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Federal court threatens to deal a death blow to the Voting Rights Act

If upheld nationally, the ruling would further devastate the landmark voting rights law.
A voter leaves a booth after casting their ballot on election day in Philadelphia
A voter leaves a booth after casting a ballot on Election Day in Philadelphia on Nov. 7.Matt Rourke / AP

A panel of judges in a federal appeals court said Monday that only the federal government — not citizens and groups — can sue under a key part of the Voting Rights Act, effectively gutting the legislation in seven states.

The ruling, which applies to Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, found that only the U.S. attorney general is able to bring a suit under Section 2 of the Voting Rights Act.

The vast majority of Voting Rights Act claims are brought by private citizens and civil rights groups, who foot the bill for time-consuming litigation to protect voting rights. The Department of Justice, with limited staff and resources, typically brings just a small fraction of the cases fought nationally.

The ruling is sure to be challenged — likely to the U.S. Supreme Court — which has limited the voting law's power significantly over the last decade.

"If this ruling were allowed to stand, it would decimate the Voting Rights Act," Rick Hasen, an election law expert at the UCLA School of Law, said.

The U.S. Court of Appeals for the 8th Circuit ruled Monday that the Arkansas State Conference NAACP and the Arkansas Public Policy Panel could not challenge redistricting maps in Arkansas because Section 2 of the Voting Rights Act does not provide a "private right of action."

The groups had sought to challenge Arkansas lawmakers' redistricting in the state, where the Republican-controlled Legislature drew 11 majority-Black districts in the state's 100-seat House of Representatives. The state is 16% Black.

The ruling, affirming a lower court's dismissal of the case, goes against decades of precedent in which judges have assumed or specifically affirmed a private right of action under the Voting Rights Act.

"Since the original Arkansas opinion came down, I think there have been 15 decisions by other courts around the country about whether Section 2 includes a private right of action and all but one have held like, of course it does," said Michael Li, a redistricting expert at the Brennan Center for Justice.

Li said he believes the ruling will be overturned on appeal, but it is currently the law of the land in seven states.

In addition to blocking the Arkansas groups from seeking additional voting rights for Black voters there, Li said, the ruling could threaten a recent win for Native American voters in North Dakota on appeal. A federal judge ruled last week that North Dakota state lawmakers had diluted two Native American tribes' voting rights, violating Section 2 of the Voting Rights Act. Lawmakers are due to redraw state legislative maps before the end of the year.

CORRECTION (Nov. 20, 2023, 6:01 p.m. ET): An earlier version of this article misstated the legal effects of the decision by the 8th Circuit. The ruling by the panel of judges could threaten a separate ruling in favor of Native American voters in North Dakota; it does not overturn that ruling.