For decades, individual plaintiffs and interest groups have brought lawsuits under the Voting Rights Act to vindicate the right to an equal election system for all. Some of the Supreme Court’s most important rulings on voting rights and redistricting began with claims from individual plaintiffs.
But the Eighth Circuit Court of Appeals, in a precedent-shattering decision this week, declared that the act does not allow private parties to bring suit. Under the ruling, only the federal Department of Justice can initiate these lawsuits. The decision represents the latest body blow to the Voting Rights Act. It’s the kind of holding that the conservative majority on the Supreme Court has invited with its restrictive approach to the right to vote. If upheld, it would be as damaging as Shelby County v. Holder, the decade-old ruling that stripped the Voting Rights Act’s preclearance requirement for jurisdictions with a history of electoral discrimination.
Congress passed the Voting Rights Act in 1965 to address all facets of discrimination in voting. As President Lyndon Johnson said upon signing the law, “This act flows from a clear and simple wrong. Its only purpose is to right that wrong.” Section 2 of the Act, which Congress amended in 1982 to respond to prior Supreme Court rulings requiring proof of an intent to discriminate, prohibits states or localities from passing a voting law that has the effect of racial discrimination.
Private plaintiffs, especially voting rights groups, have used the provision to secure equal voting rules, particularly when states or localities enact new maps after each Census. Often, legislators draw maps diluting the strength of minority voters, and plaintiffs have invoked Section 2 to bring successful challenges to these maps. Indeed, the primary test federal courts still employ for Section 2 today—which the Supreme Court affirmed this past June—comes from a 1986 Supreme Court case, Thornburg v. Gingles, which started when seven Black voters in North Carolina filed suit to challenge the state legislative maps. No one on the Court under Chief Justice William Rehnquist questioned whether the law allowed those voters to sue under the act.
Every redistricting cycle since has included numerous lawsuits from private parties to challenge maps under Section 2, many of them requiring jurisdictions to draw fairer legislative districts. In June, the Supreme Court rejected a different challenge to Section 2 from Alabama, affirming a preliminary ruling that the state violated the Act by drawing a congressional map without sufficient minority representation. The plaintiffs in that case? Individual voters.
But in his dissent to the Alabama ruling, Justice Clarence Thomas noted that the majority had failed to address “grave constitutional questions” about the Act, including whether Section 2 “contains a private right of action.” This statement echoed the more explicit question from Justice Neil Gorsuch in a 2021 decision out of Arizona in which the Court (through brazen judicial activism) severely restricted Section 2 for claims of vote denial. In that case, Brnovich v. DNC, Gorsuch wrote a concurrence, which Thomas joined, to “flag” an issue: whether Section 2 allows a private right of action. “Lower courts have treated this as an open question,” Gorsuch wrote, but he cited just one lower court case to support that proposition—from 1981.
The Eighth Circuit, in a 2-1 ruling, took Gorsuch’s bait. Two judges—one nominated by Donald Trump and the other by George W. Bush—issued an opinion that ended more than four decades of precedent, ruling that Section 2 does not allow a private right of action. (The younger President Bush also nominated the dissenting judge.) It not only discounted years of judicial precedent but also persuasive legislative history and sheer common sense. It instead engaged in uber-textualism to declare that private plaintiffs cannot bring lawsuits under the act to vindicate their rights.
The Eighth Circuit majority acknowledged that the Supreme Court has assumed for decades that private parties can bring Section 2 lawsuits, noting that, in a 1996 case, five justices agreed on this point. Still, the majority claimed that the prior decision was not binding because the statements from those justices came from two different opinions in the case. The majority here also refused to follow the prior jurisprudence because that case was not expressly about Section 2, even though the justices explicitly stated in their opinions that Section 2 allows for private lawsuits.
The majority also recounted the significant legislative history of Section 2, including two committee reports from Congress when it amended the Act in 1982 that said that Congress “intended that citizens have a private cause of action to enforce their rights under Section 2.” However, the Eighth Circuit majority ignored this evidence because the private right of action is not explicitly in the text of the law.
The court even rejected its own precedent from 1989 in which it had recognized that “aggrieved persons” can bring a suit under Section 2. It also failed to acknowledge a decision from the Fifth Circuit Court of Appeals earlier this month that rejected the argument that Section 2 does not include a private right of action. The majority similarly failed to mention an Eleventh Circuit case from 2020 which had stated, “The VRA, as amended, clearly expresses an intent to allow private parties to sue the States.”
The Eighth Circuit’s ruling will have major ramifications. Unless reversed, private individuals in the seven circuits within the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) cannot bring Section 2 claims. A Supreme Court decision agreeing with the ruling will significantly curtail the nationwide voting rights protections Section 2 provides to people of color. Rick Hasen, a law professor and voting rights expert, noted that the ruling would “decimate the rights of minority voters.” The Department of Justice does not have the resources—or, under certain presidential administrations, the desire—to handle all of the cases necessary to secure the vital rights within Section 2. As the Eighth Circuit dissent put it, “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”
Look at the numbers. A database of Section 2 litigation maintained by Ellen Katz, a professor of law at the University of Michigan—cited in the Eighth Circuit dissent—notes that “Over the past forty years, there have been at least 182 successful Section 2 cases; of those 182 cases, only 15 were brought solely by the Attorney General.” Private plaintiffs are behind virtually all of the cases that have led to important remedies for minority voters.
As I recount in a forthcoming book, scheduled for release in May, the Supreme Court engendered this restrictive ruling—and many others—through its numerous decisions curtailing voting rights and deferring to state politicians in election rules. The Court cut back on Section 5 of the Act in the Shelby County case; it limited Section 2 for claims of vote denial in the Arizona case, Brnovich v. DNC. This new case, Arkansas State Conference NAACP v. Arkansas Board of Apportionment, will give the Court, under Chief Justice John Roberts, its next significant opportunity to harm voters.
My book offers a solution for those of us fighting this assault on voting rights: Where possible, we should avoid the Supreme Court altogether, as we can no longer trust it to protect the fundamental right to vote. The alternative here is to work for bipartisan compromises, where possible, within the political process.
The Eighth Circuit’s decision should provide a wake-up call to Congress. Ideally, it should immediately amend the Voting Rights Act to clarify that the law includes a private right of action. Legislative action should be unnecessary, as a proper judicial analysis would show that the private right exists already. But two justices—Thomas and Gorsuch—have already indicated that they disagree, and it’s plausible that three other justices will join them. Therefore, Congress should take the issue out of the justice’s hands.
Alas, with government shutdowns looming every few months, Congress can barely keep the lights on, so perhaps calling for a congressional fix is too much to ask. But this is an issue that should garner bipartisan support. Democrats, who would likely support an amendment, already control the Senate, though, of course, a Republican Senator could filibuster a new proposal. But perhaps enough Republican Senators would recognize the need to clarify the act. Hopefully, there are also enough reasonable members of the Republican-controlled House who would join the effort.
Congress last amended the Voting Rights Act in 2006 by a vote of 98-0 in the Senate and 390-33 in the House before President George W. Bush signed the renewal at a White House ceremony. One would hope that Republicans and Democrats could come together again to clarify that private parties can continue to bring Section 2 claims. After all, ensuring equality in voting should not be partisan.
If Congress does not act, then the Roberts Court probably will. Affirming this Eighth Circuit decision would be a crushing blow to one of our most significant civil rights laws.
Author: Joshua A. Douglas