Why This Section of the Civil Rights Act of 1871 is Crucial in 2024
President Ulysses Grant signed the Civil Rights Act of 1871 — also known as the Ku Klux Klan Act — on April 20, 1871. It was one of his biggest achievements in office.
Fast forward more than 150 years, and Section 1983 of that act is one of the most crucial laws in the fight for voting rights.
It’s especially important now because last year, the 8th U.S. Circuit Court of Appeals gutted the Voting Rights Act (VRA) in seven states — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
Section 1983 became an important law for pro-voting groups to use to file their voting rights lawsuits in those states, and it has become a tool in other states, too.
However, the 8th Circuit could also render Section 1983 useless in its jurisdiction in an ongoing North Dakota case — which would be devastating.
Here’s what you should know about this statute.
What is Section 1983?
“Section 1983 provides an individual the right to sue state government employees and others acting ‘under color of state law’ for civil rights violations. Section 1983 does not provide civil rights; it is a means to enforce civil rights that already exist,” according to an explanation from the University of Minnesota Law School.
Many plaintiffs have argued that Section 1983 states that private plaintiffs — like voters and pro-voting groups — can file cases under civil and equal rights statutes, including Section 2 of the VRA. This provides a “private right of action,” which means private plaintiffs can file lawsuits, as opposed to only the U.S. Department of Justice (DOJ) being able to bring civil rights cases.
Why Is It Important Now?
On November 20, 2023, the 8th Circuit ruled there’s no private right of action under Section 2 of the VRA, and they reaffirmed the decision in January. Many argue there’s an implied private right of action under Section 2, but the court stated since Congress never explicitly said that private plaintiffs can sue under that statute of the VRA, they can’t.
This decision stemmed from a redistricting case brought in December 2021 on behalf of the Arkansas State Conference of the NAACP and the Arkansas Public Policy Panel.
“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,” said Sophia Lin Lakin, director of the Voting Rights Project at the ACLU.
However, the court didn’t address the Section 1983 argument in its decision — which would give private plaintiffs a right of action under Section 2, so that’s a possible way to get around the ruling and potentially get them to reconsider their stance.
The plaintiffs decided not to appeal the decision to the U.S. Supreme Court.
Barry Jefferson, president of the Arkansas State Conference of the NAACP, said that “we are still able to litigate voting rights cases under [Section 1983], even in the Eighth Circuit, and because we do continue to have that avenue, we didn’t think [a cert petition] was warranted.”
In February 2022, the plaintiffs in Turtle Mountain Band of Chippewa Indians v. Jaeger — a case challenging North Dakota’s legislative map — used Section 1983 to file a complaint alleging a Section 2 violation.
Just days before the 8th Circuit decision in the Arkansas case, a federal district court in North Dakota struck down the state House and Senate map, saying it violated Section 2.
Then, a couple of weeks later, North Dakota Secretary of State Michael Howe (R) appealed the district court’s decision to the 8th Circuit, asking them to pause the ruling while litigation is ongoing. The state argued that the plaintiffs didn’t have standing to bring the case under Section 1983.
In December, the 8th Circuit denied the state’s motion to halt the lower court’s decision, meaning a fair map will be in place for the 2024 election.
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 will 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.
Matthew Campbell, the deputy director of the Native American Rights Fund — which is representing the plaintiffs in this case — explained that the ability of individuals and tribal leaders to bring Section 2 lawsuits is so important because “there’s a whole bunch of legal barriers, but also structural barriers that native people face to voting.”
For example, North Dakota requires voters to provide a residential street address to vote. However, Campbell explained many reservations don’t have street addresses, which is common in tribal communities.
He then noted that “under the state’s argument, it would only be the Department of Justice that could bring a lawsuit under the Voting Rights Act.”
Campbell said the DOJ doesn’t get involved enough in voting cases in order to address all of the “meritorious” lawsuits filed.
What Other Cases Have Referenced This Section?
This argument about Section 1983 has not just come up in the North Dakota case — it has also been addressed in states outside of the 8th Circuit’s jurisdiction.
Through numerous proceedings in Allen v. Milligan, including a Supreme Court decision in June 2023, Alabama voters were able to get a new congressional map with two Black-opportunity districts for the 2024 elections.
However, the defendants — Alabama Secretary of State Wes Allen (R) and two state legislators — filed a motion to dismiss the lawsuit on the grounds that there is no private right of action under Section 2, essentially arguing that the plaintiffs did not even have the right to bring the case.
On July 11, a federal district rejected their motion to dismiss, which was an attempt to drastically weaken the VRA. In their order, the three-judge panel brought up the Section 1983 argument, expressing their support for it.
“The text of Section Two compels the conclusion that private plaintiffs may enforce it, either through an implied private right of action, Section 1983, or both,” the judges wrote.
Then, in an order in a Kansas case last year, a federal district court judge ruled in favor of the defendant, deciding that the at-large method for electing members to its city commission does not unlawfully discriminate against Latino voters.
However, the court rejected the defendants’ argument attacking Section 2. The judge said there is an implied private right of action under Section 2, but even if there isn’t, Section 1983 can be used as a vehicle to bring these claims.
Also, in a Louisiana redistricting case, the plaintiffs argued that the state’s legislative districts violated Section 2 of the VRA by diluting the voting strength of Black Louisiana voters, and the federal district court ruled in their favor — striking down the state House and Senate maps.
Louisiana then asked the entire 5th Circuit to hear their appeal and hold that there is no private right of action under Section 2.
In a response to the appeal, the NAACP Legal Fund argued that “Section 1983 confers a private right of action for violations of rights secured by federal statutes like the Voting Rights Act.”
The 5th Circuit denied the defendants’ request for the full court to hear their appeal. The court did not provide reasoning for the denial, but they had the opportunity to hear arguments on Section 2 of the VRA and potentially rule there’s no private right of action — and chose not to.
Multiple courts have ruled that the Section 1983 argument is valid and can allow plaintiffs to file Section 2 claims, but it is yet to be seen what the 8th Circuit will do.
What Does the Future of Section 1983 Look Like?
For now, Section 1983 can be used as a vehicle for filing cases under Section 2 of the VRA. In the North Dakota case, the 8th Circuit could rule that Section 1983 can be used as an avenue to file a Section 2 claim as a private plaintiff, which would maintain the status quo.
However, the court could also rule that the statute can’t be used for this, which would have major implications for pro-voting groups and voters in that circuit, possibly preventing them from getting justice.
“If we’re kneecapped in our ability to bring lawsuits under Section 2, there will be a major impact,” Campbell said.