Appeals court lets stand ruling that would dramatically limit voting rights suits

The Eighth Circuit declined to rehear a case that would bar most Section 2 Voting Rights Act cases. Also: "Troubling" death penalty comments from the White House.

The U.S. Court of Appeals for the Eighth Circuit on Tuesday allowed a ruling to stand that upends federal voting rights law and makes U.S. Supreme Court review likely.

In an order issued Tuesday, the appeals court that covers a large swath of the Midwest — from Arkansas up to Minnesota and North Dakota — announced that it would not be rehearing a split three-judge panel’s ruling from November 2023 in which the panel held that only the U.S. Attorney General can bring enforcement actions under Section 2 of the Voting Rights Act. The challengers had asked the full court to review the decision, called an en banc rehearing.

Section 2 does most of the work of the VRA ever since preclearance under Section 5 ended with the Supreme Court’s 2013 decision in Shelby County v. Holder. Most enforcement under Section 2, meanwhile, comes via private litigation because the Justice Department has limited resources.

November’s ruling was an outlier that has never been the understanding of how Section 2 works. The Eighth Circuit had a chance to fix that. On Tuesday, though, it passed on that opportunity — with only three judges voting to rehear the case en banc.

The court is currently comprised of 10 Republican appointees and 1 Democratic appointee, but one of the Republican appointees — Judge Bobby Shepherd — recused himself from the case, so the vote was 7-3 against rehearing.

In addition to Chief Judge Lavenski Smith, who was the dissenting judge on the three-judge panel, Judges Steven Colloton and Jane Kelly — the sole Democratic appointee on the court — dissented from the denial of en banc review.

As Colloton wrote for the pair, “The panel majority in this case rendered an ambitious and unprecedented ruling that an aggrieved voter does not have a private right of action under § 2 of the Voting Rights Act of 1965 to enforce the right to vote. … If that were the proper issue for decision on this appeal, then it would be a matter of exceptional importance that warrants rehearing by the court en banc. … But the panel should not even have reached this issue of national significance.”

The pair went through the reasons why the panel majority got the Section 2 enforcement question wrong, as well as why, in their view, the panel — and district court — got the procedure of the case wrong, including questions about whether the case could be brought under Section 1983, the statute under which people can sue government officials for violations of their civil rights.

Notably, in an opinion concurring in the decision not to rehear the case en banc, the two judges in the majority on the original panel acknowledged that possibility.

“It may well turn out that private plaintiffs can sue to enforce § 2 of the Voting Rights Act under § 1983,” Judge David Stras wrote for himself and Judge Raymond Gruender, adding that — in his view — the issue hadn’t been sufficiently briefed for the panel to have decided the case on those grounds.

To that, though, Colloton’s argument was that the case should have then been sent back to the district court by the panel for resolution of that and related questions.

But, the panel did not do so. And, on Tuesday, the full court let that decision stand.

Because of the outlier nature of the ruling and the dramatic effect across the seven states of the Eighth Circuit, it would seem likely — though not certain — that Supreme Court review would follow if the challengers seek review.

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The Biden administration’s capital confusion

Last Friday, Jan. 26, White House Press Secretary Karine Jean-Pierre was asked about Kenneth Eugene Smith’s violent nitrogen gas execution.

Her response was, to use her word, “troubling.”

This is troubling for multiple reasons.

First, it is a vague, meaningless statement as to Smith’s execution. She said nothing in her response about the use of a new method of execution. She was not specific at all in any way that would make news, allowing the question to do the work for her. The Biden White House decided that — at most — it wanted stories to include a sentence or aside that the White House found the execution to be “troubling.”

Second, to the extent she voluntarily expanded the question from Alabama’s nitrogen gas execution to the federal death penalty, it completely ignores the administration’s actual practice: The Justice Department under Attorney General Merrick Garland — and on behalf of the administration and the United States — is defending existing death sentences; continuing existing capital prosecutions begun under prior administrations; and, as of this month, pursuing new capital cases. Where are these “deep, deep concerns” about “our values” when it comes to the decisions Garland is making?

Finally, and perhaps most troubling, this is not a statement spoken with the clarity of Biden’s 2020 campaign pledge — and might even be a walk back from that position:

Far from working to end the federal death penalty and “incentiviz[ing]” states to do the same, the Biden administration has instead fought to keep people on and add people to death row — spending significant sums to do so, given the expense of capital litigation — and the only response from the White House when a state experiments on a man it already failed to execute once by killing him with an untested method of execution is to say that everyone finds it “troubling.”

The Biden White House should more clearly state its position, and President Joe Biden should do so expressly, particularly as the Biden campaign ramps up.