Court action puts Voting Rights Act — and democracy — at risk

As 2024 is the year of a national election, we need to become laser focused on protecting the right to vote. No federal statute has been more important in this respect than the Voting Rights Act. However, this law, now more than half a century old, is at risk of becoming almost meaningless. If it does, our nation’s democracy will be at risk.

Enacted by Congress in 1965, the Voting Rights Act was one of the most significant laws of the 20th century. Its aim was to give nonwhite voters, especially African Americans, the ability to overcome the efforts of many states and localities to preclude them from voting. But in the past decade, courts have seriously undercut the ability to enforce this law.

For years, there were two effective enforcement mechanisms. One focused on those states and localities that had a long history of denying African Americans the ability to vote. It required “pre-clearance” of any change made in a state or local law by an entity covered by this provision. No law could take effect without prior approval of a federal court or the federal Justice Department. However, pre-clearance was effectively eliminated by a decision of the Supreme Court in 2013.

What remained was the ability to bring a court challenge to a state or local law on the grounds that it “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” This enforcement mechanism has become even more important since the elimination of the pre-clearance requirement. However, a recent decision of the Eighth Circuit Court of Appeals has put this mechanism in serious doubt.

The case that resulted in this decision began when legislative district maps drawn by the Arkansas state Legislature were challenged by the Arkansas NAACP and the Arkansas Public Policy Panel. They contended that the maps limited the ability of Black voters to elect minorities in legislative and congressional elections.

The trial court judge raised the question of whether the plaintiffs, both of whom were private parties, could bring the case. The defendants had not

raised this issue, probably because no court had ever held that a private party could not bring a case under the Act.

The trial judge decided that private parties were precluded from bringing court challenges under the language of the Act. He limited that right to the federal Department of Justice.

In a 2 to 1 decision, the Eighth Circuit Court of Appeals affirmed the trial court’s decision. As of now, the ban on court actions by private parties applies only to the seven Midwestern states covered by that court. This decision shocked those who have closely followed voting rights cases. The court did not cite one prior decision that had reached this conclusion, despite hundreds of cases having been brought by private parties since the Voting Rights Act was first enacted.

The Supreme Court will almost certainly be called upon to consider this issue at some point. Whatever ruling it issues will be applicable nationwide. If it agrees with the Eighth Circuit, the Voting Rights Act as it is now written would become nearly irrelevant unless Congress were to act to specifically authorize private parties to bring legal actions. The federal Department of Justice would become the only entity authorized to bring an enforcement action, and its resources are far too limited to effectively carry out this function. The voting rights of nonwhites would be at great risk, and the gains we have made in the past 60 years could well be undone. The legal issue may be technical, but the consequences are enormous.