Just when you were ready to declare the Fifth Circuit the most out of pocket federal appellate court, the Eighth Circuit says “hold my beer.”
Today, the Eighth Circuit decided in The Arkansas State Conference NAACP v. The Arkansas Board of Apportionment that individuals and organizations cannot file suit under Section 2 of the Voting Rights Act. Writing for the majority, Judge David R. Stras said there is no private right of action under that law, and “The Voting Rights Act lists only one plaintiff who can enforce § 2: the Attorney General.”
Hell, *even* the Fifth Circuit found an implied private right of action under the Voting Rights Act.
This… erm… unique take undermines well-established precedent under the statute, as Sophia Lin Lakin, the attorney with the American Civil Liberties Union, notes, “This is a travesty for democracy, and it’s directly contrary to decades of precedent and practice. It’s quite a seachange in the way that everyone—Congress, the courts, plaintiffs, and even defendants—have thought about how the promise of Section 2 would be enforced.”
And Kareem Crayton, Senior Director for Voting Rights and Representation at the Brennan Center, says this decision is “wildly out of step with existing case law” and “radically upends the existing understanding of Section 2.” Indeed, a private right of action was very much anticipated when the Voting Rights Act was initially passed.
Along those lines, the Circuit Chief Judge Lavenski R. Smith said in dissent the majority’s decision was an ” attempt[] to ‘predict the Supreme Court’s future decisions’ by ‘conduct[ing] a searchingly thorough examination of Section 2’s text, legislative history, and the Sandoval analysis.’ ‘Holding that Section Two does not provide a private right of action would work a major upheaval in the law, and [I am] not prepared to step down that road today.’”
Crayton notes the Chief is a Republican appointee, not a raving liberal. But the dissent demonstrates a respect for established law.
And, perhaps more to point, this private right of action was used as a justification when the Supreme Court got down to the business of gutting voting rights.
But unless/until the Supreme Court and/or the en banc Eighth Circuit rule otherwise, the people of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota have fewer rights than they did yesterday.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
