WASHINGTON, D.C. — On Wednesday, Jan. 11, a three-judge panel of the 8th U.S. Circuit Court of Appeals heard oral argument regarding an appeal of a lower court decision dismissing a lawsuit challenging Arkansas’ state House map for violating Section 2 of the Voting Rights Act (VRA). In the lawsuit, which was filed by the Arkansas State Conference NAACP and Arkansas Public Policy Panel, the plaintiffs argue that five additional majority-Black state House districts can be drawn across the state in order to correspond to the state’s Black population and give Black voters the opportunity to elect candidates of their choice. On Feb. 17, 2022, a district court judge ruled that there is no private right of action under Section 2 of the VRA, meaning only the U.S. Department of Justice — and not private individuals and organizations — can bring Section 2 lawsuits. After the U.S. attorney general declined to participate in the lawsuit as a plaintiff, the judge dismissed the case altogether. Notably, in the district court proceedings, the defendants never raised the issue of whether there is a private right of action under Section 2; the issue only came up in the district court’s order and subsequently on appeal. On Jan. 11, 2023, the 8th Circuit heard arguments concerning the plaintiffs’ appeal of the lower court’s decision and subsequent dismissal of the lawsuit.
The court first heard from the attorney for the appellants, the Arkansas State Conference NAACP and Arkansas Public Policy Panel. The appellants’ attorney began by arguing that federal courts have heard dozens of Section 2 claims brought by private plaintiffs throughout the past few decades. Specifically, the attorney noted that the U.S. Supreme Court has heard at least 10 Section 2 claims brought by private plaintiffs, while the 8th Circuit has heard at least 18. The attorney stated that “not once has a court said there is no private right of action under Section 2,” and reiterated that in all the aforementioned Section 2 cases, courts concluded that there is indeed a private right of action under Section 2.
Next, the court heard from an attorney representing the United States. The United States’ attorney opened his argument by stating that “the issue of whether Section 2 is privately enforceable never should have come up in this case because it is not a jurisdictional question…but if the court reaches the question [of whether Section 2 is privately enforceable], the answer is clearly yes.” The attorney subsequently delved into the ratification, legislative history and language of Section 2 to support his claim that “Congress always intended for Section 2 to be privately enforceable.” He contended that since its inception in 1965, the VRA undoubtedly carved out a private right of action for Section 2 as well as the statute’s numerous other provisions. The attorney further noted that Congress reinforced its intent to allow a private right of action in its 1982 Senate Report that specifically articulated the privately enforceable nature of Section 2. In terms of the language of Section 2, the attorney explained how in 1975, Congress amended the VRA and added new language such as “aggrieved person” and “prevailing party” to the statute, thus suggesting that Congress “clearly contemplated private plaintiffs bringing Section 2 claims.” When asked by a judge whether there is an “express” private right of action under the VRA, the attorney responded that the reason there is not an express private right of action is that “voting rights are inherently private rights…Only in 1957 did Congress add a public right of action for the U.S. attorney general to bring claims…[but] in doing so, [Congress] did not withdraw the existing private right of action.” He added that it would be “odd” for Congress to “cut back” on voting rights by eliminating private enforcement of the VRA and concluded the aforementioned legislative and ratification history make clear that Congress always intended for there to be private enforcement of voting rights statutes.
Next, the court heard from the Arkansas solicitor general, the attorney for the appellees, who began by stating that “on its face, Section 2 provides no [private] right to sue.” The appellees’ attorney argued that to find a private right of action, the appellants look to dicta, other parts of the VRA (Section 3 and 14) and things “lurking in other places.” In response to this, one of the judges stated “things aren’t lurking when they have been around for 50 to 60 years…Is there a U.S. Supreme Court case that says there is not a private right of action in a Section 2 claim? Or a circuit case?” To this, the attorney answered: “I think that is the wrong question your Honor…Courts have assumed there is a private right of action…[but] assumptions are not holdings.” The attorney then proceeded to counter the appellants’ arguments and claimed that Congress never “unambiguously conferred a private right of action” and therefore the question of whether there is a private right of action under Section 2 “remains an open question.” He concluded by stating that “Congress has left this as an open issue and has never said there is a private right of action under Section 2.” Finally, the appellees’ attorney stated that the appellants’ argument that the “government somehow lacks the resources to enforce Section 2 [on its own] has no basis…Indeed, the government is here today and that highlights that the government does have the resources, even if they bring fewer cases overall.”
Finally, the court heard rebuttal from the appellants’ attorney, who closed out her argument by restating that the district court erred in dismissing the case on the basis that no private right of action exists under Section 2 of the VRA. To the contrary, she stated that a private right of action does indeed exist under Section 2 and a preponderance of evidence, including precedent as well as the legislative and ratification history of the VRA, supports this claim.