UPDATES & ANALYSIS

Eighth Circuit Court of Appeals upends Voting Rights Act precedents on who has the right to challenge laws based on race or color

by Rox Laird | November 30, 2023

In the nearly six decades since the Voting Rights Act was enacted by Congress, federal judges have assumed private parties could bring suits in federal court to enforce the law that prohibits state or federal election policies that deny the right to vote based on race or color.

That assumption was upended in a Nov. 20 decision by the U.S. Court of Appeals for the Eighth Circuit, which has jurisdiction to hear appeals in federal cases in seven Midwest states including Iowa. Section 2 of the Voting Rights Act of 1965 explicitly empowers the U.S. Attorney General to enforce that section of the Act, not individuals who claim to be harmed by discriminatory voting policies, the court said in its decision in an Arkansas case.

“For much of the last half-century, courts have assumed that [Section 2] is privately enforceable. A deeper look has revealed that this assumption rests on flimsy footing,” the court said in a divided three-judge panel decision.

For now, the decision applies only to those under the jurisdiction of the Eighth Circuit. Other federal circuit courts of appeal have ruled otherwise, creating a split among the federal circuits that suggests the issue will ultimately be resolved by the U.S. Supreme Court. Meanwhile, the Arkansas plaintiffs have filed a motion seeking an extension of the Dec. 4 deadline for filing a petition for rehearing of the case before the full 11-member Eight Circuit.

The Voting Rights Act case was brought by the Arkansas State Conference NAACP and the Arkansas Public Policy Panel in the Eastern District of Arkansas claiming the State’s election district maps are stacked against Black voters. The Arkansas trial court, reviewing the text, history, and structure of the Voting Rights Act, concluded that private parties cannot enforce Section 2 of the Act and that the enforcement power belonged solely to the Attorney General of the United States.

The three-judge Eighth Circuit panel affirmed the trial court in a decision written by appellate Judge David Stras of Minneapolis joined by Judge Raymond Gruender of St. Louis. Chief Judge Lavenski Smith of Little Rock dissented.

Congress passed the Voting Rights Act in 1965 in response to states’ racial discrimination through voting laws and practices. Under Section 2 of the Act, all states and political subdivisions are prohibited from enacting any election standards or practices that deny or abridge the right of any citizen to vote on the basis of race or color.

In response to a 1981 U.S. Supreme Court ruling that said Section 2 applied only to “purposeful exclusion” of voters from the political process, and not to discriminatory policies that have the effect of excluding voters based on race, Congress amended Section 2 to prohibit “any voting qualification or prerequisite to voting or standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

The question before the Eighth Circuit in the Arkansas case: By naming only the Attorney General as having the power to sue to enforce the Act as amended, are all others excluded?

Stras wrote that while courts may imply a cause of action on the part of individuals or groups other than the Attorney General, the practice “has long been controversial, in part because having the judiciary decide who can sue bypasses the legislative process.” The U.S. Supreme Court has in recent years cited its 2001 decision in Alexander v. Sandoval for the general principle that “private rights of action to enforce federal law must be created by Congress.”

Congress did that in the Civil Rights Act of 1964, one year before passing the Voting Rights Act, by explicitly providing “a civil action for preventive relief” that can be brought by a person experiencing discrimination, Stras noted. But, he added, “When those details are missing, it is not our place to fill in the gaps, except when ‘text and structure’ require it,” and the text and structure of the Voting Rights Act show that Congress intended to place enforcement in the hands of the Attorney General rather than private parties.

Chief Judge Smith, writing in dissent, said he would follow the decades of precedent that a private right of action under Section 2 has been assumed.

“Until the [U.S. Supreme 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. Resolution of whether [Section 2] affords private plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance.”

Tags: Eighth Circuit