Voting Rights Ruling Follows US Supreme Court ‘Bat Signal’

A federal appeals court ruling blocking certain voting rights lawsuits by private parties may have been invited by some US Supreme Court justices, but the decision won’t necessarily get the full court’s support.

A divided panel on the US Court of Appeals for the Eighth Circuit on Monday ruled that there is no “private right of action” under Section 2 of the Voting Rights Act, a move that would allow only the Justice Department to bring forward lawsuits alleging gerrymandering along racial lines.

Law professors and voting rights advocates say the appeals court ruling is a direct response to conservative justices’ concurrence in an earlier voting rights case calling attention to the issue.

“The Supreme Court has sent out its bat signal that they’re open to considering novel theories to undermine voting rights, and there have been, I think, many responders to this invitation,” said Wendy Weiser, vice president for democracy at the Brennan Center for Justice.

The decision, written by Trump appointee Judge David Stras and joined by Judge Raymond Gruender, nominated to the bench by George W. Bush, dismissed a lawsuit from Black Arkansas voters who argued the state’s congressional map illegally discriminated against minority voters.

The ruling came just over two years after Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurrence in another voting rights case, Brnovich v. DNC, to “flag” that the court has assumed private plaintiffs could sue under Section 2 of the act. Gorsuch wrote that the justices didn’t need to address it then, but referred to it as an “open question.”

Thomas later referenced in a footnote that concurring opinion in a dissent to another voting rights case out of Alabama earlier this year.

That concurrence was “100 percent an invitation,” said Doug Spencer, a law professor at the University of Colorado who focuses on election law. “Gorsuch did this very deliberately.”

That invitation was not initially taken up by the state of Arkansas in this case, but first raised by the lower court judge, US District Judge Lee P. Rudofsky, a Trump appointee.

This “indicates that this is really not a mainstream argument by any stretch,” said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which brings voting rights suits. “This is the kind of ideological angel-on-the-head-of-a-pin kind of argument that could only have been put forward by an ideological judge.”

The majority opinion creates a circuit split, meaning that if the en banc Eighth Circuit doesn’t reverse the panel decision, the justices might feel compelled to take up the case.

Even so, it’s not a guarantee that the conservative-led high court will end the ability of private parties to sue over allegedly racially-based instances of gerrymandering.

In June, the high court ruled 5-4 in favor of a group of Alabama voters who had challenged Republican-drawn congressional maps under the same portion of the Voting Rights Act, with both Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals in the majority.

“Both Roberts and Kavanaugh knew what the dissenters have to say about the private right of action,” said Kareem Crayton, a senior director at the Brennan Center. “It’s hard to see them revisiting that matter having just decided that private parties in Alabama are entitled to relief.”

‘Pretty Unpersuasive’

In Monday’s ruling, the majority opinion found that even though courts have repeatedly and historically heard private lawsuits under Section 2, the specific issue hasn’t been raised before the Supreme Court.

Chief Judge Lavenski Smith, also a Bush appointee, in a dissent took issue with that argument, pointing to a prior Supreme Court ruling where, across several concurring opinions, five justices agreed that private parties had the ability to sue under that section of the act.

“I think the tenor of the opinion is, ‘well technically the Supreme Court has never technically said this, and we can find these technical arguments and put together these different doctrines to say the Supreme Court hasn’t said this yet,’” said Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at the Chicago-Kent College of Law. “I think it’s pretty unpersuasive. They’re being clever.”

Justin Levitt, a law professor at Loyola Marymount University who worked at the Biden White House and the Justice Department on voting rights issues, said that judges will occasionally “discover something in a statute that others have missed for 50 years.”

“But most of the time you discover something brand new, you’re the only judges who have gone a particular way and every other court has gotten it wrong—it means you’re not a great explorer, it means you’re wrong. And this is one of the wrong cases,” Levitt said.

Levitt said that the high court, under its new conservative supermajority, has taken up voting rights cases before on more “fringe” theories, like last term’s case on the independent state legislature theory. The plaintiffs argued then that only state legislators could set rules for the management of elections, but the justices ruled against them 6-3.

“It’s hard for me not to see a parallel where you’ve got individual justices dropping footnotes and ambitious circuit judges standing out alone on a very thin limb, sort of applying a doctrine without bothering to think about why,” Levitt said. “And I guess I look forward to a similar correction.”

Private v. DOJ Lawsuits

Gilda Daniels, a professor at the University of Baltimore law school, said a high court ruling upholding Stras’ opinion “would essentially mean the end of the Voting Rights Act,” since private parties bring the great majority of lawsuits to enforce voting protections.

Derek Lyons, president of the conservative group Restoring Integrity and Trust in Elections (RITE), said that leaving litigating such cases up to the Justice Department, where enforcement priorities can vary by administration, is not necessarily a bad thing. “I think it’s fine. We entrust the Department of Justice to enforce the law, I don’t think that it wouldn’t,” Lyons said.

Levitt disagreed, saying the Justice Department doesn’t have the resources to handle that many cases. He said it was “ludicrous” to think Congress didn’t intend for private parties to bring forward these kinds of lawsuits when it passed the act.

Lyons and Levitt agreed that a solution may not play out in court, but rather in Congress, as lawmakers could amend the act to clarify whether private plaintiffs can sue to enforce that section.

“Amendments to the VRA have a history of success in Congress on a bipartisan basis,” Lyons said. “That could be a more likely remedy.”