Forbes by Alison Durkee 11/21/2023
A federal appeals court ruled Monday that only the federal government, not private citizens or organizations, can bring lawsuits against allegedly racially discriminatory voting rules — a decision that critics call a “travesty for democracy” and is likely to impact Midwestern states ahead of the 2024 election and ultimately head to the Supreme Court.
Key Facts
The 8th Circuit Court of Appeals ruled in an Arkansas redistricting case that only the U.S. Attorney General has the power to bring lawsuits under section two of the Voting Rights Act, which prohibits voting rules that “discriminate on the basis of race, color, or membership” in a “language minority group.”
The ruling upends how voting rules have traditionally been challenged, with most lawsuits brought by private voters or organizations like the NAACP or American Civil Liberties Union (ACLU), with election law expert Rick Hasen noting “the Supreme Court and lower courts have for decades allowed such cases to be brought” by private groups.
As it stands now, the ruling only applies to the states that are covered by the 8th Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota — meaning it will be significantly harder to challenge voting rules in those states ahead of the 2024 election as long as this ruling stands.
Plaintiffs in the case (which include the NAACP and ACLU) can still ask the full 8th Circuit to hear the case, rather than just the three-judge panel that issued Monday’s ruling, and can appeal the case to the Supreme Court.
The case is widely expected to head to the Supreme Court, particularly given that it conflicts with a ruling the 5th Circuit Court of Appeals issued earlier in November that upheld the right of private plaintiffs to sue under the law, and noted other appeals courts have come to the same conclusion that a private right to bring lawsuits under that section exists.
Should the Supreme Court uphold the 8th Circuit’s ruling, that would make it significantly harder to challenge voting rules nationwide, which could have widespread effects for the 2024 election should the court take up the case this term.
Key Background
The case at the heart of the 8th Circuit’s ruling alleged Arkansas’ newly drawn congressional map unlawfully diluted votes from Black residents, arguing that while Black voters make up 16% of the state’s electorate, the way the maps were drawn meant only 11% of their preferred candidates would win. A lower district court judge, appointed by former President Donald Trump, ruled in February 2022 that while he believed the plaintiffs had a “strong merits case” that the maps could violate the Voting Rights Act, he couldn’t rule in their favor because he believed the plaintiffs didn’t have the right to bring the case at all. If the Supreme Court takes the 8th Circuit’s ruling up, it will be the latest in a string of cases the high court has considered involving the Voting Rights Act, including rulings that have weakened the law and limited its scope with Shelby County v. Holder in 2013, Abbott v. Perez in 2018 and Brnovich v. Democratic National Committee in 2021. In June, the court surprised voting rights advocates when it upheld the Voting Rights Act’s section two protections in a ruling that struck down Alabama’s redrawn map as racially discriminatory.
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