prior case law, the high court may use it as an opportunity to gut the Voting Rights Act once and for all.
The 15th Amendment provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and it grants Congress the “power to enforce this article by appropriate legislation.”
Section 2 of the Voting Rights Act says:
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. (emphasis added)
In 2021, the Supreme Court weakened the protection of Section 2 in Brnovich v. Democratic National Committee. The court upheld two Arizona voter suppression laws that had been challenged by civil rights groups for disproportionately burdening voters of color. The ruling makes it easier for courts to affirm voter suppression laws that erect obstacles to voting for people of color.
Eight years earlier, in the 2013 case of Shelby County v. Holder , the high court struck down the operative provision of Section 5 of the Voting Rights Act that had required new voting rules in jurisdictions with a history of racial discrimination to be precleared by the DOJ. Writing for the majority, Chief Justice John Roberts provided assurances that Section 2 would still be available to “individuals” to file lawsuits “to block voting laws from going into effect.”
Trump-Appointed Judge Wrote Circuit Court Opinion
The lawsuit in the new case was brought in 2021 by the Arkansas NAACP and other plaintiffs who challenged a legislative redistricting plan for the Arkansas state house. They charged that the congressional map diluted the voting power of Black people and asked that five additional majority-Black districts be drawn.
Eighth Circuit Court Judge David Stras, a Donald Trump appointee and former law clerk for Clarence Thomas, wrote the majority opinion affirming the district court decision that only the DOJ could bring suits under Section 2 of the Voting Rights Act because it does not explicitly allow for “a private right of action.” Judge Stras cited the district court judge’s statement that plaintiffs had “a strong merits case” but were not eligible to file the lawsuit in the first place.
Writing for himself and George W. Bush appointee Judge Raymond Gruender, Judge Stras noted, “After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce [Section] 2. The enforcement power belonged solely to the Attorney General of the United States.”
None of the parties had raised the issue of who could file Section 2 lawsuits. The district court judge apparently took a cue from Thomas and Neil Gorsuch, who had twice broached the jurisdictional issue in prior concurring and dissenting opinions.
George W. Bush appointee Chief Judge Lavenski Smith wrote in dissent that, of the 182 successful Section 2 lawsuits in the last 40 years, only 15 were filed by the DOJ. Due to limited resources, the DOJ can only file a few such suits each year. When there’s a right-wing administration in power, the DOJ may bring none at all, rendering Section 2 a dead letter.
Judge Smith noted that since the passage of the Voting Rights Act, federal courts around the country, including the Supreme Court, have heard Section 2 cases filed by private plaintiffs. “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agent for protection,” he wrote.
The plaintiffs argued that when Congress amended the Voting Rights Act in 1982, both the House and Senate Judiciary Committees said that “it is intended that citizens have a private cause of action to enforce their rights under Section 2.” Judge Stras dismissed that argument, writing, “There are many reasons to doubt legislative history as an interpretive tool,” a common claim of right-wing textualists.
But Congress amended or renewed the Voting Rights Act five different times between 1965 and 2006 and not once did the private right of action under Section 2 become an issue that Congress sought to debate.
Will SCOTUS Uphold a Private Right of Action in Section 2 Cases?
The Fifth Circuit Court of Appeals held in November that private parties can sue under Section 2. There is now a split among the federal appeals courts, which makes it likely that the Supreme Court will hear the Arkansas case.
In two recent cases, the Supreme Court preserved voting rights. In June, the court struck down a racist congressional map as a violation of Section 2 in Allen v. Milligan, and in July it preserved judicial review of state legislative enactments in Moore v. Harper. Roberts wrote the opinions and Brett Kavanaugh voted with the majority in both cases. Amy Coney Barrett joined the majority in Moore. Thomas, Gorsuch and Samuel Alito dissented in both.
Thomas and Gorsuch recently invited their colleagues to decide whether Section 2 allows a private right of action. Alito would likely join them in upholding the Eighth Circuit decision in the Arkansas case if and when the court reviews it. Barrett, Roberts and Kavanaugh could go either way.
Richard L. Hasen, a voting rights expert at the University of California Los Angeles Law School, said it is “hard to overstate how important and detrimental this decision would be if allowed to stand,” adding that “the vast majority of claims to enforce Section 2 of the [Voting Rights Act] are brought by private plaintiffs, not the Department of Justice with limited resources.”
“Section 2 of the Voting Rights Act is one of the most important pieces of legislation ever enacted by Congress,” former DOJ attorneys wrote in their amicus brief. “Decades of legislative enactments and reenactments, judicial rulings, and a common understanding among private parties and the federal government have left no question that Congress intended that Section 2 of the [Voting Rights Act] confer a private right of action from the time of its passage in 1965 through the present day.”