The Eighth Circuit had earlier reached the remarkably wrong conclusion that Section 2 of the Voting Rights Act contains no private right of action (meaning that only the U.S. Department of Justice, and not private plaintiffs, can sue for violations of Section 2 of the VRA. As I explained (in fn. 68 of my YLJ piece) about the earlier 8th Circuit ruling:

Two Justices have suggested that voters may not even have the right to bring suit under Section 2. Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 690 (2021) (Gorsuch, J., joined by Thomas,J.,concurring); see also Allen,599 U.S. at 90 n.22 (Thomas, J., dissenting) (noting that the majority did not “address whether § 2 contains a private right of action”). The Eighth Circuit has recently held that no private right of action exists. Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1216 (8th Cir. 2023), reh’g en banc denied, 91 F.4th 967 (8th Cir. 2024). Applying the Eighth Circuit’s reasoning nationally might eliminate over ninety-six percent of Section 2 redistricting cases, leaving only the smattering of cases brought by the U.S. Department of Justice. Will Craft & Sam Levine, Obscure Legal Theory Could Weaken Voters’ Protections from Racist Laws, Guardian (Mar. 15, 2024, 7:00 AM EDT),
https://www.theguardian.com/us-news/2024/mar/15/arkansas-voting-rights-act-racialbias [https://perma.cc/4WSP-AU9K] (“Since 1982, there have been 466 Section 2 cases. Only 18 were brought by the Department of Justice.”).

The ruling was ridiculous, against precedent, text, and purpose, especially as a matter of congressional intent. Congress knew that almost all section 2 lawsuits have been brought by private plaintiffs since 1982, and it reenacted section 2 with some tweaks in 2006 without a peep about whether private plaintiffs could continue to sue.

Plaintiffs did not seek cert in that earlier case, trying to get the Supreme Cour to reverse this holding. Maybe they were afraid of what the Court would do given the positions of Justices Gorsuch and Thomas. Likely they held off because they had a backup theory for how there could still be a private right of action, through a federal statute 42 U.S.C. s 1983, that allows suit for certain violations of constitutional rights.

In today’s ruling in Turtle Mountain Band of Chippewa Indians v. Howe, a two-judge majority engaged ina superficial analysis of the question that essentially just bootstrapped onto the analysis in the earlier Arkansas case. As Chief Judge Colloton opens his dissent:

The essence of a claim under § 2 of the Voting Rights Act “is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986). Since 1982, private plaintiffs have brought more than 400 actions based on § 2 that have resulted in judicial decisions. The majority concludes that all of those cases should have been dismissed because § 2 of the Voting Rights Act does not confer a voting right. Consistent with all other courts to address the issue, I conclude that § 2 confers an individual right and that the enforcement scheme described in the Act is not incompatible with private enforcement under 42 U.S.C. § 1983. Because thedistrict court did not clearly err in ruling that the plaintiffs met their burden to establish a violation of § 2, I would affirm the judgment.

Plaintiffs will now have to decide if they take the risk of going to the Supreme Court, where this ruling could become nationalized if three other Justices join with Gorsuch and Thomas. On the merits, the Eighth Circuit should be reversed. We’ll see what happens.