On February 17, 2022, in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the U.S. District Court for the Eastern District of Arkansas held that Section 2 of the Voting Rights Act does not authorize private rights of action for disparate impact claims of vote dilution. Judge Lee Rudofsky’s opinion is the first to address this question, and it used an extensive originalist and textualist legal analysis to reach its conclusion.
With no binding precedential authority either from the U.S. Supreme Court or the U.S. Court of Appeals for the Eighth Circuit on whether Section 2 authorizes private rights of action, the district court was compelled to address this important legal question for the first time. In Mobile v. Bolden, the U.S. Supreme Court had evaluated a vote dilution case and ultimately decided it under the Equal Protection Clause; but the Court noted in discussion of Section 2 that it would be “assuming, for present purposes, that there exists a private right of action to enforce this statutory provision” (emphasis added). And in 2021’s DNC v. Brnovich, Justice Gorsuch pointed out that “[o]ur cases have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2.” Here, instead of making an assumption about the scope of a statute, the court engaged in a detailed analysis of “the text and structure” of the Voting Rights Act to resolve this legal issue.
It is important to clarify that the issue in this case is how victims of discrimination may pursue remedies, not whether there is a remedy available. The court’s decision leaves intact several legal avenues. Section 2 intentional discrimination claims may still be raised by private parties or the federal government, and the case has no effect on those claims. In disparate impact proceedings (where evidence is presented based on the effect of voting laws, not their intent), the Attorney General may seek criminal sanctions under the Voting Rights Act. But the court clarified that for Section 2, “exclusive enforcement authority resides in the Attorney General of the United States” to pursue those remedies.
In his analysis, Judge Rudofsky cited the various textual references to work of the Attorney General. In Section 12(a), the statute specifically mentions “Attorney General acting for the United States” or “in the name of the United States.” Judge Rudofsky noted that both criminal (12(a)) and administrative (12(e)) enforcement actions are the work of the federal government, not private litigants.
This decision is similar to Alexander v. Sandoval, where the Supreme Court found no private right of action to pursue disparate impact claims of discrimination on the basis of race, color, or national origin under Title VI of the Civil Rights Act. There are also other cases where the Supreme Court declined to imply private rights of action under other civil rights laws: Santa Clara Pueblo v. Martinez (Indian Civil Rights Act) and Gonzaga University v. Doe (Family Educational Rights and Privacy Act).
Arguments raised by the plaintiffs in the lawsuit in defense of the authority to file a private right of action related to the financial costs of such litigation and practicality. But those are policy considerations, not legal ones. And the policy considerations cut both ways: Implication of the private right of action by courts has resulted in an influx of litigation by political parties, candidates, and other advocates in redistricting cases; an increase in court-drawn maps and court orders to redraw maps; and more incentives for litigators to forum shop and pursue attorneys’ and expert witness fees from the losing party. Furthermore, Congress can amend the statute to expressly grant a private right action by going through the legislative process.
Notably, Judge Rudofsky emphasized the distinction between his personal policy preferences and the court’s decision. He, in his limited role as a judge, was obligated to interpret the text as written by Congress using objective principles of statutory interpretation. Judge Rudofsky noted his personal views that “Congress should have expressly included a private right of action in the Voting Rights Act,” that “cases like this one are important to pursue,” and that “the Voting Rights Act has been and continues to be a force for good and progress in our society.” The opinion stands as an example of the principle that judges clarify what the law is, not what they think it ought to be.
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