by Michael Barbella
For nearly 60 years, private groups and ordinary citizens were legally permitted to file voter discrimination lawsuits under the 1965 Voting Rights Act (VRA).
In November 2023, a divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit put that right in jeopardy when it upheld a lower federal district court decision that ruled “Section 2 [of the VRA] does not confer a private right of action.” A private right of action is simply the right of a private person or a private group, such as the NAACP, to take legal action against another person or entity, such as the government.
In Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the U.S. District Court for the Eastern District of Arkansas held that only the U.S. Attorney General can sue to enforce Section 2 of the Voting Rights Act.
What is the Voting Rights Act?
Signed into law in 1965 by President Lyndon Johnson, the VRA prohibits discrimination in voting nationwide on the basis of race or being a member of a language minority group. A special provision of the VRA was Section 5, which required certain jurisdictions with a history of discrimination to obtain preclearance from the U.S. Attorney General before implementing any changes to voting laws. Preclearance simply means that these jurisdictions had to obtain approval from the U.S. Department of Justice before instituting any laws related to voting.
Jurisdictions covered by Section 5 included nine states in their entirety (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia), as well as parts of six other states. This provision was meant to expire after five years; however, Section 5 was renewed five times by the U.S. Congress, the last time in 2007.
In 2013, the U.S. Supreme Court struck down Section 4 of the VRA with its decision in Shelby v. Holder. Section 4 dealt with the formula used to determine which jurisdictions are subject to preclearance. The Court ruled the formula “was based on 40-year-old facts having no logical relation to the present day.”
Striking down Section 4 essentially left Section 5 of the Act unenforceable. Before the Court’s Shelby decision, jurisdictions covered by Section 5 were required to prove to the federal government that a proposed voting law was not discriminatory. After the Court’s decision, the burden shifted to voters who had to rely on Section 2 of the VRA to challenge discriminatory voting laws.
According to the Congressional Research Service (CRS), a nonpartisan public policy research institute serving the U.S. Congress, Section 2 of the VRA “prohibits discrimination in voting based on race, color, or membership in an enumerated language minority group. The statute provides a right of action for the federal government to challenge state discriminatory voting practices or procedures, including those alleged to diminish or weaken minority voting power. Courts have also assumed that Section 2 suits can properly be brought by private citizens and organizations and have considered such suits.”
More on the Arkansas case
The 2023 Eighth Circuit decision stems from a 2021 lawsuit challenging Arkansas’s newly drawn state legislative map. Filed by the Arkansas State Conference of the NAACP and Arkansas Public Policy Panel, the suit claimed the redistricting map diluted Black voting strength by creating an insufficient number of majority Black districts. Testimony in the district court case revealed the approved 2021 map contained 11 Black majority districts, one fewer than the 2011 map despite a nearly 4% rise in Arkansas’s total Black population since the 2010 U.S. Census. The plaintiffs in the case argued that of the 100 legislative districts in Arkansas, at least four additional Black majority voting districts were needed to adequately reflect the demographic change.
Although the district court found merit with the plaintiffs’ challenge, it disagreed with the groups’ interpretation of VRA’s Section 2. U.S. District Judge Lee P. Rudofsky also noted that Section 12 of the VRA includes a remedial provision for reporting voting rights violations that is enforceable by the U.S. Attorney General.
“The question is not whether the court believes that sometime in the last fifty-seven years Congress should have expressly included a private right of action in the Voting Rights Act (I do),” Judge Rudofsky wrote in the district court’s opinion, issued in February 2022. “The narrow question before the court is only whether, under current Supreme Court precedent, a court should imply a private right of action to enforce [Section 2] of the Voting Rights Act where Congress has not expressly provided one. The answer to this narrow question is no. Only the Attorney General of the United States can bring a case like this one.”
In affirming the lower court’s ruling, the Eighth Circuit stated, “It is unclear whether [Section 2] creates an individual right…If the 1965 Congress ‘clearly intended’ to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended [Section 2]? Perhaps the answer lies in the legislative process itself. One possibility is that no one thought the issue was important enough at the time, especially because Congress’s attention was on how states and political subdivisions could violate Section 2, not who could sue. Precedent provides a little more guidance but like legislative history, no firm answer.”
According to Nicholas O. Stephanopoulos, a professor at Harvard Law School who teaches Election Law and has written or co-written several books on the subject, amending Section 2 would be “an easy, obvious fix.”
Professor Stephanopoulos says, “Because the Eighth Circuit’s ruling is entirely statutory, it would take just a single sentence in a new law to override the case. Congress would just have to say, explicitly, that private parties are authorized to enforce Section 2.”
After the ruling from the three-judge panel of the Eighth Circuit, the plaintiffs in the case requested that it be reheard by all 11 judges of the Eighth Circuit. In January 2024, the Court declined that request, issuing an opinion that said the three-judge panel’s opinion “mostly speaks for itself.”
Judge Steven M. Colloton and Judge Jane Kelly of the Eighth Circuit opposed the denial, calling the panel’s decision unprecedented and flawed. They also said the panel majority “seems oblivious to the risk of anachronistic error and the disruption of settled expectations.”
Richard J. Perr, a former adjunct professor at Rutgers Law School in Camden where he taught Election and Political Campaign law, notes that the dissenting opinion of the Eighth Circuit cited the fact that out of 182 successful Section 2 cases in the past 40 years, only 15 were brought by the U.S. Attorney General. So, while there may be no express right of action in the VRA, there is an implied private right of action.
“The dissent in the January 2024 rehearing denial claimed that it disregarded past legal decisions along with the legislative history of the VRA,” Perr says. “Leaving only the government with the ability to enforce Section 2 would hamstring the VRA.”
In fact, the U.S. Department of Justice, according to the Congressional Research Service, issued a statement at the time of the district court case asserting that they had “limited federal resources,” which impedes them from enforcing Section 2, “thereby necessitating enforcement by private entities.”
A split decision
Before the Eighth Circuit’s three-judge panel made its ruling, the U.S. Court of Appeals for the Fifth Circuit made the opposite ruling in a similar case—Robinson v. Ardoin. Robinson challenged a Louisiana congressional map, claiming it denied Black voters a second majority Black district. In its ruling, which upheld a lower court decision, the Fifth Circuit said that private citizens do have “a right” to bring claims under Section 2 of the VRA.
The two rulings create what is known as a “split” between the two courts, making it more likely that the U.S. Supreme Court would consider the issue if the challengers in the Arkansas case decide to appeal, according to the Congressional Research Service.
In February 2024, the Congressional Research Service issued a report titled, Recent Developments in the Rights of Private Individuals to Enforce Section 2 of the Voting Rights Act. In the report they note that since the district court’s 2022 ruling in Arkansas State Conference NAACP, other appeals courts, including the U.S. Court of Appeals for the Sixth Circuit and for the Eleventh Circuit “have determined or assumed without deciding, that Section 2 does confer a private right of action.”
States step up
The Eighth Circuit ruling in Arkansas State Conference NAACP applies only to states in that court’s jurisdiction—Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. But the decision has nevertheless prompted lawmakers in other states to draft or enact voting rights protection legislation, also known as state VRAs.
“State VRAs allow states to go above and beyond the floor set by the federal VRA to protect and serve their voters,” Lata Nott, senior legal counsel for Campaign Law Center in Washington, D.C., wrote in an article posted to the nonpartisan organization’s website. “For example, the Virginia VRA criminalizes voter intimidation, and the New York VRA expands language access for voters with limited English proficiency.”
California was the first state to enact a VRA in 2001. Other states like Connecticut, New York, Oregon, Virginia, and Washington followed. The most recent state to add a VRA to its books is Minnesota in May 2024. The Minnesota Voting Rights Act prohibits voter suppression and vote dilution and restores the public’s right to sue over alleged voter discrimination.
In the Garden State
Introduced in March 2024, the John R. Lewis Voter Empowerment Act of New Jersey is currently pending in the New Jersey State Legislature. Named after the late John Lewis, a Georgia Congressman and civil rights icon, the legislation would, among other things, create a preclearance program requiring local governments with histories of discrimination to prove that certain voting process changes will not harm voters of color before implementing them.
“New Jersey has a historic chance to pass the John R. Lewis Voter Empowerment Act of New Jersey—a state VRA that provides critical legal tools to protect ballot access and eradicate racial discrimination in voting,” says Liza Weisberg, a staff attorney with the American Civil Liberties Union of New Jersey.
According to Weisberg, the bill would establish a New Jersey-specific preclearance program, offer new legal mechanisms for challenging discriminatory voting rules and procedures in court, expand language assistance for voters with limited English proficiency, and enshrine an express private right of action.
“Seven states have enacted similar voting rights acts,” Weisberg says. “It’s time for New Jersey to join them.”
Discussion Questions
- The federal Voting Rights Act was signed into law in 1965. How is society different in terms of discrimination and access to the ballot box now than it was then? How is it the same?
- What do you think of New Jersey’s proposed VRA? If you were writing the law, what would you include? Explain in detail.
Glossary
anachronistic—out-of-date, old fashioned.
appeal — a complaint to a higher court regarding the decision of a lower court.
jurisdiction — authority to interpret or apply the law.
nonpartisan— not adhering to any established political group or party.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
precedent — a legal case that will serve as a model for any future case dealing with the same issues.
statute — legislation that has been signed into law.
statutory—enacted by statute.
upheld — supported; kept the same.
This article originally appeared in the fall 2024 issue of Respect–Special Voting Rights Edition.