By: Vincent Fan
Section 2 of the Voting Rights Act of 1965 has long served as a safeguard to the voting rights of ethnic minorities.[1] Specifically, it prohibits “voting qualification or prerequisite” that “den[ies] or abridge[s] the right of any citizen of the United States to vote on account of race or color”.[2] Section 2 is most commonly applied to challenge vote dilution,[3] which is a political scheme to restrict minority voting strength through a redistricting plan.[4]
Historically, it has been a common practice for private parties to bring lawsuits under Section 2.[5] Federal courts throughout the country, including the U.S. Supreme Court, have long assumed the existence of a private right of action to Section 2 claims.[6]
However, in a recent 8th circuit case, Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, the court denied that such right of action exists.[7] The 8th Circuit case at issue stems from a federal district court case where the plaintiffs, private organizations, brought a lawsuit under Section 2 to challenge the legality of the State of Arkansas’ congressional redistricting plan, alleging that the plan diluted Black voting strength.[8] By analyzing the text and structure of the Voting Right Act, the U.S. 8th Circuit Court of Appeals concluded that there is no private right of action on the face of the statute, and the Attorney General is the only eligible party to bring a lawsuit under Section 2.[9]
The court’s decision drew both criticism and support from lawyers and legal experts. Some criticism addressed the holding’s clear departure from long-time practice and precedents,[10] some expressed the concern that the decision would harm individual voting rights,[11] while others suggested the political motive behind the decision.[12] Proponents of the court’s textualist analysis, on the other hand, emphasized the lack of expressed private right of action under the Voting Right Act and the administrative burden created by large volume of private litigation.[13]
Textually, the court’s conclusion seems to make some sense because the only eligible litigant that is expressly mentioned under the text is the Attorney General. However, whether the court can interpret a statute in a way that is clearly in conflict with the legislative intent is debatable.
The U.S. Supreme Court has long held that interpretation of law shall be consistent with legislative intent.[14] In 1981 and 1982, the House and Senate Judiciary Committees issued two congressional reports, which expressly recognized that the existence of private right of action under Section 2 is “clearly intended” by Congress.[15] However, even though the 8th Circuit Court admitted the existence of those committee reports and congress’ clear intent, it refused to use them as interpretative tools.[16] The court’s strict reliance on textualist analysis, therefore, reached an odd conclusion that was not only inconsistent with decades of practice, but also completely departed from the real intent of the statute drafters.
Additionally, the 8th Circuit Court’s disregard for the Supreme Court’s precedents is disturbing. As the dissent opinion mentions, although there was no direct decision on the existence of private right of action under Section 2, the Supreme Court has “considered numerous Section Two cases brought by private plaintiffs”.[17] If no private right of action exists under Section 2, it would mean that the Court has been repeatedly ruling for litigants who cannot even bring the litigations. By mechanically distinguishing between decision and assumption, the circuit court generated an odd and awkward result that departed from common sense.
Luckily, this case is likely to be brought to the Supreme Court,[18] and a different result is likely to be generated given the Court’s previous assumption that private right of action exists under Section 2.
This blog does not intend to criticize textualism. Rather, it proposes that, beyond close reading of its text and structure, courts shall avoid “distorting” a statute in a way that is clearly in conflict with congressional intent and common sense when interpreting the statute.
[1] U.S. Department of Justice, Section 2 of the Voting Rights Act, https://www.justice.gov/crt/section-2-voting-rights-act#:~:text=Most%20of%20the%20cases%20arising,of%20any%20citizen%20to%20vote.
[2] Voting Right Act of 1965, 52 U.S. Code § 10301.
[3] Section 2 of the Voting Rights Act: Vote Dilution And Vote Deprivation, SCOTUSBLOG, https://www.scotusblog.com/election-law-explainers/section-2-of-the-voting-rights-act-vote-dilution-and-vote-deprivation/.
[4] Vote Dilution Definition, LAW INSIDER, https://www.lawinsider.com/dictionary/vote-dilution; American Civil Liberties Union, Everything You Always Wanted To Know About Redistricting But Were Afraid To Ask!, https://www.aclu.org/files/FilesPDFs/redistricting_manual.pdf.
[5] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, No. 22-1395, 2023 WL 8011300, at *12 (8th Cir. Nov. 20, 2023).
[6] Id. at *13.
[7] Id. at *5.
[8] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893, 896 (E.D. Ark. 2022).
[9] Ark. State Conf., 2023 WL 8011300, at *3.
[10] Madeleine Greenberg, 8th Circuit Rules Private Plaintiffs Cannot Sue Under Section 2 of Voting Rights Act, DEMOCRACY DOCKET (Nov. 20, 2023), https://www.democracydocket.com/news-alerts/8th-circuit-rules-private-plaintiffs-cannot-sue-under-section-2-of-voting-rights-act/; Mariana Alfaro, Appeals Court Decision Could Limit Enforcement of Voting Rights Act, WASH. POST (Nov. 21, 2023, 2:04 AM), https://www.washingtonpost.com/politics/2023/11/20/voting-rights-act-lawsuit/; Brianna Herlihy, Experts Examine How Supreme Court Could Overhaul Voting Rights Litigation in Possible Gerrymandering Case, FOX NEWS (Nov. 22, 2023, 4:00 AM), https://www.foxnews.com/politics/experts-examine-how-the-supreme-court-could-overhaul-voting-rights-litigation-in-possible-gerrymandering-case .
[11] Brianna Herlihy, Experts Examine How Supreme Court Could Overhaul Voting Rights Litigation in Possible Gerrymandering Case, FOX NEWS (Nov. 22, 2023, 4:00 AM), https://www.foxnews.com/politics/experts-examine-how-the-supreme-court-could-overhaul-voting-rights-litigation-in-possible-gerrymandering-case .
[12] Suzanne Monyak & Jacqueline Thomsen, Voting Rights Law Faces More Setbacks with Conservative Judges, BLOOMBERG LAW (Nov. 28, 2023, 11:33 AM), https://news.bloomberglaw.com/us-law-week/voting-rights-law-faces-more-setbacks-with-conservative-judges; Tierney Sneed, Another ‘Radical’ Change to the Voting Rights Act Could Reach the Supreme Court, CNN (Jan. 11, 2023, 5:00 PM), https://www.cnn.com/2023/01/11/politics/voting-rights-act-appeals-court-private-lawsuits/index.html.
[13] Tierney Sneed, Another ‘Radical’ Change to the Voting Rights Act Could Reach the Supreme Court, CNN (Jan. 11, 2023, 5:00 PM), https://www.cnn.com/2023/01/11/politics/voting-rights-act-appeals-court-private-lawsuits/index.html.
[14] Mattox v. United States, 156 U.S. 237, 244, 15 S. Ct. 337, 39 L. Ed. 409 (1895); Foster v. United States, 303 U.S. 118, 120 (1938).
[15] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, No. 22-1395, 2023 WL 8011300, at *7 (8th Cir. Nov. 20, 2023) (citing S. Rep. No. 97-417, at 30 (1982); H.R. Rep. No. 97-227, at 32 (1981)).
[16] Id. at *8.
[17] Id. at *12.
[18] Tierney Sneed, Another ‘Radical’ Change to the Voting Rights Act Could Reach the Supreme Court, CNN (Jan. 11, 2023, 5:00 PM), https://www.cnn.com/2023/01/11/politics/voting-rights-act-appeals-court-private-lawsuits/index.html; Brianna Herlihy, Experts Examine How Supreme Court Could Overhaul Voting Rights Litigation in Possible Gerrymandering Case, FOX NEWS (Nov. 22, 2023, 4:00 AM), https://www.foxnews.com/politics/experts-examine-how-the-supreme-court-could-overhaul-voting-rights-litigation-in-possible-gerrymandering-case .
