The Supreme Court likely will reject an appeals court’s decision to eliminate private lawsuits intended to enforce part of the Voting Rights Act, legal experts on both sides say.
The 8th U.S. Circuit Court of Appeals ruled Monday in a case out of Arkansas that only the Justice Department—not individuals or private groups—may sue to enforce Section 2 of the 1965 Voting Rights Act, which prohibits discriminatory voting practices and procedures.
Justice Samuel Alito, a member of the Supreme Court’s conservative majority, has rejected the notion in past oral arguments that only the government may act to enforce the Voting Rights Act, noted election law expert J. Christian Adams.
Adams has led Voting Rights Act litigation as a Justice Department lawyer and as a private attorney and president of the conservative Public Interest Legal Foundation.
“There might be two votes on the Supreme Court for this ruling,” Adams told The Daily Signal, referring to the appeals court’s decision.
“It’s very clear from the legislative history as well as the court history for the last 42 years that the law was intended to have a private right of action,” Adams said.
What’s more, he said, liberal activist groups will find other means to bring voting litigation. He argued that the 8th Circuit’s flawed ruling will be little more than a means to engage in more fundraising.
In an email to The Daily Signal, former Virginia Attorney General Ken Cuccinelli, now the national chairman of the Election Transparency Initiative, said he agrees with Adams that the ruling likely won’t survive Supreme Court review.
The 8th Circuit ruling applies to Arkansas, where the redistricting case emerged, but also Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. The decision clashes with a recent ruling by the 5th Circuit Court of Appeals upholding the private right of action and covering Alabama, Florida, Georgia, Texas, Louisiana, and Mississippi.
Typically, divergent rulings would almost ensure Supreme Court review.
The 30-page ruling by the 8th Circuit contends that the Voting Rights Act doesn’t specify an individual’s right to sue.
“Many statutes simply say when a private right of action is available. One example is in the Civil Rights Act of 1964, which provides ‘a civil action for preventive relief’ that can ‘be instituted by the person’ experiencing discrimination,” the ruling says.
“Separated by only a year from passage of the Voting Rights Act, it leaves little to the imagination. It says who may sue—a ‘person’—and when—if unlawful discrimination already exists ‘or there are reasonable grounds to believe that’ someone ‘is about to engage’ in it,” the ruling continues. “When those details are missing, it is not our place to fill in the gaps, except when ‘text and structure’ require it.”
Conservative commentator Charlie Kirk, founder and president of Turning Point USA, said the 8th Circuit’s ruling was devastating to the Left.
“This law has encouraged well-funded groups to sue every government, however minor, that has any election security measures. Many jurisdictions fear passing any laws at all because they don’t want to deal with the legal costs and hassle,” Kirk said in a post on X formerly Twitter. “The Left has built a massive apparatus led by Marc Elias to outsource all its election lawsuits.”
Elias, the Democrat election lawyer who Kirk mentioned, posted on X that over four decades, of “182 successful Section 2 cases—only 15 were brought solely by DOJ.” (His reference was to the Justice Department.)
Liberal election law experts were, as expected, opposed to the ruling.
“The 8th Circuit ignored decades of precedent in a rush to gut the Voting Rights Act this week,” the American Constitution Society posted on X. “Another crushing example of the impact that courts have and why it matters who sits upon them.”
Have an opinion about this article? To sound off, please email letters@DailySignal.com, and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the URL or headline of the article plus your name and town and/or state.
