Congress should preempt the Supreme Court on Section 2 of Voting Rights Act 

The least diverse federal appellate court just sent a clarion call to the Supreme Court to further enfeeble the Voting Rights Act (VRA) by stripping voters of the right to sue the state for racially discriminatory voting laws; that is the sole province of the ever-changing and resource-dependent Department of Justice, the 8th U.S. Circuit reasoned for the first time in the VRA’s 58-year history. 

The existence of the private right of action has been well settled in Congress’ legislative history and Supreme Court opinions such that it would seem legally and logically implausible to find otherwise. Even the 5th Circuit, the most conservative in the country, considered this question and declined to walk the plank the 8th Circuit constructed out of whole cloth, emboldened by arguments in concurrence and dissent authored by the most ideologically inclined conservative justices.   

The 8th Circuit gives the Supreme Court yet another an opportunity to finish the task they’ve embarked upon since Shelby v. Holder in 2013: to invalidate the most effective enforcement mechanisms of the VRA. If the Supreme Court takes the case, agreement with the 8th Circuit will have immediate nationwide implications on minority voters’ ability to sue under other VRA provisions, like the prohibition against poll taxes, and Congress’ ability to create rights that protect minority voters, who constitute the vast majority of plaintiffs in suits brought under Section 2 to date.  

First, under the 8th Circuit’s logic, drawing on opinions decided after the VRA was enacted, Section 2 does not include “rights-creating language” sufficient to allow an individual to have a private right of action despite Section 2’s noting the “right to vote.” The practical result of such a narrow reading will prevent the millions of Black and brown voters, who the VRA was enacted to protect, from bringing suits like Allen v. Milligan, which created a second majority-minority district in Alabama for the first time in its history, laying the groundwork for the same in Louisiana.  

Without a private enforcement mechanism, voters will have to rely on the Fourteenth or Fifteenth Amendments, which require significant proof of discriminatory intent, a higher burden of proof than Section 2.  Even more troubling, without private plaintiffs and nonprofit organizations dedicated to equal representation and democracy, it is unclear whether the Biden administration’s Department of Justice would have the resources, and frankly, the bravery to bring suit for fear of receiving an unfavorable Supreme Court decision given ideological considerations.  

Second, the decision misreads precedent in finding that individuals have a private right of action to enforce Section 2 — precedent as recent as Shelby, where the Supreme Court opined that individuals have an individual right with an accompanying remedy in Section 2. Presuming judicial ambiguity on this issue, every Supreme Court decision that can be interpreted to question Section 2’s private right of action is either a plurality decision lacking any binding legal effect or a dissent, not an official and unequivocal holding. Lastly, the decision completely ignores Congress’ intent (and by extension, voters’), as the fulsome legislative history of the Voting Rights Act and its five subsequent bipartisan reauthorizations through 2006 clearly note that the statute was meant to be enforced by “the federal government and aggrieved private parties.”   

Yet, the 8th Circuit seeks to foreclose judicial opportunities to vindicate the Fifteenth Amendment, and by extension, Section 2’s right to vote free from racial discrimination while both political parties (yes, even Republicans) are embracing expanded voter access amid nascent statistical evidence that suppressive laws have negligible partisan effects on elections. Interpreting the Republican Party’s bait-and-switch on mail-in voting and expanded early voting most generously and considering the slim Republican majority in the House, one could imagine the slightest possibility for bipartisan clarification on Section 2’s private right of action to undo the gratuitous Gordian knot tied by the 8th Circuit, and possibly moot the litigation. Certainly, Congress needs to act, while it still can send a clear rebuke of the Supreme Court’s decision, drawing upon its legacy when it did the same in 1982, after the Supreme Court intentionally misstated Section 2’s standard of proof in Mobile v. Bolden. This is the least Congress can do, and not beyond the realm of reality as last Congress, a bipartisan and narrow revision to the Electoral Count Act was made to clarify the vice president’s role in the counting of electoral votes after the atrocities of Jan. 6.   

While the 8th Circuit’s decision is certainly not tantamount to Jan. 6, it should still raise alarm bells searching for legislative solutions as it raises a significant counter majoritarian problem — the imposition of a textually strained and ideologically-based minority interpretation of the VRA over the intentions, instructions, and judgments of nearly six decades of both Congress’s wishes and the people who elected them to office.  

Maureen Edobor is Assistant Professor of Law at Washington and Lee School of Law. Follow her on X @MaureenAEdobor.