A federal appeals court ruled Monday that only the federal government, not private citizens or organizations, can bring lawsuits against allegedly racially discriminatory voting rules — a decision that critics call a “travesty for democracy” and is likely to impact Midwestern states ahead of the 2024 election and ultimately head to the Supreme Court.
The 8th Circuit Court of Appeals ruled in an Arkansas redistricting case that only the U.S. Attorney General has the power to bring lawsuits under section two of the Voting Rights Act, which prohibits voting rules that “discriminate on the basis of race, color, or membership” in a “language minority group.”
The ruling upends how voting rules have traditionally been challenged, with most lawsuits brought by private voters or organizations like the NAACP or American Civil Liberties Union (ACLU), with election law expert Rick Hasen noting “the Supreme Court and lower courts have for decades allowed such cases to be brought” by private groups.
As it stands now, the ruling only applies to the states that are covered by the 8th Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota — meaning it will be significantly harder to challenge voting rules in those states ahead of the 2024 election as long as this ruling stands.
Plaintiffs in the case (which include the NAACP and ACLU) can still ask the full 8th Circuit to hear the case, rather than just the three-judge panel that issued Monday’s ruling, and can appeal the case to the Supreme Court.
The case is widely expected to head to the Supreme Court, particularly given that it conflicts with a ruling the 5th Circuit Court of Appeals issued earlier in November that upheld the right of private plaintiffs to sue under the law, and noted other appeals courts have come to the same conclusion that a private right to bring lawsuits under that section exists.
Should the Supreme Court uphold the 8th Circuit’s ruling, that would make it significantly harder to challenge voting rules nationwide, which could have widespread effects for the 2024 election should the court take up the case this term.
The case at the heart of the 8th Circuit’s ruling alleged Arkansas’ newly drawn congressional map unlawfully diluted votes from Black residents, arguing that while Black voters make up 16% of the state’s electorate, the way the maps were drawn meant only 11% of their preferred candidates would win. A lower district court judge, appointed by former President Donald Trump, ruled in February 2022 that while he believed the plaintiffs had a “strong merits case” that the maps could violate the Voting Rights Act, he couldn’t rule in their favor because he believed the plaintiffs didn’t have the right to bring the case at all. If the Supreme Court takes the 8th Circuit’s ruling up, it will be the latest in a string of cases the high court has considered involving the Voting Rights Act, including rulings that have weakened the law and limited its scope with Shelby County v. Holder in 2013, Abbott v. Perez in 2018 and Brnovich v. Democratic National Committee in 2021. In June, the court surprised voting rights advocates when it upheld the Voting Rights Act’s section two protections in a ruling that struck down Alabama’s redrawn map as racially discriminatory.
15. That’s the number of successful cases brought under section two of the Voting Rights Act since 1982 by the federal government, according to a database maintained by the University of Michigan and cited in a dissenting opinion to Monday’s ruling. That’s out of more than 400 total cases brought under section two that have been litigated in federal court since 1982, including 182 cases that have been successful.
What To Watch For
The ACLU and other plaintiffs in the Arkansas case said in a statement Monday they are “exploring options” in the wake of the 8th Circuit’s ruling. Should the case go to the Supreme Court as expected, it still remains to be seen how the 6-3 conservative court could rule. Some legal experts have been doubtful it will, with Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, telling the New York Times she “would be surprised if this decision stands,” and Advancement Project executive director Judith Browne Dianis telling CNN she “[doesn’t] think the Supreme Court can go in a different direction” from its previous precedent by siding with the 8th Circuit. Two Supreme Court justices, Justices Neil Gorsuch and Clarence Thomas, have expressed some openness in the past to eliminating the right to private action under section two, with Gorsuch writing in a 2021 concurrence that Thomas joined that the court has only “assumed — without deciding” that such a right exists, and “lower courts have treated this as an open question.”
“This ruling is a travesty for democracy,” Sophia Lin Lakin, director of the ACLU’s Voting Rights Project who argued the case for the plaintiffs, said in a statement Monday, adding the ruling “has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for.”
Federal appeals court ruling threatens enforcement of the Voting Rights Act (Politico)
Federal Court Moves to Drastically Weaken Voting Rights Act (New York Times)
Eighth Circuit’s Holding that Private Plaintiffs Do Not Have Right to Sue to Enforce Section 2 of the Voting Rights Act Would Decimate the Rights of Minority Voters; Supreme Court Review Almost Certain (Election Law Blog)
Supreme Court Keeps Voting Rights Act Protections—Strikes Down Redrawn Alabama Map (Forbes)