(Washington Examiner) A federal appeals court struck a major blow to the Voting Rights Act on Monday, finding that black voters alone cannot challenge maps under the 1965 law, teeing up a likely Supreme Court dispute.
The decision was made by the U.S. Court of Appeals for the 8th Circuit, which ruled 2-1 that black and minority groups alone cannot bring racial gerrymandering suits under Section 2 of the Voting Rights Act. Instead, such lawsuits filed under that provision must come from the Justice Department, the appeals court ruled.
“The who-gets-to-sue question is the centerpiece of today’s case,” Judge David R. Stras wrote in the majority opinion. “The Voting Rights Act lists only one plaintiff who can enforce § 2: the Attorney General.”
The 8th Circuit’s decision upholds a lower court ruling that there is no “private right of action” under Section 2 of the powerful civil rights law, first passed in 1965. The decision dismissed a case brought by black Arkansas voters whom lower courts ruled had a strong claim that the state’s congressional map unreasonably discriminated against nonwhite voters.
Stras’s decision means that going forward, only Biden administration Attorney General Merrick Garland can bring a claim based on the anti-discrimination tools provided under Section 2 in the following states, which are under the 8th Circuit’s jurisdiction: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Most, if not all, voting rights challenges are brought by private parties. While that has been a practice for decades, Stras wrote there’s no basis in the “text, history and structure” of the law for private suits.
Circuit Chief Judge Lavenski R. Smith dissented from the majority, arguing that the ruling was only reflecting what the 6-3 Republican-appointed majority on the Supreme Court would like to see happen, not what the Voting Rights Act actually requires.
“The alternative path taken by the majority attempts to ‘predict the Supreme Court’s future decisions’ by ‘conduct[ing] a searchingly thorough examination of Section 2’s text, legislative history,’ and a disparate legal test,” Smith wrote.