Standing and Section 2: Does Section 2 of the Voting Rights Act Provide a Private Right of Action?

[Music]

 

Chayila Kleist:  Hello and welcome to this FedSoc Forum webinar call. Today, April 26, 2024, we’re delighted to host a discussion on “Standing and Section 2: Does Section 2 of the Voting Rights Act Provide a Private Right of Action?” My name is Chayila Kleist, and I’m an associate director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues.

 

Now, in the interest of time we’ll keep our introduction of our guests today brief, but if you’d like to know more about any of our speakers you can access their impressive full bios at fedsoc.org. Today we are fortunate to have with us as our moderator Maya Noronha who’s a civil rights attorney. Formerly, she worked as Special Counsel for External Affairs at the First Liberty Institute and has worked for the U.S. Department of Health and Human Services as Acting Chief of Staff for the Administration for Children and Families; Principal Advisor to Commissioner of Administration on Children, Youth and Families; and Senior Advisor to the Director for the Office for Civil Rights and regulatory reform officer. She’s also advised officials elected to or candidates for president, U.S. Senate, the U.S. House of Representatives, governor, state legislature, city council, and magisterial district judge. She’s also practiced law at Baker Hostetler LLP where she worked on the Political Law and Federal Advocacy Teams. And I will leave it to her to introduce our panel.

 

As a last note and then I’ll get off your screens, if you have questions, please submit them via the question and answer feature found at the bottom of your zoom screens so they’ll be accessible when we get to that portion of today’s webinar. With that, thank you all for joining us today. Ms. Noronha, the floor is yours.

 

Maya Noronha:  Thanks, Chayila. It’s lovely to be here and thanks to The Federalist Society for hosting us. Today, we’re going to discuss Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment. This case was about Section 2 of the Voting Rights Act, which prohibits election laws that discriminatorily dilute the votes of racial minorities. So the NAACP and Arkansas Public Policy Panel sued the state of Arkansas over its House legislative plan, and so the district court held that there’s no implied private right of action under Section 2 and the parties lacked standing to file the case. The Eighth Circuit affirmed over a dissent, and this year the Eighth Circuit again denied rehearing en banc over another dissent.

 

So today, we’ve invited panelists who have experience litigating both sides of Voting Rights Act cases and challenging them and defending them, working at the Department of Justice, filing private rights of action on behalf of public interest groups, and defending redistricting maps. And that’s on a bipartisan basis. So we have Nicholas Bronni, who’s Solicitor General of the State of Arkansas; Jeffrey Wice from New York Law School where he’s an adjunct professor of law and senior fellow at New York Census and Redistricting Institute; and finally J. Christian Adams, who’s president and general counsel of the Public Interest Legal Foundation. So without further ado, does Section 2 of the Voting Rights Act provide a private right of action? Let’s turn it over to Solicitor General Bronni.

 

Nicholas Bronni:  Thanks you, Maya, and thank you to The Federalist Society for hosting this discussion. I think from our perspective the answer to that question is a fairly easy no. Section 2 does not provide a private right of action, and we think that’s clear on the text of the VRA in Section 2 itself. In fact, in our own case what we’ve noticed is that the plaintiffs have in fact largely abandoned any claim that either the VRA’s plain text or the structure of the VRA actually provides a private right of action and in fact have now sort of moved on post panel stage to arguing largely that in fact the private right of action comes from dicta from Supreme Court cases and in particular Morse v. Republican Party of Virginia as opposed to the plain text of the statute itself.

 

And in fact, both the dissent from the panel opinion in our case as well as the dissent from denial of rehearing en banc largely relied on sort of that dicta as opposed to the statutory framework itself. But I think it’s important -- and I’ll talk about Morse and why I think that’s wrong a little bit later. But I think it’s important to start with, as we’re always supposed to start with, the text of the statute itself, so the text and structure of the VRA. And again, as I said, the text and structure of the VRA do not provide a private right of action.

 

Beginning with Section 2 itself, I don’t think anybody claims that the plain text of Section 2 itself provides a private right of action. Instead, that provision merely talks about prohibiting states and political subdivisions from imposing requirements that deny minority groups an equal opportunity to elect their preferred candidates. It says nothing about who enforces it as the panel in our case decided.

 

Instead, the only provision that really talks about enforcement is Section 12 of the VRA, and that provision only mentioned suits by the Attorney General. It doesn’t mention suits by private parties. And the explicit mentioning of the Attorney General and the lack of any reference to private enforcement generally under modern Supreme Court precedent we don’t imply a private right of action from that kind of silence. And I think most people would agree that if we’re applying modern jurisprudence, Alexander v. Sandoval, you can’t imply a private right of action from that.

 

So what proponents of a private right of action do is they then turn to other provisions of the VRA, and in particular they turn to Sections 3 and 14. And neither one of those provisions in our opinion also provides a private right of action. So starting with Section 3, that provision outlines the remedies, the “Attorney General or an aggrieved person” may obtain in proceedings under any statute to enforce the voting guarantees of the Fourteenth or Fifteenth Amendment. And it talks about things like the appointment of federal observers and the suspensions of certain texts. Section 14 somewhat similarly says that in any action or proceeding to enforce the voting guarantees of the Fourteenth or Fifteenth Amendment the Court may award attorney’s fees to “the prevailing party other than the United States.”

 

Now, really in our opinion those provisions don’t provide a private right of action for two critical reasons. First, textually those provisions don’t apply to Section 2 cases because Section 2 cases are not cases about enforcing the voting guarantees of the Fourteenth or Fifteenth Amendment. Instead, what a Section 2 case does is it seeks to enforce Section 2’s prophylactic disparate impact regime, not the Constitution itself. And there’s a critical difference because you can bring a Section 2 case without showing intentional discrimination like you would need to show in order to establish a Fourteenth or Fifteenth Amendment violation. So in our view, those provisions simply don’t apply.

 

Second, even if you thought those provisions textually could somehow apply to a Section 2 suit, critically those provisions still don’t actually provide a cause of action. Instead, what they talk about is the procedures that apply or the remedies that you might get if a provision is otherwise privately enforceable. But they don’t in and of themselves make anything privately enforceable. That makes sense because there are other -- that those would apply to other VRA regimes because as the Court has explicitly told us there are other provisions of the VRA, like Section 5, that are privately enforceable. But it’s difficult to suggest that those general provisions would somehow make other portions of the VRA privately enforceable. Indeed, in my experience even proponents of a private right of action don’t claim that those provisions make the entirety of VRA privately enforceable. We’re not sure how you would draw that line.

 

So faced with that unhelpful text, what tends to happen, like in our own case, is that proponents turn to case law, particularly Morse v. Republican Party of Virginia, and then the fact that it’s true, a number of courts have assumed for a long time that Section 2 provides a private right of action. And they say that’s what demonstrates that there was a private right of action. Neither one of those things in our view is persuasive. So Morse is not a Section 2 case. Instead, there the court held in a fragmented opinion that Section 10, which authorizes suits by the Attorney General to enjoin things like poll taxes, implicitly authorized private suits.

 

Now, that was a fragmented opinion as I said. You have a plurality opinion and then a concurrence, so the plurality opinion by Justice Stevens writing for himself and one other justice reached that conclusion under Allen v. State Board of Elections, which it found an implicit private right of action have implied one for purposes of Section 5 and then that plus the language of Section 3 that I mentioned earlier Justice Stevens suggested made Section 10 privately enforceable. Justice Breyer writing for himself and two other justices concurred on the basis that the rationale of Allen applied to Section 10. Again, this was a case not about Section 2 but about Section 10.

 

But it is true as proponents emphasized that in reaching that conclusion both opinions did aver briefly to another line of reasoning suggesting that it would be anomalous for Section 10 not to be privately enforceable and treated differently from Sections 2 and Section 5. Now, proponents seized on that fleeting reference to Section 2 and argued that that must’ve been necessary to the Court’s holding and therefore the Court has held that Section 2 is privately enforceable. But in our view, that badly overreaches because even on the most generous reading of that language what the Court was relying on equally was a reference to Section 2 and to Section 5, and the Court, again, had explicitly held in Allen that Section 5 was privately enforceable, something it’s never done in Section 2 context.

 

So what that means is you can delete the reference to Section 2 without in any way changing the rationale at all. And that means it’s the textbook definition of dicta, a statement and opinion that can be deleted without changing in any way the fundamental underpinnings of the reasoning. And again, this all occurs in the context of a case that’s about Section 10, not about Section 2. So for that reason, we don’t think that Morse in any binds a court to decide that Section 2 is privately enforceable.

 

So as a result, what tends to happen is proponents, like in our case, say, well, even if Morse’s statements aren’t holdings, you should still follow them as persuasive dicta, particularly given that other cases, it’s true, have assumed that Section 2 is privately enforceable. But frankly, that fares no better because if the statements in Morse are dicta, you don’t follow the dicta when there’s binding precedent on point, and under modern Supreme Court jurisprudence for determining whether or not there’s a private right of action—that’s Alexander v. Sandoval—we don’t imply private rights of action like the Court did in for instance Allen for Section 5 just to make the statute more effective. Instead, we apply a much stricter standard today. And I don’t think anybody disagrees that if you applied Alexander v. Sandoval you couldn’t under that standard imply a private right of action here.

 

And then on the second point about assumptions, well, it’s true that a number of courts of appeal have assumed that Section 2 is privately enforceable. What really matters is, as the dissent in our own case pointed out, it wasn’t in fact until the court of appeals decision in our case that anyone had seriously examined that assumption. In seriously examining that assumption, the court concluded that there is no private right of action. So it’s really that analysis and a modern jurisprudence, not assumptions that can control.

 

And then ultimately the argument that is often made for the VRA implying a private right of action is that if you don’t make Section 2 privately enforceable, you’ll undermine the VRA; you’ll undermine voting rights. But I don’t think that it undermines a statute or the statute’s purpose to enforce the language that Congress actually wrote. Instead, that’s following what the statute says. And to us, that’s what the panel in our decision did. That’s what the lower court did here, so again, I don’t think that it undermines the statute to actually enforce it. And with that sort of as an endpoint, I’ll turn it back over to Maya.

 

Maya Noronha:  Thank you. And so now we’re moving on to Professor Wice.

 

Jeffrey Wice:  Thank you very much. It’s a pleasure to be with you today at The Federalist Society and this program. So today we’re considering whether there is a private right of action to enforce Section 2 of the Voting Rights Act, and I believe that there is. For almost 60 years now across hundreds of federal cases, including cases before the U.S. Supreme Court, the uniform answer has been yes, there’s been a private right of action. Congress did not expressly include a defined private right of action in Section 2. I think we can all agree on that.

 

However, where Congress has not provided such language statutes are often interpreted by the courts to imply a private right of action, so Section 2 does not expressly provide the right of action. But the Supreme Court has long recognized congressional intention for private rights of action in Section 2, implying the logic behind recognition of implied rights of action in other parts of the Voting Rights Act. Federal courts have allowed lawsuits by private parties under Section 2 since the Voting Rights Act was enacted. And Congress has accepted this understanding after reenacting the Voting Rights Act four times.

 

Several circuit courts have held that Section 2 cases indeed convey a private right of action. The Eighth Circuit’s panel decision really splits from all the federal courts that have considered this issue. Just to name a few of the cases that have considered this question, recent cases, from Louisiana in Robinson v. Ardoin there was a private right of action brought, although I think earlier this week now Louisiana is also bringing a challenge against private rights of action in its state legislative appeals.

 

In Alabama, there’ve been several cases. One from 2020 the Alabama State Conference of NAACP v. Alabama held that the Voting Rights Act unmistakably -- it makes it clear that Section 2 provides a private right of action. In a case coming out of Ohio from 1999 cited in a case in 2024 that an individual may bring a private right of action under Section 2. Another Alabama case in 2022, Singleton v. Merrill, a three judge panel there unanimously found that Section 2 contains a private right of action. And also North Dakota earlier this year in Stone v. Allen the court there held that defendant’s motion to dismiss the plaintiff’s complaint on the ground that Section 2 does not apply was denied.

 

But what we’re seeing now is a challenge to this practice. In concurring and dissenting opinions, Supreme Court justices have opined that the court cases have assumed but without deciding that the Voting Rights Act furnishes an implied right of action. Those opinions helped open the door to this case.

 

So let’s take a look at the congressional record. In 1982 after many private plaintiffs had already sued under Section 2, Congress amended Section 2 to establish a discriminatory results standard for liability, and at that time Congress also expressly reiterated the existence of the private right of action as intended since 1965. In the congressional reauthorization of the VRA in 2006, Congress knew that federal courts had long interpreted the statute to provide a private right of action, and both times or every time Congress has reauthorized the Voting Rights Act it has never questioned the long line of private enforcement cases nor has it made any effort to change or question the framework.

 

More than 400 Section 2 cases have been litigated since (inaudible 00:16:59). The majority of them have been brought by private parties. Of the 182 successful cases since 1982, only 15 were brought by the U.S. Attorney General, and since 1982, the U.S. Supreme Court has (inaudible 00:17:22) parties. And the Eighth Circuit itself has adjudicated at least 18 Section 2 cases. A few other (inaudible 00:17:30-17:40). Am I back on?

 

Maya Noronha:  You are.

 

Jeffrey Wice:  Okay. Sorry about that. Just a few other precedents to consider that this Arkansas decision, the Eighth Circuit decision grates 60 years of precedent of (inaudible 00:17:57) federal authority.

 

Maya Noronha:  I think we’re having some technical difficulties.

 

Jeffrey Wice:  Yeah. I don’t know what’s --

 

Maya Noronha:  Well, we can --

 

Jeffrey Wice:  My camera seems to have gone off.

 

Maya Noronha:  Keep talking. We can hear you still.

 

Jeffrey Wice:  Okay. My computer turned off my video. Okay. Sorry about that. I am going to consider the Morse v. Republican Party decision. In Morse, the five justices agreed that there is a private right of action under Section 2, that the existence of the private right of action under Section 2 has been clearly intended by Congress since 1965. In Morse, the Supreme Court held that Section 10 of the VRA is privately enforceable. The Court’s understanding that Section 2 provides a private right of action was the necessary predicate to reach the judgment that Section 2 provides this private right.

 

When we’re looking at avoiding -- we’re looking here at avoiding an anomalous situation where Section 2 is enforceable but Section 10 of the VRA is not when all lack the same express authorizing language, the Eighth Circuit panel has created this anomaly that the Morse Court was trying to avoid, that under its decision Section 10 has a private right of action while Section 2 does not without pointing to any difference in the language of the two provisions. Even if Morse’s Section 2 discussion was incorrectly treated as dicta as the Eighth Circuit held, appellant courts should provide deference and respect to Supreme Court dicta particularly where, as I think it is here, it’s consistent with longstanding Supreme Court precedence. The Eighth Circuit should not disregard Supreme Court decisions because it thinks that the Court might decide the question differently today and because only the Supreme Court itself can overrule its precedents.

 

No Supreme Court decision has repudiated Morse ever since that Section 2 does not confer private right of action, and in fact most recently as last year in the Alabama v. Milligan case the Court upheld a Section 2 violation brought by private plaintiffs. In closing, two other cases I’ll mention, from 1989 the case of Roberts v. Wamser, the Eighth Circuit held that candidates may not sue under Section 2, explaining that under the provision the challenges are limited to the Attorney General and to aggrieved persons, a category the Eighth Circuit held is limited to persons whose voting rights have been denied or impaired. The Eighth Circuit has followed Roberts of Section 2’s private right of action provisions for decades, adjudicating on the merits 16 Section 2 cases brought by private plaintiffs under Roberts.

 

The Eighth Circuit panel in the Arkansas case dismissed Roberts clear statement that it holds that aggrieved private plaintiffs may sue under Section 2 as dicta. This here I don’t think is dicta; it’s central to the Court’s holding that candidates may not sue under Section 2. So the implications of this case decision are very far reaching. In the Eighth Circuit today private plaintiffs can no longer have standing to bring claims under Section 2 of the VRA, alleging impermissible discriminatory results or discriminatory intention.

 

If it’s adopted by the Supreme Court, the outcome would apply nationwide. Some argue that Section 2 (inaudible 00:22:13) can still be brought under 42 U.S.C. § 1983 as an alternative. That law provides that individuals have the right to sue government employees and others acting under the collar of state law for civil rights violations, but if that route is not available, the effect could be devastating to the robust enforcement of voting rights.

 

The Justice Department itself has stated that it doesn’t have the ability, the resources to enforce the Voting Rights Act guarantees all by itself. So we should know whether the Supreme Court is going to hear this case, whether it’s going to be asked to hear this case or not by mid-June when the deadline for the certiorari writ is due before the Court. But until then, we’re going to have to wait and see. So thank you very much. I’ll turn this back to you.

 

Maya Noronha:  Thank you, professor. Turning to Mr. Adams.

 

1. Christian Adams: Thank you, Maya. I’m Christian Adams and thank you for FedSoc for having this panel. I’m in the unfamiliar position on this issue of actually being on the fence, so I’m going to sort of present a middle of the road view, if you will, which is a sort of uncomfortable place for me.

 

So first of all, this is a very clever argument by Arkansas. I think perhaps too clever in some ways, and I’ll get to that. But I do think that each of the previous two speakers have a lot of merit in what they’re saying. I think there’s a good textual analysis by Arkansas, and I think there’s a good case law analysis and general analysis by Professor Wice.

 

So this is a really complicated question with enormous implications, I might add, for the United States. This is not the usual -- no offense to other teleforums, but this is not the usual teleforum. This has incredible impacts on how power’s allocated in the United States.

 

So I’m going to cover the shortcomings of Arkansas’s argument in the panel decision, and then I’m going to get to some of the dangers of this path. So first the shortcomings, I had a piece on the FedSoc blog that talked about this where you can get more about what I’m getting at here, but I think the panel decision and the briefing by Arkansas omitted two important things, two important things I would like to hear the court address. I’m not saying these two important things decided it, but they’re missing from the analysis.

 

The first is the general line of case law under, for example, Chisom v. Roemer where Section 2 is supposed to get the broadest possible interpretation. In other words, where there’s an ambiguity or some uncertainty about Section 2, you’re supposed to lean on the side of allowing a cause of action. So that’s the first thing that was missing, I think, in the decision.

 

But here’s the bigger thing I think that was missing, and that is the 2006 reauthorization. In 2006, the Voting Rights Act was reauthorized on a number of points, including Section 5 which isn’t at play here, but one of the things that was added in 2006 was an expert fee shift for plaintiffs. And the United States, of course, is prohibited from recovering attorneys’ fees or experts’ fees, so who could this expert fee shift have been for the benefit of? There’s only one answer to that, and that’s plaintiffs, private party plaintiffs. And I love the experts’ fee shift because I can use it in cases, which I’ll get to later when I talk about the dangers of where we’re headed here.

 

So the argument might be well, that really is only for expert fee shifts in constitutional cases. That’ll be the fallback of Arkansas, that it’s only for the Fifteenth Amendment claims, the intent prong of Section 2 that the fee shift was applicable. Oh, no. That’s not what Congress was thinking in 2006. I can pretty much tell you that when that fee shift was put in, they were thinking of the typical vote dilution cases brought by private parties. That’s pretty clear from the congressional record I view.

 

I’m not saying this decides the question. Let’s be clear. What I am saying is I wish the Eighth Circuit had dealt with these issues: number one, Chisom v. Roemer; number two, the 2006 reauthorization fee shift, which I think speaks to the question that this teleforum is about. And neither one of those were addressed by the Eighth Circuit. So those are the shortcomings of the Eighth Circuit. Let me turn briefly to the dangers of the path we’re on.

 

So I’ve testified to Congress quite a bit about Shelby, Section 5, and one of the messages that our side, meaning the conservatives, was always pushing was, hey, it’s okay to get rid of Section 5 re-clearance and the abuse of process of Section 5 because you still have Section 2. You still have Section 2. So the sudden emergence of this reactionary hostility to Section 2 undermines what our argument had been for a very long time to get rid of Section 5. And so I don’t particularly like that. I think it’s problematic.

 

But let me tell you what’s even more problematic about this path. I’ve brought Section 2 cases on behalf of plaintiffs that are so-called unconventional. Some people like to call them reverse discrimination. And I think it’s shortsighted that you can’t look over the horizon and see the world we’re facing, a country we’re facing in 30 years when traditional minorities are now the majority.

 

And I’ve seen what happens in places like Noxubee County, Mississippi, where I brought the case United States v. Ike Brown. I was with the United States for that. I understand that doesn’t resolve the private right of action issue, but I know what human behavior and political behavior is like when the majorities flip. And there’s this time where Voting Rights Act abuses occur, and U.S. v. Brown is not an isolated case.

 

I brought the case of Davis v. Guam. I represented an Airforce major in Guam. It was a Voting Rights Act case. I won after two trips to the Ninth Circuit and cert denied where my client was a white Airforce major who was not allowed to register to vote because he was not a Chamorro. So it’s a Section 2 case brought by a private party.

 

What I’m trying to get across is the country’s changing, and do we really want to abandon what has been a traditional way to defend people from bad behavior that invariably is going to occur? And the Fifteenth Amendment alone is not enough. Let’s be clear. That’s not enough.

 

Lastly on this, the last point I would make is let’s suppose Arkansas wins this. Let’s just pretend that the Supreme Court takes it up or however you want to end the story. There is going to be a legislative whirlwind to amend Section 2 like we’ve never seen. It’ll probably get 70 or 80 votes in the Senate to put in a private right of action, and lord knows what else is going to get tacked onto that legislation because that’s what always happens. So I fear being too clever here and winning and ask yourself the question how many hundreds, if not more, Black and Hispanic elected officials who owe their existence as elected officials to a private right of action Section 2 are no longer going to have that possible use?

 

Now, like I said, I’m on the fence here. I think the textual analysis by Arkansas has a lot of merit in this current jurisprudence. But I really wonder if this was the best thing to do to win a case. It’s very clever. I’m sure a lot of former law clerks are very thrilled with their work here, but we might be unleashing something we don’t want. So that’s all I have. Thank you so much for putting this forum together.

 

Maya Noronha:  Thank you to all the panelists. So a central issue that we have here is the method of interpreting the statute. So through the panelists they’ve mentioned a lot of different types: text, context, legislative history, case law. Whether there’s an implied private right of action, how should a court interpret that, and in what order and significance should a court place on that? Let’s turn to Solicitor General Bronni.

 

Nicholas Bronni:  I think for (inaudible 00:31:16) it’s where I began, and the court should always start with the text and structure of the enactment itself, particularly when you’re asking the question whether or not to imply something that I think I didn’t hear anybody disagree the text itself doesn’t provide. So you have to look -- the Court has told us you look to the text, and under modern jurisprudence -- again, I don’t think I heard disagreement on this point. Under Alexander v. Sandoval, that’s what controls. It’s the text. It’s not an intent driven analysis.

 

There was a time, yes—Allen is a perfect example of this and earlier cases as well—where the Court thought it was its job to make the statutory texts more effective to accomplish certain ends by creating, for instance, private rights of action. But the Court has made very clear today under modern jurisprudence we begin with Alexander v. Sandoval, and we look at the text itself. So to me, that’s what’s controlling and ultimately what matters here.

 

One of the arguments that was made by the dissent I think from the panel stage in our case was, well, the way we interpret statutes has changed, and there’s a little bit of this theme I’ve heard from my fellow panelists that we have to consider what Congress was doing at the time it enacted this and the way the Court was interpreting things. The Court has told us we don’t look backwards to use outmoded methods of interpretation when a question remains open. So as things currently exist today, the Court has never said explicitly that Section 2 is privately enforceable.

 

The last time the Court dealt with that enforceability or private-action question was in Bolden, and the Court specifically said it was an open question. So I think that when confronting with the statutory text as it exists today, you have to apply modern jurisprudential standards, and that’s we look to the text.

 

Maya Noronha:  Okay. Professor Wice, do you have a different approach to --

 

Jeffrey Wice:  Yeah. I’m reminded of a hypothetical Larry David Show situation where the reaction to this is Who knew? Who knew that Congress they forgot to write this in? Of course they meant to say this. Look at the last 60 years. I think the lesson here moving forward is to make sure that when laws are written they’re a little bit more comprehensive and direct and specific.

 

But having said that, as I outlined in so many cases the assumption that there’s been an implied right of action and the scores of cases in the practical hands on situations demonstrated the need to allow for private plaintiffs to bring lawsuits and the subliminal intent that was there, the intention that who else would bring these cases and that no one expected the Attorney General to bear the burden of carrying the entire workload. I’m also reminded of Justice Ginsburg’s line in her Shelby dissent “Let’s not throw out the umbrella when it’s raining but you’re just not getting wet.” There is still a problem of polarized voting, and I don’t think the United States is in the same position it was obviously in the 1960s.

 

But for the work that I’ve seen, even in situations where you have minority elected officials getting elected to office in let’s say counties or large geographic areas I’ve often found in those same communities, the states and the cities at the city council or state legislative level, there is still a lot of polarized voting going on. So when I think back at what Chief Justice Roberts said in Shelby, in what he said in Rucho on partisan gerrymandering, that this country has changed a lot, yes, it has, but the real problems have really not gone away.

 

Maya Noronha:  I’d like to turn to a question from the audience. So Professor Wice had mentioned Section 1983 as a potential available remedy. I think Christian Adams wanted to respond to that, so I’ll let him discuss 1983 and then turn to Professor Wice.

 

1982. Christian Adams: Right. Look, 1983 requires an underlying federal right to be the fuel behind a 1983 claim. And if Section 2 results standard is wiped out like the Eighth Circuit did, there’s really no underlying federal cause of action for results case under the Voting Rights Act. That’s why they had the ’82 amendments, didn’t they? That’s exactly why because there was no underlying federal right to a results claim, so they passed the amendments in 1982.

 

President Reagan signed them. Senator Thurman drove it. Senator Dole drove it. It was essentially a largely Republican idea for reasons we could maybe do another teleforum about, but the point is 1983 is no answer because there’s no underlying federal right to a results claim because there’s no private right of action in the ’82 amendments. So it doesn’t work.

 

Maya Noronha:  Question -- go ahead.

 

Jeffrey Wice:  I agree. I’ll just also add that the burden on private plaintiffs to bring challenges is just so huge. I’ve often talked in the context of Section 2 versus Section 5 that Section 5 prevented laws from going into effect until they were precleared by either a federal district court or the U.S. Justice Department. In a Section 2 case or a civil rights case, the plaintiffs bear the burden of their case. In Section 5, the burden of proof was on the government to show that their laws were nondiscriminatory or non-retrogressive. But in all the actions that require the plaintiffs to carry the load and make their point it’s often too expensive, time consuming, and beyond their reach.

 

1. Christian Adams: Let me address that briefly. I’m not going to shed many tears for the plaintiffs here. I got done with a trial defending Galveston County, Texas, in August. There weren’t enough chairs in the courtroom for the plaintiffs’ lawyers. Okay? They had to sit in the jury box. And the ACLU has an endowment of close to a billion dollars. There is no shortage of resources for plaintiffs right now.

 

The Justice Department has enormous resources. I worked there. They’re twice the size now in the voting section than when I was in the voting section. They just aren’t doing much thank goodness. Let’s be glad. But there’s no shortage of resources on the plaintiff side here to bring these cases.

 

Jeffrey Wice:  I think each jurisdiction is different, and not every situation will warrant having an ACLU or an LDF ready to carry the case for them. It differs.

 

Nicholas Bronni:  If I could briefly weigh in just quickly on this point. One of the arguments -- and Christian said this a little bit. There’s always the argument that if the Justice Department is who enforces the statute that there’ll be fewer cases brought. I agree there are going to be fewer cases brought, but the difference is there are large numbers of these cases that are utterly meritless and are thrown out in the motion to dismiss stage.

 

So there are a number of cases, yes -- the number’s going to go down because I presume the Department of Justice is not going to bring those meritless cases. So the mere fact that you’ll see a decrease instead of the Justice Department focusing on cases that it thinks are more meritorious isn’t an argument for creating a cause of action so that somebody else can bring lawsuits. That’s not generally the way this works.

 

And the Biden Administration has made clear, I’m sure future administrations will make clear, they’re prepared and able to enforce the statutes. In fact in our case the government went to the steps of actually filing a brief at the district court and the Eighth Circuit level, not only filed a brief but also appeared for oral argument. So I just don’t understand the argument that the Justice Department lacks the resources to bring meritorious cases. So yes, there may be fewer cases, but I don’t think there’s a reason there’ll be less meritorious ones.

 

Maya Noronha:  All right. We have another question. Now, we have seen a rise in litigation particularly about redistricting but about using Section 2 of the Voting Rights Act. So what is the proper role of private rights of action, and should this be decided in the courts? Should we have state legislators use redistricting commissions? Should we go to state courts? Who should be deciding -- should it be litigation? What is the proper role of the courts in these voting section cases? Let’s turn to Professor Wice.

 

Jeffrey Wice:  Well, I think at the outset we’ll use redistricting as an example. The redistricting body has to follow the law. It has to follow a process, and I’ve often said when legislators abuse their powers or get too greedy or overreaching, then courts often step in. Often legislators lose the trust of the public, and they turn to commission to draw new maps instead. But you always have the courts there in the end to settle disputes.

 

In the case last year Moore v. Harper where Alabama sought to -- I’m sorry, North Carolina sought to limit the role or prevent the role of courts from interfering or adjudicating congressional redistricting cases, that I think was a dangerous step, and the Supreme Court has rejected the argument of the so-called independent legislature theory. So I think if the players do their parts responsibly and they don’t get overtly partisan -- and even in the Rucho decision on partisan gerrymandering Chief Justice Roberts didn’t condone excessive partisanship but admitted to acknowledging that there was a political role being played here.

 

This is to question when the elected players go beyond what’s reasonable or right and have the courts there as a backdrop. And we had a situation in New York recently where the state court of appeals, the state’s highest court, said that under New York’s law at least it’s not the court’s responsibility to draw maps; it’s the legislature’s. And in that case, which I won’t get into here, the redistricting was put back in the hands of the legislature and the commission because the courts were there as a last resort should things just fall apart totally.

 

Maya Noronha:  Generally Bronni, do you have a response as representing a state legislature?

 

Nicholas Bronni:  I think my view would be that this is up to the states. It’s a political process. By definition deciding boundaries for legislative districts is part of the political process. This is really the type of -- of course it’s political. Of course there are partisan motivations. That’s the whole point. In my view, this is really the type of thing that’s left for the legislature to decide, not the federal courts, on the partisan thing about whether or not partisan motivations played a role.

 

Maya Noronha:  Christian, do you have a response representing private litigants? What’s the role of the courts in representing a U.S. citizen as DOJ does or a public policy organization that represents a racial or language minority?

 

1. Christian Adams: So the law in this area is fairly—and I use that term with some peril—settled. Gingles v. Thornburg, the Milligan case out of Alabama, there’s a measure of predictability in a Section 2 results claim using the three Gingles preconditions and the Senate factors that I think is in a predictable place. And so yes, there’s issues on the margins that wildly vary like the role of primaries versus generals in Gingles 2, and there’s inadequate use of the Senate factors by defendants, for example. Sometimes they don’t do anything on the score of their defense.

 

But generally speaking, the law has a measure of predictability, and therefore I’m not so worried about the courts. I think there’s been good decisions by courts of appeal in hemming in. We have the Galveston case I mentioned is in the Fifth Circuit May 14 on Gingles 1, if you can have a coalition claim combining Blacks and Hispanics to get 50 percent in a district. I know some people think the law’s a mess, but generally speaking, we have a framework that gives me a measure of comfort for the courts to deal with this.

 

Jeffrey Wice:  You are going to see a number of courts dealing with challenges to state voting rights acts in the next few years. Last week, the U.S. Supreme Court denied an appeal to hear a challenge from Washington State where that state had enacted a voting rights act, and for the viewers to note, as a result somewhat of the Shelby case ten years ago which eliminated the trigger for Section 5 preclearance, a number of states are now considering state voting rights acts that allow for a different standard than you have under federal voting rights act law. Right now, Christian referred to the Thornburg test, the three factors: compactness, majority population, polarized voting. You have to reach a 50 percent minority voting age population threshold to argue for the creation of a minority district.

 

What these state laws are doing is permitting the creation of coalition districts of let’s say Black and Hispanic voters less than 50 percent, and that’s being seen by some as racial gerrymandering. So whereas the Supreme Court denied cert in the Washington State case, I’ve been involved -- New York State has a new state voting rights act, and there have been four challenges filed against localities for racially discriminatory practices. And two of those cases are now before state courts arguing that the state law is in violation of the U.S. Constitution’s Fourteenth Amendment.

 

So although there was a setback for people opposed to these state laws last week by the Supreme Court, I think a year from now you’re going to start seeing challenges not only from New York but also there are new laws in Connecticut, I think in Maryland. Minnesota’s just passed one last week. California has one. So this is something you should really keep an eye on.

 

1. Christian Adams: And if you notice all those states that the professor just mentioned, they’re all deep blue states, and these laws always overly rely on race, probably in violation in my view of the Fifteenth Amendment, to create political rights on the basis of race. And so these state laws should be widely opposed.

 

Maya Noronha:  Well, I want to go back to the text. In Mr. Adams’ remarks, he mentioned the Chisom and the fee shifting statute. And as we said at the beginning, General Bronni, about the text being first, how do you interpret the Voting Rights Act when it’s written in the 1960s, amended in the 1980s, reauthorized repeatedly? How do you interpret the statute?

 

Nicholas Bronni:  The Court has told us that if something is an open question we apply Alexander v. Sandoval. That’s today’s jurisprudence. And the Court has never said that Section 2 is privately enforceable. Bolden specifically said it was an open question. I think that’s sort of the starting line is this is an open question. When it’s an open question the Court has told us we apply modern standards where the Court has said Congress must clearly articulate there’s a private right of action, and that’s not the case here. I don’t think since Alexander the Court has implied a private right of action under a statute. So I think that’s the indication that we’ve been getting with text.

 

As for the fee shifting argument, the 14(e) -- I think it’s 14(e) provision that Christian mentioned, like I said at the outset, my view is that Section 14 doesn’t apply here because of the language of Section 14 itself. Also, the argument about the reauthorization and somehow that ratified existing jurisprudence, the problem with that argument is, as I mentioned at the outset, there have been a number of assumptions. I entirely concede that. Courts have assumed that Section 2 is privately enforceable, but we don’t generally -- Congress doesn’t generally ratify assumptions.

 

Normally, when Congress acts, it ratifies a holding. It doesn’t ratify assumptions. And it certainly doesn’t do it in such an arcane way as to create fees in a provision as opposed to just stating it wants to create a private right of action. If Congress wanted to do that, it could do that today. I think Christian said that. Congress could do that. He believes that Congress would have the votes to do that. And that’s the way this is supposed to work.

 

Related to that is I’ve heard a couple points about legislative history. The dissent in our case, the plaintiffs in our case rely on is I’ve heard the argument commonly that there’s legislative history. I believe there’s a report where later on post-Bolden, Congress noted in, I believe it was a Senate report that Congress has clearly intended Section 2 to always be privately enforceable. That’s in a committee report.

 

The problem with that is that’s the worst kind of legislative history; right? That’s legislative history about what a previous Congress meant to say that it never actually said and then the Congress debating it also didn’t say it. If Congress clearly intended something to be in the text it could just say that. It could do that today if it wanted to. I think the point here is this is the way democracy’s supposed to work. If Congress wants something to be in the statute, it wants this to be privately enforceable, Congress can act to do that. I’m not taking a position on whether Congress should or shouldn’t do that. I’m saying that’s the way we normally interpret statutes.

 

Jeffrey Wice:  I think it’s difficult to think that Congress can do almost anything these days.

 

Maya Noronha:  So we have DOJ filed a statement of interest in the case but did not intervene in the Arkansas case, and so there’s a Latin maxim, whenever there’s a right, there’s a remedy. So Section 2 can be enforced by DOJ. And is DOJ sufficient? Do they have the resources? They’re funded by taxpayers. How do you assess that? Mr. Adams, you worked at DOJ.

 

1. Christian Adams: Right. I was in the DOJ voting section. I brought Section 2 cases in Georgetown County, South Carolina, Lake Park, Florida. I can’t remember where else -- redistricting cases. I’ve got to tell you there is no shortage of resources in that office. They just have a sluggish pace. They could probably be bringing, if the facts were there, ten times the number of cases.

 

The bandwidth is there, but they apparently are having a difficult time finding facts. They found them in Eastpoint, Michigan, where the defendants raised a white flag pretty quickly. The Galveston case that I’m involved in they’re involved. There just has not been a lot of activity there, but don’t think that it’s because there’s a lack of resources. They have all the resources in the world. They’re overstaffed. They’re overbudgeted. They just aren’t doing much.

 

Jeffrey Wice:  I guess we’ll find out more if the NAACP appeals the Arkansas case to the Supreme Court and see what DOJ does.

 

Nicholas Bronni:  Well, as I mentioned at the outset or earlier, in our case they not only filed a statement of interest in the district court; they in fact filed a merits brief or an amicus merits brief at the Eighth Circuit and appeared, asked for argument time, and got it. So the government clearly had the resources to show up in our case. And again, I think my fundamental point on the number of cases and their ability to do this is there are a lot of Section 2 cases. A lot of them are simply meritless. I think most people would concede that. And there’s no reason to believe DOJ wouldn’t focus on the meritorious ones.

 

Jeffrey Wice:  I would just think without having the inside knowledge that the current Justice Department would end up before the Supreme Court in some way if the appeal is filed.

 

Maya Noronha:  So the country has many circuits, and this case came out of the Eighth Circuit. Is there something different about the Eighth Circuit that it came out this decision from other circuits, and if there’s a circuit split over this case, is it a partisan impact? Is it different modes of interpretation? How would you explain the differences of interpreting the statute? Mr. Bronni, being in the Eighth Circuit in Arkansas, do you see something different about the Eighth Circuit?

 

Nicholas Bronni:  No. I think what this comes down to is it’s true that a number of circuits have assumed there’s a private right of action, but I think really the Eighth Circuit’s opinion is the first time -- and again, the panel dissent says this. It’s really the first time that a court of appeals has seriously examined the question of whether or not there is a private right of action under Section 2. Other courts have made statements about it being enforceable, but nobody has really engaged other than the Eighth Circuit at the court of appeals level in the kind of textual analysis, particularly under modern standards of jurisprudence, to decide whether or not there is a private right of action.

 

I think that’s what made the difference is they’re the first ones to thoroughly examine this. I think if other courts of appeals conducted the same thorough analysis of the text applying modern standards of jurisprudence, I think the result would be the same.

 

Jeffrey Wice:  Yeah. There’s also a split amongst the circuits over whether Section 2 of the VRA permits coalition districts. I think that’s another issue with such a split across the country that will end up before the Supreme Court at some point.

 

1. Christian Adams: That’s the issue being argued May 14 in the Galveston case that I’m working on that you referred to is the coalition issue under Gingles 1.

 

Jeffrey Wice:  Right.

 

1. Christian Adams: And the Court granted en banc hearing 11-6 to reverse itself in their willingness to entertain coalition claims.

 

Jeffrey Wice:  Right.

 

Maya Noronha:  So taking a big picture about the Voting Rights Act and going forward, how would you see the implications of this decision beyond redistricting in application of the Voting Rights Act? Let’s start with Mr. Adams.

 

1. Christian Adams: Well, as I indicated on my fence-sitting position that one of the things I fear about this case despite its textual cleverness is that it’s taking away a chief weapon that I see needed down the road ten years from now for our children and grandchildren to fight against bad behavior that invariably happens in places like Noxubee County, Mississippi, and Guam and other places around the country where it’s payback time. And the former majority is now the minority, and they’re reaping a whirlwind of two centuries of shall we say bitterness. And I’ve seen it. I’ve literally done these cases. And so my big fear is that this clever textual argument is going to take away one of our chief weapons to combat bad behavior.

 

Jeffrey Wice:  Yeah. We’ve seen the loss of Section 5 under the VRA through the Shelby case. There are now limits on challenges to partisan gerrymandering. This case could erode Section 2 further, so I prefer not to see this trend continue.

 

Nicholas Bronni:  I think what I would say is I don’t view this as a case about eroding Section 2, certainly substantively. There are other cases that are arguing and litigating the substantive limitations of Section 2 and what it really means. This is just a question of who can bring those actions. And again, I don’t see any reason why the DOJ can’t pursue meritorious cases.

 

In terms of broader outlook, I think this case is consistent with where the current Supreme Court is, which is we’re focusing on the language that Congress actually wrote. This is no longer the 1960s or 1970s where we’re going to decide to read the language in such a way to get to a particular outcome or a particular result. If Congress wants a particular outcome or result, it can say that with a statute. This is the way we’re supposed to read statutes, the way I think we were always supposed to read statutes, but I think we’ve moved away from sort of that ancient regime of the 1970s, that kind of regime where we’d read statutes in order to make them in our public policy view more effective. And I think that’s getting back to where we should be and should’ve been all along.

 

Maya Noronha:  Thank you so much to the panel. We’re coming up on the hour, and I’m sure we could talk for many more on this complicated issue.

 

Chayila Kleist:  I’ll echo those thanks. Really appreciate you all taking the time out of your days to join us and share your valuable expertise. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected], and as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.