Legal Sidebari
Recent Developments in the Rights of Private
Individuals to Enforce Section 2 of the Voting
Rights Act
April 26, 2023
Cases pending in the federal courts could significantly affect the Voting Rights Act (VRA). Most
prominently, in Allen v. Milligan, the Supreme Court is considering standards that reviewing courts apply
in determining whether redistricting maps comport with Section 2 of the VRA. Another case working its
way through the courts, however, may affect who can sue to enforce Section 2. In Arkansas State
Conference NAACP v. Arkansas Board of Apportionment, the U.S. Court of Appeals for the Eighth Circuit
(Eighth Circuit) is considering whether Section 2 of the VRA confers a private right of action. Last year, a
federal district court held that Section 2 does not confer such a right. Until this ruling, lower courts have
generally permitted private plaintiffs—including individuals, nonprofit organizations, and political
parties—to file enforcement actions under Section 2. In 2021, however, Justice Neil Gorsuch suggested in
a concurring opinion in Brnovich v. Democratic National Committee (DNC) that it remains “an open
question” whether Section 2 may be enforced by private parties. Arkansas State Conference NAACP has
drawn attention because, if other courts agree with the district court ruling, then only the U.S. Attorney
General will be permitted to bring such lawsuits in the future.
This Legal Sidebar begins with an overview of Section 2 of the VRA, including briefly describing recent
Supreme Court jurisprudence concerning its application. It then discusses the district court ruling in this
dispute and the arguments before the Eighth Circuit. It concludes by noting potential outcomes and
considerations for Congress.
Section 2 of the VRA
Section 2 of the VRA prohibits discrimination in voting based on race, color, or membership in an
enumerated language minority group. The statute provides a right of action for the federal government to
challenge state discriminatory voting practices or procedures, including those alleged to diminish or
weaken minority voting power. Courts have also assumed that Section 2 suits can be brought by private
citizens and organizations.
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Until recently, Section 2 lawsuits primarily challenged redistricting maps, known as vote dilution cases. In
certain circumstances, the Supreme Court has interpreted Section 2 to require the creation of one or more
“majority-minority” districts in which a racial or language minority group comprises a voting majority. In
those cases, the creation of such districts can avoid minority vote dilution by helping ensure that the racial
or language minority group is not submerged into the majority and, thereby, denied an equal opportunity
to elect candidates of choice. In Thornburg v. Gingles, the Supreme Court held that a violation of Section
2 is established if, based on the “totality of the circumstances” and “as a result of the challenged practice
or structure, plaintiffs do not have an equal opportunity to participate in the political processes and to
elect candidates of their choice.” (In the pending case, Allen v. Milligan, the Court is evaluating the
Gingles standard.)
Plaintiffs have invoked Section 2 more recently to challenge other types of state voting and election
administration laws, which are often called vote denial cases. The 2013 Supreme Court ruling in Shelby
County v. Holder has likely contributed to the expanded reliance by plaintiffs on Section 2 in this context.
In Shelby County, the Court invalidated the coverage formula in Section 4(b) of the VRA, thereby
rendering the preclearance requirements in Section 5 inoperable. Since then, plaintiffs have increasingly
turned to Section 2 to challenge state voting and election administration laws, such as absentee voting
procedures and voter identification requirements.
In Brnovich v. Democratic National Committee (DNC), the Supreme Court interpreted Section 2 for the
first time in this context, holding that two Arizona voting laws—restrictions on out-of-precinct voting and
third-party ballot collection—do not violate Section 2. In Brnovich, Justice Gorsuch, joined by Justice
Thomas, wrote a concurrence, asserting that the Court’s Section 2 cases “have assumed—without
deciding—that the [VRA] furnishes an implied cause of action under §2.” In support, the concurrence
cited a four-Justice plurality opinion in the 1980 Court decision City of Mobile, Alabama v. Bolden, which
“[a]ssum[ed], for present purposes, that there exists a private right of action to enforce” Section 2.
Further, Justice Gorsuch’s concurrence in Brnovich stated that lower courts have likewise regarded this
issue “as an open question,” citing a 1981 U.S. Court of Appeals for the Fourth Circuit ruling in
Washington v. Finlay.
Arkansas State Conference NAACP v. Arkansas Board of
Apportionment: Federal District Court Ruling
In February 2022, the U.S. District Court for the Eastern District of Arkansas held in Arkansas State
Conference NAACP v. Arkansas Board of Apportionment that only the U.S. Attorney General, and not
individuals or private organizations, can sue to enforce Section 2 of the VRA. In so holding, the court
acknowledged in a footnote that it was “the first federal court in the nation” to do so.
In this case, the Arkansas State Conference of the NAACP and the Arkansas Public Policy Panel sought to
preliminarily enjoin a 2021 state legislative redistricting map, alleging that the map creates an insufficient
number of majority-minority districts, “dilut[ing] Black voting strength in violation of Section 2.” After
observing that the challengers appeared to have presented “a strong merits case,” the district court
determined that it could not reach the merits in this case because only the U.S. Attorney General can bring
such a claim. That is, the court concluded that it did not have the requisite subject-matter jurisdiction over
the suit because Section 2 does not confer a private right of action.
As a threshold matter, in response to the challengers’ contention that, in the absence of explicit text, the
district court should “judicially imply” a private right of action under Section 2, the court noted that
Justice Gorsuch’s concurrence in Brnovich observed that this issue is an “open question.” In endeavoring
to answer that question, the district court explained that it would look to relevant Supreme Court
precedent, which has illustrated that implied private rights of action are “extremely disfavored.” The court
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reasoned that if Congress wants a private party to have the ability to enforce a federal law, “Congress
should express that desire in the statute.” In accordance with a 2001 Supreme Court ruling, Alexander v.
Sandoval, the district court explained that two conditions must be present in a federal statute before a
private litigant can bring an enforcement suit based on an implied private right of action: Congress must
have included “rights-creating language” and Congress must have set forth “a private remedy.”
Applying those requirements, the district court determined that it need not ascertain whether Section 2
contains “rights-creating language” because even if it did, the statute does not contain “a private remedy.”
Applying Sandoval, the court analyzed “the text and structure” of the statute “to determine whether it
displays an intent to create … a private remedy.” Observing that Section 2 “is completely silent”
regarding available remedies, the court expanded its examination to the remainder of the VRA. In so
doing, the court determined that in Section 12 of the law, Congress set forth the only remedial language
applicable to Section 2. As “[a] comprehensive reading of § 12 clearly establishes that it is focused
entirely on enforcement proceedings instituted by the Attorney General of the United States,” the court
therefore concluded that Congress intended for the U.S. Attorney General to enforce Section 2 and not
private litigants. The court emphasized, however that its ruling did not preclude voters and other private
parties from filing lawsuits to enforce their constitutional rights to equal protection and the right to vote
under the Fourteenth and Fifteenth Amendments, respectively.
Finally, the court criticized a Statement of Interest filed by the Department of Justice (DOJ). DOJ had
asserted that “limited federal resources” impede DOJ’s enforcement of Section 2, thereby necessitating
enforcement by private entities. Dubious of this statement, the district court noted that the U.S. Attorney
General in 2021 announced that DOJ intended to “rededicate” its resources to enforcing the VRA and
double its enforcement staff.
Appeal Pending in U.S. Court of Appeals for the Eighth
Circuit
The challengers in this case—the Arkansas State Conference NAACP and the Arkansas Public Policy
Panel—appealed the district court’s ruling to the Eighth Circuit. In January 2023, the appellate court
heard oral argument.
On appeal, the challengers argued that controlling court precedent resolves the issue as to whether Section
2 provides a private right of action. In hundreds of cases since the VRA was enacted in 1965, all courts to
have considered this issue have concluded as much and have allowed the suits to go forward, according to
the challengers. Moreover, the challengers contended that the district court’s reliance on Sandoval is
misplaced because Sandoval did not overrule another Supreme Court decision—Morse v. Republican
Party of Virginia—that held that private litigants can enforce Section 10 of the VRA, which prohibits poll
taxes. The challengers argued that the Court’s ruling in Morse relied on a majority of the Justices
recognizing that Section 2 provides a private right of action. To conclude otherwise, the challengers
contended, would necessitate reversal of Morse. Further, the challengers maintained that even if the
Sandoval standard applies in this case, the language and text of Section 2 meets its strict requirements.
Specifically, they argued that, by protecting the “rights of any citizen … to vote” without racial
discrimination, Section 2 manifests Congress’s intent to establish a private right of action, as required by
the first prong of the Sandoval standard.
In addition, the challengers argued that Sections 3 and 14(e) of the VRA provide remedies for private
causes of actions to enforce Section 2, thereby satisfying the second prong of the Sandoval standard. For
example, the challengers observed that by broadly providing for relief in “proceeding[s]” brought by an
aggrieved person or the U.S. Attorney General “under any statute to enforce the voting guarantees of the
fourteenth or fifteenth amendment,” Section 3 contemplates a private right of action for Section 2
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violations. In other words, they argued, private litigants can be considered “aggrieved persons,” and
Section 2 lawsuits can be considered “proceedings” to enforce a statute designed to enforce the
Fourteenth and Fifteenth Amendments. Likewise, the challengers contended that by authorizing
prevailing parties “other than the United States” to be awarded attorney’s fees, “Section 14(e) therefore
incorporates private plaintiffs into the VRA’s fee-shifting structure, including for Section 2 claims.”
Finally, the challengers argued that the Supreme Court has “repeatedly recognized” that Congress has
understood that Section 2 contains a private right of action. In support of their argument, the challengers
note that when amending the law in 1970, 1975, 1982, and 2006, Congress gave no indication that it
disagreed with courts that had found a private right of action in Section 2.
In response, the Arkansas Board of Apportionment, the Board’s three members (the Arkansas Governor,
Secretary of State, and Attorney General, in their official capacities), and the State of Arkansas
(hereinafter collectively referred to as “the Board”) maintained that Section 2 does not establish a private
right of action. Applying the first prong of Sandoval, the Board argued that the language of Section 2
“only confers rights on minority groups in the aggregate,” not a right of action to any individual voter.
Further, the Board argued that Section 2 does not meet the second prong of Sandoval because it is silent
with regard to remedies. According to the Board, Supreme Court precedent suggests that such silence in
Section 2, in contrast to another section of the VRA (Section 12) that expressly provides for remedies, is a
manifestation of Congress’s intent not to include a private right of action in Section 2.
The Board further argued that controlling Supreme Court precedent does not suggest that Section 2 is
privately enforceable. For example, the Board emphasized that, contrary to the challengers’ assertions, the
Court in Morse did not recognize a private right of action in Section 2, but instead held that such a right is
established in VRA Section 10. Challengers are relying on mere dicta in Morse and not the holding, the
Board contended. The Board also disagreed with the challengers’ assertion that when last amending the
provision in 1982, Congress “ratified the Supreme Court’s assumption” in City of Mobile, Alabama v.
Bolden that Section 2 established a private right of action. A mere assumption, the Board maintained, is
not tantamount to the Court deciding the issue, and supports the conclusion that the private enforceability
of Section 2 remains unsettled law.
Potential Outcomes and Considerations for Congress
To date, the Eighth Circuit has not issued an opinion. Should the Eighth Circuit agree with the district
court in Arkansas State Conference NAACP, then private individuals and organizations within this
circuit’s jurisdiction will no longer be able to bring enforcement lawsuits under Section 2 of the VRA.
Therefore, all such enforcement actions within this jurisdiction would be brought by DOJ, which has
claimed to be unable to fully enforce Section 2 because of limited resources.
Since the district court’s ruling in Arkansas State Conference NAACP, in various federal circuits, other
such courts have determined or assumed, without deciding, that Section 2 does confer a private right of
action. Ultimately, however, in those circuits where federal appellate courts agree with the district court in
this case, courts in such jurisdictions would be precluded from allowing Section 2 enforcement lawsuits
brought by private parties to go forward.
Regardless of how the courts rule on whether Section 2 is privately enforceable, as the district court in
this case noted, private litigants will still be able to challenge discriminatory state election laws under the
Fourteenth or Fifteenth Amendments. However, such claims require a showing of discriminatory intent.
In contrast, Section 2 violations may be established under either a discriminatory intent test or a
discriminatory results test, which might be easier to prove.
As this case involves a question of statutory interpretation, Congress may consider legislation that would
amend the law. For example, should Congress wish to clarify that Section 2 confers to private individuals
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and organizations the right to bring suit, it could amend the law to provide expressly for such a cause of
action. In contrast, if Congress decides that Section 2 suits are best brought by the U.S. Attorney General,
it could likewise amend the law accordingly. By way of historical example, following the Court’s 1980
decision in Bolden, holding that Section 2 required a showing of discriminatory intent—not only a
discriminatory result—Congress amended Section 2 in 1982 to overturn the effects of that ruling.
Author Information
L. Paige Whitaker
Legislative Attorney
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