WASHINGTON, D.C. — The entire 8th U.S. Circuit Court of Appeals today denied a request from civil rights groups seeking reconsideration of a November 2023 decision that drastically weakened the Voting Rights Act across seven states. In that ruling, two Republican-appointed judges held that private parties cannot sue under Section 2 of the Voting Rights Act — a decades-old federal civil rights provision that prohibits racially discriminatory voting laws and maps.
Today’s order leaves in place the panel’s catastrophic decision to eliminate the ability of private plaintiffs to bring Section 2 claims across the states that fall within the 8th Circuit’s jurisdiction: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. As a result of the panel’s ruling that there is no “private right of action” under Section 2, only the U.S. attorney general can enforce the provision in these seven states.
The decision at issue in today’s order stemmed from a federal redistricting lawsuit originally filed in 2021 by the Arkansas State Conference NAACP and Arkansas Public Policy Panel challenging the state’s House map for allegedly diluting Black voting strength in violation of Section 2. The case ended up before the 8th Circuit after being dismissed by a Trump-appointed district court judge who found that there was no private right of action under Section 2, despite the fact that the state defendants did not themselves raise this argument.
Three dissenting 8th Circuit judges would have granted civil rights groups’ request for rehearing.
Three 8th Circuit judges — two of whom were Republican appointees — dissented from today’s order issued by the full 8th Circuit denying the plaintiffs’ request for rehearing of the panel’s 2023 decision. Authored by Chief Judge Lavenski Smith — the same judge who dissented from the panel’s November 2023 decision — today’s dissenting opinion referred to the panel majority’s ruling that eviscerated the private right of action under Section 2 as “ambitious and unprecedented.”
The dissent pointed to the ahistorical and cherry-picked nature of the panel’s decision, noting how the panel “attributed illogical thinking” to past legal precedent and disregarded the legislative history of Section 2 of the Voting Rights Act, which has had an implied private right of action since its original enactment in 1965. Smith also focused on the more technical procedural question of whether the panel should have ruled on the private right of action issue at all.
As in his original dissent from the panel’s November ruling, Smith once again emphasized that “federal courts have decided hundreds of cases brought by private parties under § 2.” In the November 2023 dissent, Smith cited a voting rights expert who found that out of the 182 successful Section 2 cases from the past 40 years, only 15 were brought by the U.S. attorney general. This low number typifies the problematic nature of leaving all Section 2 enforcement to the under-resourced U.S. Department of Justice.
“The mistakes in this case are almost entirely judge-driven: a [spontaneous] order by the district court [holding that there’s no private right of action], and a panel’s award of greater relief to State appellees who did not appeal. The panel’s error is evident, but the court regrettably misses an opportunity to reaffirm its role as a dispassionate arbiter of issues that are properly presented by the parties. Rehearing should be granted,” the dissent concluded.
Federal circuit courts across the United States are split on whether there is a private right of action under Section 2.
With today’s order upholding the panel’s decision, federal appellate courts across the country remain divided on the issue of whether private plaintiffs can bring lawsuits under Section 2. There is established precedent for a private right of action under Section 2 of the VRA in the 5th, 6th and 11th U.S. Circuit Courts of Appeals. Just last month, the entire 5th Circuit rejected a request from Louisiana officials seeking to overturn a decision holding that there is a private right of action under Section 2, thereby leaving voters in Louisiana, Mississippi and Texas with the ability to enforce the crucial provision.
In response to today’s order, Janai Nelson, president of the NAACP Legal Defense Fund wrote on X, formerly known as Twitter, that “[t]his is a dismal day for voting rights in this country at a time when we can hardly afford to leave our democracy any weaker. We must fully restore the Voting Rights Act and elect a Congress who will take up this critical charge.”
The U.S. Supreme Court could decide on the matter at some point.
Some legal experts believe that the circuit split on the private right of action question could land this case before the U.S. Supreme Court, which recently upheld Section 2 in Allen v. Milligan, a case brought by private plaintiffs that was decided last summer.
Wendy Weiser, the vice president for the Democracy Program at the Brennan Center for Justice characterized today’s order as “insane,” writing on X that “For the first time since the passage of the federal #VotingRightsAct, voters in AR, IA, MN, ND, SD, NE, MO cannot enforce their federal rights against discrimination under the VRA unless SCOTUS reverses this or the 8th Cir. recognizes a second path to sue.”
In a concurring opinion from a 2021 voting case, Brnovich v. Democratic National Committee, two of the Supreme Court’s most conservative members — Justice Clarence Thomas and Neil Gorsuch — noted that the Court has never formally decided on whether there exists a private right of action under Section 2. Rather, it has “assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under [Section 2].”
The plaintiffs in the Arkansas case have not yet indicated whether they will appeal to the Supreme Court.