A federal appellate court upheld a lower court’s decision dismissing an NAACP challenge to Alabama’s 2021 redistricting plan on Monday, holding that the advocacy group could not sue under Section 2 of the Voting Rights Act (VRA). Rather, according to the Eighth Circuit Court of Appeals, only the U.S. attorney general could maintain a lawsuit under that section of the VRA.
The decision left Democrats and the left-wing press deriding the decision as rolling back “increased minority power and representation in American politics,” while Republicans and conservative media outlets praised the decision as protecting election-integrity efforts. In reality, though, the opinion concerned solely a question of statutory interpretation and the role of the courts in creating claims omitted by Congress.
On these questions, the majority’s analysis proved solid. Yet, given that for approximately 50 years courts have assumed private parties could sue under Section 2 of the VRA, the split 2-1 decision seems likely to be reconsidered by the entire federal circuit court. If the holding stands, however, it will tee up the question of who can sue to enforce the VRA to the conservative-majority Supreme Court — unless Congress reclaims its legislative authority.
How We Got Here
“Quarreling over district lines begins like clockwork every ten years after the United States Census,” Monday’s majority opinion in NAACP v. Arkansas Board of Apportionment began. “In 2021, Arkansas experienced it firsthand when it created 11 majority-black districts out of 100 for electing members of its House of Representatives,” the majority opinion, authored by Trump-appointee David Stras, continued.
Soon after, the Arkansas NAACP and the Arkansas Public Policy Panel sued, as the court put it, “nearly everyone who had anything to do with it under Section 2 of the Voting Rights Act.” The NAACP lawsuit claimed the newly crafted congressional map diluted the voting power of Arkansas’ African-American population.
Section 2 of the VRA provides that “no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Congress added the “results in a denial or abridgement” language in the early 1980s after the Supreme Court held that the prior language, which prohibited states from denying or abridging the right to vote, only prohibited intentional discrimination — the “purposeful exclusion” of voters from the political process. “Discriminatory effects were not enough,” the Supreme Court stressed.
In response, Congress amended Section 2, providing that racially disparate “effects” or “results” constituted a violation of the VRA. Congress further specified in the amended statutory language that a Section 2 violation occurs if members of a race “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Section 2 soon became a go-to tool to strike down state laws regulating voting and congressional maps. But for all the litigation, the courts sidestepped the initial question of who had authority to enforce Section 2 of the VRA. Instead, the United States Supreme Court and the lower federal courts seemed to assume that there was a “private right of action,” or more simply put, a right for a private person to sue to enforce the statute.
As one court recently put it, “for decades and throughout hundreds of cases a private right of action has been assumed” under Section 2.
But then, Justice Gorsuch “upend[ed] that distinct line of precedent,” when in a concurrence, joined by Justice Thomas, he labeled the right of a private party to sue under Section 2, “an open question.”
When confronted with the NAACP’s challenge to Arkansas’ 2021 redistricting plan, federal district court Judge Lee P. Rudofsky, a Trump appointee, considered the question Justice Gorsuch called an “open question” — namely whether Section 2 allowed private citizens, or advocacy groups such as the NAACP, to sue. The district court concluded it did not. The NAACP and its co-plaintiff appealed to the Eighth Circuit which, in a split 2-1 opinion, upheld the lower court decision.
In holding Section 2 did not provide for a “private right of action,” Judge Stras, joined by George W. Bush-appointed Judge Raymond Gruender, conducted a detailed and methodical analysis of the statutory language — something prior courts had failed to do. Most significantly, the majority opinion stressed that “Section 2 itself contains no private enforcement mechanism. All it does is specify what is unlawful … Not who can enforce it.”
Further, as the majority explained, elsewhere in the VRA, Congress expressly spoke of criminal penalties and the bringing of a “civil action by Attorney General for preventive relief.” “Any mention of private plaintiffs or private remedies, however, is missing,” the court stressed, before holding that the enforcement power belongs solely to the attorney general of the United States.
The remainder of the opinion addressed and rejected the various arguments proffered by the NAACP. For instance, the Eighth Circuit concluded that Supreme Court decisions that assumed Section 2 created a private right of action were not controlling, with the language merely dicta. The federal appellate court likewise rejected reliance on legislative history, where members of Congress merely declared such a private right existed, without any reference to the statutory language.
In short, while Congress could have authorized private individuals to sue, it had not, the court concluded.
Bush-appointed Judge Lavenski Smith dissented, but not based on the majority’s analysis. Rather, the dissent argued the appropriate path for the court was to “adhere to the extensive history, binding precedent, and implied Congressional approval of Section 2’s private right of action.”
While Judge Smith wrote only in dissent, less than two weeks ago, the Fifth Circuit Court of Appeals held that Section 2 of the VRA created a private right of action. But like the Eighth Circuit’s dissent, the Fifth Circuit’s analysis focused less on the question and more on the fact that courts have regularly assumed such a right existed.
What Comes Next
The NAACP has two choices now: It can ask the entire Eighth Circuit to rehear the case — what is called an en banc hearing — or it can seek review by the United States Supreme Court. If the Eighth Circuit does not rehear the case, or does and adopts the majority’s view that no private right of action exists, the Supreme Court’s hand will be forced, as there will now be a split in the circuits on the meaning of federal law — something only the high court can resolve, unless Congress speaks.
Of course, the better and more appropriate route would be for Congress to address the issue, and at its core, that is really what this VRA case is about: who makes the law.
