In his final essay, the late Rep. John Lewis (D-Ga.) wrote, “Democracy is not a state. It is an act.” American democracy is tenuous without the enforcement of longstanding and hard-won protections that allow everyday citizens and their advocates to act when the government can’t or won’t.
A recent 2-1 ruling by the U.S. Circuit Court of Appeals for the Eighth Circuit, however, says that private litigants no longer have the right to enforce Section 2 of the Voting Rights Act of 1965, which was enacted to ensure that the right to vote isn’t diminished or denied on account of race.
This ruling, if not overturned, would bar individuals and civil rights groups from bringing future lawsuits to enforce their rights under a provision that they have been using for nearly 60 years to address racial discrimination in voting. It would leave its enforcement solely to the Department of Justice, which historically could not litigate more than a fraction of violations committed by states and localities throughout the country.
The decision is more than a limitation of the law — it is its undoing. It abjectly defies the foundational tenet of an American government “of the people, by the people, for the people.”
Since the Voting Rights Act was enacted, it has been heralded as the “crown jewel” of the civil rights movement. It outlaws racial discrimination in voting and establishes federal oversight of voting rights. Congress has amended it five times to expand its protections, with robust bipartisan support.
Its passage came after Black voters and other voters of color spent decades fighting intimidation, backlash, violence and suppression. In the decades since, civil rights groups like my organization, the NAACP Legal Defense Fund, have defended this freedom, litigating under various provisions of the act to ensure accountability for voting rights violations.
Without the continued ability to ensure that racial discrimination does not compromise our elections’ integrity by enforcing the Voting Rights Act, our democracy — and public trust in our legal system — is in grave jeopardy.
As the dissenting opinion in the 8th Circuit case observed, more than 400 cases under Section 2 have been litigated over the years to challenge voting rights violations, ranging from racial gerrymandering to voter ID restrictions and polling location changes. Moreover, decisions in the 5th, 6th and 11th Circuits established clear precedent for private litigants to bring Section 2 cases.
Just last term, the Supreme Court strongly affirmed the vitality of Section 2 in Allen v. Miligan, ruling favorably in the case brought by Black voters challenging Alabama’s 2022 congressional districting map as discriminatory.
Even the Supreme Court’s notorious 2013 Shelby County v. Holder decision, which struck down the preclearance requirement in Section 5 of the Voting Rights Act, did not question the continued vitality of Section 2, or the critical role of voters in enforcing it. Indeed, Chief Justice Roberts, writing for the majority, pointed directly to Section 2 as an alternative method of addressing racial discrimination in voting after the Shelby ruling.
The deluge of voter suppression laws post-Shelby, and now the 8th Circuit’s holding, have made a mockery of that assurance.
Shutting voters out of the process of vindicating their rights has incalculable implications that could quickly compound. Over the last year alone, a majority of the seven states in which the 8th Circuit’s ruling applies have adopted new restrictive voting laws, while two have expanded voting access. Without a mechanism for individuals and non-governmental groups to hold power to account for racial discrimination that results from these laws, there could be devastating consequences for voters of color and the legitimacy of our democracy.
The 8th Circuit’s ruling also disturbingly suggests that decades of litigation by individuals and civil rights groups like the Legal Defense Fund, ranging from Texas’s discriminatory voter ID provision to Alabama’s egregious racial gerrymander, were somehow incorrect as a matter of law, despite the Supreme Court’s imprimatur. This prompts a critical question: What would our democracy look like were this aberrant interpretation of Section 2 in place since the Voting Rights Act’s passage?
It would mean that the Justice Department under 11 presidential administrations would’ve had to pick up this slack. According to its website, the Justice Department has filed a mere 44 cases raising claims under Section 2 since 1982, beginning in 1988 under President Ronald Reagan (1), followed by Presidents George Bush (1), Bill Clinton (16), George W. Bush (16), Barack Obama (5), Donald Trump (1) and Joe Biden (4).
Notably, in the decade since the Supreme Court disabled Section 5 — leaving Section 2 as one of the only viable tools under the Voting Rights Act — the department has filed only 10 such cases.
For our judicial system to be taken seriously in its commitment to free and fair elections, avenues of redress must remain open to the private individuals and organizations most directly affected by racial discrimination in voting. This egregious ruling that defies logic, legislative history, reason and the fundamental purpose of Section 2 must be swiftly reversed in the 8th Circuit and rejected by other federal courts.
Furthermore, Congress should urgently act to update the Voting Rights Act to reiterate that there is a private right of action under Section 2. Congress should also use this opportunity to restore the Voting Rights Act’s full force by updating and reinstating the protections that were struck down by the Supreme Court in 2013. While Congress struggles to find the will to act, states can adopt their own voting rights acts with robust enforcement provisions.
Congress, state legislatures, the Department of Justice and ordinary citizens must urgently intervene to insist that the right to vote can continue to be enforced by the direct victims of discrimination in voting. Anything less will be the undoing of our democracy as we know it, starting with the unraveling of any public confidence in our judiciary following the 8th Circuit’s deviant and destructive decision.
Janai Nelson is the president and director counsel of the NAACP Legal Defense Fund.