Pending Danger to the Voting Rights Act

By Janette Ansolabehere

In recent years the U.S. Supreme Court (the Court) has issued opinions that weakened the enforcement power of the Voting Rights Act (the Act). The first blow was struck in the 2013 US Supreme Court case, Shelby County, Alabama v. Eric H. Holder when the Court found Section 4(b) of the Act unconstitutional. Section 4(b) had required “covered jurisdictions” (states, counties, cities, etc. with a history of discrimination in election laws and procedures) to obtain approval from the Federal Government before changing any laws or rules affecting the right to vote or the election process under Section 5. In the majority 5/4 opinion written by Chief Justice John Roberts the Court ruled that Section 4(b) of the Act is unconstitutional on the grounds that the original conditions supporting the Section no longer existed. At one time Texas was one of the “covered jurisdictions.”

In 2021 Justice Gorsuch joined by Justice Thomas dropped a potential bombshell in his concurring opinion in an Arizona case involving interpretation of Section 2 of the Act. Gorsuch wrote, “Our cases (section 2 cases) have assumed—without deciding—that the [Act] furnishes an implied cause of action under Section 2.” He went on to note that the question of whether a private person or group can bring an action under Section 2 has not been addressed by the lower courts. In other words, does a court have subject matter jurisdiction to hear a Section 2 case if the action is not brought by a governmental entity. Section 2’s language does not expressly state that a lawsuit based in Section 2 may be brought by a private person or group.

That question may now be headed for the Court. In 2022 a U.S. District Court in Arkansas issued an opinion in a Section 2 voting rights case brought by the Arkansas State Conference NAACP challenging the state’s new redistricting map as violating the Act. The judge, a Trump appointee, found that Section 2 does not provide for private enforcement of the Act under Section 2. Rather, it is up to the Attorney General of the United States to bring an enforcement action. He closed by noting that the Eighth Circuit Court of Appeals or the U.S. Supreme Court could finally clarify the question. This case, Arkansas State Conference NAACP, et al. v. The Arkansas Board of Apportionment, et al., is currently under review by the Eighth Circuit.

It is likely that whatever the Eighth Circuit decides, the losing party will file for a Writ of Certiorari to the U.S. Supreme Court. Considering the tenor of the Court’s current opinions, it seems likely the Court will take the case even though up until the Arkansas case and Gorsuch’s concurring opinion in the Arizona case, the right to file a challenge to a under Section 2 was never questioned. Should the Court find otherwise, enforcing the Voting Rights Act would be greatly weakened.