Caroline Walker has written this comment for the Harvard Law Review on the Eighth Circuit’s decision that no private right of action exists to enforce Section 2 of the Voting Rights Act. The comment explores whether plaintiffs might be able to use Section 1983 to enforce Section 2 instead.

Section 1983 enables private parties to enforce a federal statute that creates an individual right, even if the statute itself does not contain a private cause of action. An individual right is enforceable under § 1983 when (1) plaintiffs show that the statute’s text and structure reflect congressional intent to create an individual right and (2) the opposing party fails to show that the statute reflects congressional intent to foreclose § 1983 enforcement of that right. . . .

Under the Supreme Court’s guidance, section 2’s text creates an individual right. Section 2 protects against any “voting qualification . . . standard, practice, or procedure . . . result[ing] in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.” This provision contains “rights-creating” language with an “unmistakable focus on the benefited class” of citizens who hold the equal right to vote. That individual right does not disappear when the statute also “establish[es] who it is that must respect and honor the[] statutory right[].” . . .

Turning to the second prong of the § 1983 analysis, defendants are unlikely to rebut the presumption that section 2 voting rights are enforceable under § 1983. The presumption is rebutted only when “Congress ‘specifically foreclosed a remedy under § 1983.’” Specific foreclosure occurs only when the statute precludes § 1983 enforcement either explicitly or implicitly through “a ‘comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.’” Explicit foreclosure does not pose an issue here, because “[a]ny mention of . . . private remedies . . . is missing” from the VRA’s text, as the Eighth Circuit recognized. . . .

Section 1983 ensures that private individuals and groups can bring a cause of action to enforce their section 2 voting rights in the absence of any Attorney General action. Plaintiffs pleading § 1983 claims to enforce section 2 need only prove the same merits of a vote dilution or denial claim brought under section 2 itself. Section 1983 provides a viable mechanism for plaintiffs and advocates to continue fighting before the courts to protect equal voting rights against antidemocratic attacks.