8th Circuit Rules There is No Private Right of Action Under the Voting Rights Act, in an Unprecedented Restriction of Ability to Enforce
I was both surprised and disappointed to see that, right before Thanksgiving, the 8th Circuit took the unprecedented step of ruling that there is no private right of action to enforce Section 2 of the Voting Rights Act of 1965, as amended. Section 2 contains the core requirement of the Voting Rights Act that makes it unlawful for any State or political subdivision “to deny or abridge the right of any citizen of the United States to vote on account of race or color.” The statute was enacted in the civil rights era, and it represents a major step in our nation’s history in the battle to overcome our legacy of slavery, the failure of Reconstruction and the long century of Jim Crow that followed that. Now the statute may be almost entirely gutted. For shame.
The 8th Circuit’s ruling was Arkansas State Conference NAACP v. Arkansas Board of Apportionment, No. 22-1395. Insufficient attention has been paid to it to date given its potential to undermine almost the entire Voting Rights Act. NYCLA’s Task Force on Voting Rights issued a statement last week criticizing the ruling. I want to use this blog post to expand on that statement.
It is certainly true that, as the 8th Circuit stated, no appellate court has ever previously addressed whether there is a private right of action to enforce Section 2. But that power has long been assumed, including only six months ago by the Supreme Court in Allen v. Milligan, when the Supreme Court upheld a challenge to Alabama’s gerrymandered voting maps that diminished Black voting strength. That was one of the surprise decisions of last year’s Term, when many persons, including myself, assumed the Supreme Court would find, as it had in Rucho v. Common Cause in 2019, that partisan gerrymandering presented political questions that were beyond the reach of the federal courts. Instead, the Court found that the gerrymandering at issue was along such strongly racial lines that there was a potential violation of Section 2.
The gerrymandering alleged in Allen v. Milligan was of the classic “packing and cracking” variety. Blacks were “packed” into a small number of districts where they had disproportionately large numbers, so they could elect a very few representatives, as well as “cracked” among a larger number of remaining districts where they were disproportionately under-represented, with the net effect being that while Blacks could elect a few representatives, they were far fewer than their total proportion of the population of the State as a whole, diluting the power of their vote. Coupled with statements made by state legislators and other officials making it clear that was their intent, the Supreme Court found a Section 2 violation. While the Supreme Court did not expressly decide there was a private right of action under Section 2, that conclusion was at least implicit in the Court’s ruling, as it has been in literally hundreds of other cases brought under Section 2 in the past 58 years.
One might think that the 8th Circuit would have thought it advisable to defer to that history, especially given such recent history in the Supreme Court. But no. The 8th Circuit ran roughshod over the history, explicitly recognizing it but concluding it was irrelevant as the specific issue had never been decided at an appellate level. It had never been decided at a lower court level either, until the district court below took it on, on the mistaken belief that it went to the court’s subject matter jurisdiction (no cause of action, no federal question, hence no subject matter jurisdiction, the reasoning went, when we’re all taught in first year civil procedure in law school that is a fallacious way to look at federal question subject matter jurisdiction).
It is also true that we are no longer in an era where the Supreme Court took a more generous attitude towards private rights of action. The 8th Circuit pointed to J.I. Case Co. v. Borak, a decision from the 60s in which the Supreme Court implied a right of action under Section 14(a) of the Securities Exchange Act which governs the proxy rules. That was one of the last cases where the Supreme Court created an implied cause of action (it is worth noting that, for all the thousands of Rule 10b-5 actions that have ever been brought, there was no express statutory cause of action there either).
But the problem with the 8th Circuit’s recitation about implied causes of action isn’t just that it ignores the Supreme Court’s recent Allen v. Milligan decision. In fact, there is concrete evidence, in the amendments to Section 3 of the Voting Rights Act over time, that expressly recognizes the possibility of private actions. Section 3 was amended to provide explicitly that “[w]henever the Attorney General or an aggrieved person institutes a proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendments,” which has to mean that Congress intended that some persons other than the Attorney General might sue.
The 8th Circuit’s ruling, if allowed to stand, effectively guts Section 2. There are hundreds if not thousands of redistricting decisions that get made every election cycle, for local, state and federal offices. Each and every one of them is subject to racially based gerrymandering. Even “legitimate” gerrymandering, based on political factors other than race, may be hard to distinguish from its “illegitimate” cousin, raising difficult litigable issues about motivation and intent. If private parties cannot address those issues under Section 2, then only the Attorney General of the United States may do so. The Department of Justice does not have and will never have the resources to investigate and address every such conceivable instance of racial gerrymandering. Most will never be subject to legal, much less judicial, scrutiny as a result. The Supreme Court has already gutted Section 5 of the Voting Rights Act, in its 2013 decision in Shelby County v. Holder, which struck the pre-clearance provisions of the Act that required states with histories of voting discrimination to submit proposed voting changes to the Justice Department for pre-clearance prior to implementation. This had been an important source of enforcement authority over voting rights. If private parties are not allowed to sue under Section 2, not only will the field of potential plaintiffs be shrunk to one, the Justice Department may not even find out about the actions it might have sought to challenge back in the day when pre-clearance was required, and even when they do find out there will be a constant form of triage which will have to be made, with the Justice Department having to decide which cases are serious enough to be brought. Our not-quite 60-year history of enforcing minority voting rights against egregious efforts to tamper with them will be all but over, in a shorter time than the Jim Crow era of denying those voting rights lasted after the Civil War and Reconstruction.
One can already see the effects. All across the Red Team South, states are continuing to try to gerrymander at least in part along racial lines, Allen v. Milligan notwithstanding, arguing that their efforts aren’t based on race but rather party affiliation, and therefore an unreviewable political question under Rucho. To the extent that appears to be “packing and cracking” involving race, they say, that is only because Blacks are still strongly Democratic voters. Such litigations are going on in North Carolina, Georgia, Alabama, Louisiana and Texas. The cynic in me says one of the goals is to run out the clock on those gerrymandered maps through litigation, so that as we get close to the 2024 election, another principle of election law can be invoked, which is that as we get too close to an election, maps should not be subject to change for reasons of logistics and potential confusion. In the Texas case, a coalition of Red State Attorneys General just filed an amicus brief seeking to argue in addition that the 8th Circuit’s decision should be followed there, and no private right of action should be allowed, and the case should be dismissed for that reason as well.
The best solution to the problem that the 8th Circuit’s decision represents would be for the Supreme Court to grant certiorari and reverse, summarily based on Allen v. Milligan. Whether or not the Supreme Court does that, let alone does that in time for the effects of the 8th Circuit’s decision not to be felt in next year’s election cycle, remains to be seen, but I am doubtful.
The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.