My New One at Slate: “There Are Still Two Major Legal Threats to the Voting Rights Act”

I have written this piece for Slate. It begins:

Last week’s voting rights decision in Allen v. Milligan was surprisingly good news: rather than hobble or destroy the existing protections for minority voters to elect their candidates of choice in congressional, state, and local elections under Section 2 of the Voting Rights Act, the Supreme Court essentially left existing law intact. That two conservative justices, Chief Justice John Roberts and Justice Brett Kavanaugh, would join the court’s liberal justices in protecting minority voting rights, even a little, was remarkable given these justices’ earlier track records in voting cases. They may have reached this result based on a legitimate change of heart or acted more strategically to blunt the force of an upcoming decision likely to be adverse to minority interests in the school affirmative action cases. But whatever the reason, best to not look a gift horse in the mouth.

Despite Roberts’ strong opinion in Milligan reaffirming the vitality of Voting Rights Act jurisprudence and confirming the constitutionality of Section 2, there’s no reason to expect that voting rights’ opponents will drop their attacks as they seek to maximize the power of white majority voters. And the varied opinions in the Milligan case leave open at least two major lines of attack against the VRA—that the act is no longer constitutional and that it does not give private plaintiffs a right to sue—that may once again test Roberts’ and Kavanaugh’s commitment to voting rights in cases down the road.

The first attack is a separate constitutional one from the one that failed in Milligan. In Roberts’ Milligan majority opinion, the court upheld Section 2’s constitutionality against Alabama’s claim that Congress only has the power to ban intentional discrimination, not just those voting laws with discriminatory effects. Citing earlier precedents, the court concluded that Congress had the power through the 15th Amendment to dismantle laws with racially discriminatory effects as well….

This argument that a law once constitutional is no longer so because of the passage of time echoes the court’s 2013 decision in Shelby County v. Holder, authored by Chief Justice Roberts, reaching the same conclusion about a different part of the Voting Rights Act, Section 5. As voting rights expert Ellen Katz opined on my site, the Election Law Blog, “Justice Kavanaugh said he was declining to consider this argument ‘at this time’ because Alabama had failed to press it. But the invitation was, of course, clear: bring this claim and the Allen dissenters might just have a majority in the next case. In other words, stay tuned.”

Would Kavanaugh (or even Roberts) switch back again and pull a Shelby County in a few years? It is hard to say, but Roberts at least offered a surprisingly full-throated endorsement of current Section 2 jurisprudence, and having pronounced Section 2 constitutional without alluding to or even citing the argument in Shelby County that the passage of time could render the law now unconstitutional, it seems hard to imagine him reversing course so soon. What Kavanaugh might do should such an opportunity arise is a separate question, of course.

The second argument is a statutory one. Everyone agrees that Section 2 protects minority voters, but there is a dispute in the lower courts over who has the right to sue over its violation. The United States Department of Justice surely has that right, but DOJ brings only a small fraction of this type of litigation. Most are brought by voting rights groups suing on behalf of voters. A huge number of Section 2 lawsuits have been filed by private plaintiffs since Congress amended the Voting Rights Act in 1982 to protect minority voters against racially discriminatory effects. Nonetheless, in a 2021 case Justice Neil Gorsuch raised the question as an open one: “Our cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2.”

Last year, a federal district court in Arkansas held that Section 2 contains no “private right of action,” meaning that private plaintiffs could not sue. The Arkansas case is currently on appeal to the U.S. Court of Appeals for the Eighth Circuit. As Professor Derek Muller notes, the arguments in the case are technical, in part over whether a majority of Supreme Court justices in an earlier case recognized such a right to sue or not in a 1995 voting rights case.

In Milligan, the Alabama case decided by the Supreme Court last week, the majority did not say a word about whether Section 2 allows private plaintiffs to sue. Justice Thomas in a footnote in his dissent noted that Alabama had raised the issue in the lower court but did not bring that issue to the Supreme Court on appeal. So the issue remains technically open.

What would the Supreme Court do if the issue reaches the court in a few years? Professor Nick Stephanopoulos believes that “Milligan should put an end” to conservative lower court judges shutting down voting suits through potential technical loopholes, such as by finding no private right of action. The signal the majority opinion sends, according to this view, is that Section 2 is safe for now. I hope he is right….

But once again, where Justice Kavanaugh stands on this question is harder to see. He did not opine on the question, and the issue of private rights of action is just the sort of technical issue about standing and justiciability that could provide an out to shut down the vast majority of Section 2 cases without striking down the statute itself.

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