A divided federal appeals court ruled Monday that advocacy groups can’t file lawsuits under a section of the Voting Rights Act of 1965 that they have long used to combat discrimination in election laws and legislative maps.
In a 2-1 ruling, a panel of the U.S. Court of Appeals for the 8th Circuit upheld a district court opinion that threw out a legal challenge to a redistricting map for Arkansas’ state house. The Arkansas State Conference NAACP and Arkansas Public Policy Panel filed the lawsuit that argued the lines diluted Black voting strength.
“Did Congress give private plaintiffs the ability to sue under § 2 of the Voting Rights Act? Text and structure reveal that the answer is no, so we affirm the district court’s decision to dismiss,” Judge David Stras wrote for the majority.
The appellate court looked at the statute and upheld a district court ruling that found Congress only gave the U.S. attorney general the ability to bring such a case.
The Supreme Court likely will be asked to overturn the decision because it would dramatically alter the way Section 2 of the Voting Rights Act has been enforced, election law experts said.
“It’s hard to overstate how important and detrimental this decision would be if allowed to stand: 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,” Rick Hasen, a law and political science professor at UCLA, wrote on his blog.
Sophia Lin Lakin, director of the ACLU’s Voting Rights Project, described the ruling in a statement as a “a travesty for democracy” and said private individuals have brought cases under Section 2 for generations.
“By failing to reverse the district court’s radical decision, the Eighth Circuit has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for,” Lakin said.
The decision affects the states covered by the 8th Circuit, which is Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
The 8th Circuit’s opinion said a “deeper look” reveals that an assumption that private groups can file these lawsuits “rests on flimsy footing.”
“If the 1965 Congress ‘clearly intended’ to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended § 2?” Stras wrote.
Advocacy groups pointed out that courts have been hearing Section 2 claims for years that were brought by private plaintiffs, Stras wrote.
“But assuming their existence, and even discussing them, is different from actually deciding that a private right of action exists,” Stras wrote.
Chief Judge Lavenski Smith of the U.S. Court of Appeals for the 8th Circuit issued a dissent in the case, saying he would follow existing precedent until the Supreme Court rules or Congress changes the statute.
“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. “Resolution of whether § 2 affords private plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance.”
The ruling stems from a case out of Arkansas in which the Arkansas State Conference NAACP and the Arkansas Public Policy Panel brought a lawsuit against state officials over a redistricting map for the state House of Representatives. The plaintiffs had asked the federal court to declare the plan to be in violation of Section 2.
Attorney General Merrick B. Garland, during an Appropriations subcommittee hearing in 2022, weighed in on the private right of action issue under questioning from Sen. Joe Manchin III, D-W.Va.
“We believe there is a private right of action to enforce the Voting Rights Act,” Garland said. “It has always been assumed that that was the case since the act was passed in the mid-60s and no one has ever questioned it I think until this year.”
As to the fallout of the Justice Department being the only entity allowed to bring voting rights cases, Garland told lawmakers: “I’m going to be blunt, you’re going to have to give us a lot more money.”
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