On Monday, two conservative judges on the U.S. Court of Appeals for the Eighth Circuit voted to gut what is left of the Voting Rights Act. If the decision stands, it will eviscerate the ability of minority voters to vindicate their right to vote — and signal open season on judicial precedent.
The VRA is a landmark piece of civil rights legislation. Passed in 1965, it guards against voting practices and procedures that deny or dilute the right to vote on the basis of race. President Lyndon B. Johnson and members of Congress who supported the act understood that it was necessary to prevent states and localities from discriminating against minorities exercising their right to vote. There can be no doubt of the act’s impact, it is the most important piece of federal legislation aimed at protecting voting rights.
The divided panel’s ruling would eliminate the ability of individuals and groups, who bring the overwhelming majority of Section 2 cases, to sue.
Despite the law’s importance and effectiveness, in 2013, five conservative Supreme Court justices gutted key portions of the act. Since that ruling, Section 5, the portion of the act that required cities, counties and states with a history of discrimination to check in with the federal government before making changes to their voting rules and practices, has been effectively a dead letter. As the late Justice Ruth Bader Ginsburg decried in her dissent, eliminating this preclearance requirement “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
But in that ruling, the majority of the court’s conservatives told us not to worry: that minority voting rights could still be vindicated by bringing suit under Section 2 of the act. That section has allowed private individuals, groups and the federal government to sue states and localities over laws that deny or abridge the right to vote on the basis of race. These suits often involve things like district maps and voter identification rules. And with the death of Section 5, Section 2 has borne a much greater burden.
Two members of the Eighth Circuit, one appointed by President Donald Trump and one appointed by President George W. Bush, have now put Section 2 squarely in their crosshairs. The judges affirmed a lower court ruling and concluded that only the federal government can bring suits to vindicate voting rights under Section 2. A third judge, also appointed by Bush, dissented.
The divided panel’s ruling would eliminate the ability of individuals and groups, who bring the overwhelming majority of Section 2 cases, to sue. Judges Raymond Gruender and David Stras came to their decision after reading the language of the act in a vacuum. They determined that because the language of the act didn’t specifically give individuals and groups a private right of action to sue, that no such right exists.
This goes against our understanding of the act since its inception, including decades of case law (right up to the Supreme Court) and the legislative history of the act itself. In his dissent, Chief Judge Lavenski Smith noted that over the last four decades, only 15 of 182 successful Section 2 cases were brought only by the federal government. Even a Department of Justice that makes the protection of voting rights a priority can never substitute for the many private individuals and groups that bring suits under Section 2. Smith concluded that he 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.”
If the decision does stand, it isn’t just a disaster for voting rights. It signals open season on judicial precedent.
At this moment, Section 2 is much like Schrodinger’s cat: both alive and dead. Its future seems destined for the Supreme Court. Not only does the Eighth Circuit’s ruling challenge the Supreme Court’s assumptions about the act, but another federal appeals court, the Fifth Circuit, recently concluded that Section 2 does include a private right of action to sue. Only the members of the Supreme Court can rectify such a circuit split.
At least two members of the nine-member court, Justices Clarence Thomas and Neil Gorsuch, have questioned whether individuals and groups can in fact bring lawsuits under Section 2. Indeed, Thomas and Gorsuch’s musings may have been a siren song to the two judges on the Eighth Circuit — especially since Stras, the author of the majority opinion, previously clerked for Thomas. One would hope that the rest of the members of the high court, conservative or not, won’t appreciate lower court judges who thumb their noses at Supreme Court precedent. If the decision does stand, it isn’t just a disaster for voting rights. It signals open season on judicial precedent. It would no longer matter how long the meaning of a law has been settled, or how many cases have settled it. Instead, the consequences of judges upending decades of law stretches far beyond the area of voting rights. We don’t need to put all our eggs on the Supreme Court’s doorsteps. Congress, if it could get itself to take action, could amend the act to specify that there is in fact a private right of action. But Capitol Hill remains mired in inaction and has failed to act to protect voting rights in the past. Unless a miracle takes place in Congress, then, the best chance of saving Section 2 lies with the Supreme Court. We must hope at least five justices give the Voting Right Acts a common sense interpretation and protect the voting rights of millions of Americans.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
