Two federal circuit courts of appeal recently handed down a pair of quirky opinions regarding the Voting Rights Act—quirky insofar as they were on topics rarely addressed by federal courts. A split Eighth Circuit panel delivered Arkansas State Conference NAACP v. Arkansas Board of Apportionment, and an Eleventh Circuit panel ruled in Rose v. Secretary of State of Georgia. Both cases addressed the reach of the nation’s most important election law, Section 2 of the Voting Rights Act.

Section 2, codified at 52 U.S.C. § 10301, is the statutory provision that is most commonly used to enforce a wide range of voting rights—from legislative redistricting challenges to challenges to election regulations that discriminate on the basis of race. Section 2 states:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

Most of the Supreme Court jurisprudence relating to the Voting Rights Act arose in the context of Section 2 causes of action brought by private parties. The United States Attorney General shares concurrent power to bring enforcement actions under Section 2 of the Voting Rights Act. Section 2 cases brought by the Attorney General (litigated by the Voting Section at the Department of Justice) usually settle or resolve prior to Supreme Court review.

In Arkansas State Conference of the NAACP, the court did what no appeals court had done since the passage of the Voting Rights Act of 1965: it ruled that Section 2 of the Voting Rights Act has no private enforcement mechanism. There had barely been any serious recognition of the issue prior to this case, much less hard-fought jurisprudential struggles in court. It was assumed the question was settled, and indeed, not even a question.

The lawsuit alleged both “cracking” and “packing.” The complaint pled that in drawing legislative maps for the Arkansas House, the legislature crammed black voters into two districts with far more density than required to have the opportunity to elect candidates of choice (packing), then scattered the remainder of the black population across multiple districts to dilute their influence (cracking). These claims were based on the 1982 amendments to Section 2 that allowed for a cause of action when an election practice resulted in vote dilution on the basis of race even if no intentional discrimination was alleged. (A bipartisan coalition of legislators, including Senators Strom Thurmond and Robert Dole supported this new cause of action, and President Ronald Reagan signed the extension into law.) The United States District Court sua sponte raised the question whether Section 2 enforcement power extends to private parties. Eventually, the defendants adopted the defense raised by the federal district court, and that was the question at issue in the Eighth Circuit.

Judge Stras, writing for the panel, brought this question to the fore: “The who-gets-to-sue question is the centerpiece of today’s case. The Voting Rights Act lists only one plaintiff who can enforce § 2: the Attorney General. . . . We must decide whether naming one excludes others.”

Relying heavily on statutory interpretation principles in Alexander v. Sandoval—a challenge to English-only driver’s license testing in Alabama based on the Civil Rights Act of 1964—the split panel held that Section 2 has no private right of action and that “naming one” plaintiff did in fact exclude all the others.

The opinion said the Voting Rights Act was unclear on the question of whether private parties may sue to enforce Section 2, and that “[e]veryone agrees § 2 itself contains no private enforcement mechanism.” After rejecting the argument that the mention of “the right of any citizen” in the text of Section 2 might resolve the question, the court rejected arguments that other parts of the Voting Rights Act provide a private right of action.

For example, Section 12 of the Voting Rights Act allows the Attorney General to bring “an action for preventative relief . . . for a temporary or permanent injunction, restraining order, or other order.” But, the court noted, no private party is mentioned.

The court also rejected Section 3 as the source of any private right of action. Section 3 states, “Whenever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment,” a prevailing party may seek the appointment of federal election observers.” The court rejected the idea that the entire Voting Rights Act was passed in 1965 and 1982 to enforce voting guarantees in the Fourteenth and Fifteenth Amendments. It held instead that Section 3 refers only to causes of action explicitly brought under the self-executing provisions of the Fifteenth Amendment, or under the Fourteenth Amendment.

Finally, the Eighth Circuit rejected the explicit recognition of a private right of action in the legislative history of the 1982 Amendments. The Senate Report on the 1982 legislation is the seminal, most-often relied on source for interpreting Section 2 of the Voting Rights Act as amended. But the panel reasoned that explicit legislative history cannot overcome textual ambiguity.

Two things were absent from the Eighth Circuit’s analysis. First, the Supreme Court has instructed courts that when it comes to the Voting Rights Act, courts should give Section 2 “the broadest possible scope” in statutory interpretation. Section 2 enjoys extraordinarily sharp elbows as a matter of statutory interpretation, almost unique among federal statutes given the history of racial discrimination in voting. The Eighth Circuit did not grapple with these Supreme Court admonitions about how to interpret Section 2 found in Allen v. State Board of Elections and Chisom v. Roemer (a case squarely addressing the reach of Section 2).

Nor did the Eighth Circuit’s analysis, including the dissent’s, address the possibility that the 2006 amendments to the Voting Rights Act might support a private right of action. In 2006, Congress expanded the monetary awards available to private parties in actions brought under Section 2. Section 6 of the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 amended Section 14(e) of the Voting Rights Act to allow private parties to collect “reasonable expert fees, and other reasonable litigation expenses.” (Before 2006, private parties could not recover expert fees and “other litigation expenses.”)

Because the United States may not recover attorney fees or any other monetary award under Section 14, this extension of awards of costs and expert fees could only inure to private litigants. While the Eighth Circuit panel surmised that Section 14’s original attorney fee provision was possibly intended for only “states and political subdivisions” rather than private plaintiffs, the practice in court has been entirely to the contrary. As a matter of course, defendants rarely seek and are not awarded fee awards in Section 2 cases that are not frivolous, if ever. Regardless of whether it would have made a difference to the outcome, it is notable that the 2006 amendments expanding private party expert fees and costs were not part of the Eighth Circuit’s analysis.

The dissent focused largely on the long history of Section 2 litigation relying on private rights of action in Section 2. It argued for an “intent-based” analysis in the face of any ambiguity. In particular, the dissent relied heavily on Morse v. Republican Party of Va., which relied on the contemporary legal context to imply a right of action under § 10 of the Voting Rights Act. The dissent also relied on Allen v. State Bd. of Elections, which found an implied private right of action to enforce Section 5 of the Voting Rights Act.

The second of the quirky pair of cases on Section 2 is the Eleventh Circuit’s recent decision in Rose v. Secretary of State of Georgia. Here, the Eleventh Circuit trimmed the reach of Section 2, finding that it did not reach elections to the Georgia Public Service Commission, essentially the state’s utility regulator.

Plaintiffs attempted to use Section 2 to force the state to create legislative districts for the commission. The commission is elected in a statewide election, and the plaintiffs alleged that this structure prevented black citizens from having any opportunity to elect the candidates of their choice. Section 2 is commonly used to convert at-large systems of election to single member districts. Courts have held that, if the inarguably complex elements outlined in Gingles v. Thornburg are satisfied, Section 2 requires that minorities have the opportunity to elect candidates of choice in single member districts.

The role of the commission was relevant to the court’s analysis. The Georgia Public Service Commission regulates power plant construction and determines the price for electricity, natural gas, and some telephone services. The court noted the commission is both a quasi-legislative and a quasi-judicial body that holds hearings on rate increases and other matters. The state deliberately structured the commission with statewide elections to ensure that each member would consider the best interests of the entire state, according to the court.

Plaintiffs, according to the opinion, asked the court “to dismantle Georgia’s statewide PSC system and replace it with an entirely new districted system.” The court noted that some election structures are outside of the reach of Section 2 and held that the commission was one such body. It reasoned that “plaintiff’s remedial plan cannot be fundamentally at odds with the state’s chosen model of government” because Section 2 does not allow the federal judiciary to “force on the states a new model of government.”

The court relied on a previous Eleventh Circuit case that refused to extend Section 2 to Duval County, Florida’s election of judges, Alabama’s election of trial judges, and the statewide election of judges in Florida. The court placed weight on Georgia’s determination that the PSC has statewide authority and statewide responsibilities and was designed to prevent regional interests from guiding commission policy. Hence, federalist concerns did not allow Section 2 to be used to dismantle carefully considered election structures.

In both of these quirky cases, the Eighth and Eleventh Circuits were unwilling to extend the reach of Section 2—arguably the most potent and litigated of all federal election statutes. The Eleventh Circuit respected the federalist arrangement and refused to extend Section 2’s reach to a state public utility commission. The Eighth Circuit refused to allow anyone except the United States Attorney General to use Section 2.

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