The “materiality” provision of the Civil Rights Act of 1964 is as follows:

No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election . . . .

This provision has been at issue in recent cases like Ritter v. Migliori before the United States Supreme Court, and surely in the near future the Court will confront the question about what kinds of provisions are “material” (and what things are an “act requisite to voting”), especially when it comes to signature and other requirements for absentee ballots.

But another question has arisen in federal courts: whether private litigants may sue in federal court to enforce this provision, or whether only the Attorney General of the United States initiate such claims. From the denial of the motion to dismiss earlier this month in Vote.org v. Georgia State Election Board, one of the cases litigating SB202 in Georgia:

Defendants argue that the Materiality Provision does not create a private right of action. The Court recognizes that courts in other circuits are divided as to whether the Materiality Provision can be enforced via a private right of action. Compare Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022) (holding that private plaintiffs may enforce the Materiality Provision via 42 U.S.C. § 1983), with McKay v. Thompson, 226 F.3d 752, 756 (6th Cir. 2000) (holding otherwise). Significantly, the Eleventh Circuit has already directly addressed this issue in Schwier v. Cox and concluded that the Materiality Provision can be enforced by a private right of action under § 1983. 340 F.3d 1284, 1297 (11th Cir. 2003). Given this binding precedent, the Court finds that the Materiality Provision can be enforced by a private right of action. To the extent that Defendants seek dismissal on this ground, the motion is DENIED.

The Fifth Circuit last year acknowledged the split but concluded it did not need to resolve the issue at that time. In oral argument earlier this month, the issue did not attract much attention, but briefing from the United States came out in favor of a private right of action. It described the Sixth Circuit’s holding in this way: “The only other circuit to address this issue never discussed Section 1983, merely stating without elaboration that the Materiality Provision ‘is enforceable by the Attorney General, not by private citizens.'”

It’s not clear what the Fifth Circuit will do and whether it deepens the circuit split, but it’s an issue I’m watching ahead of 2024.