A long-shot challenge now presents a serious threat to the Voting Rights Act

Almost exactly two years ago, I wrote about an argument that had the potential to undermine a key section of the Voting Rights Act: the contention that private parties couldn’t sue to enforce Section 2 of the landmark voting rights statute.

It “flies in the face” of how the law had been interpreted by federal courts for decades, I wrote at the time. Expert after expert stressed that it was a long shot, describing it with terms such as “far-fetched” and “Hail Mary pass.”

Except for one thing: Supreme Court Justice Neil Gorsuch, joined by Justice Clarence Thomas, had raised the question, in a one-paragraph concurring opinion in another voting rights case in 2020. Past cases, he wrote, “have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under §2.”

No contention is too far out there if two Supreme Court justices want to parse it. That’s why defendants in voting rights cases, including the states of Texas and Georgia, began raising the argument, which, if successful, would mean only the U.S. Department of Justice could file suit under Section 2 of the Voting Rights Act (the provision of the law which prohibits discrimination in voting based on race or membership in certain language minority groups and has historically been most often used in redistricting cases). That’s a dramatic change that almost certainly would result in far fewer such cases.

Now, a federal appellate court has officially endorsed it.

“Did Congress give private plaintiffs the ability to sue under § 2 of the Voting Rights Act? Text and structure reveal that the answer is no,” a three-judge panel wrote for the U.S. Court of Appeals for the 8th Circuit in connection with an Arkansas case.

That means that for now, private parties can’t bring suit under Section 2 of the Voting Rights Act in the seven states covered by the 8th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. And almost certainly, Gorsuch, Thomas, and their fellow Supreme Court justices will eventually have to decide the question.

Voting rights advocates who have been bringing suit under the provision for decades say they’re flummoxed by the 8th Circuit’s decision. They point to a legislative record that clearly shows Congress reauthorized the Voting Rights Act knowing full well that private plaintiffs were suing under Section 2 of the VRA, and making it clear Congress expected that to continue.

“The Committee reiterates the existence of the private right of action under Section 2, as has been clearly intended by Congress since 1965,” reads a Senate report from 1982, according to research provided by the Campaign Legal Center’s Danielle Lang. “It is intended that citizens have a private cause of action to enforce their rights under Section 2,” reads a House report from the same year.

In a 1996 opinion, Morse v. Republican Party of Virginia, the late Supreme Court Justice John Paul Stevens noted that Section 2 “provides no right to sue on its face,” but the Supreme Court has “entertained cases brought by private litigants to enforce § 2.”

The 8th Circuit panel was dismissive of both the legislative history (“there are many reasons to doubt legislative history as an interpretive tool”) and Morse, which it wrote “assumes that a private right of action exists under § 2.” The emphasis there is the 8th Circuit’s.

The 8th Circuit decision is already reverberating through ongoing cases. For example, in North Dakota, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe recently won a victory in a case over state political maps. Secretary of State Michael Howe, a Republican, cited the 8th Circuit’s ruling on the private right of action when he announced the state would appeal.

Lang points out the North Dakota case was also brought under a separate federal statute that isn’t necessarily affected by the 8th Circuit ruling on Section 2, but by her description, voting rights advocates like the Campaign Legal Center are playing something akin to whack-a-mole with the never-ending challenges to the VRA, and it’s “another way in which our resources are kind of being pulled away from doing our work just to maintain the status quo.”

The Supreme Court recently issued a strong decision upholding the Voting Rights Act — this summer’s 5-4 Milligan ruling originating from an Alabama challenge. That decision, points out Ruth Greenwood, director of the election law clinic at Harvard Law School, may have given new oxygen to arguments such as this as it became apparent the Supreme Court was not immediately going to strike down the law.

“This sort of collateral attack maybe wasn’t seen as the best way to get there, but having Milligan come out the way it did, the conservatives have decided to come at it from every angle until they find something that sticks,” Greenwood said.

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Back then

Conservatives were not always this hostile to the Voting Rights Act, or the ways by which its powers could be brought to bear. The U.S. Senate unanimously reauthorized it in 2006, and several of the Republicans who voted for it remain in office: Susan Collins, John Cornyn, Lindsey Graham, Chuck Grassley, Mitch McConnell, Lisa Murkowski, and John Thune.

Its passage in the U.S. House that year was more fraught with controversy. While House leaders had guaranteed Republican support for the renewal, conservative representatives forced the first vote to be canceled over their support for controversial changes that Democrats and even some Republicans said would gut the intent of the act. To placate them, the House held votes on four amendments (though ultimately none passed).

In the end, most House Republicans did vote for the bill (it passed 390-33), and even did so ahead of schedule.

In other voting news

• So-called “false electors” in states won by President Joe Biden who attempted to wrongly cast those states’ electoral votes for former President Donald Trump continue to face legal consequences. The Washington Post reported Nevada is now the third state to criminally charge false electors. In Wisconsin, the 10 Republicans agreed to a legal settlement requiring them to withdraw their false certification, acknowledge Biden’s victory, and never serve as a presidential elector in any election that includes Trump on the ballot, the Post reported. (Read Votebeat’s story on why Pennsylvania’s “false electors” are likely to avoid prosecution.)
• Columbia County in Georgia has become the first known county to contract with EagleAI, a voter information system endorsed by conservatives who have spread conspiracy theories about elections, the New York Times reports. Experts have warned against using the system, and Georgia state officials said it contained errors.
• To support allegations that former President Donald Trump and his campaign intended to subvert the vote in the 2020 election, federal prosecutors said in a court filing that an unidentified Trump campaign employee “encouraged rioting” to obstruct the tallying of ballots in Detroit, the Detroit News reported.
• A prominent misinformation researcher, Joan Donovan, has filed a complaint against Harvard University, alleging it stopped supporting her work as it sought grants worth hundreds of millions of dollars from the charity of Facebook’s founder, the Washington Post reported. Donovan is now affiliated with Boston University.
• Some Wisconsin Republicans want the state Legislature to dissolve the bipartisan Wisconsin Elections Commission and give the secretary of state management of elections, with oversight from state lawmakers, but it’s unclear whether the proposal has enough support to pass, the Milwaukee Journal Sentinel reported.
• Eligible voters are being caught up in a sweeping conservative effort to challenge voter registrations, forcing those voters to take steps to maintain their registrations and requiring election officials to spend hours evaluating the challenges, CBS News reported.
• Former President Donald Trump and his backers are urging supporters to “guard the vote.” CNN looks at why that phrase troubles democracy advocates and experts.

Carrie Levine is Votebeat’s story editor and is based in Washington, D.C. She edits and frequently writes Votebeat’s national newsletter. Contact Carrie at clevine@votebeat.org. Votebeat is a nonprofit news organization committed to reporting the nuanced truth about elections and voting at a time of crisis in America.