The decision by a three-judge panel in the case, Arkansas State Conference NAACP v. Arkansas Board of Apportionment, would take away the main avenue used to enforce Section 2 of the landmark civil rights law by only allowing the government to bring lawsuits under it. Such a change would make enforcement rare and subject to political control of state and federal government. With Republicans firmly opposed to the Voting Rights Act, the law would be moribund when they controlled state governments or the Department of Justice.
Section 2 of the Voting Rights Act forbids the adoption of district maps that lead to the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Private parties have brought suit to enforce this section for decades in order to challenge discriminatory maps and election laws.
The case, however, is certain to be heard by the full 8th Circuit — or appear before the Supreme Court. The ruling cuts against existing practice and precedent, including in the Supreme Court’s months-old 2023 decision in Allen v. Milligan, and diverges from decisions in other circuits around the country.
This latest attempt to eviscerate the Voting Rights Act comes after Republicans in statehouses across the country enacted a wave of racially discriminatory legislative and congressional district maps following the 2020 census and the most conservative justices on the Supreme Court have invited legal efforts to kneecap the law.
The 8th Circuit’s decision comes in response to a lawsuit filed by the Arkansas State Conference NAACP and Arkansas Public Policy Council alleging the state’s Republican legislature enacted racially discriminatory legislative maps in 2021. District Court Judge Lee Rudofsky, a Trump appointee, ruled in February 2022 that the groups had no right to sue to enforce the Voting Rights Act.
In the Monday ruling, appeals court judges David Stras, a Trump appointee, and Raymond Gruender, a George W. Bush appointee, affirmed Rudofsky’s decision, arguing that the text of the Voting Rights Act did not provide a private right of action to sue to enforce the law. In doing so, they pointed to Supreme Court Justice Neil Gorsuch’s concurrence, joined by Justice Clarence Thomas, in the case of Brnovich v. DNC in which he called the legality of a private right to sue to enforce the Voting Rights Act “an open question.”
This ruling by Stras and Gruender, however, flies in the face of decades of Supreme Court precedent involving cases brought by private parties to sue to enforce the Voting Rights Act.
In his dissent from Monday’s decision, Lavenski Smith, chief judge of the U.S. Court of Appeals for the 8th Circuit and a George W. Bush appointee, listed precedents going back to the 1980s where the court ruled on suits brought by private groups, and precedents authorizing a private right to sue under federal statutes going back to the 1960s.
“Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote.
The decision is an extreme outlier in recent Voting Rights Act litigation. Federal judges have ruled in cases brought by private parties that district maps enacted by Republicans in Alabama, Georgia, Louisiana and North Dakota violated the Voting Rights Act.
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