A federal appeals court on Tuesday declined to reconsider a ruling that private individuals can’t sue under Section 2 of the Voting Rights Act, which prohibits abridging the right to vote on the basis of race.
The panel’s majority cited largely procedural issues in its decision to deny the request for the full 8th Circuit Court of Appeals to rehear the case challenging Arkansas’ state legislative redistricting map.
Three judges disagreed in a lengthy dissent that cited decades of precedent and successful cases brought by private individuals under Section 2 of the VRA.
The plaintiffs in the lawsuit said Tuesday that they were still deciding whether to appeal to the U.S. Supreme Court.
VRA Appeal 01302024
The American Civil Liberties Union filed the lawsuit on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel against the Arkansas Board of Apportionment, challenging Arkansas’ 2021 redrawing of the state House of Representatives map. The complaint alleged the new map diluted the Black vote.
The plaintiffs requested that the full 8th Circuit rehear the case after a three-judge panel in November ruled that only the United States attorney general can enforce the VRA.
Arkansas Attorney General Tim Griffin praised the panel’s decision to not rehear the case.
“Arkansas’s redistricting process is done by Arkansans elected by their fellow Arkansans,” Griffin said in a statement. “This decision is a win for our citizens and sends a message that the rule of law governs in Arkansas. It is important to remember that even the Biden administration declined to side with the claims of the ACLU and NAACP in this suit.”
Barry Jefferson, president of the Arkansas State Conference of the NAACP, called Tuesday’s decision a slap in the face to 60 years of precedent and said it will make it more difficult for individuals to hold the government accountable.
“It’s going to be hard for people and organizations like the NAACP, organizations like the Arkansas Public Policy Panel, to stand and fight for people that we believe in, that they have a voice in the federal court system and they don’t have to wait for the Attorney General Office of the United States to speak for them,” Jefferson said. “They can speak for themself. I think that’s what hurts more than anything.”
ACLU of Arkansas Executive Director Holly Dickson said she’s concerned about the widespread effects of Tuesday’s ruling.
“The decision by the Eighth Circuit to not revisit the case is a serious blow to the rights of Arkansas voters,” Dickson said in a statement. “By allowing this ruling to stand, the court set a dangerous precedent that could have far-reaching implications for our democracy. However, our fight is far from over.”
GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
The panel’s majority wrote that plaintiffs focused on whether the VRA contains a private right of action under Section 2. The possibility of enforcing Section 2 through another statute “appears to have been an afterthought.”
While plaintiffs mentioned that statutes creating private rights are enforceable under another federal law, Section 1983, they did not provide extensive briefing on the issue, so the panel addressed the case the parties brought — whether the VRA allows for private enforcement of Section 2.
Section 1983 allows someone to sue government officials who have violated their civil rights.
“It may well turn out that private plaintiffs can sue to enforce § 2 of the Voting Rights Act under § 1983. But without briefing on the issue, we could not say it was ‘beyond doubt,’” the majority wrote. “And it would have been backwards to treat the plaintiffs’ choice not to add a § 1983 claim as the reason to decide they could.
Federal appeals court dismisses Arkansas redistricting lawsuit
“So we did what we usually do — address the case the parties brought — and considered whether the Voting Rights Act allows for private enforcement of § 2. We concluded the answer to that specific question was ‘no.’”
In the dissent, Circuit Judge Steven Colloton, joined by Circuit Judge Jane Kelly, said the panel majority “rendered an ambitious and unprecedented ruling” that voters do not have a private right of action under Section 2 of the VRA.
The dissent also said a rehearing is warranted because of errors that have occurred as the case worked its way through the courts.
“The mistakes in this case are almost entirely judge-driven: a sua sponte order by the district court, and a panel’s award of greater relief to State appellees who did not appeal,” the dissenting panel wrote. “The panel’s error is evident, but the court regrettably misses an opportunity to reaffirm its role as a dispassionate arbiter of issues that are presented by the parties. Rehearing should be granted.”
Chief Judge Lavenski Smith, an Arkansas native and the 8th circuit’s first Black chief justice, agreed Tuesday that the full 8th circuit should rehear the case.
Smith also issued a dissenting opinion in the November ruling. Citing the University of Michigan Law School Voting Rights Initiative, he wrote that more than 400 Section 2 cases have been litigated in federal court. Of the 182 successful cases, only 15 were brought solely by the attorney general.
The court’s decision means only the attorney general can enforce the VRA in states within the 8th Circuit’s jurisdiction: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. Citizens in Arkansas’ neighboring states — Louisiana, Mississippi and Texas — do have a right to private action under Section 2 because they are in the 5th Circuit, which last month rejected a request to overturn a decision supporting that right.
