The ongoing destruction of the Voting Rights Act
A federal court just made it much harder to fight voter suppression.
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Republicans have done a remarkable job eviscerating voting rights in America. Given that Chief Justice John Roberts has arguably made it his life’s work to make voting harder for millions of people, it’s unsurprising to see the lower courts following suit. But now, the Eighth Circuit Court of Appeals has gone further than Roberts ever did, and its ruling will make it even more difficult to use the courts to ensure free and fair elections.
The ruling the Eighth Circuit handed down last week eliminates the right of private groups to sue to enforce the Voting Rights Act (VRA). It’s the latest step in undermining the landmark law, which was explicitly passed to address the Jim Crow laws that had prevented Black people from voting. It has been in the crosshairs of conservatives for decades.
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Back in 2013, Roberts, writing for the conservative majority in Shelby County v. Holder, ruled that Section 4 of the VRA, the preclearance requirement, was unconstitutional. Section 4 required states with a history of discrimination in voting to submit proposed election law changes to the Department of Justice (DOJ) for review to ensure those changes did not result in greater restrictions on voting for minority voters. Roberts’s majority opinion blithely declared that the conditions that gave rise to the VRA in 1965 no longer existed. Functionally, Roberts announced that racism was over, in large part because the VRA had been successful, and any efforts by the federal government to guarantee equity in voting were no longer necessary.
Immediately after Shelby County came down, states previously covered by the preclearance rule moved to pass laws designed to make it harder to vote. Texas’s photo ID law went into effect only 24 hours after the decision. That law had been challenged by the Texas NAACP and the Mexican-American Legislative Caucus because the acceptable forms of ID listed in the law disproportionately affected Black and Latino voters. North Carolina enacted a photo ID law, got rid of same-day voter registration and voter registration drives, and drastically restricted early voting. That law was challenged by the DOJ, the League of Women Voters, and the North Carolina NAACP. Those suits were all brought under Section 2 of the VRA, which bans any law that denies or limits the right to vote based on race or color.
So, even though Section 4’s preclearance requirement was gone, groups like the NAACP and the ACLU could still sue states over racist voting laws under Section 2.
The Eighth Circuit just tossed out 50 years of civil rights law
The Eighth Circuit’s decision in Arkansas State Conference NAACP v. Arkansas Board of Apportionment eliminates the ability of any private group or person to sue to enforce the VRA. The majority opinion was written by Judge David Stras, a former Clarence Thomas clerk and Trump appointee, and it radically reshapes the voting rights landscape.
Most challenges to voting laws are brought by groups like the NAACP, the League of Women Voters, the ACLU, and Common Cause. These organizations have the organizational capacity and institutional knowledge to effectively fight the near-ceaseless barrage of laws restricting voting rights, particularly after the 2013 Shelby County decision. Now, at least in the Eighth Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota — only the DOJ can pursue these cases.
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This is no mere technical change. Chief Judge Lavenski Smith, a George W. Bush appointee, noted in his dissent that in the last 40 years, there have been at least 182 successful Section 2 cases, only 15 of which were brought only by the DOJ. As David Becker of the Center for Election Innovation and Research explained, the DOJ doesn’t have enough attorneys to cover the whole country all at once, and “over the course of over 50 years, private plaintiffs have also brought those cases so that residents of a small county in Arkansas are just as well protected as residents of the entirety of the state of California.”
Another problem with leaving lawsuits to the DOJ is that the willingness of the department to enforce voting rights depends entirely on who occupies the White House. When George W. Bush was president, he installed hardline conservative Hans von Spakovsky in the civil rights division. While there, von Spakovsky backed voter ID laws despite evidence they unjustly affected low-income and minority voters. He also stopped the DOJ from investigating voter discrimination against Native Americans. Instead, under von Spakovsky, the DOJ spent five years chasing after voter fraud despite no evidence that it exists in any meaningful fashion. And under Trump, Bill Barr’s DOJ worked to protect voting restrictions rather than fighting them, and his administration brought no cases at all under the VRA until May 2020.
The Eighth Circuit’s ruling ignores decades of decisions — including Supreme Court cases — holding that private groups can sue to enforce the VRA. Indeed, the dissent cites dozens of cases where private plaintiffs brought such lawsuits. Stras’s majority opinion acknowledges this has been the case for more than 50 years but then engages in a tedious review of the text of the VRA and other random statutes to get to his preferred result of kneecapping the usefulness of Section 2.
This is a hallmark of the modern conservative movement, ignoring the real-world consequences of a decision and the actual way a law works in favor of “textualism.” In theory, textualism is simply a device by which judges interpret a law by looking only at the statute's plain language. However, in practice, the “plain language” approach is a conservative favorite that results in such narrow readings of laws that it excludes many plaintiffs who could otherwise sue. That’s exactly what Stras did here. His opinion is nothing more than him reading Section 2, noting it refers only to the attorney general rather than explicitly referring to private plaintiffs, and throwing out 50 years of American civil rights law without a backward glance.
Federal courts are doing the GOP’s bidding
The Eighth Circuit’s decision is so extreme that it puts that court at odds with the Fifth Circuit, arguably the most conservative appellate court in the country. Earlier this month, a three-judge panel of the Fifth Circuit came to the opposite conclusion, throwing out Louisiana’s attempt to limit voting rights enforcement to the DOJ only. Having two different federal courts of appeal come to two different conclusions sets up a circuit split, which typically has to be resolved by the US Supreme Court. Otherwise, private groups could bring suits to preserve voting rights in some states but not others, creating a patchwork enforcement scheme.
It’s not certain how this would play out at the Supreme Court. Arguably, the Eighth Circuit’s decision here came in response to an invitation from Justices Gorsuch and Thomas in their concurrence in a 2021 voting rights case, Brnovich v. DNC. That concurrence noted that whether private plaintiffs could sue under Section 2 was an “open question” but one the Court was not taking up at that time. In contrast, Chief Justice Roberts, long in favor of restricting access to voting, surprised everyone when he joined the liberals in striking down Alabama’s congressional maps after the state created only one Black-majority district despite the state having 27 percent Black residents. However, the conservatives on the court now have a 6-3 supermajority, so they can afford to lose Roberts on this one if needed.
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Republicans are well aware that their success in elections relies on making it more difficult for people to vote. Since voters of color tend to lean Democratic, conservatives have to work extra hard to keep those voters away from the ballot box. Luckily for the GOP, but unluckily for the rest of us, they have a federal judiciary that is more than happy to help.
That’s it for today
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