The Voting Rights Act was enacted in 1965, and throughout the subsequent decades, the universal assumption has been that private parties — voters who claim their rights were infringed, or interest groups representing them — could go to court to invoke the law’s protections. Lawmakers, litigants and judges have taken it as a given that Section 2 of the Voting Rights Act allows for lawsuits by private parties alongside enforcement by the Justice Department.
But then, in 2021, the Supreme Court’s conservative majority radically rewrote Section 2, inventing new limits that made it harder to win cases brought under that provision, which prohibits any “standard, practice, or procedure” that makes it disproportionately harder for minority citizens to vote. That wasn’t enough for Justice Neil M. Gorsuch, who seized the opportunity to offer a concurring opinion that all but invited states and other defendants in Voting Rights Act cases to challenge the validity of private suits.
The concurrence, joined by Justice Clarence Thomas, was a dishonest piece of work crammed into a single paragraph. Backing its claim that “lower courts have treated this as an open question,” it cited a single appeals court case that merely mentioned the issue in passing. That ruling was from 1981, the year before Congress rewrote the law to strengthen Section 2, and in doing so made clear that the section was meant to allow private lawsuits. “It is intended that citizens have a private cause of action to enforce their rights under Section 2,” the House report on the law stated.
The concurrence had its intended effect. The following February, a Trump-appointed district court judge in Arkansas, Lee Rudofsky, brought up the question of the right of private parties to sue in a state case in which the plaintiffs hadn’t even raised the issue. That didn’t stop Rudofsky from asserting that he was compelled to toss the suit.
Last week, a divided panel of the U.S. Court of Appeals for the 8th Circuit agreed. The “text and structure” of Section 2 showed that Congress did not give private plaintiffs the right to sue, said Judge David Stras, another Trump appointee, joined by George W. Bush nominee Raymond Gruender. “For much of the last half-century, courts have assumed that [Section 2] is privately enforceable. A deeper look has revealed that this assumption rests on flimsy footing,” Stras wrote.
Case closed. Lawsuit dismissed. Rights deleted.
The dissenting opinion, by George W. Bush appointee Lavenski Smith, explains what a dramatic departure this is — and what a breathtaking act of judicial chutzpah. The Supreme Court hasn’t directly addressed the question, Smith noted, but it has repeatedly considered Section 2 cases involving private parties, including a ruling earlier this year in an Alabama redistricting case. The Supreme Court has held that other sections of the Voting Rights Act allow private lawsuits; in a 1996 case, it said a private right under Section 2 “has been clearly intended by Congress” since the Voting Rights Act was passed.
“Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote in his dissent. “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”
Indeed. Voting cases are complex and time-intensive. There’s only so much the Justice Department can do — even in administrations that are inclined to enforce the law. Smith noted that of at least 182 successful Section 2 cases in the past 40 years, only 15 were brought solely by the attorney general.
So, ending suits by private parties would drastically undermine the law’s effectiveness at a time when other provisions have already been neutered.
Which is, of course, precisely the point. A friend-of-the-court brief filed by the Honest Elections Project, a creation of Federalist Society field marshal Leonard Leo, argues that such a restriction “furthers important public policy interests” because the law has been increasingly “misused by private plaintiffs” and — get this — “correlates to a precipitous drop” in public trust in election results.
Talk about blaming the victim.
The appeals court is correct that Section 2 doesn’t explicitly contain a private right to sue. In recent years, the court has been reluctant to discern such authority unless it is clearly set out, and it has increasingly shied away from relying on legislative history. If the courts were dealing with a newly minted statute, that would be one thing.
But nearly six decades on, with a settled interpretation of the Voting Rights act that has permitted private lawsuits, changing the rules is a different matter entirely. How was the Congress that passed — and revised — the Voting Rights Act supposed to have read the minds of a future court?
Law works only in a system of predictable rules. The alternative is instability and chaos. Under this court, constitutional rights exist, until — about half a century on — they don’t. A law carries with it the right to sue, until, perhaps, it doesn’t. And spare me, please, the lectures about the primacy of text. A court that literally wrote new restrictions into Section 2 has no standing on that subject.
The justices are going to have to decide this question. It is of surpassing importance, and conflicts with a decision earlier this month by the ultraconservative 5th Circuit, which managed to get this one right. How the issue is resolved will not only shape the future of voting rights. It will reveal much about this conservative majority’s appetite for wreaking legal havoc under the convenient guise of textualism.
