A challenge under Section 2 of the Voting Rights Act in which a federal judge in Little Rock ruled that private citizens have no right of action has been upheld by the 8th Circuit Court of Appeals, raising the likelihood that the ruling will go to the U.S. Supreme Court for the final word.

On Monday, a three-judge panel of the 8th Circuit — Chief Judge Lavenski Smith and Judges Raymond W. Gruender and David Stras — held that, “The who-gets-to-sue question is the centerpiece,” of the lawsuit, Arkansas State Conference NAACP et al v. Arkansas Board of Apportionment, saying that the U.S. attorney general is the only plaintiff named in the Voting Rights Act with the standing to enforce Section 2. The implication of a cause of action, the judges ruled, “is bigger than just this case.”

“The practice has long been controversial,” the ruling said, “in part because having the judiciary decide who can sue bypasses the legislative process.”

With Smith dissenting, the panel ruled to affirm U.S. District Court Judge Lee Rudofsky’s ruling last year dismissing the lawsuit, but modified the dismissal to be “with prejudice,” meaning the lawsuit cannot be refiled by the plaintiffs in the same court.

In his dissent, Smith said that although the U.S. Supreme Court has never said expressly that a private right of action does exist in the enforcement of Section 2, “it has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under [Section] 2.”

The plaintiffs, in a complaint filed Dec. 29, 2020, claimed that the 2021 apportionment maps diluted minority votes through a combination of “packing” and “cracking” that resulted in diminishing the voting power of Black voters. They filed suit under Section 2 of the Voting Rights Act of 1965, which was passed by Congress in an effort to prevent states from disenfranchising minority voters.

Rudofsky dismissed the case in February 2022, contending that because Congress did not include an express private right of action to allow private parties to challenge violations of Section 2 of the Voting Rights Act, that no such right exists, thus upending more than 50 years of legal precedent. Rudofsky held that only the U.S. attorney general can bring such a case.

Stras, who wrote the majority opinion, said that dis

Attorney General Tim Griffin, whose office is defending the state, hailed the ruling, calling it “a victory for our citizens

and the rule of law.”

agreements over redistricting erupt “like clockwork every ten years after the United States Census,” saying that the plaintiffs claimed that newly drawn House districts in Arkansas that resulted from the 2020 Census resulted in 11 of the 100 House districts being drawn majority Black despite the fact that Arkansas’ population demographics place the state’s Black population at about 16% of its total population of just over 3 million people. The plaintiffs accused the state of employing tactics known as “packing”(drawing lines that concentrate a cohesive political group into a limited number of districts) and “cracking” (dividing members of a cohesive political group among several districts) in an effort to dilute Black voters’ electoral strength.

“After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce [Section] 2,” Stras wrote. “The enforcement power belonged solely to the Attorney General of the United States … who was given five days to join the lawsuit. When he declined, the case was dismissed.”

Attorney General Tim Griffin, whose office is defending the state, hailed the ruling, calling it “a victory for our citizens and the rule of law.”

“Today, the Eighth Circuit became the first federal court of appeals to make clear that Section 2 of the Voting Rights Act is not privately enforceable,” Griffin said in a press release. “Only the United States may bring such a claim, and as a result, the Eighth Circuit affirmed the district court’s decision throwing out the NAACP and ACLU’s lawsuit challenging Arkansas’s redrawn legislative districts.”

Griffin went on to say in the release that, “for far too long, courts across the country have allowed political activists to file meritless lawsuits seeking to seize control of how states conduct elections and redistricting,” and said the decision is confirmation that enforcement of the Voting Rights Act should be left to “politically accountable officials” rather than “outside special interest groups.”

“It should be noted that even the Biden administration declined to side with the claims of the ACLU and NAACP in this lawsuit,” Griffin concluded.

Although Attorney General Merrick Garland declined to join in the case, a statement of interest filed by the Justice Department in January 2022 contended that “case law, the structure of the Voting Rights Act, the Act’s broad enforcement provisions, and authoritative sources of Congressional intent confirm that there is a private cause of action under Section 2 to challenge such redistricting plans.”

“Thus,” the statement of interest said, “Plaintiffs’ status as private parties does not preclude their Section 2 claim.”

Holly Dickson, executive director of ACLU of Arkansas, took particular umbrage at Griffin’s reference to the plaintiffs as “outside special interest groups.”

“The plaintiffs in this case are Arkansas voters who are fighting for all of our rights,” Dickson said. “Perhaps our state AG needs to learn a bit more about the case since he missed that fact in issuing his statement.”

Kareem Crayton, senior director for voting and representation with the Brennan Center for Justice, said that Monday’s ruling puts the 8th Circuit at odds with the remainder of the nation in terms of who may sue over violations of Section 2 of the VRA as well as with a half-century of precedent.

“This has sure surprised a lot of people who have understood [the private right of action] to be an essential part of the act,” Crayton said. “It’s pretty clear to those 0f us who have studied it for a long time, both the history and the enforcement, that this is wildly out of keeping with settled understandings about the act and with Congressional intention.”

Crayton said one of the issues that led to passage of the Voting Rights Act of 1965 was the fact that the Justice Department had been overwhelmed with voting rights cases because of the sheer number of jurisdictions, primarily in the South, that refused to comply with federal directives on civil rights.

“For a right as specific as the right to vote, which we all understand to be an individual right, it is shocking,” Crayton said of Monday’s ruling. “You see the dissenting view on this from the chief judge of the circuit, it’s abundantly clear that Congress made a finding that it was important to have this kind of structure in place. So, whether they said the magic words or not … it’s a little surprising that the 8th Circuit would want to revisit an issue that has been so well settled.”

The decision, he said, puts the 8th Circuit out of step with the rest of the country.

“This decision, coming from a majority of the panel is quite radical,” Crayton said. “Even the 5th Circuit … one of the most conservative circuits in the country … has taken a different view about the act.

“I think the fact that the chief judge of the circuit wrote in dissent in this opinion that it’s a divided opinion and that there’s such a radical effect if the opinion were to stand,” he continued, “both … suggest to me that there’s likely to be further review of the decision, and if you are an institutionalist and you’re serious about applying case law as it has been, you’d say there’s a pretty strong chance that some judges on the court — how many we’ll have to see — will take seriously the danger in place if the court essentially agrees that you should depart from 60 years or so of precedent.”

With the ruling, the plaintiffs are left with one of three options: accept the ruling from the 8th Circuit panel; petition for the entire 8th Circuit to hear the appeal — called an en banc hearing; or petition the U.S. Supreme Court to take up the case. Both Kymara Seals, director of the Arkansas Public Policy Panel, and Barry Jefferson, president of the Arkansas State Conference NAACP, characterized the ruling as a threat to the democratic underpinnings of the nation.

“We’re terribly disappointed at this ruling and we believe it’s a setback for voting rights as well as democracy,” Seals said. “The way we see it, it undermines the foundation of our democracy, and that’s what is so troubling about this ruling.”

Seals said next steps are yet to be decided but said the fight will continue.

“We’re gearing up for the fight,” she said. “This is our democracy, our voice, and we feel there’s been a miscarriage of justice with this decision. … That’s the hard thing about it. For 50 years this has been the precedent, and all of a sudden they’re changing midstream, and it’s so unfortunate that this is where we are in society today.”

Jefferson called the ruling “a big blow to the Civil Rights movement,” and said he and Seals will meet with their attorneys to determine the best course of action moving forward.

“Looking deep in our hearts to see what we want to do,” he said, “we want to continue this fight for the people who don’t have a voice, so we’re going to look at all avenues to determine what will be our next steps.”

Sophia Lin Lakin, director of the ACLU’s Voting Rights Project, who argued the appeal on behalf of the plaintiffs, called the decision “a travesty for democracy.”

“For generations, private individuals have brought cases under Section 2 of the Voting Rights Act to protect their right to vote,” Lakin said in a press release. “No court had denied them the ability to bring their claims in federal court — with the sole exception of the district court, and now the Eighth Circuit.”

“All options are on the table by necessity because this decision seeks to eradicate fair voting and elections,” added Dickson. “We will keep working to ensure that the voices of communities of color are heard equally in our democracy, for without this, it is no democracy at all.”