We were 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.” While it is true that no court has previously directly addressed whether there is a private right of action to enforce Section 2, 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.
The 8th Circuit’s decision, Arkansas State Conference NAACP v. Arkansas Board of Apportionment, No. 22-1395, if allowed to stand, threatens to gut Section 2 of the Voting Rights Act, as the only party who will remain able to enforce it will be the Attorney General of the United States, and the Department of Justice obviously lacks the resources to be able to litigate every conceivable case which could be brought. Private enforcement of the Voting Rights Act is an important adjunct to the Attorney General’s powers. Not only has private enforcement long been assumed, but Section 3 of the Act expressly provides that “[w]henever the Attorney General or an aggrieved person institutes a proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendments,” language that was added to the original statute by congressional amendment, and evidencing an understanding by Congress and the President that private suits were authorized and appropriate.
We call on other Circuits who may now be called upon to address this issue to reject the conclusions reached by the 8th Circuit, which we consider to be both ill-advised and erroneous. We also call upon the Supreme Court of the United States to grant review of this decision and promptly reverse it.
Dated: December 15, 2023
TASK FORCE ON VOTING RIGHTS
OF THE NEW YORK COUNTY LAWYERS ASSOCIATION
Onya Brinson, Chair
About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.
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