Eighth Circuit’s Holding that Private Plaintiffs Do Not Have Right to Sue to Enforce Section 2 of the Voting Rights Act Would Decimate the Rights of Minority Voters; Supreme Court Review Almost Certain

November 20, 2023, 8:38 amSupreme Court, Voting Rights ActRick Hasen

Derek just blogged about this divided decision of the Eighth Circuit. It’s hard to overstate how important and detrimental this decision would be if allowed to stand: the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources. If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits.

The majority reaches its decision with a wooden, textualist analysis. It reaches it decision despite recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought, assuming that Congress intended to allow such suits. And the majority acknowledges that the legislative history of the passage of Section 2 leaves no doubt: Congress intended to allow private plaintiffs to bring suit.

And even a pure texualist analysis should have brought the Eighth Circuit to the same conclusion that the (very conservative 5th Circuit) easily reached: that private plaintiffs have the right to sue.

I wrote in Slate after the Supreme Court’s suprising pro-voter decision in Allen v. Milligan last June:

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.

Given the circuit split now on the private right of action question, it is almost inevitable that the Supreme Court will have to weigh in here. Two Justices (Gorsuch and Thomas) have endorsed this dangerous theory; the question if there will be three more.