The Stealth Case That Could Destroy Voting Rights

A shocking decision by the Eighth Circuit could shut down nearly all enforcement of the law

Dr. Martin Luther King, Jr., Coretta Scott King, Andrew Young, John Lewis, Reverend James Orange and civil rights activists on Highway 80, Selma to Montgomery, March 1965.

There’s a dangerous case that just got teed-up to the Supreme Court, and it could kill what remains of the Voting Rights Act (VRA).

The Arkansas NAACP had challenged a new electoral map that weakened Black voting power in the state. The case is similar to many others being brought across the South.

Except for one thing. The judge in the case ruled the NAACP didn’t even have the right to bring the case because it was a private party. He found that the VRA lacks what’s called a “private right of action,” and that unless the Justice Department also joined the case, it must be dismissed.

And last week, in a stunning 2-1 ruling, the Eighth Circuit agreed with the district court. 

It’s hard to overstate how shocking this is. For more than 40 years, civil rights groups have been suing under the VRA to challenge unlawfully drawn, racially discriminatory maps. Now, all of a sudden, an appellate court has said, “Sorry, we know we’ve all been acting like you can bring these cases, but you actually can’t.”

Today let’s review how this new case fits within the broader effort to undermine and limit the VRA. I’ll explain why it’s particularly dangerous, but also why no one yet knows how this will go when the Supreme Court gets the case, as it is likely to this term.

The long unwinding of the VRA

The VRA was passed in 1965 to counter systemic suppression of Black votes that had endured, especially across the South, despite the guarantees of the Fifteenth Amendment, which prevent denying anyone the right to vote based on race or previous condition of enslavement.

After it passed, a big legal question remained for many decades. Did parties suing under the VRA have to show that efforts to limit Black representation through things like gerrymandering were intentionally racially discriminatory, or was it enough to show discriminatory racial effect? In 1980, the Supreme Court ruled that parties had to show intent to discriminate, setting a very high bar for plaintiffs.

Many in Congress, with bipartisan agreement back then, set out to amend the VRA so that racially discriminatory effect was all that would be required. This move very much upset a young lawyer in the Reagan Justice Department at the time named John Roberts, who authored over a score of memos on why any kind of remedy that took race into account (such as Opportunity Districts for Black voters) was itself racially discriminatory and therefore repugnant to the Constitution. 

This rather naive approach ignored the fact that the white racists who were in power and who drew the district lines very much took race into account in denying African Americans fair representation, and they had done so for over a century. If all that mattered was their expressed discriminatory intent, and not the end result of it, then it would be a simple matter to cover their tracks. Luckily at the time, the amendments passed, and the law continued to address the discriminatory effects of vote suppression.

When Roberts became Chief Justice Roberts, still armed with his colorblind Constitution in hand, he set about to dismantle the race-conscious protections of the VRA. In a pivotal opinion known as Shelby County decided in 2013, written by Roberts, the High Court struck down the “preclearance” requirements of Section 5 of the VRA. This meant that many of the worst offending states would no longer be required to get their maps and voting laws approved first by an outside official, such as a judge or the Justice Department. They could simply put them into place and wait to be sued over them.

Why did the Court do this? Chief Justice Roberts counterfactually found that the “blight of racial discrimination in voting” that had “infected the electoral process of our country for nearly a century” was no longer present and that therefore it was unconstitutional to hold some states to higher standards than others.

In other words, “Hey guys, racism is over! Yay!”

As the late Justice Ginsberg famously noted in dissent, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

We now know that Justice Ginsberg was absolutely correct. We are still deep in a horrific rainstorm of racially-based voter disenfranchisement. And after more than a decade of tearing down the VRA, perhaps the Chief Justice has realized that he was dead wrong.

The Court, in a 5-4 decision, upholds Section 2 of the VRA

Until recently, Chief Justice John Roberts has been a stalwart opponent of the VRA, and the conservative majority has undermined it at many opportunities. For example, it held that controversies over maps that were “political gerrymanders” rather than racial ones were not reviewable by the federal courts. This opened the door to mischief, where Republicans in red states could draw maps that diluted the political power of Democrats—a party that happens to be far more ethnically diverse than the GOP.

It also held that challenges to maps that occurred too close to an election would have to wait until after the election, allowing many maps that were on their face racially discriminatory to go forward. By closing the door in this fashion, this alone likely handed the House majority to the Republicans in 2022.

Many feared that a case at the end of the last term would spell the end of Section 2 of the VRA for good. It was a case out of Alabama, where a three-judge panel had ordered the legislature to stop discriminating against Black voters and to draw a second majority or near majority Black district, as the Voting Rights Act required, instead of “cracking” the Black vote apart and diluting it through gerrymandering. This was a near perfect opportunity for Chief Justice Roberts to fulfill his long quest of ridding the VRA, and the state generally for that matter, of the power to consider race in the process of remedying racial discrimination.

To everyone’s surprise, Chief Justice Roberts, together with Justice Brett Kavanaugh and the three liberal justices, upheld the lower panel’s decision and did not disturb the long precedent of the VRA. This decision cheered voting rights advocates but infuriated conservatives. And it remains unclear why Roberts decided to stay his hand. Perhaps it was now incontrovertible, even to him, that racism was still fueling voter suppression across the very states he had confidently said would no longer would engage in it.

The side swipe by the 8th Circuit

The decision by the Eighth Circuit last week to rid the VRA of any private rights of action is a wholly new line of attack, and if it succeeds it could mean the end of the VRA as we know it.

Before we get to why that is, let’s look quickly at the seriously tortured reasoning that appellate court gave for its ruling. As Adam Serwer succinctly writes in The Atlantic,

Although acknowledging that “Congress had ‘clearly intended’ all along to allow private enforcement,” it argues that the text does not say so explicitly, therefore Congress’s intentions, Supreme Court precedent, and decades of practice are irrelevant. The fact that this would allow lawmakers to discriminate against their Black constituents without interference from pesky civil-rights groups is an innocent coincidence.

It’s astonishing that an appellate court can actually agree that Congress had intended to give private parties the right to sue under the VRA, but then ignore this record entirely and impose its own opinion based on a purist, textual reading. The decision undoes decades of everyone assuming Congress had so intended, and of courts acting like Congress so intended.

In his dissent, Chief Judge Lavenski Smith wrote that “admittedly, the Court has never directly addressed the existence of a private right of action under [Article 2],” but noted that the court 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 [Article 2].”

Without a private right of action, most cases challenging unfair maps and other racially discriminatory vote suppression could never have been brought. The Justice Department doesn’t involve itself in more than a fraction of these cases, for starters. And imagine what would happen under Republican administrations, where the Department might take a chilly or even hostile view toward such suits: Enforcement of the VRA would be negligible, or even none at all.

Inviting the challenge

One final note. Justice Neil Gorsuch, joined by Justice Clarence Thomas, may be behind these judicial acrobatics to get a test case before SCOTUS. In a recent case in 2021, Gorsuch hinted he would entertain such a broadside attack on the Voting Rights Act, despite decades of private actions enforcing it. Here’s his concurring opinion in Brnovich v. Democratic National Committee with this statement (lightly edited by Derek Muller of the Election Law Blog, with internal citations also removed):

I join the Court’s opinion in full, but flag one thing it does not decide. Our cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2…. Because no party argues that the plaintiffs lack a cause of action here…this Court need not and does not address that issue today.

In the legal world, this is the equivalent of a big blaring sign saying, “Bring me a case under the VRA and I’ll tear it apart by holding that private parties cannot sue under it!”

And that is precisely what this case now presents. We will have to wait and see whether Chief Justice Roberts and Justice Kavanaugh stand behind the VRA, as they recently and admittedly surprisingly did, or whether they will join at least Justices Gorsuch, Thomas and Alito in gutting the VRA entirely by ending the right of private parties to sue under it.