Just
when
you
were
ready
to
declare
the
Fifth
Circuit
the
most
out
of
pocket
federal
appellate
court,
the
Eighth
Circuit
says
“hold
my
beer.”
Today,
the
Eighth
Circuit
decided
in
The
Arkansas
State
Conference
NAACP
v.
The
Arkansas
Board
of
Apportionment
that
individuals
and
organizations
cannot
file
suit
under
Section
2
of
the
Voting
Rights
Act.
Writing
for
the
majority,
Judge
David
R.
Stras
said
there
is
no
private
right
of
action
under
that
law,
and
“The
Voting
Rights
Act
lists
only
one
plaintiff
who
can
enforce
§
2:
the
Attorney
General.”
Hell,
*even*
the
Fifth
Circuit
found
an
implied
private
right
of
action
under
the
Voting
Rights
Act.
This…
erm…
unique
take
undermines
well-established
precedent
under
the
statute,
as
Sophia
Lin
Lakin,
the
attorney
with
the
American
Civil
Liberties
Union,
notes,
“This
is
a
travesty
for
democracy,
and
it’s
directly
contrary
to
decades
of
precedent
and
practice.
It’s
quite
a
seachange
in
the
way
that
everyone—Congress,
the
courts,
plaintiffs,
and
even
defendants—have
thought
about
how
the
promise
of
Section
2
would
be
enforced.”
And
Kareem
Crayton,
Senior
Director
for
Voting
Rights
and
Representation
at
the
Brennan
Center,
says
this
decision
is
“wildly
out
of
step
with
existing
case
law”
and
“radically
upends
the
existing
understanding
of
Section
2.”
Indeed,
a
private
right
of
action
was
very
much
anticipated
when
the
Voting
Rights
Act
was
initially
passed.
Along
those
lines,
the
Circuit
Chief
Judge
Lavenski
R.
Smith
said
in
dissent
the
majority’s
decision
was
an
”
attempt[]
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.’
‘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.’”
Crayton
notes
the
Chief
is
a
Republican
appointee,
not
a
raving
liberal.
But
the
dissent
demonstrates
a
respect
for
established
law.
And,
perhaps
more
to
point,
this
private
right
of
action
was
used
as
a
justification
when
the
Supreme
Court
got
down
to
the
business
of
gutting
voting
rights.
But
unless/until
the
Supreme
Court
and/or
the
en
banc
Eighth
Circuit
rule
otherwise,
the
people
of
Arkansas,
Iowa,
Minnesota,
Missouri,
Nebraska,
North
Dakota,
and
South
Dakota
have
fewer
rights
than
they
did
yesterday.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@Kathryn1@mastodon.social.