A federal court has embraced a novel legal theory that seriously threatens one of the last legs of the Voting Rights Act of 1965.
At the heart of the dispute is who has the right to bring a case under the law, a crown jewel of the civil rights movement that has worked to prevent voting discrimination against minorities. For more than half a century, the Department of Justice as well as private plaintiffs – anyone from an individual voter to a civic action group – have filed cases under section 2 of the law, which prohibits any voting practice or procedure that discriminates on the basis of race.
The case that could upend the law started out as a typical voting rights lawsuit. In late 2021, the Arkansas NAACP and the Arkansas Public Policy Panel sued the state, arguing that the new Arkansas house of representatives districts illegally discriminated against Black Arkansans by packing the Black vote into a disproportionately small number of districts.
But in a surprise ruling in 2022, a federal judge ruled that only the federal government, not private plaintiffs can file lawsuits under section 2. The US court of appeals for the eighth circuit has since upheld that ruling. The issue is likely to be ultimately resolved by the US supreme court.
Voting rights lawyers say the rulings are “radical and unprecedented”. For decades, the vast majority of cases under section 2 have been filed by private plaintiffs, not the government. Only allowing the government to bring section 2 cases would bring enforcement of the Voting Rights Act to a halt.
“Private plaintiffs bringing cases under section two has been one of the hallmark ways to protect voting rights in this country,” said Jonathan Topaz, a staff attorney for the ACLU Voting Rights Project. “If private plaintiffs are unable to bring suit and vindicate their rights under section 2, then in our estimation, there will be large swaths of violations of section 2 that will go unremedied.”