Federal Appeals Court decision on Voting Rights Act ‘intellectually bankrupt’

Marc H. Morial 

“Why does it matter if the Voting Rights Act is enforceable by private plaintiffs? If the panel’s conclusion is upheld by the Supreme Court, then Section 2 effectively becomes a light switch. A Republican president—say, Donald Trump—could simply instruct the Justice Department to stop bringing Section 2 lawsuits at all. With no private alternative, that would deal an immense and perhaps irrecoverable blow to voting-rights enforcement in this country.” – Matt Ford 

Minutes after the Supreme Court struck down Section 5 of the Voting Rights Act in 2013, with the majority insisting states didn’t need to be prevented from passing discriminatory voting laws, then-Texas Attorney General Greg Abbott called for reinstatement of a discriminatory voting law. 

Hours after a federal appeals court last Monday opened the door for states, counties, and municipalities to deny Americans the right to vote on account of race or color, North Dakota moved to weaken voting rights for Native American tribes.  

If the decision U.S. Court of Appeals for the Eighth Circuit is allowed to stand, no one but the federal government can stop North Dakota, or any party, from violating Americans’ voting rights on account of race or color.  The individual whose rights are being violated may not seek justice under the law.  Entire communities whose rights are being violated may not seek justice under the law. Civil rights and social justice groups may not seek justice under the law. 

A legal right that almost no one is permitted to claim is no right at all. And that is exactly the point. 

It’s hard to overstate how intellectually bankrupt the decision is. Most challenges seeking to enforce Section 2 of the Voting Rights Act are brought by private plaintiffs, not the federal government. For nearly six decades, the nation’s courts have recognized the right of private plaintiffs to sue under Section 2. Private plaintiffs have triumphed over discriminatory laws under liberal presidents, conservative presidents, presidents who have defended and advanced voting rights, and presidents who have sought to restrict voting rights. 

The Biden administration’s positive record of defending voting rights should not delude anyone into believing that the Fifteenth Amendment would be in safe hands under Biden’s potential successors. Indeed, suppression of Black votes was a key tactic in Donald Trump’s 2020 re-election strategy, and it’s unlikely that defending the Voting Rights Act would be a priority should he achieve a second term.  

“Radical theories that would previously have been laughed out of court have been taken increasingly seriously by an increasingly radical judiciary,” the Brennan Center’s  Democracy Program Director Wendy Weiser told the New York Times. 

The judges of the Eight Circuit Court of Appeals are fully aware of this. They have knowingly, deliberately, and maliciously reduced a constitutionally guaranteed right to the level of a mere whim.    

While the lines may have grown more and more blurred since Trump stunned the nation by declaring White supremacists, “very fine people,” a majority of Americans recoil from overt racial discrimination. Even the Eight Circuit judges likely would hesitate to overturn the Voting Rights Act outright. 

Yet they effectively have done so, in ruling that almost no one has the right to seek justice under its authority. 

Last Monday’s decision almost certainly will be appealed to the U.S. Supreme Court. Ruling on a case brought by private plaintiffs under Section 2 of the Voting Rights. At the Court’s conservative majority in June struck down Alabama’s racially-gerrymandered congressional districts.   

We look forward to the Court holding itself to the standard it set forth in that case when it rules on this one. 

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