WASHINGTON, D.C. — In a catastrophic 2-1 ruling, the 8th U.S. Circuit Court of Appeals held that private litigants can no longer bring lawsuits under Section 2 of the Voting Rights Act (VRA). In practice, this means that in the 8th Circuit, only the U.S. attorney general, and not private groups, can bring claims under a key provision of the VRA that prohibits discrimination in redistricting and voting.
In legal terms, the ability of private groups and individuals to bring lawsuits is referred to as a private right of action.
This decision will harm minority voters in Arkansas and six other states covered by the 8th Circuit.
The decision to dismiss this case, written by a judge appointed by former president Donald Trump, undoubtedly harms Black voters in Arkansas who are fighting for a fairer state House map. Unfortunately, the harm does not stop with this case. This decision will adversely impact voters of color who rely on Section 2 to fight discrimination in redistricting.
Section 2 of the VRA prohibits any voting law, practice or map that results in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” As one of the few remaining and crucial tools to fight unfair maps, this provision provides a mechanism for voters and pro-voting groups to challenge laws and maps that were enacted with a discriminatory purpose or have a discriminatory impact.
Now, under today’s ruling only the U.S. attorney general, who brings relatively few election-related cases each year, would be able to bring Section 2 claims in the seven states in the 8th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
This decision hurts voters and organizations who seek to ensure voters are fairly represented across the 8th Circuit and who will no longer be able to file Section 2 cases if and when Republicans abuse the redistricting process to draw racially discriminatory districts. As the dissent cites from experts,
Over the past forty years, there have been at least 182 successful Section 2 cases; of those 182 cases, only 15 were brought solely by the Attorney General.
It is clear that the ability of private parties to bring these lawsuits has made an insurmountable impact on the fight for fair maps.
This opinion stems from a 2021 lawsuit challenging Arkansas’ new state House map.
This devastating decision authored by a Trump-appointed judge affirmed a district court’s prior ruling that held that there is not a private right of action under Section 2 of the VRA.
This case began as a standard redistricting lawsuit filed on behalf of the Arkansas State Conference NAACP and Arkansas Public Policy Panel challenging Arkansas’ new state House map passed following the release of 2020 census data. The plaintiffs alleged that the map dilutes Black voting strength in violation of Section 2 of the VRA and five additional majority-Black state House districts should be drawn to correspond to the state’s Black population.
The case was dismissed in February 2022 after another Trump-appointed judge found there was no private right of action under Section 2, despite the fact that the defendants did not raise this argument in the district court. The plaintiffs appealed to the 8th Circuit and the U.S. Department of Justice intervened to defend Section 2 and the plaintiffs’ position that a private right of action existed.
Unfortunately, thanks to ultra-conservative Trump appointees, another knife has been stabbed through the heart of what remains of the VRA after Section 5 was dismantled in 2013.
This radical opinion goes against established precedent.
Just last week, a three-judge panel on the 5th U.S. Circuit Court of Appeals, a circuit notorious for its conservative composition, held that there is a private right of action under Section 2 in a lawsuit challenging Louisiana’s Congressional map, the complete opposite of today’s ruling out of the 8th Circuit.
The 5th Circuit concluded that “There has not been frequent need in the circuit courts to analyze the issue. The Sixth Circuit once held without any analysis that Section 2 conveys a private right of action…The Eleventh Circuit discussed the issue at length and also concluded there was a private right of action under Section 2…there is a right for these Plaintiffs to bring these claims.”
Despite the 5th Circuit’s decision, the U.S. Supreme Court’s decision in Allen v. Milligan — which sided with private plaintiffs in a Section 2 case over the summer — and established precedent, today’s decision goes rogue and concludes that a “deeper look” that willfully and knowingly ignores the VRA’s legislative history reveals that the assumption that private plaintiffs could bring Section 2 claims lies on “flimsy footing.” Despite today’s decision, there remains 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.
The dissent ends on a sober conclusion: ‘“Holding that Section Two does not provide a private right of action would work a major upheaval in the law, and [I am] not prepared to step down that road today.”’
In response to this decision, Wendy Weiser, the vice president for the Democracy Program at the Brennan Center for Justice wrote: “This radical 8th Circuit decision would essentially gut the remaining nationwide protections of the #VotingRightsAct by preventing anyone other than DOJ from enforcing them. This is deeply wrong, and it goes against decades of precedent and practice.”
Section 2 lawsuits brought by private plaintiffs are resulting in fairer maps for future elections.
Over the last year, courts issued pro-voting decisions requiring new maps across five states because private plaintiffs brought lawsuits seeking to vindicate minority voters’ rights under Section 2.
Just last week, a federal court ruled that North Dakota will have to draw new legislative districts after finding that the current districts violate Section 2 by diluting Native American voting strength. Private plaintiffs, like voters, individuals who reside in a certain district, civil rights groups and nonprofits, are also responsible for new congressional maps in Alabama, Louisiana and Georgia. The buck does not stop with congressional and state legislative maps. Also in the last few months, a federal court struck down Galveston County, Texas’ redistricting plan for unlawfully diluting Black and Latino voting power.
It is clear that when Republicans control the redistricting process they will abuse that power to draw discriminatory maps. As a result, the fight for fair maps must fall heavily on the ability of private plaintiffs to file Section 2 lawsuits. Today’s decision disturbingly undermines that power and serves as a critical reminder that Republicans and conservative justices will stop at nothing to weaken what is left of the VRA.