(CNN) — A case that could further shrink the scope of the Voting Rights Act is before a federal appeals court Wednesday, with the appellate panel considering whether private entities — and not just the US Justice Department — can bring lawsuits under a key provision of the law.
If those seeking a narrowing of the VRA are successful, it would significantly diminish the use of the law to challenge ballot regulations and redistricting maps that are said to be racially discriminatory.
A vast majority of the cases that are brought under the Voting Rights Act — which prohibits election rules that have the intent or effect of discriminating on the basis of race — are brought by private plaintiffs, with the Justice Department facing strained resources and other considerations that limit the number of VRA cases it files to, at most, a few each year.
Last year, however, a Trump-appointed federal judge in Arkansas — running counter to decades of legal practice — said that private parties do not have the ability to sue under the relevant VRA provision, known as Section 2.
The US 8th Circuit Court of Appeals — with a three-judge panel made up of all GOP-appointees — will be considering whether to uphold that finding, setting up the potential for another Supreme Court showdown on voting rights.
"DOJ, no matter how staffed up it is, no matter how many resources they apply to this particular endeavor, is simply not going to be able to do the same amount as it could do with the partnership of private plaintiffs here," said Sophia Lin Lakin, a top American Civil Liberties Union voting rights attorney who is arguing in favor of a private cause of action in the 8th Circuit case.
A decision that blocked private parties' path to court under the VRA would be a "radical" one, said David Becker, an alum of the Justice Department's voting section who now leads the Center for Election Innovation & Research.
"It absolutely means it's more likely that there will be potential partisan mischief that could negatively impact the voters who are protected by the Voting Rights Act," Becker, who signed a friend-of-the court brief favoring the broader interpretation, said.
Gorsuch and Thomas tee up the question
The February 2022 ruling by US District Judge Lee Rudofsky that private parties could not sue under Section 2 is believed to be a first-of-its-kind decision. It emerged from a VRA challenge brought by the Arkansas chapter of NAACP to Arkansas' state House map.
Critics of Rudofsky's ruling noted that it flew in the face of decades of judicial practice — including in multiple Supreme Court cases — where courts considered and decided Section 2 cases brought by private parties. They point to a 1996 Supreme Court case where five justices sanctioned the practice. They also stress that, since it was passed in 1965, the Voting Rights Act has been reauthorized and amended numerous times, and never once has Congress weighed in to say that courts were getting it wrong by hearing Section 2 lawsuits brought by private individuals and organizations.
However, those in favor of reading the VRA more narrowly have seized on a concurrence by Justice Neil Gorsuch in a 2021 VRA case that called it an "open question" whether the provision has a so-called private cause of action. Only Justice Clarence Thomas signed on to Gorsuch's concurrence, but it provided Rudofsky with a jumping off point to conclude the answer was no.
The office of Arkansas Attorney General Leslie Rutledge, who is defending Rudofsky's ruling, did not respond to CNN's request for comment. Her briefs argue that Congress intended only for attorney general to bring Section 2 lawsuits and there is a lack of textual support in the Voting Rights Act for a private cause of action for the provision.
"Despite what the practice has been, when you look at the text of the statute there is a real question as to whether there is a private right of action," said Jason Torchinsky, a GOP election law attorney who represented Arkansas Sen. Tom Cotton in a friend-of-the-court brief arguing against a private cause of action.
The latest bid to undermine the Voting Rights Act
Those against a private cause of action argue the current interpretation of the law has spawned an ever-increasing amount of private VRA litigation that is overburdening election administrators and injecting chaos into their planning.
"Courts have essentially assumed that there is this private right of action," said Jason Snead, executive director of the Honest Elections Project, which favors stricter voting laws and filed an friend-of-the-court brief supporting Arkansas in the case. "But it's never actually been determined that there is, and in the absence of the expressed decision by Congress to create a private right of action and put it in the text of the law, courts are not empowered to create one."
Without a private cause of action, enforcement of the Voting Rights Act would shrink drastically. Over the last four decades, private litigation has consistently made up the bulk of the successful Section 2 lawsuits, according to briefs filed in the case, and the number of Section 2 cases brought by the DOJ has trended downward, with the Trump administration bringing just one new lawsuit under the provision.
Even as the judiciary — and particularly the US Supreme Court — was yanked further to the right under then-President Donald Trump's makeover of the federal bench, many legal experts are viewing Arkansas' arguments as a longshot. That the argument is being put forward is nonetheless a sign of how far conservative opponents of the VRA are willing to push the envelope in this legal environment, according to Rick Hasen, an election law professor at UCLA School of Law.
"In any fair reading of the Voting Rights Act, this argument is an easy loser, but we'll see," Hasen said. "I don't count anything out these days."
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