This story originally appeared in The Washington Post Nov. 21, 2023
https://www.washingtonpost.com/politics/2023/11/20/voting-rights-act-lawsuit/?utm_source=pocket_saves

Appeals court decision could limit enforcement of Voting Rights Act

By Mariana Alfaro
Updated November 21, 2023 at 2:04 a.m. EST
Published November 20, 2023 at 7:38 p.m. EST

A federal court on Monday issued a decision that could severely curtail enforcement of the Voting Rights Act, which could affect voters of color nationwide and will probably be appealed to the Supreme Court.

In its 2-1 decision, the U.S. Court of Appeals for the 8th Circuit upheld a lower court’s ruling that private citizens and groups like the NAACP cannot bring lawsuits under a provision that forbids discrimination in state and local elections laws.

The appellate court found that the key section of the act can only be enforced by the U.S. attorney general. That upheld a decision by U.S. District Judge Lee Rudofsky, who in 2022 dismissed a lawsuit challenging Arkansas’ new district map because he said that the Justice Department had to join the plaintiffs.

At the time, voting rights groups argued in their lawsuit that a new map of congressional districts weakened Black voters’ electoral power in the state. Rudofsky, an appointee of President Donald Trump, gave Attorney General Merrick Garland five days to join the groups in the case. When he refused, the case was dismissed.

The 8th Circuit’s decision to uphold Rudofsky’s ruling will probably be appealed to the Supreme Court, and the justices may be inclined to consider it, along with a conflicting ruling on the same issue by the U.S. Court of Appeals for the 5th Circuit.

If the 8th Circuit ruling is upheld, it could weaken the tools used by voters of color and voting rights activists to ensure voting access by marginalized groups by blocking individuals and private groups from using Section 2 of the Voting Rights Act, which passed in 1965, that allows citizens to bring legal challenges to redistricting decisions and other actions that weaken their voting power.

In their decision, the 8th Circuit judges noted that, in the past 40 years, at least 182 successful Section 2 cases have been filed and, of those, only 15 “were brought solely” by the attorney general.

In the majority opinion for the 8th Circuit, Judge David Stras — also a Trump appointee — wrote that while courts have, “for much of the last half-century,” “assumed” that Article 2 is enforceable, “a deeper look has revealed that this assumption rests on flimsy footing.” Stras was joined in the majority opinion by Judge Raymond Gruender, a George W. Bush appointee.

In his dissent, Chief Judge Lavenski Smith of the 8th Circuit — also a Bush appointee — said that, while “admittedly, the Court has never directly addressed the existence of a private right of action under [Article 2],” the court has “repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under [Article 2].”

“Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote. “Rights so foundational to self- government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”

On Monday, legal experts blasted the 8th Circuit’s ruling, calling it “erroneous” and “unprecedented.”

“Eliminating individual people’s right to sue under Section 2 of the Voting Rights Act runs contrary to settled law, common sense and any basic concept of fairness: When the government discriminates against people, they should have a right to fight back in court,” said Paul Smith, senior vice president at the Campaign Legal Center.

Richard L. Hasen, a professor of law and political science at the University of California, wrote in a post for the Election Law Blog that the 8th Circuit majority reached its decision “with a wooden, textualist analysis” despite “recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought, assuming that Congress intended to allow such suits.”

“And the majority acknowledges that the legislative history of the passage of Section 2 leaves no doubt: Congress intended to allow private plaintiffs to bring suit,” Hasen wrote.

Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice at NYU School of Law, said that this is why it is “very significant” that the 8th District would use such logic to decide “something so significant and so radical” that she argued would be “devastating to the enforcement of the Voting Rights Act.”

Weiser said the 8th Circuit’s decision suggests that, nationally, there’s “an environment where judges feel like it would be permissible for them to just rewrite the law and upend precedent and core rights and protections.”

The 8th Circuit’s decision only affects states in its jurisdiction — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

The Campaign Legal Center said it submitted a friend-of-the-court brief in connection to the 8th Circuit case, Arkansas NAACP v. Arkansas, on behalf of former Justice Department officials, arguing that “private lawsuits are critical to enforcing the VRA.” Historically, the organization noted, the majority of Section 2 cases have been brought by private plaintiffs.

The Supreme Court for 40 years has reviewed lawsuits filed under Section 2. In June, the court, in a 5-4 decision, even ruled against an Alabama congressional map that included just one district with a majority of Black voters, requiring the drawing of a new map in that state. At the time, Abha Khanna — a partner at Elias Law Group who argued the case before the Supreme Court — said she was thrilled with the ruling because it ensures that districts in Black communities are drawn as they were intended under Section 2.

Suits filed by individuals are the way many challenges to voting laws originate, and other judicial circuits have not questioned their legality. Just this month, the conservative U.S. Court of Appeals for the 5th Circuit ruled the opposite way of the 8th Circuit, affirming the right of individuals to bring such actions under Section 2.

Such splits in the appellate courts will probably mean Supreme Court review of the issue. And some opponents of the Voting Rights Act have begun raising challenges against Section 2 of the act after a one-paragraph concurring opinion by Justice Neil M. Gorsuch in a 2021 case.

In the decision in that case, Brnovich v. Democratic National Committee, the court signaled that it will be harder to successfully challenge new election laws passed by state legislatures in the aftermath of the 2020 election.

In his opinion, Gorsuch wrote that he wanted to “flag one thing”: He said the court has assumed but not decided that the Voting Rights Act allows such suits under Section 2. Because no such claim was made in the Arizona case at hand, Gorsuch said “this Court need not and does not address that issue today.” Although only Justice Clarence Thomas signed on to that opinion, some saw it as an invitation from Gorsuch to get the issue before the court.

This, Weiser said, is the most alarming part of the 8th Circuit’s ruling — that more judges nationwide see an opening to challenge precedent and curtail voters’ rights.

If the Supreme Court upholds the 8th Circuit decision, that would potentially “gut” nationwide protections of voting rights and essentially limit cases to “what the Department of Justice can and chooses to take on,” she said. “It’s doing so in part under an environment where it has been encouraged to do so by, I think, this more radical turn in the U.S. Supreme Court.”

Robert Barnes contributed to this report.