On Nov. 20, a 2 to 1 vote by a three-judge panel of the 8th U.S. Circuit Court of Appeals ruled that only the U.S. Department of Justice can bring lawsuits under Section 2 of the 1965 Voting Rights Act — which if upheld, will deprive private citizens and advocacy groups from filing legal challenges to fight racial and partisan gerrymandering of legislative district maps and voter suppression laws. Since the US Supreme Court gutted Section 5 of the Voting Rights Act in 2013, many Republican-controlled states across the U.S. have engaged in blatant gerrymandering and passed dozens of laws making it more difficult for targeted minority communities and young people to vote. Over the last 50 years, groups such as the NAACP have challenged these laws and maps, sometimes succeeding in reversing them for their racially discriminatory impact on election outcomes.
This 8th U.S. Circuit Court of Appeals ruling came after the Arkansas ACLU, on behalf of the state’s NAACP chapter, and the Arkansas Public Policy Panel, challenged Arkansas’ state House district map, maintaining that it dilutes the voting power of Black people.
Between The Lines’ Scott Harris spoke with Nicholas Stephanopoulos, Kirkland & Ellis professor of law at Harvard University, who examines the 8th Circuit Court of Appeals ruling that overturned decades of precedent and the ruling’s impact on voting rights and democracy if it’s upheld on appeal before the U.S. Supreme Court, whose conservative majority has severely eroded the Voting Rights Act.
NICHOLAS STEPHANOPOULOS: The key background here is that Section 2 is the central operative provision of the Voting Rights Act today. So about a decade ago, the Roberts court effectively nullified the other major part of the Voting Rights Act, Section 5. And so ever since that decision a decade ago, Section 2 has been basically the entire ball game for minority voters who are complaining about discriminatory district maps, discriminatory electoral practices, voter suppression that disproportionately affects voters of color.
All of those electoral policies have been challenged under Section 2 of the Voting Rights Act. And when the Supreme Court struck down the other half of the Voting Rights Act, the court said, Don’t worry, Section 2 remains in force throughout the country, available to thwart discriminatory electoral practices wherever they may come about.
And so the background here is that this is an absolutely critical civil rights provision that would be completely frustrated under the logic of the 8th Circuit. So the Circuit held that only the Department of Justice and not private individuals, not private groups or parties can bring claims under Section 2 of the Voting Rights Act.
I called this decision brazen because it flies in the face of decades of established practice. Congress, when it adopted the current language of Section 2, said that it believed there was a private right to sue under Section 2. Five members of the Supreme Court assumed that there was a private right to sue under Section 2. And the Court has also held outright that there’s a private right to sue under two other Voting Rights Act provisions that are basically indistinguishable in their structure from Section 2.
And maybe most importantly, there have just been hundreds upon hundreds of private lawsuits under Section 2 over the last several decades. And every one of those private-initiated lawsuits should not have happened, according to the 8th Circuit. In this court’s view, not one of those cases should have been able to proceed because only the Department of Justice has the ability to bring claims under this provision.
And it’s truly brazen for two judges on an intermediate court of appeals to decide that they know best and Congress made an error, five justices of the Supreme Court made an error 20 years ago when they said that Section 2 did create a private right of action and all of the thousands of litigants and judges who have prosecuted and decided these cases over the years have also been in error in thinking that the private parties can sue under this law.
So just the arrogance, the brazenness of this decision is really something else.
SCOTT HARRIS: Professor Stephanopoulos, this case, as you were saying, if only the federal Department of Justice can file lawsuits in the future on behalf of private clients or advocacy groups, how will that, in your view, impact voting rights across the U.S. going forward?
NICHOLAS STEPHANOPOULOS: Yeah, it would massively diminish the enforcement of Section 2. So if you look at Section 2 litigation activity historically, maybe 95 percent has been initiated by private actors and maybe 5 percent has been comprised of actions brought by the Department of Justice. So if only the DOJ can bring these claims, we’re probably looking at something like 1/20th the level of enforcement activity that we’ve seen over the last several decades.
And it could get even worse when you have a Republican president presiding over the Department of Justice. So under the Trump administration, under the George W. Bush administration, there were essentially no Section 2 lawsuits brought by the Department of Justice.
So under the 8th Circuit’s reasoning, we would be looking effectively at next to no enforcement of Section 2 whenever Republicans control the Department of Justice. And minor levels of enforcement, when Democrats control the Department of Justice. And just a pale shadow of the level of enforcement that we see today when private actors are able to take advantage of the law.
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