The following is a guest post from Travis Crum:
In Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment, a divided panel of the Eighth Circuit muddied the VRA’s jurisdictional waters. The Eighth Circuit, in an opinion by Judge Stras and joined by Judge Gruender, held that private plaintiffs lack an implied cause of action to sue under Section 2 of the Voting Rights Act. In reaching its unprecedented conclusion, the Eighth Circuit overlooked a different jurisdictional question going to its own authority to hear the case: whether the plaintiffs’ statutory challenge to state legislative districts should have been heard by a three-judge district court with a direct right of appeal to the Supreme Court, rather than by a single-judge district court and then the Eighth Circuit.
The relevant jurisdictional provision is 28 U.S.C. § 2284(a), which provides in relevant part that a “district court of three judges shall be convened … when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” The key question is whether the word “constitutionality” applies only to challenges brought against “the apportionment of congressional districts” or also to “statewide legislative bod[ies].” Put differently, does Section 2284(a) require a three-judge district court for statutory challenges to state legislative districts?
This jurisdictional question produced dueling opinions in Thomas v. Reeves, a 2020 decision from the en banc Fifth Circuit. Although the case was ultimately decided on mootness grounds, the Fifth Circuit nevertheless split 6-5 on how to interpret Section 2284(a). Judge Costa, joined by Judges Owen, Davis, Stewart, Dennis, and Higginson, claimed that three-judge district courts are required only for constitutional challenges to state legislative districts. By contrast, Judge Willett, joined by Judges Smith, Elrod, Duncan, and Engelhardt, argued that three-judge district courts are required for both constitutional and statutory challenges to state legislative districts. As Judge Willett acknowledged, no circuit court has ever adopted his reading of Section 2284(a). Moreover, as Judge Willett also conceded, this dispute is mostly academic, as “[i]n most reapportionment cases, statutory claims are asserted alongside constitutional claims, rendering moot the 3 judge vs. 1 judge question.”
But here, the private plaintiffs filed only a Section 2 challenge—that is, a statutory challenge—to the Arkansas House of Representatives, thereby teeing up the exact dispute that roiled the en banc Fifth Circuit only three years ago. If Judge Willett is correct about Section 2284(a), then the proceedings below should have been entertained by a three-judge district court and the Eighth Circuit lacked jurisdiction to hear this appeal.
Curiously, the Section 2284(a) jurisdictional issue was not mentioned by the Eighth Circuit or by Judge Smith in his dissenting opinion. Nor was the issue flagged by the parties or their amici in their briefs. In this short blog post, my goal is merely to raise the jurisdictional question, not to resolve it. Nor is my goal to rehash Derek’s helpful summary of the implied-cause-of-action issue or Rick’s arguments about how devastating the Eighth Circuit’s decision would be in practice.
Rather, my point is that, if the Eighth Circuit is going to re-write the VRA’s jurisdictional provisions, it should have assured itself that it had authority to hear this case. And if this case were to generate a panel rehearing petition or go en banc—which seems possible given the importance of the issue and the split with the Fifth Circuit’s recent decision in Robinson v. Ardoin—then the Eighth Circuit has an obligation to ensure that Section 2284(a) does not mandate a three-judge district court for statutory challenges to state legislative districts.