Arkansas NAACP Will Not Appeal Decision That Gutted Voting Rights Act in Seven States

On Friday, the Arkansas State Conference of the NAACP and Arkansas Public Policy Panel decided not to ask the U.S. Supreme Court to weigh in on a ruling that gutted an important section of the Voting Rights Act (VRA) in seven states.

In November, the 8th U.S. Circuit Court of Appeals held that private litigants can no longer bring lawsuits under Section 2 of the VRA. This includes any private citizens or pro-voting groups.

“The ruling itself goes against 60 years of unbroken precedent and practice in which courts, including the Supreme Court multiple times, have granted private plaintiffs relief under Section 2 in hundreds of cases,” Sophia Lin Lakin, director of the Voting Rights Project at the ACLU, said in an interview. 

Barry Jefferson, president of the Arkansas State Conference of the NAACP, said in an email statement that “while the Eighth Circuit’s decision is an extreme outlier that we continue to believe is wrong,” the organization is still able to file voting rights lawsuits under Section 1983 of the Civil Rights Act, so filing a petition with the Supreme Court isn’t necessary right now.

Jefferson also said he was concerned about what appealing the case to the nation’s highest court “could jeopardize for all states in this country.” 

The 8th Circuit is the only circuit that has issued this ruling. If the Supreme Court were to rule unfavorably on the case, it would prevent individuals and groups in all 50 states from being able to file lawsuits under Section 2, not just those in the 8th Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

The Case That Started It All

The 8th Circuit ruling stemmed from a redistricting lawsuit filed in December 2021 on behalf of the Arkansas State Conference of the NAACP and the Arkansas Public Policy Panel. The groups alleged that a state House map passed after the release of 2020 census data weakened the impact of Black votes, which violates Section 2 of the VRA. 

The plaintiffs argued that five additional majority-Black state House districts should be drawn to properly represent Arkansas’ Black population.

The pro-voting groups asked the court to immediately block the map to prevent it from being used in the state’s 2022 primary and general elections. 

The court held a hearing on this in February 2022 and a Trump-appointed judge ruled that there is no private right of action under Section 2 of the VRA, which means only the U.S. Department of Justice (DOJ) — and not individuals and organizations — can bring Section 2 lawsuits. 

The case was then dismissed, and the plaintiffs appealed the decision to the 8th Circuit. In November, the 8th Circuit affirmed that private citizens and groups can’t bring lawsuits under Section 2.

Then, in January, the 8th Circuit denied a request from the pro-voting groups asking for the consequential decision to be reconsidered.

Jefferson said that his organization has given voices to unrepresented people for over 100 years by filing cases under the Voting Rights Act, so Section 2 — a major part of it — being weakened makes it harder for them to fulfill that mission. 

The Ruling’s Impact

The decision only impacts states in the 8th Circuit because the other circuits have not ruled the same way on this issue. Specifically, in the 5th, 6th and 11th U.S. Circuit Courts of Appeals, there are established precedents for private litigants to sue under Section 2 of the VRA. States under these courts’ jurisdictions include Alabama, Florida, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Ohio, Tennessee and Texas.

Recently, the 5th Circuit — a very conservative court — affirmed this again. Last month, in a redistricting case brought by Black voters, the court denied the state of Louisiana’s request for the full court to hear arguments on whether a private right of action exists under Section 2.

“Right now, the 8th Circuit is an outlier,” Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, said in an interview. He added he hopes it is ultimately overruled by some court in the future. 

Rosenberg said though the 8th Circuit decision is potentially harmful, it does not end the discussion on whether private plaintiffs can bring an action under Section 2, even in the 8th Circuit. This is because there is an argument the court did not consider in its ruling that plaintiffs can bring up now.

The plaintiffs in Turtle Mountain Band of Chippewa Indians v. Jaeger — a case challenging North Dakota’s legislative map — presented this argument: They said Section 1983 of the Civil Rights Act states that private plaintiffs can file cases under civil and equal rights statutes and that Section 2 falls into that category.

Later on in the case, the DOJ filed a brief in the case saying that it supports this argument.

Just days before the 8th Circuit decision in the Arkansas case, the district court struck down the map, saying it violated Section 2. 

Then, a couple of weeks later, the North Dakota secretary of state appealed this decision to the 8th Circuit, asking them to pause the lower court’s decision while litigation is ongoing. The state argued that the plaintiffs didn’t have standing to bring the case under Section 1983. 

The 8th Circuit denied the state’s motion to halt the lower’s court decision, meaning a Section 2-complaint map will be in place for 2024. 

The 8th Circuit did not provide an explanation for that denial, so they have not technically ruled on the Section 1983 argument yet, but they likely directly address it later on in the case. It is uncertain if that will be an effective workaround to continue filing cases under Section 2 in the future, but it has been so far.

“In general, we’ve seen some cases at least continue to get relief, even in the aftermath of the Eighth Circuit decision,” Lin Lakin said.

In fact, courts in other circuits have endorsed the Section 1983 argument, including in an order in a Kansas case last year.

Lin Lakin said the largest impact of the 8th Circuit decision is that many voting rights cases will be delayed. She said the cases most impacted are ones brought by private plaintiffs solely under Section 2 of the VRA because they must have further briefings to determine how the case will proceed.

An example of this can be found in the case that started it all: the Arkansas redistricting lawsuit.

“All the Black voters in the state of Arkansas have had to vote now under a discriminatory map, and will have to do so again this November,” Lin Lakin said.

Ways to Mitigate The Impacts of the Ruling

Around six months after the 8th Circuit’s decision, Minnesota Gov. Tim Walz (D) signed the Minnesota Voting Rights Act

The law will prohibit voter suppression and vote dilution so that no one is allowed to deny someone else the right to vote or make it so their vote does not have the same weight as another person’s.

Specifically, someone can claim this act has been violated if someone else’s action “results in a disparate burden” on a minority group and the burden is “related to social and historical conditions affecting members of the protected class.”

The attorney general, a county attorney or any individual or entity affected by a violation of this act can file an action in the district court for the county where the potential violation occurred. 

“This legislation makes Minnesota the first and only state to respond to the 8th Circuit’s opinion which eliminated the private right of action under the federal VRA, and leading other states to follow,” the NAACP Legal Defense Fund wrote in a statement.

Lin Lakin said states passing Voting Rights Acts would be an effective way to provide voters with a statute to use to file voting rights lawsuits. However, many states in the 8th circuit are led by Republicans, so they will likely not pass state Voting Rights Acts like Minnesota did.

“The conditions aren’t especially conducive for interest in passing legislation of that sort,” Lin Lakin said. “I think that’s a big limitation for the work that we do.”

Also, state voting rights acts can only be used to sue over local maps — not congressional or legislative maps like Section 2 can.

Also, the DOJ is the sole plaintiff who can bring Section 2 claims, so they could file these cases in 8th Circuit states, but in general, they bring very few election-related cases each year.

“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,” a judge wrote in a dissent in the 8th Circuit opinion.

Lin Lankin and other activists say that they would like to see the DOJ be more active in the 8th Circuit states.

“The DOJ has been filing statements of interest on a number of these cases and has intervened in a couple of our cases elsewhere, Lin Lankin said. “But I’d love to see them do more.”

While the DOJ under the Biden administration hasn’t been extremely active in bringing voting rights cases, the department under a Trump administration — if he wins in November — would likely bring none of these cases.

What Happens Next?

The 8th Circuit decision could eventually be appealed to the Supreme Court, but for now, the ruling will stand as is.

What remains to be seen is how the 8th Circuit addresses the plaintiff’s arguments about Section 1983 of the Civil Rights Act in the North Dakota redistricting case. Lin Lakin said activists are waiting to see what happens, but in the meantime:

“We’re obviously extraordinarily and deeply committed to ensuring that privacy plaintiffs can bring suits to enforce their Section 2 rights, and we’re going to continue to battle this in every way that we can,” Lin Lakin said.