‘Travesty for Democracy’: Court Guts Key Part of Voting Rights Act

A federal appeals court on November 20, 2023 ruled that only the U.S. Department of Justice can bring lawsuits under Section 2 of the 1965 Voting Rights Act, a decision that—if upheld—would deprive private citizens and advocacy groups of the ability to file legal challenges to fight discriminatory election practices.

In a 2-1 decision, the 8th Circuit Court of Appeals ruled that there is no “private right of action” under that part of the Voting Rights Act, which prohibits “any voting standard, practice, or procedure that results in the denial or abridgment of the right of any citizen to vote on account of race, color, or membership in a language minority group.”

Judge David Stras, an appointee of former President Donald Trump, wrote in the majority opinion that “the who-gets-to-sue question is the centerpiece of today’s case.”

“The Voting Rights Act lists only one plaintiff who can enforce § 2: the attorney general,” Stras added, acknowledging that “we must decide whether naming one excludes others.”

Stras and Judge Raymond Gruender, an appointee of former President George W. Bush, argued that it does, siding with a 2022 lower court ruling. Chief Circuit Judge Lavenski Smith—also a Bush appointee—wrote in dissent that he “would follow existing precedent that permits citizens to seek a judicial remedy” until either the U.S. Supreme Court or Congress changes the law.

“Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection,” Smith wrote.

“The court has gutted one of the most critical protections against voting discrimination.”

The case stems from a legal challenge that Arkansas State Conference of the NAACP and the Arkansas Public Policy Panel—represented by the ACLU of Arkansas—brought against the state of Arkansas in late 2021. Filed under Section 2 of the Voting Rights Act, the lawsuit argued that a redistricting plan for Arkansas House races would illegally “undermine the voting strength of Black Arkansans.”

“This ruling is a travesty for democracy,” Sophia Lin Lakin, director of the ACLU’s Voting Rights Project, said in a statement. “For generations, private individuals have brought cases under Section 2 of the Voting Rights Act to protect their right to vote. No court had denied them the ability to bring their claims in federal court—with the sole exception of the district court, and now the 8th Circuit.”

Barry Jefferson, political action chair of the Arkansas State Conference of the NAACP, added that “this decision is a devastating blow to the civil rights of every American, and the integrity of our nation’s electoral system.”

“By stripping individuals of the ability to sue under Section 2 of the Voting Rights Act,” said Jefferson, “the court has gutted one of the most critical protections against voting discrimination.”

The 8th Circuit ruling is widely expected to face an appeal at the conservative-dominated U.S. Supreme Court, which delivered a surprise victory for civil rights advocates earlier this year when it declined to gut what remains of the Voting Rights Act.

If the 8th Circuit’s decision stands, an administration hostile to the Voting Rights Act could simply decline to enforce Section 2, a potential disaster for fundamental freedoms nationwide.

Experts were stunned by the court’s willingness to dispense with decades of precedent by ruling against the right of private citizens to sue under Section 2.

“The brazenness of this decision is something else,” wrote Nicholas Stephanopoulos, a professor at Harvard Law School. “The thousands of litigants who have brought Section 2 claims? The thousands of courts who have decided these cases? Somehow they all missed what these two judges, in their infinite wisdom, finally saw.”

Wendy Weiser, vice president for democracy at the Brennan Center for Justice, wrote that “this radical 8th Circuit decision would essentially gut the remaining nationwide protections of the Voting Rights Act by preventing anyone other than [the Department of Justice] from enforcing them.”

“This is deeply wrong,” Weiser added, “and it goes against decades of precedent and practice.”

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