Appeals court weighs scope of key Voting Rights Act provision

A federal appeals court on Wednesday weighed whether it should uphold a lower court’s ruling that private parties cannot bring allegations of racial gerrymanders under a key section of the Voting Rights Act.

A three-judge panel on the 8th Circuit Court of Appeals is set to decide whether the Arkansas State Conference NAACP can challenge Arkansas’s state House maps under Section 2 of the Voting Rights Act, which places significant weight on whether district lines have the result of weakening a minority group’s power to elect their preferred candidates.

The NAACP and other groups have used the provision to allege discrimination in redistricting for years, but their ability to do so has gained renewed attention after Justice Neil Gorsuch in a 2021 concurring opinion, which was joined by Justice Clarence Thomas, suggested that an “open question” remains over whether private entities can bring those legal proceedings.

The Arkansas State Conference NAACP had alleged through a Voting Rights Act Section 2 challenge that Arkansas diluted Black voting strength, but a federal district judge ruled that only the attorney general can bring such a lawsuit, while acknowledging the NAACP had a “strong merits case” that some of the boundaries were unlawful.

On Wednesday, a panel of three GOP-appointed judges on the 8th Circuit heard oral arguments on whether to uphold that judge’s ruling, which would significantly narrow the ability to bring challenges under Section 2 of the Voting Rights Act within the seven states the circuit court covers.

Justice Department attorney Jonathan Backer and Sophia Lin Lakin, co-director of the ACLU’s Voting Rights Project, argued to the judges that Congress had intended for private individuals to bring Section 2 lawsuits.

“There are many roads, but they all lead to Rome,” Backer told the judges. “They all lead to the conclusion that Section 2 is privately enforceable.”

Backer also said the question about the provision being privately enforceable should have never come up in the case because it wasn’t a jurisdictional question.

Arkansas Solicitor General Nicholas Bronni told the judges that no case existed in the Supreme Court nor the 8th Circuit that firmly put to rest whether a private right of action exists, noting that some cases merely assumed it did.

“Congress was well aware of his question about whether or not Section 2 was privately enforceable, but chose not to do anything about it,” Bronni said.

His position was supported by a friend of the court brief filed by 14 GOP-led states.

The Arkansas State Conference NAACP alleges the state diluted the voting strength of Black voters by only giving them an opportunity to elect their preferred candidates in 11 of the state’s 100 House districts, despite that they make up 15.5 percent of the voting-age population.

The lawsuit marks one of multiple prominent legal challenges to voting maps redrawn following the 2020 census. The Supreme Court is set to decide later this year whether Alabama’s maps violate Section 2.