Can The Voting Rights Act Survive if Individuals Can’t Sue Under Section 2?

When the U.S. Supreme Court gutted Section 5 of the Voting Rights Act (VRA) a decade ago, advocates for voter protections warned the floodgates would open. The 2013 Shelby County v. Holder decision was indeed followed by a wave of voter suppression laws and practices across the country. A federal proposal to strengthen the VRA sits dormant in Congress.

Now, another key provision of the VRA could be at risk. In November, the 8th U.S. Circuit Court of Appeals ruled that private litigants can no longer bring lawsuits under the VRA’s Section 2 in seven states, only the U.S. attorney general. If the decision were adopted widely, “it would end Section 2, in practice,” Douglas Spencer, election law professor at the University of Colorado, said last month.

After the ruling, Republicans turned to other federal appeals courts to argue that private parties can’t sue under the VRA, an argument referred to as private right of action (PROA). So far, no other federal appeals court — not even the ultraconservative 5th U.S. Circuit Court of Appeals — has reached the same conclusion. 

While experts find the 8th Circuit ruling concerning, they said there’s still at least one other avenue for voters aiming to enforce the VRA. Speaking to Democracy Docket, experts pointed to the U.S. Code 42 Section 1983, which allows private litigants to sue state officials for constitutional rights violations when an official is acting under color of state law.

“The practical effect of the Eighth Circuit’s ruling in the Arkansas case could be nil,” said Bryan Sells, a Georgia-based attorney involved in the case, “as long as the courts uphold a private right of action under the second statute.” If Section 1983 was also off the table, though, “individual plaintiffs would be shut out of the courthouse to enforce their own voting rights,” he said, adding that such a ruling would be extreme and “harmful to minority voters in particular.”

What if other federal courts rule there’s no PROA under Section 2?

Up until Shelby, from 1982 to 2013, Section 2 worked in tandem with Section 5, according to a 2022 report from the University of Michigan that analyzed hundreds of VRA-related cases from 1982 to 2021. While Section 5 dealt with preemptively blocking discrimination, Section 2 addresses the effect of racially discriminatory voting laws or maps.  

Before 2013, the report found, 51% of Section 2 cases came from jurisdictions covered under federal preclearance, which required certain states, counties and cities with histories of discriminatory voting practices to receive prior approval from the Justice Department or a federal district court before changing voting laws. After 2013, the number jumped to 63%.

While the spike wasn’t unexpected, the report said, it stemmed in part from jurisdictions making electoral changes after Shelby that would have or had previously been blocked. In Galveston, Texas, for example, minority voters in 2022 challenged a county commissioner map they said was virtually the same as one the DOJ previously denied in 2011. In that case, Black and Latino voters alleged the map violated Section 2 by diluting minority voting strength.

The Department of Justice (DOJ) already pursues or intervenes in cases regarding voting policies and practices that violate federal laws like the VRA. The agency frequently touts its commitment to protect all voters from disenfranchisement, but former staffers alluded to the agency’s limited capacity on VRA enforcement in a 2021 brief submitted in the Arkansas case.

A group of former U.S. attorneys for the DOJ’s Voting Section wrote that individuals’ ability to sue under Section 2 essentially offsets the agency’s “limited resources and lack of capacity” to widely enforce the federal law. Democracy Docket reached out to the Justice Department with questions about its enforcement of Section 2 and has not received a response. 

A ruling that denied private right of action under Section 2 would certainly garner the DOJ’s interest, as evidenced by its involvement in Arkansas. But it likely wouldn’t be substantial enough to impact how the agency  operates, according to Justin Levitt, a constitutional law professor at Loyola Law School who previously worked in the DOJ’s Civil Rights Division. Comparably, the agency itself has said the loss of Section 5 hindered the department’s ability to monitor the voting process.

“The DOJ will continue to say there should be a private right of action directly under the Voting Rights Act, because it wants to get the law right,” Levitt said. “But if other circuits did exactly what the Eighth Circuit did — just like in the Eighth Circuit, it wouldn’t stop private plaintiffs from enforcing the Voting Rights Act.”

What options do voters have?

If other federal appeals courts or the U.S. Supreme Court held that there’s no private right of action under Section 2, individual plaintiffs would have to assert claims under Section 1983.

In the 8th Circuit opinion, Trump-appointed Judge David Stras wrote that if Congress had intended on creating a private right of action in the VRA, “then why not say so in the statute.” He also wrote that “if private plaintiffs have the same causes of action as the Attorney General, then the reverse is true too,” later explaining that “as things stand now, the Attorney General cannot bring a 1983 action on behalf of someone else.”

To prevent the potential erosion of Section 2, Spencer said, one option would be for lawmakers to amend the language of the provision to explicitly state that private parties have a right of action. But given that the John Lewis Voting Rights Advancement Act failed to make it out of the U.S. Senate in 2021, it seems unlikely that Congress in its current state will act.

Another potential safeguard for voting rights is state-level protections. But only a handful of U.S. states have passed their own VRA laws.

Levitt likened the VRA’s Section 2 and Section 1983 as two separate doors leading to the same destination, but one is closed off to individuals in the seven states covered by the Eighth Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

“The 8th Circuit opinion was dead wrong,” said Levitt, who in 2021 served as the White House’s first Senior Policy Advisor for Democracy and Voting Rights. “Yes, there should be a private right of action directly underneath the Voting Rights Act. But private plaintiffs can still enforce the [VRA] in the 8th Circuit.”