The future of the Voting Rights Act is at the Supreme Court

A fight over whether individuals can sue under the key civil rights law has been percolating in the Eighth Circuit for the past two years. Also: The latest out of DOJ.

A key question about the future of the Voting Rights Act of 1965 is now at the U.S. Supreme Court — a year after voting rights lawyers decided not to take the issue to the far-right majority court and as another key voting rights question is already set for the justices’ fall arguments.

The North Dakota case that came to the Supreme Court this week followed an outlier 2023 ruling from the U.S. Court of Appeals for the Eighth Circuit in which the appeals court held that Section 2 of the Voting Rights Act cannot be privately enforced.

On Wednesday, Justice Brett Kavanaugh issued an administrative stay in the follow-on North Dakota case while the Supreme Court considers a tribe and other plaintiffs’ request for a stay pending appeal.

The Eighth Circuit’s ruling in the redistricting case, Turtle Mountain Band of Chippewa Indians et al. v. Howe, could have had immediate effect on North Dakota’s legislature — prompting the request for an administrative stay at the Supreme Court this week.

In the case, the issue at the Eighth Circuit was whether, absent Section 2 enforcement, plaintiffs could bring a federal lawsuit under Section 1983 to sue for infringement of federal rights. The Eighth Circuit said no. Here’s how Judge Raymond Gruender, a George W. Bush appointee, summed up the appeals court’s ruling:

Of immediate effect, the plaintiffs noted in their July 15 request to the Supreme Court for a stay pending appeal, “[T]he North Dakota Legislative Council has published a memorandum questioning whether Plaintiff Collette Brown, who is an elected state representative, is eligible to remain in office once the Eighth Circuit’s mandate issues ….”

In other words, if the Eighth Circuit’s ruling goes into effect, there could be an effort to upend the North Dakota’s legislature (although the plaintiffs note in their application that they disagree with the council’s memorandum). It is this stark effect, likely, that led to the administrative stay from Kavanaugh on Wednesday.

Kavanaugh had already, on July 15, ordered a response from the state by 5 p.m. Tuesday, July 22.

But the case is a much bigger deal. In addition to the state impact, the case is of nationwide consequence as “the forthcoming petition for certiorari“ seeking Supreme Court review of the Eighth Circuit’s ruling would be addressing the last real way of enforcing the Voting Rights Act — private enforcement under Section 2, directly or through Section 1983.

The Roberts court brought us here.

In 2013, in an opinion by Chief Justice John Roberts, the Supreme Court ended the longtime most-used enforcement mechanism of the VRA — preclearance from the Justice Department for voting changes under Section 5 of the act. In Shelby County v. Holder, the court struck down the formula for deciding which jurisdictions needed to obtain preclearance — effectively ending preclearance and leading states to quickly implement new restrictions.

Since the 2013 ruling, Section 2 litigation has taken on greater importance — and, with that, has faced greater efforts from the right to restrict its use.

A key part of Section 2 is private enforcement. This is in part due to limits on the capacity of the Justice Department to bring litigation under Section 2, generally, but it particularly necessary currently given this administration’s dismantling of the traditional Civil Rights Division of DOJ.

Now, however, the Supreme Court — which was not asked to review the Arkansas case — is being faced with the mess the Eighth Circuit has made of Section 2. As the Turtle Mountain Band plaintiffs highlighted:

[T]he panel majority held that private plaintiffs cannot rely on 42 U.S.C. § 1983 to file suit under the Voting Rights Act to stop such unlawful voting discrimination. The decision below follows another divided decision of the Eighth Circuit in which it found that Section 2 itself provides no implied right of action. Together, these decisions make the Eighth Circuit the only Circuit in which private plaintiffs cannot enforce Section 2.

Now, the Supreme Court is going to face the question. As the plaintiffs wrote of the Eighth Circuit’s decisions in the Arkansas case and their case:

These decisions starkly split from those of the Fifth, Sixth, and Eleventh 3 Circuits as well as every three-judge district court to consider the question. They directly contravene this Court’s Section 1983 and Section 2 precedents. They turn the statutory text of both Section 2 and Section 1983 on their heads. They upend sixty years of practice. And they knee-cap Congress’s most important civil rights statute.

What’s more, it will also come as the Supreme Court rehears arguments in another Section 2 challenge, out of Louisiana, where the justices are expected to consider how the Equal Protection Clause and Voting Rights Act interact — whether redistricting remedies under Section 2 violate the Fourteenth Amendment.

As Justice Clarence Thomas wrote in June, “I am hopeful that this Court will soon realize that the conflict its §2 jurisprudence has sown with the Constitution is too severe to ignore.“

If the Supreme Court’s reactionary, right-wing majority wants to end the Voting Rights Act, it will get its chance in the coming months.

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The Justice Department of Donald Trump

As the Justice Department defends its indictment and sought detention of Kilmar Abrego Garcia …

… in Tennessee — a move that followed the then-chief of the criminal division of the relevant U.S. Attorney’s Office resigning — the Justice Department indicted nine people in Spokane, Washington — including the former City Council president — on Tuesday with “Conspiracy to Impede or Injure Officers“ following a protest of the Trump administration’s immigration enforcement policies.

The Justice Department is seeking pre-trial detention for two of those charged — facing a charge of “Assault on a Federal Officer and Employee” in addition to the conspiracy charge — and they will be remaining in custody at least until a Friday detention hearing. The others, including former City Council president Ben Stuckart, were released on Tuesday.

In this new case, there was another suspiciously timed departure.

The career U.S. Attorney’s Office prosecutor — who was the acting U.S. attorney — left the office on July 7. On July 8, the office announced that Richard Barker had “stepped down” the day before and would be “returning to private practice in Spokane after a distinguished career in public service.“

The next day, July 9, the new acting U.S. attorney signed the indictment.

The announcement that Stephanie Van Marter was the new acting U.S. attorney was not even as quick.

That didn’t come until July 11.

So it goes under Attorney General Pam Bondi, who made clear her aims to end the independence of the Justice Department from her first day on the job.