Voting rights continue to be a struggle for African-Americans almost 60 years after passage of the Voting Rights Act of 1965.
Once again, some conservative judges have put voting rights in danger.
Zach Montellaro of Politico reported, “A federal appeals court issued a ruling Monday that could gut the Voting Rights Act, saying only the government—not private citizens or civil rights groups—is allowed to sue under a key section of the landmark civil rights law.
“The decision out of the 8th Circuit will almost certainly be appealed and is likely headed to the Supreme Court. Should it stand, it would mark a dramatic rollback of the enforcement of the law that led to increased minority power and representation in American politics.”
In essence, the appeals court ruling that only the government can sue over violations to the Voting Rights Act of 1965 means that if the state government draws voting lines that disenfranchise or dilutes minority voting power, the communities affected would have no legal remedy.
Before the landmark Voting Rights Act of 1965, states enacted voting rules that made it virtually impossible for African-Americans to participate in the voting process.
Rules such as the grandfather clause came about, which stated that unless a person’s grandfather could legally vote, they could not vote.
Since many African-Americans had slaves as grandparents, they were barred from casting votes.
Literacy tests were also implemented to bar people from voting.
However, literacy tests did not actually determine if a person could read or write.
Those literacy tests often required African-Americans to recite the Constitution verbatim.
If they could not recite it verbatim from beginning to end, they were ruled illiterate, barring them from casting a vote.
Often, African-Americans failed literacy tests because they did not pause long enough at commas and periods in the Constitution.
If African-Americans passed the literacy tests and grandfather clause, they often had to pay a poll tax.
Because many African-Americans at that time lived in poverty, they could not afford the poll tax.
But after 1965, African-Americans could rely on the Voting Rights Act if they sued for voter discrimination.
Furthermore, civil rights organizations like the NAACP would often sue on the behalf of disenfranchised voters.
If the Supreme Court does not overturn the decision from the 8th Circuit Court of Appeals, if a state government violates the Voting Rights Act of 1965, the federal government would have to sue the state for disenfranchised voters to get redress.
The judges wrote, “After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce Section 2. The enforcement power belonged solely to the Attorney General of the United States.”
The decision of the 8th Circuit, located in St. Louis, was authored by Judge David Stras, who was appointed by former President Donald Trump.
ACLU Voting Rights Project Director Sophia Lin Lakin said, “The ruling has put the Voting Rights Act in jeopardy and is very cavalierly tossing aside critical protections that voters have very much fought and died for.”
Politico’s Montellaro reported, “The decision originates in a racial gerrymandering case out of Arkansas, where the state chapter of the NAACP and others alleged that the state’s legislative districts violated the Voting Rights Act by diluting the voting power of Black voters. A lower-court judge, also a Trump appointee, ruled in 2022 that he couldn’t decide the case on the merits because he found there was no private right of action—that, effectively, they had no right to bring the lawsuit. On Monday, the circuit court affirmed the finding.”
The 8th Circuit consists of Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, as well as Arkansas.
In the past, some members of the Supreme Court have signaled an openness to siding with the 8th Circuit on whether a private right exists as it pertains to Section 2.
In 2021, Justice Neil Gorsuch wrote, “Our cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes [that right]. Lower courts have treated this as an open question.”
Justice Clarence Thomas concurred with Gorsuch’s opinion.
Politico’s Montellaro reported, “A decision to bar private challenges under the Voting Rights Act would reverse decades of legal practice. Outside groups have repeatedly brought successful Section 2 challenges and litigate alleged violations of the law far more frequently than the federal government does.”
Arkansas’ Republican Attorney General Tim Griffin praised the circuit court ruling saying, “For far too long, courts across the country have allowed political activists to file meritless lawsuits seeking to seize control of how states conduct elections and redistricting. This decision confirms that enforcement of the Voting Rights Act should be held by politically accountable officials and not by outside special interest groups.”
The Justice Department can bring Section 2 challenges.
In fact, the administration of President Joe Biden often has brought voting rights cases.
However, organizations and individuals have brought most voting rights cases.
Election law expert Rick Hasen said, “It’s hard to overstate how important and detrimental this decision would be if allowed to stand. If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits.”
Politico reported, “Most recently, the Supreme Court sided this summer with a group of civil rights groups and individual voters who argued that Alabama’s congressional maps likely violated the Voting Rights Act—which led to the court-ordered creation of an additional majority-Black district next year. Thomas pointedly noted in his dissent in that case that the court had not addressed the private right of action question.”