This Arkansas State Conference of the NAACP has decided against appealing an 8th Circuit ruling that individuals have no standing to sue under Section 2 of the Voting Rights Act. The ruling comes after decades of court cases that have allowed private litigants to sue under the Act. First a little background:
Who Can Sue Under the Voting Rights Act
Section 2 of the Voting Rights Act (VRA) (found at 52 U.S.C. § 10301) prohibits discrimination in voting based on race, color, or membership in an enumerated language minority group. Since its enactment, courts have assumed that private citizens and organizations could bring Section 2 lawsuits in addition to the explicit right to sue that the text of the Act gives to the U.S. Attorney General to challenge state discriminatory voting practices and procedures – including redistricting maps.
A Supreme Court Provocation
Since its enactment, courts have litigated hundreds of cases under Section 2, many brought by private individuals and advocacy organizations. In 2021 however, the U.S. Supreme Court heard Brnovich v. DNC, to resolve the question of whether Arizona’s voting laws restricting out-of-precinct voting and 3rd party ballot collection violated Section 2. Justice Gorsuch, joined by Justice Thomas, wrote a concurrence, asserting that the Court’s Section 2 cases “have assumed—without deciding—that the [VRA] furnishes an implied cause of action under §2.”
The 8th Circuit’s Logic
Fast-forward to November 2023, the 8th Circuit upheld a lower court decision in Arkansas State Conference NAACP v. Arkansas Board of Apportionment that explicitly denied any private right of action under Section 2. This makes it the first federal appellate court in the nation to do so. The underlying case was a minority vote dilution claim against Arkansas’s newly drawn House map. The court concluded that the “text and structure” of Section 2 does not give private plaintiffs the ability to sue under Section 2.
The dissenting judge on the 8th Circuit panel acknowledged that up to this point, the courts have never directly addressed the existence of a private right of action under § 2; however, courts have repeatedly allowed cases by private litigants to go forward.
On July 1, the plaintiffs in this case declined to pursue an appeal to the U.S. Supreme Court out of concern for the possibility that the high court would agree with the 8th Circuit, making private litigation under Section 2 unavailable for all. As of now, the 8th Circuit’s decision affects 7 states; Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
What Happens Next?
The U.S. Supreme Court may still get this question in the future because a split exists between the 8th Circuit and the 5th Circuit, which affirmed a private right of action for Section 2 in 2022.
Plaintiffs in the 8th Circuit may continue to challenge minority vote dilution under the 14th and 15th Amendments and Section 1983 of the Civil Rights Act. However, the evidentiary hurdles are less favorable for plaintiffs under these statutes.
The court opinion also noted that the lower court determined the enforcement power under Section 2 belonged solely to the Attorney General of the United States, who was given five days to join the lawsuit by the district court but the Office declined. This could make private actions viable in the 8th Circuit depending on the U.S. Attorney General’s Office’s willingness to join the litigation.
Congress may consider amending the law to clarify that Section 2 confers to private individuals and organizations the right to bring suit. Congress has acted similarly after the U.S. Supreme Court decided City of Mobile v. Bolden, holding that disproportionate effects alone, absent purposeful discrimination, are insufficient to establish a claim of racial discrimination affecting voting. Congress amended Section 2 in response to this decision changing the prohibition against “discriminatory intent” to include a “discriminatory results” standard.
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