The US Court of Appeals for the Eighth Circuit on Monday ruled against a tool often used to enforce voter protections, finding that private groups and individuals are not permitted to bring lawsuits under Section 2 of the Voting Rights Act (VRA), which prohibits race-based voter suppression.
The decision stems from a lawsuit brought by the Arkansas State Conference NAACP and the Arkansas Public Policy Panel. The suit alleged that the Arkansas House of Representatives reapportionment plan dilutes the voting power of Black people. According to the complaint, “the plan contains only 11 districts (out of 100 districts in the Arkansas House) in which Black voters have a meaningful opportunity to elect candidates of their choice.” The complaint goes on to argue that “it is possible to draw 16 reasonably compact majority-Black districts,” which would better reflect the number of Black Arkansans in the state population, according to data from the 2020 US Census.
In a 2-1 decision, the Eighth Circuit affirmed a district court ruling that the US Attorney General must be a plaintiff in a suit brought to enforce the VRA. The court stated that “[u]nder the modern test for implied rights of action, Congress must have both created an individual right and given private plaintiffs the ability to enforce it.” Though the court could not determine whether Section 2 creates an individual right, it found that the statute does not contain a private enforcement mechanism. Declining to look elsewhere to find an implied right of action, the court ultimately limited the protections afforded in Section 2 of the VRA by narrowing the pool of potential plaintiffs.
Chief Judge Smith penned a dissent in Monday’s decision. He reasoned:
[While] the Court has never directly addressed the existence of a private right of action under Section 2 … it has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under Section 2.
Last summer, the US Supreme Court court found in Allen v. Milligan that Alabama’s legislature violated the voting rights of Black Alabamians by racially gerrymandering the state’s congressional maps. Last month, the court heard oral arguments in a case involving racial gerrymandering claims against South Carolina’s congressional map. It is possible that Monday’s decision will make its way before the Supreme Court in the near future.
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