Eighth Circuit considers whether the Voting Rights Act allows private parties to sue under Section 2

An Eighth Circuit panel recently heard oral argument (MP3) in Arkansas State Conference NAACP vs. Arkansas Board of Apportionment. It’s an appeal from a district court decision concluding that private parties may not sue under Section 2 of the Voting Rights Act; only the United States may initiate claims.

The three judges hearing the argument were Chief Judge Lavenski Smith, Judge Raymond Gruender, and Judge David Stras. There’s a lot to unpack from the oral argument. It’s quite possible that the district court’s decision will be upheld, and the Supreme Court will be asked to take up the case in the next year. It makes the topics unearthed at oral argument ripe subjects for academic scholarship in the months ahead. (You can of course find much more detail in the briefs, but the argument highlighted, I think, some of the most salient issues for this panel.)

Precedent. The appellants leaned heavily on precedent to try to dissuade the Eighth Circuit from finding it even had the flexibility to determine the issue. Three cases highlight the issue.

First, in Mobile v. Bolden (1980), a four-justice plurality of the Court included the line, “Assuming, for present purposes, that there exists a private right of action to enforce this statutory provision” in a discussion about Section 2. It flagged that it had not expressly decided the issue, but it had assumed so in the past and would continue to do so in this case (with a “but see” citation in a footnote to cases where it had recently, at that time, refused to find a private right of action) .

Second, in Morse v. Republican Party of Virginia (1995), a majority of the Court concluded that private parties could sue under Section 10 of the Voting Rights Act. From Justice Stevens’s two-justice plurality (lightly edited):

Congress has not only ratified Allen‘s construction of § 5 in subsequent reenactments, see H. R. Rep. No. 91-397, p. 8 (1970), but extended its logic to other provisions of the Act. Although § 2,like § 5, provides no right to sue on its face, “the existence of the private right of action under Section 2. . . has been clearly intended by Congress since 1965.” S. Rep. No. 97-417, at 30 (citing Allen ); see also H. R. Rep. No. 97-227, p. 32 (1981). We, in turn, have entertained cases brought by private litigants to enforce § 2. See, e. g., Chisom v. Roemer, 501 U. S. 380 (1991); Johnson v. De Grandy, 512 U. S. 997 (1994). It would be anomalous, to say the least, to hold that both § 2 and § 5 are enforceable by private action but § 10 is not, when all lack the same express authorizing language.

And from Justice Breyer’s three-justice concurrence in the judgment (lightly edited):

Finally, I agree with Justice Stevens that Congress must be taken to have intended to authorize a private right of action to enforce § 10 of the Act. He explains that the rationale of Allen v. State Bd. of Elections, 393 U. S. 544, 556-557 (1969) (Congress established private right of action to enforce § 5), applies with similar force not only to § 2 but also to § 10. Cf. S. Rep. No. 97-417, pt. 1, p. 30 (1982) (implied private right of action to enforce § 2 “has been clearly intended by Congress since 1965”). The differences in statutory language and structure between §§ 5 and 10 are not determinative. In addition, I do not know why Congress would have wanted to treat enforcement of § 10 differently from enforcement of §§ 2 and 5, particularly after 1975. In that year, Congress focused on § 10, deleted the then-obsolete § 10(d), made technical amendments to § 10(b), and thereby indicated its belief that § 10 remained an important civil rights provision. Pub. L. 94-73, § 408, 89 Stat. 405. See also S. Rep. No. 94-295, pp. 40-41 (1975) (reiterating general importance of private enforcement of Act); H. R. Report No. 94-196, pp. 33-34 (1975) (same). For these reasons, I believe Congress intended to establish a private right of action to enforce § 10, no less than it did to enforce §§ 2 and 5.

Finally, in 2021, Justice Gorsuch, joined by Justice Thomas, concurred in Brnovich v. Democratic National Committee with this statement (lightly edited):

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. See Mobile v. Bolden, 446 U.S. 55, 60, and n. 8 (1980) (plurality opinion). Lower courts have treated this as an open question. E.g., Washington v. Finlay, 664 F.2d 913, 926 (C.A.4 1981). 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.

The appellants argued that many courts had found an implied right of action, but Judge Stras pressed whether any Supreme Court decision or Eighth Circuit decision had found so. Appellants pressed Morse as their strongest case. Judge Stras called it “very learned dicta,” as the issue in that case was about the right of action for Section 10, not Section 2. Appellants could not cite a case where the issue had been squarely presented to the Court to address. But later in the argument Judge Gruender whether the language in Morse was actually dicta–that is, the Court’s decision in Morse on Section 10 seemed to require reading it in pari materia with Section 2, which would make it essential. The appellees noted that the separate opinion in Brnovich among others suggests that the Court has erroneously assumed it.

If the Court finds Morse is binding, the district court’s decision could be quickly reversed. Regardless, if the case goes to the Supreme Court, the Court might be asked to take up a meta-threshold question of whether Morse is binding precedent, and if it is a stare decisis question arises.

Text. In 2001, the Supreme Court offered a new approach to construing statutes to determine whether a private right of action exists. Justice Scalia in Alexander v. Sandoval explained that courts should look for two things in the statute: does it contain a “private right,” in “rights-creating” language; and does it provide for a “private remedy.” The focus in Sandoval, the Court explained, was a “search for Congress’s intent” that could “begin” and “end” with “the text and structure” of the statute. (This approach even applies, as it did in 2001, to statutes enacted during a previous era when Congress might have presumed the judiciary was more willing to find causes of actions implied in statutes.”

On the rights side, Judge Stras suggested that the Voting Rights Act pretty clearly speaks in terms of rights. Section 2(a) of the Voting Rights Act speaks expressly of the “right . . . to vote.” Appellees, however, pointed out that Section 2(b) not of an individual right, but of a collective right, as in, whether the political processes were “equally open to participation by members of a class of citizens.”

On the remedy, the language in Section 3 includes phrases like, “If in a proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State . . . .” Judge Stras briefly wondered whether “any aggrieved person” was sufficiently explicit but seemed to concede later it would be. But a dispute arose about whether it’s really just the Fourteenth and Fifteenth Amendments, or can include statutory guarantees like Section 2. Appellees (as the district court below) noted the language seems fixed on the Constitution’s rights, not statutory rights, and therefore there’s no private remedy. In contrast, appellants point out in briefing that the language includes statute “to enforce the voting guarantees,” which is more than just those constitutional amendments. Furthermore, Section 3 later goes on to note actions that may flow, like those upon a finding that law was enacted “for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote.” The “effect” can only come from a statute, as the Court had concluded ahead of amendments to Section 2 that the constitutional amendments extended only to intentional discrimination.” The implication from the text, then, is that the private right of action extends to both constitutional and statutory violations.

Congressional Ratification. Judge Smith in particular pressed the question on congressional ratification. After Bolden in 1980, Congress amended the Voting Rights Act in 1982 and again in 2006. Private rights of action were assumed in Bolden and in other cases, and Congress did not try to remove them. Indeed, a Senate committee report (cited in Morse) approved of the private right of action. Appellees pressed that of course a Senate report is no substitute for the text of the statute, and that the inference after Bolden should be read the other way: that is, the question is whether Congress unambiguously created the private right of action, and its silence after the issue was expressly noted in Bolden suggests it did not do so, and its actions in other areas of the statute, which did not touch the private right of action, suggest no such desire to create a private right of action. Appellants did point out that Congress’s 2006 action could be construed after Morse as a tacit endorsement. How to line up this timeline, and the inferences drawn from congressional action (or inaction), are major questions for the panel to consider.

Section 1983. Finally, in my judgment, one of the less persuasive alternatives (pressed particularly by the Department of Justice at oral argument) was that the private litigants should have been given the opportunity to amend their complaint to include a cause of action under Section 1983. Section 1983 is acknowledged to have a private right of action to enforce not just violations of constitutional rights, but also statutory rights. There is a chance, then, that the catch-all of Section 1983 might be used to bring claims for clearly enunciated rights elsewhere in federal law where a private right of action is not explicitly present.

That said, the Supreme Court in Gonzaga University v. Doe in 2002 offered a test that looks remarkably similar to the approach taken by the Court in Sandoval, although it is undoubtedly a different context. And one may ask whether there’s much gap between the two tests. (In fact, I’m not sure of any case on record in the last twenty years where a case failed Sandoval but could be brought under 1983 by Gonzaga.) It didn’t get much attention at oral argument, so it remains to be seen what happens.

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