Two Supreme Court Justices Invited an All-Out Assault on the Voting Rights Act. Now It’s Here.

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On Wednesday, the Voting Rights Act suffered the second shot in a brutal new one-two punch, and some worry it could lead to a knockout blow at the Supreme Court.

The Trump Department of Justice had already recently ended long-running bipartisan enforcement of Section 2 of the Voting Rights Act, the part of the law that assures fair representation of minority voters in congressional, state, and local redistricting (among other things). Assistant attorney general for the civil rights division Harmeet Dhillon has signaled a pivot away from protecting minority voters and toward chasing phantom claims of voter fraud and pursuing other Trump-driven regressive election changes. These moves had already significantly hampered enforcement of the Voting Rights Act.

Now the U.S. Court of Appeals for the 8^th Circuit has, for the second time, held that minority voters do not have the authority to sue states and localities directly themselves for Section 2 violations. It’s a ruling that unless overturned will effectively end Voting Rights Act enforcement in the seven states comprising the 8^th Circuit. What’s worse, two Supreme Court justices already expressed agreement with the position of the 8^th Circuit. If three more justices agree, Section 2 would be a dead letter throughout the United States, at least during Republican administrations.

It’s worth explaining the history of the Voting Rights Act’s enforcement mechanisms in order to clarify why this latest ruling is not just a devastating blow to the law, but also an entirely ahistorical judicial power grab. When Congress passes laws protecting against discrimination, one question that arises is who may sue to enforce them. Sometimes a statute is clear that it may be enforced only by the federal government through the Department of Justice. Other statutes can be enforced by people who have been harmed under the law. When individuals or groups have the power to sue to enforce federal law, the term used is that the statute includes a “private right of action.”

Since 1982, when Congress passed the current version of Section 2 of the Voting Rights Act, courts have understood that private plaintiffs have the right to sue to enforce it. And such suits make up the vast majority of Section 2 suits that are brought. As the Guardian explained, “Since 1982, there have been 466 Section 2 cases. Only 18 were brought by the Department of Justice.” When it passed the revision to the law more than 40 years ago, Congress surely understood it to mean that private plaintiffs could sue. In 2006, when Congress revamped the Voting Rights Act overall, it knew that the lion’s share of Section 2 suits were brought by private plaintiffs and it did not change anything in Section 2 related to who could sue.

So it was a surprise when the 8^th Circuit in 2023 became the first court to hold that private plaintiffs did not have the right to sue to protect their voting rights. Other courts had reached contrary conclusions, but the 8^th Circuit followed signals from two justices on the Supreme Court regularly hostile to voting rights claims—Neil Gorsuch and Clarence Thomas—that Section 2 contains no private right of action.

Plaintiffs did not try to take that 2023 case to the Supreme Court to try to get the ruling reversed, perhaps because voting rights lawyers had another theory for how plaintiffs could sue to enforce Section 2: by doing so through another federal statute, 42 U.S.C. section 1983, which allows people to sue for certain violations by state and local officials of civil rights.

In a 2–1 ruling on Wednesday, the 8^th Circuit shut down this other route to allowing private plaintiffs to sue to enforce Section 2. Like the 2023 version, the court’s Wednesday ruling is ridiculous, rejecting Congress’ long understanding that private plaintiffs can bring these suits. Chief Judge Steven Colloton, a George W. Bush appointee, wrote in his dissent in the case, Turtle Mountain Band of Chippewa Indians v. Howe, that the 8^th Circuit was wrong to be the only court to deprive plaintiffs of this effective tool: “Since 1982, private plaintiffs have brought more than 400 actions based on § 2 that have resulted in judicial decisions. The majority concludes that all of those cases should have been dismissed because § 2 of the Voting Rights Act does not confer a voting right. Consistent with all other courts to address the issue, I conclude that § 2 confers an individual right and that the enforcement scheme described in the Act is not incompatible with private enforcement under 42 U.S.C. § 1983.”

Plaintiffs may now try to take this case to the entire 8^th Circuit to reconsider, but that did not work with an appeal of the 2023 case. Otherwise, plaintiffs will face a difficult choice. If plaintiffs leave this case as is, Section 2 will be a dead letter in the states covered by the 8^th Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. If the Supreme Court takes the case, there are already two votes likely to side with the 8^th Circuit. If a majority embraces the bad reasoning of the 8^th Circuit, Section 2 would be dead throughout the entire country.

Of course, one hopes that a Supreme Court majority would reject this attempt to shut down the Voting Rights Act, just like it rejected different extreme arguments made by Alabama a few years ago in another Section 2 case, Allen v. Milligan. But nothing about protection of voting rights can be taken for granted these days, and I’m glad I am not the one who has to make the call about whether to enter the ring at the Supreme Court.

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