With today’s deadline, I have learned there will be no cert petition filed. This is a case from the Eighth Circuit that is wrong on the text of the Voting Rights Act, wrong on its history, and wrong on its purpose. And yet the plaintiffs have made a decision not to sue.

Without a cert. petition filed, this means that there’s no right of private plaintiffs to bring suit to enforce Section 2 of the VRA anywhere in the Eighth Circuit. (It’s possible this will change down the line in pending Eighth Circuit cases raising the question whether such a right to sue could come through section 1983.)

So why not bring this to the Supreme Court? The fear must be that despite the strong arguments that there is such a right for private plaintiffs to sue under Section 2, a majority of the Court could disagree. If applied nationally, such a ruling could eliminate 96 percent of section 2 redistricting cases brought nationally.

I’ll have more to say about this soon.

UPDATE: After hearing from a reader, here’s perhaps more optimistic way to think about this issue. Maybe one reason not to seek cert. in this case is that upcoming there’s a better vehicle for Supreme Court review. There’s another case from the circuit where section 1983 will be the basis for relief (there’s one of those in the pipeline now).