Only U.S. Attorney General Can Challenge Dilution of Voting Power

A federal appellate court adopted a substantially narrower interpretation of the Voting Rights Act than the view other courts have long followed. In Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the court affirmed the dismissal of the private plaintiffs’ challenge to state legislative district maps under Section 2 of the Voting Rights Act. Although private plaintiffs have often asserted section 2 claims, the court held that only the U.S. attorney general could enforce the law. ABA Litigation Section leaders believe this decision illustrates the need for lawyers to adapt to a judicial trend of challenging precedents.

Private Plaintiffs Alleged Racially Discriminatory District Maps

Following the U.S. census every decade, the Arkansas State Legislature creates a new map for its state legislative districts. One of the two maps it created in 2021 set the boundaries for 100 districts that would each elect a member to the state’s house of representatives.

Section 2 limits how states can draw these maps. As the Arkansas State Conference court noted, that law “prohibited states and political subdivisions from enacting any … procedure that … abridged the right of any citizen … to vote on account of race or color.” In 1980, the U.S. Supreme Court held in City of Mobile v. Bolden that the law only prohibits deliberate racial discrimination. But Congress amended the law the following year so that it also prohibited acts that unintentionally resulted in racial discrimination.

Two private plaintiffs sued the state in the U.S. District Court for the Eastern District of Arkansas, alleging that the 2021 map violated section 2. The plaintiffs claimed the maps “packed” Black voters into a small number of districts and “cracked” remaining voters among remaining districts to dilute their voting power. The result, the plaintiffs alleged, was that only 11 percent of Black voters’ preferred candidates would win in a state with a 16 percent Black population.

The trial court dismissed the case for lack of subject matter jurisdiction. It cited Justice Neil Gorsuch’s concurring opinion in the Supreme Court’s decision in Brnovich v. Democratic National Committee, in which private plaintiffs brought a section 2 claim. Justice Gorsuch’s opinion noted that the Court had “assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2.” While the Supreme Court did not decide the issue, the trial court held that only the U.S. attorney general could assert section 2 claims. When the Attorney General’s Office did not intervene as a plaintiff, the trial court dismissed the case.

Only the Attorney General Can Enforce Section 2

The U.S. Court of Appeals for the Eighth Circuit considered the question de novo and then affirmed the decision. It distinguished the absence of a private right of action in section 2 from express rights in that law and others. It contrasted section 2 with the Civil Rights Act of 1964, which stated its private enforcement mechanism. And it noted that section 2 did expressly identify someone who could enforce the law: the U.S. attorney general.

The Eighth Circuit then cited the U.S. Supreme Court decision in Karahalios v. National Federation of Federal Employees for the proposition that “where a statute expressly provides a remedy, courts should be reluctant to imply anything else.” Accordingly, the court reasoned, if Congress expressly enabled the U.S. attorney general to enforce the law, the court should not imply any other potential plaintiff.

Other Courts Have Permitted Private Enforcement

Chief Judge Lavenski Smith’s dissenting opinion in Arkansas State Conference reflects the substantial split between the majority opinion and other courts’ interpretation of the law. The dissent began by noting the “weight of precedent” holding that private plaintiffs can sue to enforce section 2. It noted the Supreme Court had presumed the existence of a private right of action under section 2 for years, including in Brnovich. And it cited a study showing that private plaintiffs had already prevailed in over 160 section 2 lawsuits.

The opinion also cited the U.S. District Court for the District of Kansas in Coca v. City of Dodge City. That decision noted that, even after the Supreme Court expressly assumed that section 2 had an implied right of action, Congress repeatedly reenacted the law but did not make any substantive changes to its enforcement mechanism. This “impliedly affirm[ed] the previously unanimous interpretation of section 2 as creating a private right of action,” suggested Chief Judge Smith.

The dissent explained why courts had assumed the existence of a private right of action by citing to the “Blackstonian principle that where there is a legal right, there is also a legal remedy.” It recalled a “wave of decisions” in the 1960s and 1970s that recognized implied rights of action in statutes protecting civil rights. While it conceded that courts recently have been reluctant to recognize implied private rights of action, it noted that trend does not apply to statutes like the Voting Rights Act, which was passed in the 1960s. As an example, it cited Morse v. Republican Party of Virginia, a 1996 U.S. Supreme Court decision that found an implied private right of action in Section 10 of the Voting Rights Act.

Courts in other circuits have not followed the Eighth Circuit’s decision. In City of Hammond v. Lake County Judicial Nominating Convention, the U.S. District Court for the Northern District of Indiana rejected the “surprising” Arkansas State Conference decision. That ruling rejected a section 2 claim brought by private plaintiffs, but it cited the Arkansas State Conference dissent and the Coca decision to make clear that its analysis was on different grounds. And the U.S. District Court for the Western District of Texas acknowledged Arkansas State Conference but still cited the contrary holding by the U.S. Court of Appeals for the Fifth Circuit in Robinson v. Ardoin as binding precedent.

Section Leaders Divided over the Eighth Circuit’s Decision

Just like the courts, Section leaders are split on whether the Eighth Circuit correctly interpreted section 2. “If, as it appears, no court has previously dug into this question—leaving the Eighth Circuit without binding precedent—I think the majority was right to examine the issue based on the ‘text and structure’ of the statute,” opines Thomas A. Gilson, Phoenix, AZ, cochair of the Section’s Justice for All Committee.

“The opinion appears to be supportable,” agrees Karen L. Hart, Dallas, TX, cochair of the Section’s Real Estate, Condemnation & Trust Litigation Committee. “The statute at issue named only the attorney general and was silent on anyone else who could bring a claim,” she notes.

Other Section leaders disagree. “The Fifth Circuit’s decision to the contrary in Robinson got it right,” suggests Cassandra Burke Robertson, Cleveland, OH, cochair of the Appellate Litigation Subcommittee of the Section’s Civil Rights Litigation Committee. Still, Robertson agrees that the Eighth Circuit did not need to rely solely on cases that assumed a private right of action. “Once Justice Gorsuch’s opinion had flagged the issue, I think that lower courts had an obligation to consider it seriously,” she states.

Section leaders acknowledge, however, that this decision should alert lawyers to consider major changes in the law when presenting their cases. “Long-settled legal principles can suddenly become unsettled,” notes Robertson, “and lawyers need to be prepared to argue points that they previously thought they could take for granted.”

“Lawyers should carefully research whether the courts have directly resolved key issues,” counsels Gilson. “A court’s assumptions may not amount to binding precedent.”