WASHINGTON, D.C. — On Monday, March 6, the 8th U.S. Circuit Court of Appeals issued an order temporarily pausing proceedings in Arkansas United v. Thurston (“the Arkansas voter assistance case”), a lawsuit that challenges provisions of Arkansas law that limit voter assistance options. The plaintiffs allege that the challenged provisions violate Section 208 of the Voting Rights Act of 1965 (VRA), which states that all individuals who need assistance when voting can receive that assistance from a person of their choice. Notably, the 8th Circuit’s recent order paused the Arkansas voter assistance case until the court resolves another case currently before the 8th Circuit, Arkansas State Conference NAACP v. Arkansas Board of Apportionment (“the Arkansas redistricting case”). This redistricting case challenges Arkansas’ state House map drawn with 2020 census data for allegedly diluting the voting strength of Black voters in violation of Section 2 of the VRA.
These cases are connected because the parties defending the state House map and the voter assistance restrictions make the novel augment that there is no private right of action under key provisions — Section 208 and Section 2, respectively — of the VRA. This argument, which is being wielded by the conservative legal movement in a tranche of recent cases, suggests that only the U.S. Department of Justice (DOJ), not individuals or groups, can bring challenges under the VRA. Recently, conservatives began arguing that there is no private right of action under key federal civil rights provisions despite the fact that courts have long assumed there to be. This recent phenomenon comes on the heels of a single paragraph concurrence in the 2021 case, Brnovich v. Democratic National Committee, in which Justice Neil Gorsuch asserted that private right of action under Section 2 is an “open question.” In light of these parallel arguments asserting that Section 208 and Section 2 of the VRA are not privately enforceable, the judge in the Arkansas voter assistance case agreed to pause litigation pending a decision from the 8th Circuit on whether Section 2 is privately enforceable in the Arkansas redistricting case.
What is the current status of the Arkansas redistricting case?
In December 2021, the Arkansas State Conference NAACP and Arkansas Public Policy Panel sued over the state House map under Section 2. Shortly after that, in February 2022, a district court judge ruled that there is no private right of action under Section 2. 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; it only came up in the district court’s order and subsequently on appeal. The plaintiffs appealed the decision and the 8th Circuit heard arguments in January 2023. This case is currently pending before the 8th Circuit, which will decide whether the lower court erred when it held that there is no private right of action under Section 2.
What is the current status of the Arkansas voter assistance case?
On Aug. 19, 2022, a federal district court in Arkansas struck down the laws that limited the amount of times a person could assist voters in an election. The defendants appealed this decision to the 8th Circuit, which subsequently stayed (meaning paused) the trial court’s decision. On appeal, the state is arguing that only the U.S. attorney general or an “aggrieved person” whose “voting rights have been denied or impaired” can bring challenges under the VRA; the state also argues that the plaintiffs who brought the case do not have a “cause of action.”
Notably, a similar lawsuit out of Missouri challenging the state’s limitations on voter assistance for allegedly violating Section 208 of the VRA was paused last October pending a decision from the 8th Circuit in the Arkansas voter assistance case. This means that the Missouri lawsuit is indirectly tied to the outcome of the 8th Circuit’s pending decision in the Arkansas redistricting case.
Why are these cases important to the future of litigation under the VRA?
The outcome of the 8th Circuit’s decision in the Arkansas redistricting case is still pending. If the court were to affirm the trial court’s decision and hold that Section 2 is not privately enforceable, this would create precedent for the entire 8th Circuit and the federal district courts within it. If the 8th Circuit rules in this manner, only the DOJ, not private litigants or groups, would be able to bring Section 2 challenges in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. On the other hand, if the 8th Circuit reverses the lower court’s decision, it will clarify that there is indeed a private right of action under Section 2. Importantly, the pending voter assistance lawsuits out of Arkansas and Missouri, both of which bring claims under Section 208, could be impacted as well. In 2022, federal courts issued decisions blocking voter assistance limitations out of North Carolina, Texas and Wisconsin for violating Section 208 of the VRA; notably, all of these lawsuits were filed by private litigants, thereby implying that a private right of action does exist under Section 208.