Private Right of Action

A private right of action, also referred to as a private cause of action, allows an individual or organization to bring a lawsuit in court based on an alleged violation of a law and to seek relief to remedy that alleged violation. If there is no private right of action, only the U.S. Department of Justice (DOJ) can file a lawsuit under a given statute, severely limiting the power behind a law by restricting who can sue under it.  

A private right of action can either be express or implied. Congress creates an express private right of action when it explicitly defines that private individuals and groups can file lawsuits pertaining to the legislation at hand. The National Voter Registration Act, for example, states that any “person who is aggrieved by a violation” of this law can follow certain steps and, if needed, file a federal lawsuit to address any violations.

An implied private right of action is defined by courts rather than Congress. If Congress does not explicitly spell out who or how individuals can bring federal lawsuits to enforce the law at hand, it is up to the court system to determine if a non-governmental figure has the ability to pursue relief via the courts.

The DOJ has limited time and resources; lawsuits by private parties have long been essential in advancing civil and voting rights. Under current U.S. Attorney General Merrick Garland, the DOJ has filed a total of nine voting rights and redistricting lawsuits, five of which are actively ongoing. As of April 10, 2024, the DOJ’s five ongoing lawsuits represent only 2.3% of the 216 active voting rights and redistricting cases that Democracy Docket is currently tracking. 

Now, in multiple lawsuits, conservative actors are increasingly asserting that certain voting rights protections have no private right of action. The most potent argument contends that there is no private right of action under Section 2 of the Voting Rights Act (VRA). 

On Nov. 20, 2023, the 8th U.S. Circuit Court of Appeals held that private litigants can no longer bring lawsuits under Section 2 of the VRA. The entire 8th Circuit upheld the catastrophic decision that impacts voters across seven states: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. If more courts embrace this theory — one largely unmoored from history and precedent — then the power of voting protections could be entirely  diminished.