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| William Brewer |
However, history taught that time, manner and place can restrict the exercise of that right, often having the effect of diluting the votes of many. In addition, voting systems can work to limit the effective participation of classes or groups of voters.
Therefore, in 1965, Congress adopted the Voting Rights Act to safeguard minority voting rights and, in the words of the U.S. Supreme Court's South Carolina v. Katzenbach decision the following year, "banish the blight of racial discrimination in voting."[1]
Section 2 of the VRA prohibits voting practices and procedures that discriminate on the basis of race, color or membership in a language minority group. Since the act's passage, hundreds of Section 2 VRA suits have been brought by private citizens serving as plaintiffs. Indeed, as recently as June 2023, the Supreme Court again upheld the VRA in Allen v. Milligan.[2]
But a recent U.S. Court of Appeals for the Eighth Circuit decision in Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment threatens the VRA.[3] The Eighth Circuit found that only the federal government — not individuals and groups — can bring Section 2 VRA cases.
In his dissent, Chief U.S. Circuit Judge Lavenski Smith emphasized that "[r]ights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government's agents for protection."[4]
If allowed to stand, the ruling imperils the foundational right to self-government and creates a split among circuit courts regarding private citizens' ability to sue — casting doubt on the future protection of voting rights in the U.S.[5]
Only 10 days before the controversial Eighth Circuit decision, the U.S. Court of Appeals for the Fifth Circuit affirmed the existence of a private right of action under the VRA in Robinson v. Ardoin, creating a circuit court split.[6]
The impending threat from the Eighth Circuit decision jeopardizes this previously well-established right. If affirmed by the Supreme Court, the Eighth Circuit decision could greatly harm the VRA by barring private individuals and civil rights groups, such as the NAACP, from initiating lawsuits.
Background
The Arkansas State Conference of the NAACP sued the Arkansas Board of Apportionment in the U.S. District Court for the Eastern District of Arkansas in December 2021, alleging that the Arkansas House of Representatives redistricting plan violated the VRA and diluted the votes of Black voters. Specifically, the lawsuit alleged that the redistricting plan "cracks and packs" Black voters.
In redistricting terms, packing occurs when voters of color are concentrated in a few districts, limiting their voting power. Conversely, cracking happens when voters of color are spread across multiple districts, reducing their overall influence.
The NAACP sought a finding that the plan violates Section 2, and requested an injunction barring the state from holding elections using the plan moving forward.
On Feb. 17, 2022, the federal district court issued an order finding that there is no private right of action to bring Section 2 claims.
The district court acknowledged that strong merits exist against some challenged districts in the board's redistricting plan under Section 2 of the VRA. Nonetheless, after an exhaustive analysis of the VRA and relevant case law, the court concluded that only the U.S. attorney general can bring these cases.
But, before dismissing the case, the court granted the attorney general five calendar days to join as a plaintiff.
The U.S. Attorney General's office submitted notice stating that it would not be able to join within the court's given deadline, and stated that it maintains its position that Section 2 provides plaintiffs with a private right of action to sue.
The plaintiffs appealed to the Eighth Circuit, and following oral arguments, the circuit court panel upheld the lower district court's decision on Nov. 20, 2023. In December, the plaintiffs requested an en banc hearing of the case by the full Eighth Circuit.
A Legal Setback of Historic Proportions
The Eighth Circuit opinion incorrectly held that private plaintiffs cannot bring suit under Section 2 of the VRA.
U.S. Circuit Judge David Stras, writing the 2-1 decision, found that Section 2 only designates the U.S. attorney general as the authorized plaintiff. Judge Stras emphasized what the statute deemed unlawful — a "standard, practice, or procedure" resulting in the denial or abridgment of any citizen's voting rights based on race or color.
The statute does not specify who can enforce it. However, Section 12 of the VRA empowers the attorney general to initiate actions such as injunctions for preventive relief.
Judge Stras focused on the text and structure of Sections 2 and 12, which, in his view, indicated Congress' intent to entrust enforcement to the attorney general rather than private individuals.
The Plaintiffs' Voice
Judge Stras rejected the plaintiffs' argument that the addition of "aggrieved person" in Section 3 extended the private right of action to encompass all voting rights statutes. He wrote that the purpose of the amendment was to address cases arising from the preexisting private right of action or those that might emerge in the future, particularly in response to issues related to Section 5.
Highlighting Section 12's empowerment of the attorney general, Judge Stras emphasized that the addition of "aggrieved person" in Section 3 did not establish a new right of action, but rather complemented existing remedies.
Judge Stras challenged the plaintiffs' reliance on legislative history, rather than text or structure, to support their arguments. He was skeptical of the legislative history, as in his view, "[t]here are many reasons to doubt legislative history as an interpretive tool."[7]
However, he acknowledged that Congress amended Section 2 of the VRA in 1982 and that "the House and Senate Judiciary Committees wrote that Congress had 'clearly intended' ... private enforcement" to be permitted."[8]
But, according to the judge, reliance on legislative history does not answer why Congress did not clearly provide a private right of action in the statute. He reasoned that the legislative history does not align with the text and structure of the statute because "the legislative history does not complete the statutory story. Rather, it tells a different story, one not reflected in the text of anything Congress passed."
As such, the panel rejected the argument for a private right of action under Section 2 of the VRA, deeming the legislative history inadequate and underscoring the significance of evaluating the text and structure of the statute.
Judge Smith issued a dissenting opinion, affirming that, although the Supreme Court never directly addressed the existence of a private right of action, the Supreme Court and other federal courts have considered many Section 2 cases brought by private plaintiffs. Judge Smith contended that for decades, the existence of a private right of action was assumed.
He observed that private enforcement of Section 2 has been ongoing "since the VRA's inception," running parallel to "collective enforcement [efforts] ... by the United States." According to Judge Smith, the assumption that Section 2 grants private plaintiffs standing to sue "is rooted in the "Blackstonian principle ... that 'where there is a legal right, there is also a legal remedy.'"
Acknowledging the historical precedent and Congress' implied approval of a private right of action, he appeared to support the existence of such an action. He stressed that "[o]ver the past forty years, there have been at least 182 successful Section 2 cases," and only 15 of those "were brought solely by the Attorney General," with the remaining litigants being private citizens. The proof is in the numbers, so to speak.
Ultimately, Judge Smith argued for adherence to the historical precedent of recognizing a private right of action until the Supreme Court provides further guidance or Congress amends the statute.
Eighth Circuit Splits With Fifth Circuit Decision
The Fifth Circuit's decision in Robinson v. Ardoin affirmed the existence of a private right of action under Section 2 of the VRA.
The case began when civil rights organizations and Louisiana voters filed a lawsuit in the U.S. District Court for the Middle District of Louisiana, alleging that the state's redistricting plan for Congress violated the VRA.
The suit alleged that the votes of Black voters were diluted — a similar accusation to that in the Eighth Circuit case. Specifically, the lawsuit charged that a second majority-Black congressional district could be created, and yet the redistricting plan did not do so.
In June 2022, the court granted a preliminary injunction and blocked the congressional redistricting plan from being used after finding there was a likely Section 2 violation, and ordered the creation of a remedial plan. The defendants then appealed to the Fifth Circuit, which denied the request to stay the order, pending appeal. The Supreme Court then granted the application for a stay, allowing the redistricting plan to be used in 2022.
In its Nov. 10, 2023, decision, the Fifth Circuit acknowledged that Section 2 of the VRA does not expressly create a cause of action, but it nonetheless relied on prior cases,[9] noting that the private right was the intent of Congress since 1965.[10] The Fifth Circuit emphasized the Supreme Court's historical acknowledgment of private enforcement of Section 2.[11]
Although the Fifth Circuit noted that the dissenting opinion in Allen v. Milligan, and a concurrence in the Supreme Court's 2021 Brnovich v. Democratic National Committee decision, both expressed concerns about a private right of action, it reasoned that "[t]here has not been frequent need in the circuit courts to analyze the issue" of whether there is a private right of action under Section 2 of the VRA.
But the court added that the U.S. Courts of Appeals for the Sixth and Eleventh Circuits have held that Section 2 creates a private right of action.[12]
The Fifth Circuit concluded that the plaintiffs in Robinson had a private right of action because they were "aggrieved persons." Title 52 of the U.S. Code, Section 10302, provides that proceedings to enforce voting rights in any state or political subdivision can be brought by the attorney general or by an aggrieved person.
Looking Ahead: The Promise of the Future
Several circuit court decisions have implied that Section 2 provides a private right of action, but the Supreme Court has not ruled on whether such a right exists.
Still, in its 1969 Allen v. State Board of Elections decision, for instance, the Supreme Court stated that the VRA "could be severely hampered ... if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General."
For now, the Eighth Circuit decision significantly affects minorities' voting rights in the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota — suppressing their right to vote and discarding years of advances through challenges to discriminatory practices and barriers.
Private plaintiffs in those seven states can no longer bring lawsuits directly, and would therefore have to go through the attorney general. The number of Section 2 VRA cases brought will likely drop significantly, because most cases are brought by private plaintiffs.
As a result, voters of color will be disenfranchised and unable to challenge discriminatory election systems that suppress their right to vote.
If the case proceeds to the Supreme Court, and the court were to rule that there is no private right of action, it would gut Section 2 and offer voters of color no individual power to seek remedies under the law. Such a ruling would nearly destroy the VRA.
It is likely that the circuit split issue will be resolved en banc or by the Supreme Court. Meanwhile, Judge Stras' decision fails to explain how, for so many years, the U.S. Supreme Court decided VRA cases brought before it by private citizens, if under the law — as he interprets it — those plaintiffs do not have the right to bring cases.
This question must be clarified once and for all. The prioritization of fairness and equal access to the voting process should ultimately prevail — to protect the rights of private plaintiffs and the freedoms that define our democracy.
William A. Brewer III is a founding partner at Brewer Attorneys & Counselors and chairman of Brewer Storefront.
Brewer Attorneys associate Malvina Palloj and Brewer Storefront associate director Katherine Leal Unmuth contributed to this article.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Congress.gov. "S.1992 - 97th Congress (1981-1982): Voting Rights Act Amendments of 1982." December 2, 1982. https://www.congress.gov/bill/97th-congress/senate-bill/1992.
[2] Allen v. Milligan
, 599 U.S.1,17–18,143S.Ct.1487,216 L.Ed.2d60 (2023).[3] Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment
, No. 22-1395 (8th Cir. 2023)[4] See Robinson v. Ardoin
, 605 F. Supp. 3d 759, 819 (M.D. La. 2022) (citing cases), cert. granted before judgment, ––– U.S. ––––, 142 S. Ct. 2892, 213 L.Ed.2d 1107 (2022), and cert. dismissed as improvidently granted, ––– U.S. ––––, 143 S. Ct. 2654, ––– L.Ed.2d –––– (2023).[5] Id.
[6] Id.
[7] See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (discussing the problems).
[8] S. Rep. No. 97-417, at 30 (1982) ("[T]he Committee reiterates the existence of the private right of action under Section 2, as has been clearly intended by Congress since 1965."); accord H.R. Rep. No. 97-227, at 32 (1981) ("It is intended that citizens have a private cause of action to enforce their rights under Section 2.")
[9] Morse v. Republican Party of Va.
, 517 U.S. 186, 232, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996).[10] Id.
[12] See Mixon v. Ohio
, 193 F.3d 389, 406 (6th Cir. 1999); Alabama State Conf. of NAACP v. Alabama, 949 F.3d 647, 651–54 (11th Cir. 2020), cert. granted, opinion vacated, and case dismissed as moot, ––– U.S. ––––, 141 S. Ct. 2618, 209 L.Ed.2d 746 (2021).