Who Can and Cannot Sue To Protect Voters? It Depends on This Legal Concept

A hand holding a scale accompanied by small text that says "EXPLAINER" and large text that says "Private Right of Action"

Federal voting protections in major laws like the Voting Rights Act and lawsuits seeking to enforce those protections remain a crucial tool in defending and expanding the right to vote. However, there is an ongoing debate over who has the right to bring these lawsuits in the first place. Whether only the U.S. government or a voter can sue under a given law depends on if there is a private right of action — a legal term that sets up the basis for who can or cannot challenge a law through the legal system.

What is a private right of action?

A private right of action, also referred to as a private cause of action, allows an individual or organization to bring a lawsuit in court based on an alleged violation of a law and to seek relief to remedy that alleged violation. If there is no private right of action, only the U.S. Department of Justice (DOJ) can file a lawsuit under a given statute, severely limiting the power behind a law by restricting who can sue under it.  

A private right of action can either be express or implied. Congress creates an express private right of action when it explicitly defines that private individuals and groups (meaning not only the DOJ) can file a lawsuit pertaining to the legislation at hand. The National Voter Registration Act, for example, states that any “person who is aggrieved by a violation” of this law can follow certain steps and, if needed, file a federal lawsuit to address any violations.

An implied private right of action is defined by courts rather than Congress. This happens when courts determine that a law has a private right of action even if it isn’t explicitly defined in the law. In other words, if Congress does not explicitly spell out who or how individuals can bring federal lawsuits to enforce the law at hand, it is up to the court system to determine if a non-governmental figure has the ability to pursue relief via the courts.

Private rights of action are at the foundation of the U.S. court system.

The basis for private rights of action originates from the English common law principle that every legal right has an analogous remedy. This idea formed the basis for the U.S. Supreme Court’s landmark decision in Marbury v. Madison (1803) that created a scheme of judicial review in the United States, with the opinion stating that “where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.”

This understanding of an implied private right of action persisted into the 20th century. In 1916, the Supreme Court explicitly stated that a private party could sue under a federal law that did not include an express private right to action. Later in 1964, the Court confirmed again in J.I. Case Co. v. Borak that “it is the duty of the courts” to create implied rights of action in order to provide adequate remedies. Starting in the late 1970s, however, the Supreme Court began narrowing its approach and became increasingly skeptical of creating implied rights of action, a trend that has continued to the present day.

How do private rights of action play into voting rights litigation?

An overwhelming majority of lawsuits seeking to protect and expand the right to vote are brought by non-governmental actors like voters and civil rights groups. This makes sense given that the DOJ has limited time and resources, but it also means that any restrictions on who can file these lawsuits will greatly impact the usefulness and enforceability of federal protections. Led by the Supreme Court, courts have largely defined implied rights of action for crucial federal voting rights laws, many of which were enacted in a time when courts asserted that federal statutes should be read broadly to create a private right of action. 

Take, for example, the Voting Rights Act of 1965 (VRA). This landmark law does not include an express private right of action, which makes sense considering that it was enacted merely one year after the Supreme Court held in Borak that courts should enforce federal laws as needed in order to provide relief. This means that when the VRA was adopted in 1965, Congress likely assumed that individuals can sue over VRA violations without having to explicitly define that right in the bill’s text. In the 1969 case Allen v. State Board of Elections, the Supreme Court confirmed that private litigants can bring suits under Section 5 of the VRA. Three decades later in Morse v. Republican Party of Virginia (1996), the Court extended that logic to another section of the VRA and specifically noted the existence of a private right of action under Section 2, an often-used legal provision that protects voters from any law or map that denies or abridges the right to vote on account of race. 

Further support for an implied private right of action under the VRA comes from the bill’s text itself. As legal journalist Ian Millhiser has pointed out, “while the Voting Rights Act does not contain any language which explicitly states that ‘private plaintiffs may sue under this law,’ it does contain some provisions which make no sense unless private suits are permitted.”

Despite the clear precedent defining who can sue under the VRA, conservative actors have identified an opening to limit who can file such lawsuits and have increasingly begun attacking the VRA’s implied private right of action. This attack has also extended to the implied private right of action under the Materiality Provision of the Civil Rights Act, which is used to protect voters from being disenfranchised for trivial reasons and similarly lacks an express private right of action.

The Supreme Court has not yet waded into recent debates over whether private rights of action exist under these two crucial protections, though at least two justices have signaled that they are open to re-visiting the discussion around the VRA: Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurrence in the 2021 case Brnovich v. Democratic National Committee suggesting that the case “assumed—without deciding” that the VRA has an implied private right of action. Federal circuit courts are split as to whether the Materiality Provision contains a private right of action, leaving the future of both provisions on shaky grounds.