Why does yesterday’s decision by the United States Court of Appeals for the Eighth Circuit, dismissing a Voting Rights Act challenge to a district map from Arkansas, raise such loud alarm bells?
Because we’ve all watched the Roberts Court, and lower federal courts, gut the Voting Rights Act over the past decade—that’s why!
And this case bears scary similarities to recent cases—such as Shelby County and Brnovich—that cut the legs out from under key provisions of the VRA, one of the most successful pieces of legislation in the history of American democracy.
Here’s a little background:
“You Don’t Know What You Got ‘Til Its Gone”: The Heyday of the Voting Rights Act
As I explained in the video above and in more detail in my Voting Rights Academy, the Voting Rights Act provided a number of tools to stop rampant and continued voter suppression in America.
Over the decades, its two primary tools were:
Section 5: this Section required states with a history of discrimination to seek pre-approval of any changes they wished to make to voting procedures. By proactively stopping thousands of potentially suppressive laws from taking effect, over decades, voting in those “covered” states was revolutionized. Long suppressed voters of color finally gained representation they had been denied for almost our entire history.
Section 2: this Section has long allowed both the federal government and private litigants to take on laws anywhere (regardless of whether a state has a history of discrimination) that deny or abridge voting based on race. As I explained in Class 19 of my Voting Rights Academy, the standards of suing under Section 2 were clarified by a bipartisan Congress in 1982, which made the Section an especially useful tool to take on what are called “vote dilution cases”—maps where discriminatory districts have been used to undermine representation by minority groups. These Section 2 cases also revolutionized representation in America, as districting tactics that had long undermined minority representation were banished from American politics.
Strike 1: Shelby County (2013)
Both Section Two and Section Five were living up to their intended purpose until 2013, when the Supreme Court decided Shelby County.
As I reviewed in great detail in Class 18, in Shelby County, the Court (in an opinion written by Chief Justice Roberts) struck down the “coverage formula” of the Voting Rights Act—the formula that pinpointed which states had to undergo the Section 5 “preclearance process” that had been so effective. Once that formula was gone, even though the Section 5 pre-clearance process is technically still in place, there are no longer any states which must abide by it.
And just as Justice Ginsburg predicted in her dissent, the destruction of Section 5 as a proactive tool to stop suppression had precisely the effect you'd expect—an immediate and continuing explosion of voter suppression across those states that were previously covered by the Voting Rights Act. Strict voter ID laws, gerrymandered maps, closed poll locations, deprivation of water, eliminated drop boxes…you name it:
Suppressive changes that once needed to be pre-approved—many of which would have been disapproved—were now put into effect in rapid sequence.
Strike 2: Brnovich (2021)
With Section 5 gutted, those challenging these and other voter suppression laws are left with only one option—Section 2.
While not proactive, Section 2 still allowed both the government and private plaintiffs to take on onerous laws in states across America. And, helpfully, that clarifying 1982 Amendment to Section 2 created a path to do so if litigants could show that a law had the effect of denial or abridging the right to vote on account of race.
Advocates began to utilize Section 2 to do exactly that, especially following Shelby County. It was working. And then the Court struck again.
In a case out of Arizona called Brnovich v. DNC, decided in 2021 (which I will explain in depth tomorrow), the Court gutted Section 2 as a viable path to take on many of the new voting laws and devices that have arisen since Shelby County. The Court (Justice Alito) announced and applied a new analysis for such Section 2 challenges (called “vote denial” cases) that essentially doomed them to failure.
And as if that wasn’t bad enough, in that case came the following short concurrence from Justice Gorsuch:
“I join the Court’s opinion in full, but flag one thing it does not decide. Our cases have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under §2….Lower courts have treated this as an open question….Because no party argues that the plaintiffs lack a cause of action here, and because the existence (or not) of a cause of action does not go to a court’s subject-matter jurisdiction…this Court need not and does not address that issue today.”
So in addition to Brnovich gutting the substance of Section 2 when it comes to voting rules and devices, Gorsuch hoists a “flag” (“open question”?) that not so subtly invites a future argument that Section 2 does not grant private plaintiffs a “cause of action”—meaning, they don’t have the right to sue at all. (This very much parallels a similar Roberts’ not-so-subtle invitation in a case a few years before Shelby County, that directly led to the Shelby County decision).
Yesterday’s Decision: Strike 3 or a Foul Ball?
Of course, states being sued under Section 2 read Gorsuch’s concurrence as the invitation that it was, and began arguing that the law does not allow private plaintiffs to sue them.
And that’s the argument that prevailed yesterday, with the Eighth Circuit ruling that the “text and structure” of the Voting Rights Act do not give private plaintiffs the ability to bring a Section 2 case.
You may be asking: if Brnovich gutted Section 2 so badly, why does this matter?
Because as I wrote above, Brnovich dealt with vote denial cases, making them nearly impossible to win. But it did not deal with vote dilution cases—cases where either the federal government or private plaintiffs have been able to sue states over district maps that dilute minority votes.
Thanks to the Milligan case last year (I wrote about it here), those vote dilution challenges are still very much alive. In fact, those Section 2 challenges have led to the recent overturning of discriminatory maps in Alabama and other states arising from the 2021 redistricting process. Those challenges are almost always brought by private plaintiffs, as opposed to the government. (As my friend Robert Hubbell points out, 182 out of 197 Section 2 cases brought over the past 40 years came from private plaintiffs, not the DOJ).
So the elimination of a private cause of action would cut off at the knees most of those Section 2 vote dilution challenges going forward (and end many important challenges now in the courts that look likely to succeed). Far fewer cases would arise overall if suppressed voters have to rely entirely on the DOJ to seek justice. And in the wrong hands (ie. the same hands as those drawing the discriminatory districts in the first place), we can be sure that the DOJ wouldn’t bring a single case!
What Next?
For now, the decision is limited to the Eighth Circuit and the states within—Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas.
Also, this was a 2-1 decision written by a Trump appointee. It could be appealed to the entire Eighth Circuit (called an en banc court), and could be reversed there. And/or the decision will likely end up at the United States Supreme Court.
But before you lose hope, let me also end with some reasons to hold out hope:
First, Justice Gorsuch’s concurrence inviting this line of argument was only co-signed by one Justice, Justice Thomas. That means the other conservative Justices (Roberts, Kavanaugh, Alito and Coney Barrett chose not to sign on). Just two of those Justices could end this rogue argument by siding with Justices Kagan, Sotomayor and Jackson.
Second, the Milligan case this term—which upheld (to my surprise and that of many) the long-time Section 2 standards used to strike down discriminatory maps in vote-dilution cases like this one—was a case involving a private plaintiff. (Again, almost all of them are). So the same Court that may take up this Arkansas case handed a private plaintiff a major Section 2 victory only months ago. Roberts and Kavanaugh were part of that 5-4 majority.
Third, the United States Supreme Court has in the past found that other parts of the Voting Rights Act do create private right of action.
Fourth, as Democracy Docket points out, the Fifth Circuit (which includes Louisiana, Mississippi, Texas) just last week, and other Circuits previously, have all ruled that there is a private right to action under Section 2. The Eighth Circuit is the only one to rule otherwise.
So….given all the damage that’s been done to the Voting Rights Act over the past decade, we all should be concerned.
But, do not give up hope that voting rights advocates can prevail in the argument at the heart of this case.
Until yesterday’s rogue decision, we always have!
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