Appeals Court Prohibits Private Action under the Voting Rights Act In a case with potentially enormous ramifications for North Carolina elections, the United States 8th District Court of Appeals upheld a lower court ruling that individuals cannot sue under Section 2 of the Voting Rights Act (VRA). That is the most common section used in VRA lawsuits. If the Supreme Court upholds that ruling, it could limit how often the VRA is used against election law changes and districts in North Carolina and other states.

Challenging a Nearly Half-Decade Assumption

David R. Stras (a Trump appointee) wrote the 2-1 decision in Arkansas State Conference NAACP v. Arkansas Board of Apportionment. He was joined by Raymond Gruender (Bush 43).

For those not willing to read through the whole decision, here is Stras’ bare-bones summary (page 2):

Did Congress give private plaintiffs the ability to sue under § 2 of the Voting Rights Act? Text and structure reveal that the answer is no, so we affirm the district court’s decision to dismiss.

If the Supreme Court upholds the ruling, only the United States Attorney General could bring VRA lawsuits.

Individuals have sued under the VRA for years, so why is this case coming up now? At least part of the reason is that courts are moving away from guessing the congressional meaning behind legislation. Instead, they adhere to the text of legislation without making presumptions. In the case of the VRA, Section 12 of the text only gives the US Attorney General the power to sue for alleged violations of the act.

The court acknowledged the history of private party VRA lawsuits when it noted on page 21, “For much of the last half-century, courts have assumed that § 2 is privately enforceable. A deeper look has revealed that this assumption rests on flimsy footing…”

The ruling also suggests a mechanism for the US Attorney General to join lawsuits brought by individuals (page 4):

After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce § 2. The enforcement power belonged solely to the Attorney General of the United States, see 52 U.S.C. § 10308(d), who was given five days to join the lawsuit. When he declined, the case was dismissed.

Presumably, if the Supreme Court upholds this ruling, the Justice Department would create a mechanism for rapidly reviewing VRA claims and joining those they find have merit.

A Dissenting Vote to “Follow Existing Precedent”

Lavenski R. Smith (Bush 43), disented. Although the question of whether individuals could sue under the VRA is new, he believed that past rulings were based on the presumption that such a right existed (page 23):

Admittedly, the Court has never directly addressed the existence of a private right of action under § 2; however, it has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under § 2. Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy.

Now What?

The United States Supreme Court will undoubtedly take up this case and a similar case in Louisiana.

Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote in a concurrence in Brnovich v. Democratic National Committee, “Our cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under §2.” He then noted that their silence on the question has caused lower courts to treat it as an open question.

The high court will close that question, one way or another, soon.