Two weeks ago, Rick covered the latest Eighth Circuit disaster, finding that only the DOJ, and not private plaintiffs, had any ability to enforce the Voting Rights Act. (An earlier Eighth Circuit case held that private plaintiffs couldn’t sue directly under the VRA, but as wrong as that decision was, there was still a clear path for private plaintiffs to sue state and local government for violations of federal laws under 42 USC § 1983. The decision two weeks ago closed that door too.)
In order to come to this conclusion, the panel had to find that statutory language prohibiting a procedure “which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color” or language minority membership doesn’t include “rights-creating” language – that is, that it doesn’t show Congress’s desire to create a federal statutory right for any individuals. The panel came to this conclusion because the statutory text starts with the state and local government entities regulated and only then talks about the specific individual rights protected, and that apparently means that nobody can tell whether Congress meant to create a right that individuals can enforce. That’s despite more than 400 private plaintiffs bringing cases since 1982, and not a whiff in that time that Congress thought the statute was being misinterpreted.
I swear I’m trying to present the logic of the case as the majority did. If you’re saying “hey, wait, that doesn’t make any sense” or “hey, wait, that same logic would eliminate private enforcement of all of the 14th and 15th Amendments, which just can’t be what Congress was trying to do in a statute passed in 1871 specifically to allow private enforcement of the 14th and 15th Amendments,” I invite you to read the opinion and see for yourself if I’m exaggerating. It should be obvious that I agree with Rick’s take on the remarkable wrongness of the merits.
Derek was absolutely correct this morning that some statutes correctly have no private cause of action, and I think the part of HAVA he highlighted is a good example. It’s just that section 2 of the VRA is really, really, really not.
Anyway, plaintiffs in the Eighth Circuit case just filed their petition for rehearing en banc. There’s really no strategic downside to the plaintiffs’ filing this petition, and given a fair presentation under the current legal standards, the panel decision really should be reversed. We’ll see.
Extra bonus: there are (at least) three former DOJ attorneys on the petition arguing that DOJ shouldn’t be the only entity capable of enforcing the VRA. That’s been the longstanding position of the DOJ itself as well.