A federal appeals court on Monday decided to dramatically weaken the Voting Rights Act, issuing a ruling that would effectively bar private citizens and civil rights groups from filing lawsuits under a central provision of the landmark civil rights law.
The ruling, handed down by the 8th U.S. Circuit Court of Appeals, found that only the federal government can challenge Section 2 of the Voting Rights Act, an important part of the law that prohibits elections or voting practices that discriminate against Americans on a competition.
The opinion will almost certainly be appealed to the Supreme Court. The court’s current conservative majority has issued several key rulings in recent years that have weakened the Voting Rights Act. But justices have upheld the law in other cases, including a June ruling that found Alabama drew a racially discriminatory congressional map.
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Passed in 1965, the Voting Rights Act was one of the most significant achievements of the civil rights movement, overturning decades of discriminatory Jim Crow laws and protecting against deafening racial slurs. But the law has been under legal attack almost since its inception, and court rulings over the years have gutted key provisions, including a requirement that states with a history of voting discrimination get federal approval before changing their voting laws.
Monday’s decision by the 8th Circuit found that the text of the Voting Rights Act contained no express language about a “private right of action,” or the right of private citizens to bring suits under the law. Therefore, the court found that the right to sue would belong only to the government.
If the decision stands, it would eliminate perhaps the most important aspect of the Voting Rights Act; most challenges to discriminatory laws and racial slurs have come from private citizens and civil rights groups.
“It would be a devastating near-death blow to the Voting Rights Act if it remains law,” said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice. “Radical theories that would previously have been laughed out of court are being taken more and more seriously by an increasingly radical justice system.”
But Wiser said he “would be surprised if this decision stands,” based on decades of legal precedent and recent Supreme Court decisions.
Section 2 of the Voting Rights Act is the foundation of many civil rights and voting rights decisions. The lawsuit in the Supreme Court’s June ruling against Alabama’s map was brought by a number of civil rights organizations. In 2013, the section was also used to challenge a strict voter ID law passed in Texas.
Some conservative lawyers heralded Monday’s decision, saying it would prevent the Voting Rights Act from being used for political purposes.
“Today’s ruling is a victory for Arkansas and for the rule of law,” said Jason Snead, executive director of the Fair Elections Project, a conservative group. “The Voting Rights Act (VRA) remains intact as a tool to prevent actual discrimination and disenfranchisement. But the VRA is not and was never intended to be a partisan weapon against democratically enacted election integrity laws and gerrymandering practices.
The current legal debate over who can bring Section 2 claims took a significant turn in February 2022, when Judge Lee Rudofsky, an Eastern Arkansas district judge appointed by then-President Donald Trump, found that “only the Attorney General of the United States may bring a suit’ to enforce section 2.
The decision was appealed to the 8th Circuit, which on Monday issued a 2-1 decision, largely agreeing with the previous decision and finding that the law does not provide an express “private right of action.”
“Did Congress enable private plaintiffs to bring suit under [Section] 2 of the Voting Rights Act?” wrote Judge David Strass, a Trump appointee. “The text and the structure reveal that the answer is no.”
Supporters of the law and its private use point to statements made by Congress in 1982 when the Voting Rights Act was amended. In a report accompanying the changes to the law, the House and Senate Judiciary Committees said: “Citizens are intended to have a private cause of action to enforce their Section 2 rights.”
The 8th Circuit rejected that argument in its ruling Monday, saying the panel’s report “does not cite a single word or phrase in the Voting Rights Act to support the conclusion that a private right of action existed from the beginning.”
Section 2 of the Voting Rights Act has faced legal challenges before. In 2021, the Supreme Court found that Section 2 could be used to strike down voting restrictions only when they imposed significant and disproportionate burdens on minority voters.
But the court left Section 2 intact, and it has remained an important tool for civil rights groups, especially when challenging congressional maps and legislative districts.
The battle for voting rights has entered a new phase after the 2020 election. After Trump tried to change the outcome with a campaign questioning the integrity of the nation’s voting infrastructure, Republican-led state legislatures across the country passed laws adding new restrictions to the vote.
Sophia Lynn Lakin, director of the Voting Rights Project at the American Civil Liberties Union, which argued the appeal on behalf of the challengers, called Monday’s decision a “travesty of democracy.”
“For generations, private individuals have filed lawsuits under Section 2 of the Voting Rights Act to protect their right to vote,” she said in a statement. “By failing to overturn the district court’s sweeping decision, the 8th Circuit put the Voting Rights Act in jeopardy, rolling back critical protections that voters fought and died for.”
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