A federal appeals court on Monday ruled against a key tool used to enforce the Voting Rights Act – likely setting up another Supreme Court showdown over one of the nation’s landmark civil rights laws.
In a ruling that springs from an Arkansas redistricting case, the 8th US Circuit Court of Appeals ruled that private entities cannot bring lawsuits under a provision of the law, known as Section 2. If it stands, the decision would dramatically weaken what remains of the Voting Rights Act, passed in 1965 to counter racial discrimination in elections.
In a 2-1 decision, the judges said the “text and structure” of the voting rights statute shows that Congress did not give private plaintiffs the authority to sue. The appellate panel affirmed a 2022 ruling by a Trump-appointed federal judge in Arkansas that held only the US Justice Department can bring Section 2 lawsuits.
That ruling runs counter to decades of legal practice, however.
The vast majority of cases brought under the Voting Rights Act – which prohibits election rules that have the intent or effect of discriminating on the basis of race – are brought by private plaintiffs, with the Justice Department facing strained resources and other considerations that limit the number of such cases it files to, at most, a few each year.
“Eliminating individual people’s right to sue under Section 2 of the Voting Rights Act runs contrary to settled law, common sense and any basic concept of fairness: when the government discriminates against people, they should have a right to fight back in court,” Paul Smith, senior vice president of the nonpartisan Campaign Legal Center, said in a statement.
The center had submitted a friend-of-the-court brief in the case, arguing that private lawsuits are critical to enforcing the Voting Rights Act.
The US Justice Department’s voting section – which enforces federal voting laws – simply does have not enough lawyers “to be everywhere in the nation at once,” said David Becker, executive director of the Center for Election Innovation & Research. He worked as an attorney in the DOJ’s voting section during the Clinton and Bush administrations.
“That’s why over the course of over 50 years, private plaintiffs have also brought those cases so that residents of a small county in Arkansas are just as well protected as residents of the entirety of the state of California,” he added.
The case at hand centers on a challenge originally brought by the Arkansas chapter of the NAACP and the Arkansas Public Policy Panel to Arkansas’ state House map.
The ruling immediately affects the seven states covered by the 8th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. And it comes as the 2024 presidential campaign heats up.
Voting procedures around the country have been the subject of intense political battles ever since the 2020 presidential election. Former President Donald Trump has falsely and continuously claimed that election fraud contributed to his loss.
Arkansas Attorney General Tim Griffin, a Republican, hailed Monday’s ruling as helping to curb “meritless” challenges to states’ decisions on how to draw legislative maps and conduct elections.
“For far too long, courts across the country have allowed political activists to file meritless lawsuits seeking to seize control of how states conduct elections and redistricting,” he said in a statement. “This decision confirms that enforcement of the Voting Rights Act should be handled by politically accountable officials and not by outside special interest groups.”
Circuit Judge David Stras, a Trump appointee writing for the majority, said the text of the Voting Rights Act does not spell out a “private right of action” or the ability of a private citizen to sue.
In his dissent, Chief Circuit Judge Lavenski Smith – a George W. Bush appointee – noted that at least 182 successful Section 2 cases have been brought in the past 40 years, only 15 of which were brought solely by the US Justice Department.
“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.
An appeal of Monday’s ruling could go to the full 8th Circuit for review. But the matter ultimately is expected to end up before the nation’s high court, in part because a panel from another appellate court, the 5th Circuit Court of Appeals, recently came to a different conclusion.
Just this year, in a high-profile Alabama redistricting case, the US Supreme Court reaffirmed the use of Section 2 of the Voting Rights Act in ordering the state to redraw its congressional map to guarantee more political power for Black voters. The decision surprised many legal observers, given that the high court in 2013 weakened the law by defanging a separate provision of the law that determined which states needed approval from the US Department of Justice or a federal court before they could make changes to their voting procedures and laws.
This story has been updated with additional information.
CNN’s Tierney Sneed contributed to this story.