Eighth Circuit Rules That the Voting Rights Act Does Not Include a Private Right of Action, Impacting Potentially Numerous Pending Section 2 Cases
By: Jason Torchinsky, Andrew Pardue, Jonathan P. Lienhard, Jessica Furst Johnson, and Daniel Bruce
On Monday, the United States Court of Appeals for the Eighth Circuit held that Section 2 of the Voting Rights Act lacks a private right of action. The court affirmed an Arkansas federal district court’s holding that only the federal government, and not individual private plaintiffs, can seek judicial enforcement of Section 2’s provisions.
While the court held that “[i]t is unclear whether § 2 creates an individual right,” it noted that “[g]reater clarity exists on the private-remedy question.” The text of Section 2 contains no private enforcement mechanism. Section 12 grants enforcement power to the Attorney General but does not mention private enforcement. According to the court, this “omission was no accident.”
The court rejected the plaintiffs’ invitation to find a private right of action for all provisions of the VRA in other sections of the statute, such as Section 3. To do so, the court would have had to conclude that Congress hid “an elephant in a mousehole,” a legal term of art meaning that Congress hid a “groundbreaking change” in innocuous statutory language.
The court also rejected the utility of legislative history, noting that “[i]t does not point to a single word or phrase in the Voting Rights Act in support of the conclusion that a private right of action has existed from the beginning.” The court also refused to apply precedent that assumed but did not directly decide that a private right of action exists under Section 2. Those assumptions were dicta at best, and are otherwise inconsistent with the modern, text-based approach to determining whether a private right of action exists. Accordingly, the court affirmed the district court’s holding that Section 2 is only enforceable by the Attorney General, not private parties.
The plaintiffs can now seek review by the full Eighth Circuit or appeal the decision straight to the United States Supreme Court. Given that the Eighth Circuit is the first federal appellate court to make this determination, it is likely that the Supreme Court will have to address this important issue in the near future. There are numerous VRA cases pending in various circuits and states that could be impacted by this decision.
Holtzman Vogel attorneys Jason Torchinsky, Andrew Pardue, Jonathan Lienhard, and Jessica Furst Johnson contributed to and filed an amicus brief on behalf of Senator Tom Cotton in support of the district court’s holding. The brief argued that a private right of action is not compelled by precedent or legislative history.
Holtzman Vogel will continue to monitor this case and maintains an active amicus practice on the issue.
