The decades-long effort by conservative activists to narrow federal voting rights for minorities won another major victory on Monday, in an Arkansas case that is certain to be tested in the U.S. Supreme Court.
In a 2-to-1 ruling, a federal appeals court based in St. Louis decided that voters have no right to sue to enforce the most important remaining federal law protecting minorities in elections – even though courts for more than a half century have said they do.
Only the federal government, the court’s majority said, has been empowered by Congress to enforce Section 2 of the 1965 Voting Rights Act. More than 400 cases have been pursued under that section and the vast majority of those were filed by private citizens. One study of 182 Section 2 cases that had been won included only 15 that had been filed by the U.S. Justice Department.
Section 2 has become the most important part of the 1965 law since the Supreme Court, in 2013, made the most sweeping part of that law (Section 5) unenforceable. Section 5 had required states with a history of racial bias in voting to justify in court any change they made in their election laws. Section 2 applies nationwide and outlaws any racial discriminatory voting practice, but those suing always have to prove a violation. Such lawsuits can succeed, though, without proof of intentional racial bias; they must prove a discriminatory impact on minority voters.
In the case decided on Monday, by a federal appeals court that decides federal cases arising in seven Midwestern and Border states, the two-judge majority found that Congress had never explicitly written into Section 2 a private right to sue to enforce it. It conceded that Congress had repeatedly extended Section 2 knowing what courts had done, but it said that that legislative history was not decisive. What counts, the majority said, is the words Congress wrote.
The majority dismissed years of federal court rulings allowing private lawsuits under this provision, saying the issue was not directly at issue in those cases. Notable among those prior rulings were opinions by five Justices of the Supreme Court, in 1996, saying explicitly that the right did exist. (None of those five Justices remain on the Court today.) The appeals court said those 1996 comments were “just background assumptions,” not actual legal judgments necessary to the outcome in those cases.
The two judges noted that two of the Justices now on the Court, Justices Neil M. Gorsuch and Clarence Thomas, had commented in a 2021 Section 2 case at the Court that whether private lawsuits could be filed under that provision was an “open question.”
The appeals court’s decision Monday upheld a ruling last year by a Little Rock federal trial judge, who raised on his own the question of whether private individuals could sue under that provision. That judge said No. He did so after the Justice Department, asked for its view, told him that such suits could be brought.
The Justice Department took part in the case before the appeals court, supporting the Arkansas Chapter of the NAACP and the Arkansas Public Policy Panel. Those organization were challenging a 2021 redistricting plan for the 100 seats in the lower house of the Arkansas legislature.
The lawsuit contended that the map only offered minority voters an opportunity to elect their preferred candidates for 11 of the 100 Representative seats – 11 percent — even though Arkansas’ black population totals 16 percent statewide. Blacks apparently have not previously won more than 13 seats in that chamber. The lawsuit argued that the legislature broke up concentrations of black voters in some new districts and packed other concentrations in some other districts, resulting in a “dilution” of minorities’ opportunity to choose winners across the state.
The appeals court majority made no comment on that challenge, concluding that the case had to be dismissed because the private organizations could not sue. Circuit Judge David A. Stras wrote the opinion, joined by Circuit Judge Raymond W. Gruener.
The majority commented that there has long been a controversy over whether courts should find a right of private citizens to enforce a federal law “because having the judiciary decide who can sue bypasses the legislative process.”
The chief judge of the appeals court, Circuit Judge Lavenski R. Smith , dissented, saying that until Congress rewrote Section 2 to settle the issue of who could sue, courts should follow the string of precedents – from the Supreme Court, too – that have allowed such lawsuits.
“Rights so foundational to self-government and citizenship,” Judge Smith wrote, “should not depend solely on the discretion or availability of the government’s agents for protection.” The opinion added that the Supreme Court should be the one to decide.
It is almost a certainty that the Arkansas challengers will appeal Monday’s ruling, with the support of the Biden Administration’s Justice Department, either before the full 11-judge appeals court or the Supreme Court. The challengers have the option of trying to go promptly to the Supreme Court, bypassing any further review in the appeals court.
The outcome Monday was another setback in the back-and-forth history of Section 2 of the 1965 voting rights law. After its initial passage by Congress, in 1965, the Supreme Court ruled in 1980 that challengers under that provision could win their cases only if they proved that racial discrimination was explicitly intended. It was not enough, the Court ruled, that a state or local voting laws had a discriminatory impact or effect on minorities.
Congress reacted two years later, adopting the discriminatory effects test as the proof required to win a Section 2 case. Congress has never acted explicitly to say who may sue, but has never moved to second-guess the lengthy list of court rulings allowing private lawsuits to enforce it.
After the Supreme Court’s controversial ruling in 2013, essentially erasing the highly effective Section 5 of the act, minority rights activists turned to Section 2 as the main legal basis for challenging voting restrictions affecting minorities.
But that increased activity led to an escalating string of court challenges by conservative groups, seeking to limit the effectiveness of that section. There also have been specific challenges claiming that Section 2 itself is unconstitutional, because it uses race as a determining factor in voting rights cases. That broad argument has never prevailed in court.
However, two years ago, the newly dominant Supreme Court majority of six Justices issued a wide-ranging ruling sharply narrowing the kinds of claims that could be made under Section 2, over dissents by three liberal Justices. The majority also wrote new restrictions into how Section 2 cases could be drafted and what they could challenge.
Monday’s new appeals court ruling could be a significant test of Section 2’s fate in the Supreme Court. It should be noted that the Little Rock judge who dismissed this new case because it was a private lawsuit did comment that the evidence in the case “thus far” showed that “there is strong merit that at least some of the challenged [election] districts…are unlawful under Section 2.” But that was of no avail, since the judge found no authority to decide the merits.