The Voting Rights Act (“VRA”), a landmark civil rights law enacted in 1965, has frequently been used as an enforcement mechanism to strike down voting laws and procedures that discriminate against voters on the basis of race. Historically, the VRA’s provisions have been enforced through lawsuits brought by the U.S. Department of Justice, private parties, and advocacy groups challenging everything from redistricting maps to election integrity efforts. If recent developments out of the Eighth Circuit are a harbinger of what is to come, the frequency and effectiveness of these lawsuits may soon be substantially curtailed.

On November 20, 2023, in Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment,²  a three-judge panel out of the Eighth Circuit held that Congress did not afford private plaintiffs a right of action under Section 2 of the VRA — thereby deviating from the decisions of several other courts, including the Fifth Circuit.³ As one of the VRA’s key provisions, Section 2 prohibits states and political subdivisions from enacting any “standard, practice, or procedure” that results in a denial or abridgement of the right to vote on account of race. However, according to the Eighth Circuit, the absence of an express right of action under Section 2 necessarily means that only the Attorney General can enforce that provision.

Why is this important? For decades, the lion’s share of private lawsuits brought to enforce Section 2 focused on redistricting. However, in 2013, the U.S. Supreme Court in Shelby County v. Holder⁴ struck down the coverage formula in Section 5 of the VRA —  meaning that certain states, including Arizona, no longer needed to preclear their voting laws, practices, and procedures before they could go into effect. This decision shifted the dynamic of VRA litigation to include a variety of Section 2 challenges by private parties against allegedly discriminatory election laws.

In other words, because most VRA challenges under Section 2 are initiated by private parties, the Eighth Circuit’s determination that Section 2 can only be enforced by the Attorney General dramatically reduces the universe of potential litigants and, therefore, the number of challenges to discriminatory election laws and practices. This is especially true given the government’s limited resources to litigate these challenges, which would not likely be able to support the current level of private lawsuits instigated by non-governmental parties.

Regardless, the question of whether anyone other than the Attorney General can enforce Section 2 remains unresolved. After the full Eighth Circuit denied a request for rehearing by the entire court on January 30, 2024, advocacy groups who brought the original challenge to Arkansas’ redistricting maps are almost certain to appeal the three-judge panel’s decision to the United States Supreme Court. And although the Supreme Court has not yet directly weighed in, statements from some justices in previous VRA cases⁵ indicate that the Court may be interested in resolving this issue — particularly now that the Eighth Circuit has created a split with other circuits.

Moreover, other avenues remain to challenge discriminatory election laws. Outside of the VRA, individuals whose voting rights are denied or abridged as a result of intentional discrimination may still bring an action under Fifteenth Amendment of the U.S. Constitution. And of course, Congress could always moot the Eighth Circuit’s opinion by amending Section 2 to specifically provide for a private right of action.

Regardless of the outcome, the ultimate resolution of this issue could impact the nature of voting rights challenges for years to come and should be closely monitored by governmental bodies, advocacy groups, and voters.
 

Footnotes 

1. Joseph Kanefield and Eric Spencer previously served as State Election Director for the Arizona Secretary of State from 2004-2009 and 2015-2018, respectively, and between them administered a combined total of 14 statewide elections, including 3 presidential elections.[Back]
2. 86 F.4th 1204 (8th Cir. 2023). [Back]
3. See Robinson v. Ardoin, 86 F.4th 574, 587–88 (5th Cir. 2023); see also Mixon v. Ohio, 193 F.3d 389, 406 (6th Cir. 1999); Alabama State Conf. of NAACP v. Alabama, 949 F.3d 647, 651–54 (11th Cir. 2020), cert. granted, opinion vacated, and case dismissed as moot, 141 S. Ct. 2618 (2021). [Back]
4. 570 U.S. 529, 557 (2013). [Back]
5. See, e.g., Allen v. Milligan, 599 U.S. 1, 90 n.22 (2023) (Thomas, J., dissenting). [Back]