Appellate Judge David Stras spoke for the two-judge-majority. Former Republican Oval Office occupant Donald Trump, a white nationalist sympathizer, put Stras on the bench. Stras’s decision backed a lower court judge—also Trump-named—against the Voting Rights Act.
Those two judges threw out Arkansas’ civil rights groups and citizens’ lawsuit against a racially discriminatory redistricting plan the Republican-dominated state legislature approved.
Unlike the Voting Rights Act’s Section 5, which the High Court’s right-wingers tossed a decade ago, Section 2 allows lawsuits against discrimination only after racially biased state and local legislation passes and takes effect.
Section 2 also lets private citizens and voting rights groups sue to enforce it—until now, at least in the Eighth Circuit, which stretches from Arkansas on the south, where this case originated, to the Dakotas.
The citizens and voting rights groups file most Section enforcement cases, as they did in this one, from Arkansas. Since the ruling applies only to those Eighth Circuit states, so far, other voting rights suits may proceed.
That includes a suit scheduled for hearing this month in the 11th U.S. Circuit Court of Appeals in Atlanta, challenging Georgia’s congressional redistricting as racially biased.
Still, the threat to the remaining section of the Voting Rights Act drew concern and outrage.
The CBC is the only group
The Congressional Black Caucus was the only group to say the Eighth Circuit’s ruling should be appealed to the U.S. Supreme Court—an action which could give the court’s right-wing majority a chance to completely eviscerate the Voting Rights Act.
“The Eighth Circuit ruled there is no ‘private right of action,’ for Section 2 of the Voting Rights Act,” explained CBC’s Horsford, who is also a former top officer of Unite HERE Local 226 in Las Vegas.
“If allowed to stand,” the appellate court’s decision “would be a death knell for the law and would limit the ability of private individuals and civil rights organizations to bring lawsuits under Section 2 to protect Black voters from racial discrimination.
“This decision,” the CBC continued in its statement, “is ill-advised, cannot stand, and should be appealed to the U.S. Supreme Court, which we hope will reaffirm that citizens have a private right of action to bring forward lawsuits under Section 2.
“Congress must act to protect voting rights for Black voters and voters of color,” Horsford declared. “The Congressional Black Caucus will not stop until we pass the John R. Lewis Voting Rights Advancement Act to restore the full protections of the Voting Rights Act.”
Janai Nelson, CEO of the NAACP Legal Defense Fund called the ruling “deeply alarming” as it “exposed millions of Black voters and other voters of color in the Eighth Circuit to the threat of unbridled racial discrimination in voting.
“Individuals who experience voting discrimination on account of their race will be prevented from suing under critical Section 2 provisions to vindicate them must instead rely on the discretion and limited resources of the U.S. Attorney General. We must be clear: This ruling deliberately denies voters of color the opportunity to engage in the democratic process fairly and fully.”
“As anti-voter extremists continue to push for state-based restrictions on our freedom to vote and fair representation, the Voting Rights Act is the first defense for ensuring that communities of color can fully participate in the political process,” said Maya Wiley, CEO of the Leadership Conference on Civil and Human Rights.
“This decision strikes at the very purpose of the Voting Rights Act by saying that those excluded from democracy cannot rely on the Voting Rights Act to enforce their rights. A civil rights law is only as good as its enforcement, and Congress certainly intended to protect individual voters when it passed the Voting Rights Act nearly 60 years ago.”
The two appellate judges in the majority said the voting rights groups are wrong.
“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 joined by Judge Raymond Gruender, an appointee of former President George W. Bush.
Chief Circuit Judge Lavenski Smith, another Bush appointee, dissented. “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,” Smith wrote.
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