Arkansas State Conference NAACP; Arkansas Public Policy Panel v. Arkansas Board of Apportionment; Sarah Huckabee Sanders, in her official capacity as the Governor of Arkansas Chairman of the Arkansas Board of Apportionment; John Thurston, in his official capacity as the Secretary of State of Arkansas and as a member of the Arkansas Board of Apportionment; Tim Griffin, in his official capacity as the Attorney General of the State of Arkansas and as a member of the Arkansas Board of Apportionment; State of Arkansas
No. 22-1395
United States Court of Appeals For the Eighth Circuit
Submitted: January 11, 2023 Filed: November 20, 2023
Plaintiffs - Appellants
v.
Defendants - Appellees
United States of America
Interested party - Amicus on Behalf of Appellant(s)
Former Department of Justice Attorneys; Bipartisan Group of Supporters of the 1982 Voting Rights Act Amendments; Lawyers’ Committee for Civil Rights Under Law
Amici on Behalf of Appellant(s)
Honest Elections Project; Senator Tom Cotton; State of Texas; State of Alabama; State of Florida; State of Georgia; State of Indiana; State of Kentucky; State of Louisiana; State of Mississippi; State of Missouri; State of Montana; State of Nebraska; State of Oklahoma; State of South Carolina; State of Utah
Amici on Behalf of Appellee(s)
Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.
STRAS, Circuit Judge.
Did Congress give private plaintiffs the ability to sue under § 2 of the Voting Rights Act? Text and structure reveal that
I.
Quarreling over district lines begins like clockwork every ten years after the United States Census. In 2021, Arkansas experienced it firsthand when it created 11 majority-black districts out of 100 for electing members of its House of Representatives.
The Arkansas NAACP and the Arkansas Public Policy Panel, two advocacy groups with members living throughout the state, oppose the new map. They sued nearly everyone who had anything to do with it under § 2 of the Voting Rights Act. See
The complaint alleged “vote dilution,” which comes in two forms. See Thornburg v. Gingles, 478 U.S. 30, 46 & n.11 (1986). The first is “packing,” which involves drawing lines that concentrate a cohesive political group into a limited number of districts. Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993). An example is turning three possible majority-minority districts into just two by bunching the group‘s members into two supermajority districts. See id.; see also Gingles, 478 U.S. at 46 n.11 (describing it as creating “an excessive majority“). The other, “cracking,” is basically the opposite. Rucho v. Common Cause, 139 S. Ct. 2484, 2492 (2019). It takes a cohesive political group and “divide[s]” its members “among multiple districts,” where other voters can numerically overwhelm them. Id.
Here, Arkansas has allegedly done a combination of both, making it harder for black voters to elect the representatives they prefer. See Gingles, 478 U.S. at 47–51. In the language of the Voting Rights Act, the new map allegedly “deni[es]” or “abridge[s]” their right to vote by creating supermajorities in just a few districts and then spreading out the black voters who remain.
The advocacy groups use basic statistics to back up their claim. They point to the fact that approximately 16% of Arkansas‘s population is black, yet the expectation is that only 11% of their preferred candidates will win. The disparity, they say, shows that Arkansas created some hyper-concentrated black districts through “packing” and then “cracked” the remaining black voters to give them minimal impact. Although the groups do not allege intentional discrimination, they seek an injunction preventing state officials from using the new map because of its “discriminatory effects.” Allen v. Milligan, 143 S. Ct. 1487, 1507 (2023).
Early in the case, the district court started questioning whether the advocacy groups had a cause of action under § 2 at all. Following supplemental briefing and a hearing, it concluded “that the existence (or non-existence) of a private right of action is a jurisdictional question.” And even if it was not, the defendants were sure to raise it anyway in a motion to dismiss. So either way, the question needed answering.
The answer it gave is why we are here today. After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce § 2. The enforcement power belonged solely to the Attorney General of the United States, see
On appeal, the advocacy groups argue they had the right to sue all along. Whether they do presents an issue of statutory interpretation that we review de novo. See Syngenta Seeds, Inc. v. Bunge N. Am., Inc., 773 F.3d 58, 63 (8th Cir. 2014).
II.
Congress passed the Voting Rights Act in 1965 “to address entrenched racial discrimination in voting.” Shelby County v. Holder, 570 U.S. 529, 535 (2013). States with a history of discrimination had to “preclear[]” any voting-law changes with the Attorney General or a three-judge court located in Washington, D.C. Id. at 537. It was an “extraordinary measure[] to address an extraordinary problem.” Id. at 534.
There were also provisions that all states had to follow, regardless of their history. One was § 2, which prohibited states and political subdivisions from enacting any “standard, practice, or procedure” that “den[ied] or abridge[d] the right of any citizen of the United States to vote on account of race or color.”
The 1980s brought increased scrutiny to § 2. At the beginning of the decade, the Supreme Court confirmed what many already thought: without “purposeful exclusion” of voters from the political process, there was no § 2 or Fifteenth Amendment violation. City of Mobile v. Bolden, 446 U.S. 55, 61-65 (1980) (plurality opinion). Discriminatory effects were not enough. See id.
Bolden did not sit well with Congress, which jumped into action the following year. In lieu of purposeful discrimination, the amended § 2 adopted a discriminatory-effects test. See Milligan, 143 S. Ct. at 1500 (describing the compromise that led to the § 2 amendments). It now reads:
(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 . . . 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 . . . 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.
III.
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. See
When to imply a cause of action is bigger than just this case. The practice has
Many statutes simply say when a private right of action is available. One example is in the Civil Rights Act of 1964, which provides “a civil action for preventive relief” that can “be instituted by the person” experiencing discrimination.
When those details are missing, it is not our place to fill in the gaps, except when “text and structure” require it. Sandoval, 532 U.S. at 288 (explaining that “legal context matters only to the extent it clarifies text“). Under the modern test for implied rights of action, Congress must have both created an individual right and given private plaintiffs the ability to enforce it. See id. at 288–89; see also Osher v. City of St. Louis, 903 F.3d 698, 702 (8th Cir. 2018) (asking “whether the Act unambiguously confers a private right [and] displays an intent to provide a private remedy“).
A.
It is unclear whether § 2 creates an individual right. Statutes only create private rights when the text is “phrased in terms of the persons benefited.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (citation omitted). One example is
Other statutes “focus on the person regulated” or “the agencies that . . . regulat[e],” not “the individuals protected.” Sandoval, 532 U.S. at 289. A companion provision to the one quoted above “authorize[s] and direct[s]” federal “department[s] and agenc[ies]” to enforce the protections against discrimination.
There are elements of both in § 2. The opening passage focuses on what states and political subdivisions cannot do, which is “impose[] or appl[y]” discriminatory voting laws.
But then the very same sentence says that, for a violation to occur, the challenged “standard, practice, or procedure . . . [must] result[] in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”
B.
Greater clarity exists on the private-remedy question. Everyone agrees that § 2 itself contains no private enforcement mechanism. All it does is specify what is unlawful: a “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”
We must look elsewhere for the who. Another provision, § 12, empowers the Attorney General to bring “an action for preventive relief . . . for a temporary or permanent injunction, restraining order, or other order.”
The omission was no accident, given the remedial framework that § 12 provides. See Karahalios v. Nat‘l Fed‘n of Fed. Emps., Loc. 1263, 489 U.S. 527, 533 (1989) (describing the “elemental canon” that, “where a statute expressly provides a remedy,” courts should be “reluctant” to imply anything else (citation omitted)). It lays out two paths.
One is for jurisdictions with federal observers, who monitor elections and report violations. See
Jurisdictions without federal observers are different. There are no fast-tracked lawsuits, but the Attorney General still has the sole option under § 12 to sue violators in a “preventive” action for an injunction or other similar relief to “permit” those subjected to discrimination “to vote.”
Although narrow, these remedies are all the text provides. See Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929) (“When a statute limits a
C.
The advocacy groups urge us to look elsewhere. One of those places is § 3, which recognizes that some voting-rights protections are enforceable by someone other than the Attorney General. See
As originally enacted, § 3 did not include the phrase, “or an aggrieved person,” which became a problem as courts started to recognize that some voting rights were privately enforceable. The most important one was § 5, which required “covered” jurisdictions to preclear any changes in voting laws. See
Once Congress realized the problem, it added the reference to “aggrieved person[s].”
The text of § 3 bears this out. The next phrase after “aggrieved person” mentions “a proceeding under any statute,” which most reasonably refers to statutes that already allow for private lawsuits.
The history and structure of the Voting Rights Act lend further support. In 1965, no one would have thought that § 3 created a cause of action in favor of the Attorney General, the only person listed in the original version. The reason, as we point out above, is that § 12 already gave the Attorney General the ability to bring one. See
Taking their cue from the word “any,” the advocacy groups make exactly that argument. See Webster‘s Third New International Dictionary 97 (1961) (defining “any” as “unlimited in amount“). For them, the amendments to § 3 created new private rights of action for every voting-rights statute that did not have one, including § 2.
To accept this interpretation, we would have to conclude that Congress hid the proverbial “elephant[] in [a] mousehole[].” Turkiye Halk Bankasi A.S. v. United States, 143 S. Ct. 940, 948 (2023) (citation omitted). And here, it would be a groundbreaking change in “a generalized section” giving private parties the same remedies as the Attorney General. Morse, 517 U.S. at 289 (Thomas, J., dissenting); see
Indeed, on at least one other occasion, the Supreme Court has rejected a near-identical argument. See Stoneridge Inv. Partners, LLC v. Sci.-Atlanta, 552 U.S. 148, 165 (2008). When Congress decided to amend the Securities Exchange Act of 1934 to “impose[] heightened pleading requirements and a loss[-]causation requirement,” id., on “any private action arising under this chapter,”
Just like the Voting Rights Act, the Securities Exchange Act of 1934 has a variety of government-enforced provisions. One allows the Securities and Exchange Commission to pursue aiders and abettors, similar to how the Attorney General can pursue violators of the Voting Rights Act. See id. at 162 (citing
As further evidence that Congress did not hide an elephant in this mousehole, the advocacy groups’ § 3 argument would make a mess of other statutes. If private plaintiffs have the same causes of action as the Attorney General, then the reverse is true too. After all, the “any[-]statute” language applies to both. Id.
The problem is that we already know that private plaintiffs can bring “proceeding[s] . . . to enforce . . . voting guarantees” that the Attorney General cannot. See
Interpreting it in the way we do, on the other hand, avoids the apparent inconsistency.3 Private plaintiffs can sue under statutes like
Zooming out a bit, it becomes clear why the § 3 argument does not work.4 The advocacy groups ask us to accept the idea that Congress decided to transform the enforcement of “one of the most substantial” statutes in history by the subtlest of implications. Milligan, 143 S. Ct. at 1500 (citation omitted). Implausible, to say the least, when measured against the explicit enforcement mechanisms found elsewhere in the Voting Rights Act. “Congress . . . knows how to create a cause of action,” and it did not do so here. Hernandez v. Mesa, 140 S. Ct. 735, 752 (2020) (Thomas, J., concurring).
IV.
Much of the advocacy groups’ argument to the contrary hinges on legislative history, not text or structure. The statute is silent on the existence of a private right of action, but the committee reports are not. In 1982, when Congress amended § 2, the House and Senate Judiciary Committees wrote that Congress had “clearly intended” all along to allow private enforcement. S. Rep. No. 97-417, at 30 (1982) (“[T]he Committee reiterates the existence of the private right of action under Section 2, as has been clearly intended by Congress since 1965.“); accord H.R. Rep. No. 97-227, at 32 (1981) (“It is intended that citizens have a private cause of action to enforce their rights under Section 2.“).
There are many reasons to doubt legislative history as an interpretive tool. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (discussing the problems). But let‘s assume for the moment that we should give great weight to it when a statute like the Voting Rights Act is silent on the existence of a private right of action. Sandoval still sets the implied-cause-of-action ground rules, so the question is what—if anything—the legislative history tells us about the “text and structure” of the Voting Rights Act. 532 U.S. at 288.
The answer is nothing. It does not point to a single word or phrase in the Voting Rights Act in support of the conclusion that a private right of action has existed from the beginning. See S. Rep. No. 97-417, at 30; H.R. Rep. No. 97-227, at 32. Nor is it clear how the 1982 Congress could possibly have known what a different set of legislators thought 17 years earlier. Cf. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011) (“Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.“). In short, the legislative history ignores the “text and structure.” Sandoval, 532 U.S. at 288.
It also fails to answer an obvious question. If the 1965 Congress “clearly intended” to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended § 2? After all, Bolden itself hinted just two years earlier that private enforcement of § 2 was still an open question, see 446 U.S. at 60 & n.8 (plurality opinion), and the amendments themselves were a response to Bolden, see Milligan, 143 S. Ct. at 1499–1500.
Perhaps the answer lies in the legislative process itself. One possibility is that no one thought the issue was important enough at the time, especially because Congress‘s attention was on how states and political subdivisions could violate § 2, not who could sue. See id. at 1500. Another more troubling possibility is that it was “a deliberate effort to amend a statute through . . . committee report[s].” Exxon Mobil, 545 U.S. at 570. If “the hard-fought compromise that Congress” reached in amending § 2 left no room for any other changes to the Voting Rights Act, Milligan, 143 S. Ct. at 1507, then the next-best way to introduce a possible private right of action would have been through committee reports written by “unrepresentative committee members—or, worse yet, unelected staffers and lobbyists,” Exxon Mobil, 545 U.S. at 568. Whatever the reason, treating these statements as anything more than the opinions of just a few legislators would “circumvent the Article I process.” Id. at 570.
In substance, the advocacy groups ask us to excuse the absence of text because legislative history answers the question. At one point, this approach may have held sway. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 412 n.29 (1971) (looking “to the statutes themselves” because the legislative history was ambiguous). But here, the legislative history does not complete the statutory story. Rather, it tells a different story, one not reflected in the text of anything Congress passed. To the extent that legislative history can be helpful in any case, this one is not it.
V.
Precedent provides a little more guidance, but like legislative history, no firm answer. The advocacy groups argue that courts have been adjudicating § 2 claims brought by private plaintiffs for years, so they must be available. See, e.g., Abbott v. Perez, 138 S. Ct. 2305 (2018). But assuming
A.
The advocacy groups place the most emphasis on Morse v. Republican Party of Virginia, 517 U.S. 186 (1996). The issue there was the availability of a private right of action, except the case involved § 10 of the Voting Rights Act, not § 2. See id. at 230 (opinion of Stevens, J.). Five Justices agreed that § 10 is privately enforceable, but there was no majority opinion. See id. (opinion of Stevens, J., joined by one other Justice); id. at 240 (Breyer, J., concurring in the judgment, joined by two other Justices). It is significant because both opinions supporting the judgment discussed § 2 along the way.
Justice Stevens, joined by Justice Ginsburg, announced the judgment. See id. at 190. Latching on to the same legislative history we discuss above, the opinion accepts the idea that Congress “clearly intended” that a “private right of action under Section 2” has existed “since 1965.” Id. at 232 (quoting S. Rep. No. 97-417, at 30). From there, it acknowledges that there is no “express authorizing language” creating a private right to sue under any of the three provisions it discusses. Id. (analyzing § 2, § 5, and § 10). Then, without examining the text or structure further, it implies a cause of action under § 10 to avoid the “anomalous” result “that both § 2 and § 5 are enforceable by private action but § 10 is not.” Id. In short, the opinion assumes that a private right of action exists under § 2.
Justice Breyer‘s concurrence, which Justices O‘Connor and Souter joined, does the same thing. In a single paragraph, again citing the legislative history, it concludes that Congress must have intended § 10, just like § 2 and § 5, to have a private right of action. See id. at 240. It acknowledges that some of the provisions have “differen[t] . . . statutory language and structure,” particularly § 5 and § 10, but nevertheless concludes that the differences “are not determinative.” Id.
Taken at face value, these statements appear to create an open-and-shut case that there must be a way to privately enforce § 2. If five Justices assume it, then it must be true.
The problem, however, is that these were just background assumptions—mere dicta at most.6 The question in Morse
Even as dicta, the statements in Morse are the least valuable kind. See In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017) (en banc). One reason is that there is hardly any analysis of why § 2 is privately enforceable. Nothing more was necessary because the Supreme Court was deciding something else: the availability of a private right of action under § 10. See Permian Basin Area Rate Cases, 390 U.S. 747, 775 (1968) (“[T]his Court does not decide important questions of law by cursory dicta inserted in unrelated cases.“).
A second reason is that the various statements in Morse are inconsistent with how we are supposed to approach implied-cause-of-action questions today. See In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d at 1064 (explaining that we are bound by “the Supreme Court‘s considered dicta almost as firmly as by the Court‘s outright holdings,” except when it is “enfeebled by a[] later statement” (brackets and citation omitted)). Just five years after Morse, the Supreme Court made clear that “text and structure” are the guideposts, not “contemporary legal context.” Sandoval, 532 U.S. at 287–88; see Morse, 517 U.S. at 230–31 (opinion of Stevens, J.) (relying on the latter). Following those guideposts here leads to the conclusion that there is no “private remedy” to enforce § 2, even assuming the existence of a “private right.”7 Sandoval, 532 U.S. at 286.
B.
We have our own case to consider too, Roberts v. Wamser, 883 F.2d 617 (8th Cir. 1989). There, a losing candidate brought a § 2 claim, among others, alleging that the city‘s punch-card voting system had a disproportionate impact on black voters. See id. at 618–19. We had to decide “whether the Voting Rights Act can properly be understood as granting an unsuccessful candidate the right to maintain a judicial challenge to allegedly discriminatory voting procedures that . . . caused him to lose the election.” Id. at 620.
We concluded that losing candidates cannot sue because they are not “aggrieved person[s]” under the Voting Rights Act. Id. at 621. The reason, we explained, was that they are not harmed by the loss of the right to vote, “but rather
In wrapping up, we said, “standing to sue under this Act is limited to the Attorney General and to ‘aggrieved persons,’ a category that we hold to be limited to persons whose voting rights have been denied or impaired.” Id. at 624 (emphasis added). From there, the advocacy groups argue that acknowledging that “aggrieved persons” have standing to sue is tantamount to recognizing a private right of action. Id.
There are two problems with this argument. The first is that the quoted sentence goes on to explain why we made the statement: only those “whose voting rights have been denied or impaired” can sue. Id. That extra bit supports the notion that we assumed that someone other than the Attorney General could sue under § 2, but that the plaintiff‘s lawsuit was doomed either way. See id. (“A defeated candidate, whose goal is to change the outcome of the election, is not a proper party to assert claims under the Voting Rights Act.“). Saying who else might be “aggrieved” was not “necessary to that result.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996).
The second is that, even assuming the statement hints at something more, explaining who has standing to sue can be different from the private-right-of-action question. See U.S. Dep‘t of Lab. v. Triplett, 494 U.S. 715, 721 n.** (1990) (characterizing the issues as “closely related” (citation omitted)). As we suggested later, Roberts is really a third-party-standing case: losing candidates cannot sue to assert the rights of voters. See Glickert v. Loop Trolley Transp. Dev. Dist., 792 F.3d 876, 881-82 (8th Cir. 2015). Sometimes plaintiffs have standing but no cause of action. See, e.g., Animal Legal Def. Fund v. Vaught, 8 F.4th 714, 721 (8th Cir. 2021). Other times, the opposite is true. See, e.g., Davis v. U.S. Bancorp, 383 F.3d 761, 767 (8th Cir. 2004). The point is that we should not read too much into a stray comment about a potentially different issue. See Roberts, 883 F.2d 617 (using the word “standing” 31 times).
VI.
A few loose ends remain. The first is the advocacy groups’ suggestion that we return this case to the district court because it should not have raised the private-right-of-action issue on its own. They have a point, but they are wrong about the solution.
The district court raised the issue out of concern for its own subject-matter jurisdiction. It looked to our recent decision in Cross v. Fox and concluded that the absence of a federal cause of action has jurisdictional consequences. 23 F.4th 797, 801 (8th Cir. 2022). It can, to be sure, but only when the claim is so “obviously doomed to fail” that there is no “substantial question of federal law.” Id. (emphasis added) (citation omitted); see Grable & Sons Metal Prods., Inc. v. Darue Eng‘g & Mfg., 545 U.S. 308, 312–13 (2005). In other situations, Cross did nothing to upset the general rule that the lack of a cause of action does not deprive a federal district court of subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.“).
This case is no exception. For much of the last half-century, courts have assumed
We reject the notion, however, that we must unwind everything the district court did. After all, it is hardly unusual for us to hear and decide an appeal following a dismissal on the court‘s own motion. See, e.g., Smith v. Boyd, 945 F.2d 1041, 1042 (8th Cir. 1991) (“We reject [the plaintiff‘s] claim that the district court lacked authority to dismiss his complaint sua sponte.“). Particularly in a situation like this one, after an opportunity for full briefing and a hearing. See id. at 1043. Add the fact that the parties have now submitted “thorough[] brief[ing]” on appeal, supplemented by numerous amicus briefs, and it makes little sense to send this case back for a do over. Smithrud v. City of St. Paul, 746 F.3d 391, 396 n.3 (8th Cir. 2014).
The final loose end is the advocacy groups’ belated request to add a § 1983 claim to their complaint. Their theory is that voters can enforce § 2 as a “law[]” of the United States.
The problem is that, as we point out above, very little in this case is “beyond doubt.” Id. (citation omitted). And complicating matters is the fact that the parties have barely scratched the surface in their discussions of § 1983: even now, we have only a single footnote in one of the briefs mentioning the possibility. Given how little we have, we decline to say anything further about what would have happened if the advocacy groups had acted sooner. See Steele v. City of Bemidji, 257 F.3d 902, 905 (8th Cir. 2001) (explaining that plaintiffs cannot amend their complaint on appeal because they need to ask the district court for permission first).
VII.
We accordingly affirm the judgment of the district court but modify the dismissal to be with prejudice.
SMITH, Chief Judge, dissenting.
I respectfully dissent from the court‘s holding that private plaintiffs lack the ability to sue under § 2 of the Voting Rights Act (VRA). “Since the passage of the Voting Rights Act, federal courts across the country, including . . . the Supreme Court . . . have considered numerous Section Two cases brought by private plaintiffs.” Singleton v. Merrill, 582 F. Supp. 3d 924, 1031 (N.D. Ala. 2022) (per curiam) (three-judge court) (citing, inter alia, Brnovich v. Democratic Nat‘l Comm., 141 S. Ct. 2321 (2021); Bartlett v. Strickland, 556 U.S. 1 (2009); League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399 (2006); Voinovich v. Quilter, 507 U.S. 146 (1993); Chisom v. Roemer, 501 U.S. 380 (1991); Hous. Laws.’ Ass‘n v. Att‘y Gen., 501 U.S. 419 (1991); Thornburg v. Gingles, 478 U.S. 30 (1986)), order clarified, No. 2:21-CV-1291-AMM, 2022 WL 272637 (N.D. Ala. Jan. 26, 2022), and appeal dismissed sub nom. Milligan v. Sec‘y of State for Alabama, No. 22-10278-BB, 2022 WL 2915522 (11th Cir. Mar. 4, 2022), and aff‘d sub nom. Allen v. Milligan, 599 U.S. 1 (2023); see also Caster v. Merrill, No. 2:21-CV-1536-AMM, 2022 WL 264819, at *81 (N.D. Ala. Jan. 24, 2022) (same), aff‘d sub nom. Allen, 599 U.S. at 1. Admittedly, the Court has never directly addressed the existence of a private right of action under § 2; however, it has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under § 2. Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy. Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government‘s agents for protection. Resolution of whether § 2 affords private plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance.
“[F]or decades and throughout hundreds of cases a private right of action has been assumed” under § 2. Coca v. City of Dodge City, No. 22-1274-EFM, 2023 WL 2987708, at *3 (D. Kan. Apr. 18, 2023), motion to certify appeal denied, No. 22-1274-EFM, 2023 WL 3948472 (D. Kan. June 12, 2023).8 “[T]here
And “[s]ince 1982, more than 400 Section 2 cases have been litigated in federal court.” Appellants’ Br. at 7 (citing Ellen D. Katz et al., Section 2 Cases Database, Univ. of Mich. L. Sch. Voting Rights Initiative (2022), https://voting.law.umich.edu/database (listing 439 electronically-reported cases with judicial decisions between 1982 and 2021 addressing a substantive Section 2 claim)). “Over the past forty years, there have been at least 182 successful Section 2 cases; of those 182 cases, only 15 were brought solely by the Attorney General.” Id. at 8 (citing Katz, supra, at https://voting.law.umich.edu/wp-content/uploads/2022/02/VRI_Codebook.pdf (defining successful cases as those where “the ultimate outcome of the lawsuit was that a plaintiff achieved success on the merits by proving a violation of the VRA,” or where “a positive real-world outcome could be determined from the opinions reviewed, e.g. a consent decree or a positive settlement“)).
As one district court observed, however, “Justice Gorsuch‘s concurrence in Brnovich . . . upend[ed] that distinct line of precedent, labeling [§] 2‘s private right of action as ‘an open question’ in lower courts.” Coca, 2023 WL 2987708, at *3 (quoting Brnovich, 141 S. Ct. at 2350 (“Our cases have assumed—without deciding—that the [VRA] furnishes an implied cause of action under § 2. Lower courts have treated this as an open question.” (citation omitted) (Gorsuch, J., concurring))).
Why have federal courts largely assumed that § 2 gives private plaintiffs the ability to sue? “The implication of a right of action is rooted in the Blackstonian principle . . . that ‘where there is a legal right, there is also a legal remedy.‘” Daniel P. Tokaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws, 44 Ind. L. Rev. 113, 126 (2010) (quoting Marbury v. Madison, 5 U.S. 137, 163 (1803)). In the mid-1960s to 1970s, a “wave of decisions” recognized “impl[ied] private rights of action under various federal statutes.” Id. at 127. Relevant to the present case, “the Supreme Court recognized private rights of action [under] statutes . . . protecting civil and political rights.” Id. at 128 (citing Cannon v. Univ. of Chi., 441 U.S. 677 (1979) (holding that Title IX of the Education Amendments of 1972 created a private right of action for victims of education discrimination); Allen, 393 U.S. at 557 (implying a private right of action for voters claiming that their states had implemented new electoral rules without complying with § 5 of the VRA)). Over time, a tension developed “between two different conceptions of whether a private right of action should lie.” Id. at 130. Under the first view, “the question is whether the statute was designed to benefit an identifiable class of persons that includes the plaintiff.” Id. Under the second view, “the question is whether Congress intended to confer a right of action on private plaintiffs.” Id. Justice Powell adopted the
“Although Justice Powell‘s position did not carry the day in Cannon, the Court has increasingly gravitated toward his intent-based test in the years since that case was decided.” Tokaji, supra, at 131; see also Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“[P]rivate rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” (citation omitted)). Yet “[s]ome other decisions in the post-Cannon period . . . recognized a private right of action, particularly for statutes passed during the period in which they were routinely implied,” including the VRA. Tokaji, supra, at 131 (emphasis added) (citing, inter alia, Morse v. Republican Party of Va., 517 U.S. 186, 233-34 (1996) (relying on the contemporary legal context of the VRA to imply a right of action under § 10)). And “although the Supreme Court has not directly decided” whether § 2 provides a private right of action, “it has decided a close cousin of a question, and that precedent strongly suggests that Section Two [of the VRA] provides a private right of action.” Singleton, 582 F. Supp. 3d at 1031; see also Caster, 2022 WL 264819, at *81 (same).
“At the core of” “the vast sea of cases recognizing and affirming the private right of action within Section 2 . . . . lies Morse.” Coca, 2023 WL 2987708, at *4. To properly understand Morse, however, one must understand the foundation upon which it was built. In J.I. Case Co. v. Borak, 377 U.S. 426 (1964), the Supreme Court “held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.” Allen, 393 U.S. at 557; see also Morse, 517 U.S. at 231 (acknowledging that Borak “applied a highly liberal standard for finding private remedies“). Congress passed the VRA one year later. Morse, 517 U.S. at 231. Just a few years after the VRA‘s passage, the Supreme Court held in Allen “that private parties may enforce § 5 of the [VRA].” Id. Allen acknowledged that the VRA neither explicitly granted nor denied “private parties authorization to seek a declaratory judgment that a State has failed to comply with the provisions of the Act.” 393 U.S. at 554–55. Despite the absence of an express grant of authorization to sue, § 5‘s language must be analyzed “in light of the major purpose of the Act,” the Court explained. Id. at 555. Congress‘s purpose in enacting the VRA was “to make the guarantees of the Fifteenth Amendment finally a reality for all citizens“; it achieved this purpose by “draft[ing] an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws.” Id. at 556. The Court observed that “achievement of the Act‘s laudable goal could be severely hampered . . . if each citizen were required to depend solely on litigation instituted at the discretion of the
It is against this backdrop that a majority of the justices held in Morse that § 10 of the VRA also affords private plaintiffs the ability to sue. Id. at 233-34 (opinion of Stevens, J., joined by Ginsburg, J.); id. at 240 (Breyer, J., concurring in the judgment, joined by O‘Connor & Souter, JJ.). In announcing the judgment of the court and delivering an opinion joined by Justice Ginsburg, Justice Stevens relied on the analysis set forth in Allen to conclude that the Court‘s “observations about § 5 . . . apply as forcefully to § 10.” Id. at 231. After recounting Allen, he then stated:
Congress has not only ratified Allen‘s construction of § 5 in subsequent reenactments, see H.R. Rep. No. 91–397, p. 8 (1970), but extended its logic to other provisions of the Act. Although § 2, like § 5, provides no right to sue on its face, “the existence of the private right of action under Section 2 . . . has been clearly intended by Congress since 1965.” S. Rep. No. 97–417, at 30 (citing Allen); see also H.R. Rep. No. 97-227, p. 32 (1981). We, in turn, have entertained cases brought by private litigants to enforce § 2. See, e.g., Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354, 115 L. Ed. 2d 348 (1991); Johnson v. De Grandy, 512 U.S. 997, 114 S. Ct. 2647, 129 L. Ed. 2d 775 (1994). It would be anomalous, to say the least, to hold that both § 2 and § 5 are enforceable by private action but § 10 is not, when all lack the same express authorizing language.
Id. at 232 (alteration in original).
In his opinion concurring in the judgment, Justice Breyer, joined by Justices O‘Connor and Souter, “agree[d] . . . that Congress must be taken to have intended to authorize a private right of action to enforce § 10 of the Act.” Id. at 240. Justice Breyer concurred in Justice Stevens‘s conclusion that Allen‘s holding that a private right of action exists to enforce § 5 “applies with similar force not only to § 2 but also to § 10.” Id. (citing S. Rep. No. 97–417, pt. 1, p. 30 (1982) (implied private right of action to enforce § 2 “has been clearly intended by Congress since 1965“)). Justice Breyer did not know of any reason “why Congress would have wanted to treat enforcement of § 10 differently from enforcement of §§ 2 and 5.” Id. As a result, he concluded that “Congress intended to establish a private right of action to enforce § 10, no less than it did to enforce §§ 2 and 5.” Id.
Is Morse‘s statement about § 2 providing a private right of action “non-binding dicta because the Court was not addressing an express challenge to private Section 2 enforcement“? Pendergrass v. Raffensperger, No. 1:21-CV-05339-SCJ, 2022 WL 1518234, at *7 (N.D. Ga. Jan. 28, 2022). “The . . . debate whether this statement is dicta or actually part of the holding . . . . is largely irrelevant . . . .” Coca, 2023 WL 2987708, at *4 n.32. “Appellate courts should afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.” In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017) (en banc). Because Morse‘s statement that a private right of action exists under § 2 was built on a firm foundation of precedent, including Borak and Allen, it “is not subordinate clause, negative pregnant, devoid-of-analysis, throw-away kind of dicta. It is well thought out, thoroughly reasoned, and carefully articulated analysis by the Supreme Court
Furthermore, since the Court decided Morse, “scores if not hundreds of cases have proceeded under the assumption that Section 2 provides a private right of action. All the while, Congress has consistently reenacted the VRA without making substantive changes, impliedly affirming the previously unanimous interpretation of Section 2 as creating a private right of action.” Coca, 2023 WL 2987708, at *4. And, post-Sandoval, courts have continued to permit “[o]rganizations and private parties . . . to enforce Section 2 of the VRA.” Veasey v. Perry, 29 F. Supp. 3d 896, 906 (S.D. Tex. 2014) (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008); LULAC, 548 U.S. at 399; De Grandy, 512 U.S. at 997; Chisom, 501 U.S. at 380; League of United Latin Am. Citizens v. City of Boerne, 675 F.3d 433 (5th Cir. 2012)). Justice Gorsuch‘s concurrence in Brnovich certainly “flagged” the issue of whether the Supreme Court should directly address the existence of a private right of action under § 2, but “it [remains] undisputed that the Supreme Court and federal district courts have repeatedly heard cases brought by private plaintiffs under Section 2.” Robinson v. Ardoin, 605 F. Supp. 3d 759, 819 (M.D. La. 2022) (citing cases), cert. granted before judgment, 142 S. Ct. 2892 (2022), and cert. dismissed as improvidently granted, 143 S. Ct. 2654 (2023).
In sum, this case presents two paths. The first is to “adhere to the extensive history, binding precedent, and implied Congressional approval of Section 2‘s private right of action.” Coca, 2023 WL 2987708, at *5. The alternative path taken by the majority attempts to “predict the Supreme Court‘s future decisions” by “conduct[ing] a searchingly thorough examination of Section 2‘s text, legislative history, and the Sandoval analysis.” Id. “Holding that Section Two does not provide a private right of action would work a major upheaval in the law, and [I am] not prepared to step down that road today.” Singleton, 582 F. Supp. 3d at 1032; see also Caster, 2022 WL 264819, at *81 (same). As a result, I favor the first path. And “[t]he simple fact is that [a majority of the justices] explicitly recognized a private right of action under Section 2 in Morse. While that private right has been called into question by two Supreme Court justices,9 the Supreme
Accordingly, I would reverse the judgment of the district court and remand for further proceedings.