Legal experts are sounding the alarm over Monday’s Appeals Court ruling they warn “decimates” the Voting Rights Act and will be “brutal” for minority voters.
In a 2-to-1 ruling, the highly-conservative Eighth Circuit Court of Appeals ruled private plaintiffs, for example, voters and civil rights groups, do not have the right to sue to have section 2 of the Voting Rights Act (VRA) enforced. Only the U.S. Dept. of Justice, the court ruled, can sue under section 2.
“It will be a devastating near-death blow to the Voting Rights Act if it remains the law,” Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice, told The New York Times. “Radical theories that would previously have been laughed out of court have been taken increasingly seriously by an increasingly radical judiciary.”
The ruling appears to only apply to the Eight Circuit’s jurisdiction, which is Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, NBC News reports.
“It’s hard to overstate how important and detrimental this decision would be if allowed to stand,” warned UCLA professor of law Rick Hasen, the pre-eminent voice on election law and campaign finance. He added, “the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources. If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits.”
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In his headline Hasen wrote the ruling “Would Decimate the Rights of Minority Voters; Supreme Court Review Almost Certain.”
Professor of law Steve Vladeck, a CNN contributor, noted that not only has the U.S. Supreme Court reviewed section 2 case from private plaintiffs before, it has specified the Voting Rights Act is still operable because private plaintiffs have the ability to sue under section 2. Until now.
“The 8th Circuit has gutted the last remnants of the Voting Rights Act,” declared MSNBC legal analyst Joyce Vance, a professor of law and former U.S. Attorney.
NPR called suing under section 2, “a key path for enforcing the Voting Rights Act.” Similarly to Hasen, they wrote the ruling “may set up the next U.S. Supreme Court fight that could further limit the reach of the Voting Rights Act’s protections for people of color.”
“Private individuals and groups, who did not represent the U.S. government, have for decades brought the majority of Section 2 cases to court,” NPR added. “Those cases have challenged the redrawing of voting maps and other steps in the elections process with claims that the voting power of people of color has been minimized.”
Indeed, Marc Elias, the top Democratic attorney who won all but one of more than 60 lawsuits brought by Trump and his allies in the 2020 election, explained: “In past 40 years, there have been at least 182 successful Section 2 cases–only 15 were brought solely by DOJ.”
Professor of law Eric Segall, author of “Originalism as Faith,” and “Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges,” issued a dire warning.
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“Terrible, wrong and brutal for minorities,” Segall called it, noting that in that ruling the Eight Circuit was “trying to finish what Justice Roberts and Judge Bill Pryor wanted for decades: the eventual judicial repeal of the entire VRA.”
Monday’s ruling was written by a Trump-appointed judge, and upholds a lower court ruling also written by a Trump-appointed judge.
“Jesus Christ,” exclaimed The Nation’s justice correspondent Elie Mystal. “This is THE WAY the Voting Rights Act works. It’s THE WAY we enforce the 15th freaking amendment. I think [Chief Justice John] Roberts and [Justice Amy Coney] Barrett will join the liberals to reverse this when it gets to SCOTUS, but my God, letting Trump judges on the federal bench was a terrible plan.”
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