narrowing the Voting Rights Act

A federal appeals panel on Monday affirmed a lower court’s ruling and dismissed a case challenging Arkansas’ state redistricting map, asserting that only the United States attorney general can enforce the Voting Rights Act. 

A three-judge panel of the 8th U.S. Circuit Court of Appeals ruled that private individuals can’t sue under Section 2 of the Voting Rights Act of 1965, which prohibits abridging the right to vote on the basis of race.

The appellate panel dismissed the case with prejudice, meaning the plaintiffs cannot file the same claim again.

Represented by the American Civil Liberties Union, the Arkansas State Conference NAACP and the Arkansas Public Policy Panel filed a lawsuit against the Arkansas Board of Apportionment, challenging Arkansas’ 2021 redrawing of the state House of Representatives map. The complaint alleged the new map diluted the Black vote. 

Attorney General Tim Griffin — a member of the redistricting board, along with the governor and secretary of state — praised the decision in a statement as “a victory for our citizens and for the rule of law.”

“Today, the Eighth Circuit became the first federal court of appeals to make clear that Section 2 of the Voting Rights Act is not privately enforceable. Only the United States may bring such a claim…for far too long, courts across the country have allowed political activists to file meritless lawsuits seeking to seize control of how states conduct elections and redistricting,” Griffin said. “This decision confirms that enforcement of the Voting Rights Act should be handled by politically accountable officials and not by outside special interest groups.”

Barry Jefferson, political action chair of the Arkansas State Conference of the NAACP, in a statement called the decision “a devastating blow to the civil rights of every American, and the integrity of our nation’s electoral system.” 

“By stripping individuals of the ability to sue under Section 2 of the Voting Rights Act, the court has gutted one of the most critical protections against voting discrimination,” Jefferson said. “The Arkansas State Conference NAACP condemns this ruling in the strongest terms and will explore all available options to ensure that the rights of all voters are fully protected.” 

The plaintiffs are exploring options “to ensure fair maps that give Black Arkansans the opportunity to elect representatives of their choice will be used in the 2024 elections and beyond,” according to a statement from the ACLU.

Writing for the majority, Judge David Stras said enforcement power of Section 2 of the VRA “belonged to the Attorney General of the United States, who was given five days to join the lawsuit. When he declined, the case was dismissed.” 

Plaintiffs hope SCOTUS decision in Alabama case bodes well for Arkansas redistricting lawsuits

Chief Judge Lavenski Smith, an Arkansas native and the 8th circuit’s first Black chief justice, dissented. While the Court has never “directly addressed the existence of a private right of action under Section 2,” Smith wrote, “it has considered such cases, held that private rights of action exist under other sections of the VRA and concluded in other cases that a private right of action exists under Section 2. 

“Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy,” Smith wrote. “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection. Resolution of whether Sec. 2 affords plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance.”

The U.S. Supreme Court in June upheld a lower court ruling that Alabama’s 2022 congressional maps violated Section 2 of the Voting Rights Act. 

Following the ruling, the American Civil Liberties Union sent a letter to the 8th U.S. Circuit Court of Appeals, noting that the high court’s decision affirmed private citizens’ right to enforce federal laws through the courts.

The U.S. Department of Justice submitted a similar letter in the case.