Court Limits Ability to Bring Race-Based Lawsuits Against Congressional Maps

Election officers hand out I Voted stickers at the VCU Institute for Contemporary Art on Election Day in Richmond, Va., on Nov. 8, 2022. Ryan M. Kelly/AFP/Getty Images

A federal appeals court has issued a key ruling that prohibits private citizens and entities from filing lawsuits under a section of the Voting Rights Act that has been used extensively to bring legal challenges to redistricting processes on the premise that they’re racist.

In a 2–1 decision, the U.S. Court of Appeals for the 8th Circuit ruled on Nov. 20 that only the federal government can bring legal challenges under Section 2 of the Voting Rights Act, upholding an earlier ruling by an Arkansas judge that private citizens or civil rights groups cannot bring Section 2 lawsuits.

The vast majority of lawsuits filed under Section 2 of the Voting Rights Act—which prohibits discrimination based on race—have been brought by private individuals and groups who did not represent the U.S. government.

In legal terms, the ability of non-government entities to bring lawsuits is called a “private right of action,” also referred to as a “private cause of action.”

In February 2022, U.S. District Judge Lee Rudofsky, an appointee of former President Donald Trump, ruled that only the Department of Justice (DOJ) can bring Section 2 lawsuits, which private entities have for decades filed on the premise that moves like redistricting or other elections processes disenfranchised voters of color.

Mr. Rudofsky’s ruling was appealed, resulting in the Nov. 20 decision that bars “private right of action” in relation to Section 2 of the Voting Rights Act in the seven states under the jurisdiction of the 8th Circuit appeals court.

“For much of the last half-century, courts have assumed that [Section 2] is privately enforceable. A deeper look has revealed that this assumption rests on flimsy footing,” wrote Circuit Judge David Stras, a Trump appointee, in the majority opinion in which he was joined by Judge Raymond Gruender, an appointee of former President George W. Bush.

Chief Circuit Judge Lavenski Smith, another Bush appointee, issued a dissenting opinion.

“Until the [Supreme] Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy. Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection,” Mr. Smith wrote.

While the full 8th circuit could be asked to review the three-judge decision, a number of legal observers expect that the case will be brought before the U.S. Supreme Court.

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The case stems from a challenge brought in 2021 by the Arkansas chapter of the National Association for the Advancement of Colored People (NAACP) and the Arkansas Public Policy Panel over Arkansas’ state House map, with the plaintiffs arguing that a redistricting plan put forward by Republicans diluted the voting power of black people.

Racial vote-dilution claims are typically brought on the premise that electoral map drawers “packed” a given state’s minority voters into a smaller number of districts and “cracked” them among other districts in order to weaken the overall voting power of the block.

In the Arkansas lawsuit, the plaintiffs claimed that five additional majority-black state House districts could be drawn across the state in order to more accurately reflect the state’s black population.

Specifically, the lawsuit cited 2020 census data showing that 16.5 percent of Arkansas’ population is black but only 11 out of the state’s 100 state House districts in the GOP-led redistricting plan were majority-black districts.

Section 2 of the Voting Rights Act, meant to protect against race-based vote dilution, has been widely leveraged by private individuals and groups against federal, state, and local electoral maps.

But with the Nov. 20 decision, the 8th Circuit court has effectively ruled that there is no “private right of action” for Section 2 of the Voting Rights Act.

The ruling drew mixed reactions, with some conservatives taking to X to call for the abolishment of Section 2 of the Voting Rights Act entirely. Some argued that the provision is applied to the benefit of every race except whites.

Others, including the left-leaning Democracy Docket, expressed opposition to the Nov. 20 ruling against the “private right of action.”

“This is a catastrophic decision that will impact organizations’ ability to use Section 2 to protect voters from racial discrimination in voting in all the states under the 8th Circuit’s jurisdiction: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota,” the Democracy Docket account wrote in a post on X.

Nicholas Stephanopoulos, a Harvard Law School professor, also raised objections.

“The brazenness of this decision is something else,” he wrote in a post on X. “The thousands of litigants who have brought Section 2 claims? The thousands of courts who have decided these cases? Somehow they all missed what these two judges, in their infinite wisdom, finally saw.”

The case is widely expected to head to the U.S. Supreme Court, which recently ruled in favor of a Section 2 lawsuit brought by private entities in a legal challenge to Alabama’s congressional map.

The Supreme Court ruled on June 8 to affirm a district court’s ruling that Alabama’s congressional map drawn in 2021 likely violates Section 2 of the Voting Rights Act, requiring the state to redraw its congressional map to include an additional majority-black district.

At the same time, the Supreme Court rejected Alabama’s “race-neutral” approach to Section 2 litigation, essentially affirming that race can be considered in the redistricting process.

There are numerous legal challenges across the country to congressional district maps, including Kentucky, Louisiana, New Mexico, South Carolina, Tennessee, Texas, and Utah.