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The Supreme Court may soon consider the scope of certain provisions under the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (VRA) and the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
Private Enforcement of Section 2 of the Voting Rights Act
Section 2 of the VRA bars states from denying or abridging voting rights on the basis of race, color, or membership in a language minority group. 52 U.S.C. § 10301. Although Section 2 has historically been enforced by the U.S. Department of Justice, hundreds of cases have been brought by private parties. The Supreme Court has assumed without deciding that Section 2 of the VRA provides for a private right of action. Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 690 (2021) (Gorsuch, J., concurring). Additionally, the Court recently upheld Section 2 in a lawsuit brought by private plaintiffs. Allen v. Milligan, 599 U.S. 1 (2023).
However, last year, in a case stemming from a redistricting lawsuit, the Eighth Circuit held that there is no private right of action under Section 2 of the VRA, deviating from all other circuits addressing the issue. Compare Arkansas State Conf. of the NAACP v. Arkansas Bd. of Apportionment, 86 F.4th 1204 (8th Cir. 2023) with Robinson v. Ardoin, 86 F.4th 574 (5th Cir. 2023) (holding any person “aggrieved” under Section 2 of the VRA has a private right of action) and Mixon v. State of Ohio, 193 F.3d 389 (6th Cir. 1999) (holding, without analysis, that Section 2 conveys a private right of action); see also Alabama State Conf. of the NAACP v. Alabama, 949 F.3d 647, 652 (11th Cir. 2020), judgment vacated as moot sub nom. Alabama v. Alabama State Conf. of the NAACP, 141 S. Ct. 2618 (2021) (observing that “[t]he VRA, as amended, clearly expresses an intent to allow private parties to sue the States”).
Although Arkansas State Conference of the NAACP will not be heard by the Supreme Court, what is required for plaintiffs to enforce Section 2 remains disputed. For instance, the Georgia Secretary of State has not only argued that there is no private right of action under Section 2, but also asked the Eleventh Circuit to require an additional showing by the plaintiffs bringing Section 2 cases: requiring proof that racially polarized voting is caused by race alone and demanding that the plaintiffs disentangle the reasons for voters’ preferences to disprove that polarization exists for political or partisan reasons. Brief for the Secretary of State of Georgia, Alpha Phi Alpha Fraternity, Inc. v. Secretary of State of Georgia, No. 23-13914 (11th Cir. filed Feb. 7, 2024). Additionally, an en banc panel of the Fifth Circuit recently signaled that multi-racial coalitions cannot jointly challenge voting maps under the proportional representation requirement of Section 2 of the VRA. E.g., Petteway v. Galveston Cnty., Tex., 87 F.4th 721, 725 (5th Cir. 2023) (en banc) (per curium) (Oldham, J., concurring).
Access to the Polls and Mail-In Voting
Issues around mail-in voting continue to be widely litigated, and many such cases around the country are winding their way through the courts. E.g., Disability Rights Wis. v. Wis. Election Comm’n, No. 2024-CV-001141 (Wis. Cir. Ct. filed April 16, 2024); Cal. Council of the Blind v. Weber, No. 3:24-cv-01447 (N.D. Cal. filed Mar. 8, 2024); Disability Rights Miss. v. Fitch, 684 F. Supp. 3d 517 (S.D. Miss. 2023), appeal docketed, No. 23-60463 (5th Cir. Aug. 25, 2023).
Litigation regarding the scope of the Materiality Provision of the Civil Rights Act as it relates to mail-in voting has presented issues that may soon reach the Supreme Court. The Materiality Provision, 52 U.S.C. § 10101(a)(2)(B), aims to prevent the disenfranchisement of voters because of trivial errors in voting paperwork. One such case challenges a Texas law known as S.B. 1, which imposes restrictions on mail-in voting that disproportionately impact older adults. La Union del Pueblo Entero v. Abbott, No. 5:21-CV-0844-XR, 2023 WL 8263348 (W.D. Tex. Nov. 29, 2023), appeal docketed sub nom. USA v. Paxton, No. 23-50885 (5th Cir. Dec. 5, 2023). In that case, the district court concluded that a voter’s ability to provide the identification numbers associated with their voter registration record is not material to their qualification to vote in a given election. La Union del Pueblo Entero, 2023 WL 8263348, at *26. The court held that S.B. 1 violates the Materiality Provision, which prohibits state election officials from denying anyone the right to vote for reasons that have no bearing on the individual’s voter qualifications. Id., at *33, *52. The Fifth Circuit will next decide whether the ballot-casting requirements of S.B. 1 violate the Materiality Provision.
Allie Horwitz, AHorwitz@aarp.org
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