The appeals court found that the key section of the law can only be enforced by the U.S. attorney general. That upheld a ruling by U.S. District Judge Lee Rudofsky, who in 2022 dismissed a lawsuit challenging Arkansas’ new district map because he said the Justice Department should join the plaintiffs.
At the time, voting rights groups argued in their lawsuit that a new congressional district map weakened the voting power of black voters in the state. Rudofsky, appointed by President Donald Trump, gave Attorney General Merrick Garland five days to join the groups in the case. Faced with his refusal, the case was closed without further action.
The 8th Circuit’s decision to uphold Rudofsky’s decision will likely be appealed to the Supreme Court, and the justices may be inclined to review it, along with a conflicting ruling on the same issue by the Court of Justice. American appeal from the 5th Circuit.
If the 8th Circuit’s decision is upheld, it could weaken the tools used by voters of color and voting rights activists to ensure voting access for marginalized groups by preventing private individuals and groups from using the Section 2 of the Voting Rights Act, passed in 1965. which allows citizens to challenge redistricting decisions and other actions that weaken their voting power in court.
In their ruling, the 8th Circuit judges noted that over the past 40 years, at least 182 successful Section 2 cases have been filed and that, of those, only 15 “were brought solely » by the Attorney General.
In the 8th Circuit majority opinion, Judge David Stras – also a Trump appointee – wrote: that while courts have, “for much of the last half century,” “assumed” that Section 2 was applicable, “closer examination has revealed that this assumption rests on shaky grounds.” Stras was joined in the majority opinion by Justice 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 (section 2)”, the court has “repeatedly considered such cases, found that private rights of action existed under other sections of the VRA, and concluded in other VRA cases that ‘a private right of action existed under (section 2).
“Until the Court rules or Congress changes the statute, I would follow existing precedent that allows citizens to seek judicial relief,” Smith wrote. “The fundamental rights of self-government and citizenship should not depend solely on the discretion or availability of government protection agents. »
On Monday, legal experts blasted the 8th Circuit’s decision, calling it “erroneous” and “unprecedented.”
“Eliminating the right of individuals to sue under Section 2 of the Voting Rights Act is contrary to established law, common sense, and every fundamental concept of fairness: when the government evidence of discrimination against people, they should have the right to fight back in court,” said Paul Smith, senior vice president of the Campaign Legal Center.
Richard L. Hasen, a professor of law and political science at the University of California, wrote in an article for the Election Law Blog that the 8th Circuit majority reached its decision “with wooden textual analysis” although it “recognizes that the Supreme Court and lower courts have for decades allowed such suits to be brought, assuming that Congress intended to allow such suits.”
“And the majority recognizes that the legislative history of Section 2’s enactment leaves no doubt: Congress intended to allow private plaintiffs to bring suit,” Hasen wrote.
Wendy Weiser, who directs the democracy program at NYU School of Law’s Brennan Center for Justice, said that’s why it’s “very significant” that the 8th District is using such logic to decide “something so important and so radical” that she argued that be “devastating to the implementation of the Voting Rights Act.”
Weiser said the 8th Circuit’s decision suggests that nationally, there is “an environment in which judges believe it would be permissible for them to simply rewrite the law and upend precedents and fundamental rights and protections “.
The 8th Circuit’s decision only affects states within 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 with the 8th Circuit case, Arkansas NAACP v. Arkansas, on behalf of former Justice Department officials, asserting that “private prosecutions are essential to enforcing the VRA.” Historically, the organization notes, the majority of Article 2 cases have been brought by private plaintiffs.
For 40 years, the Supreme Court has reviewed Section 2 lawsuits. In June, the court, in a 5-4 decision, even ruled against an Alabama congressional map that did not include only one district with a majority of black voters, requiring the drawing of a new map in this state. At the time, Abha Khanna – an associate at Elias Law Group who argued the case before the Supreme Court – said she was pleased with the decision because it ensures that districts for black communities are drawn as intended by the article 2.
Lawsuits by individuals are the source of many challenges to election laws, and other judicial circuits have not questioned their legality. This month, the conservative U.S. 5th Circuit Court of Appeals ruled opposite the 8th Circuit, affirming the right of individuals to bring such actions under Section 2.
Such divisions within the appeals courts will likely require review of the issue by the Supreme Court. And some opponents of the Voting Rights Act began challenging Section 2 of the law after a paragraph-long concurring opinion from Justice Neil M. Gorsuch in a 2021 case.
In the decision rendered in this case, Brnovich v. Democratic National Committee, the court signaled that it will be more difficult to successfully challenge new election laws passed by state legislatures in the wake of the 2020 election.
In his opinion, Gorsuch wrote that he wanted to “point out one thing”: He said the court had assumed, but not decided, that the Voting Rights Act authorized such suits under the Article 2. Because no such assertion had been made in the Arizona case in question, Gorsuch declared that “this Court does not need to and does not address this issue today” . Although only Justice Clarence Thomas concurred, some saw it as an invitation from Gorsuch to take the case to court.
That, Weiser says, is the most alarming part of the 8th Circuit’s decision: More judges nationwide see an opening to challenge precedent and restrict voters’ rights.
If the Supreme Court upholds the 8th Circuit’s decision, it could potentially “guthole” national voting rights protections and essentially limit cases to “what the Justice Department can and chooses to take on,” he said. -she declared. “He’s doing it in part in an environment where he’s been encouraged to do it, I think, by this more radical turn by the United States Supreme Court.”
Robert Barnes contributed to this report.
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