A Right Without a Remedy
Summary:
Black voters from Arkansas sued the State of Arkansas alleging discriminatory voting practices in the form of gerrymandered districts which dilute the force of Black votes. It has been a longstanding doctrine in this country, since before the days of the US Constitution, that where the law affords a right, the law must also provide a remedy. Section Two of the Voting Rights Act of 1965 provides the right to racial minorities to be free from voting practices that discriminate based on race. So, one would think that voters alleging discriminatory voting practices would have the right to sue, no? The Eighth Circuit held differently here, looking not to Section Two but to Section Twelve, one small portion of the VRA as a whole allowing the Attorney General to seek an injunction to enforce the VRA. The inclusion of the Attorney General to enforce is the exclusion of others they say. The majority should not have applied this canon of construction. They should not have looked outside of Section Two to resolve this Section Two issue. And furthermore, they should have looked to Supreme Court precedent on the VRA, which provides reasoning that should have resolved this case. By not doing so, the court made discriminatory voting practices much harder to challenge.
It has long been a fundamental principle in English common law tradition and in American Constitutional jurisprudence that there can be no right where there is no remedy at law or in equity to enforce that right.[1] In fact, so fundamental is this doctrine that the Supreme Court, when adopting it, described it as, “the very essence of civil liberty”, to “claim the protection of the laws, whenever [a person] receives an injury.”[2] This principle predates the United States Constitution, as evidenced by Blackstone in his commentaries, published roughly contemporaneously with the American revolution.[3] So, when Congress enacted the Voting Rights Act of 1965 (“VRA”), it should be presumed they intended to incorporate the legal right to sue, the very essence of which is to seek a remedy at law, in order to allow persons to enforce the rights Congress provided, which in this case is the right to be free from gerrymandered districts drawn to diminish the impact of Black voters in Arkansas. Yet, the Eighth Circuit held differently in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, finding no private cause of action exists for individual voters to enforce their rights under Section Two of the VRA (“Section Two”).[4]
Without the private cause of action under Section Two, nothing but the faraway and often disinterested Attorney General of the United States can prevent states from gerrymandering along racial lines.[5] As the court notes, suits alleging improper drawing over district lines are brought every ten years following the Census and the redrawing of district lines.[6] Every ten years, states are tasked with redrawing electoral districts to adjust the districts for demographic changes.[7] Ideally, the districts lines are drawn such that a legislature is elected that is “an exact [p]ortrait, in [m]iniature, of the People at large”, in the words of John Adams.[8] However, politicians eventually surmised they could increase their party’s chances in elections merely by drawing lines to divide or combine homogenous voting groups, groups that are frequently comprised of a single minority group.[9] Particularly in the South, racially disparate outcomes are frequent, even if that is not necessarily the intent, because lines are drawn to differentiate members of one party from the other; however, White members of one party tend to live near White members of the other party, so drawing district lines for partisan advantage is accomplished only through drawing lines based predominately on race, given that Black southerners tend to be a homogenous political group often in neighborhoods distinct from the neighborhoods where White people live.[10]
And some of the most partisan redistricting occurred recently, in the redistricting following the 2010 election cycle, when the Tea Party wave gave Republicans power in many legislatures to redraw districts.[11] All this to say that gerrymandering is an issue that arguably has become more of a problem in recent years, an issue that is necessarily a racial issue, and that steps need to be taken to curtail its harmful effects.[12] The Eighth Circuit chose to do otherwise in this case, thus making combating gerrymandering much more difficult. The court simply holds, incorrectly, that the inclusion of the Attorney General is the exclusion of others and avoided looking to the Supreme Court VRA precedents, which are controlling in this case.[13]
The State of Arkansas redrew election districts for their state legislature in 2021 following the 2020 United States census.[14] Eleven majority-Black districts out of 100 total districts were created,[15] even though sixteen and a half percent of 2020 census participants in Arkansas identified as Black, either “alone” or “in combination.”[16] The Arkansas National Association for the Advancement of Colored People (“NAACP”) and the Arkansas Public Policy Panel (collectively “the plaintiffs”), sued, alleging “vote dilution” of the African American population in Arkansas.[17] The plaintiffs argued that the Arkansas government had achieved vote dilution in two ways: first, packing, where district lines are drawn to concentrate a group of voters who ordinarily vote similarly to other voters in the same group in a condensed geographic area; and second, cracking, where districts are drawn such that a political group ordinarily voting similarly to others in the same group, such as Black voters, are spread among several districts to minimize their effect on election outcomes.[18] The plaintiffs sued under Section Two of the Voting Rights Act of 1965, which, in summary, prohibits “qualification[s] or prerequisite[s]” or “standard[s], practice[s], or procedure[s] . . . which results in a denial or abridgement of the right . . . to vote on account of race or color.”[19] The district court dismissed the case for lack of subject matter jurisdiction after finding the plaintiffs had no cause of action under Section Two.[20] The court reasoned that Section Two did not provide a private cause of action, and that the only named person who could enforce the VRA was the United States Attorney General; after the Attorney General declined to intervene, the case was dismissed without prejudice, and the dismissal was appealed to the Eighth Circuit.[21]
The goal of the VRA was “to address entrenched racial discrimination in voting.”[22] Voting rights, particularly in the Southern United States, had remained limited for Black Americans since the Civil War, despite Reconstruction efforts by the federal government and the passage of the Reconstruction Era Amendments to the United States Constitution.[23] But, by the 1950s and 1960s, political will provided momentum for efforts to provide for greater federal involvement in enforcing civil rights.[24] Presidents in this era began to more actively assert their authority in existing civil rights activity. For example, in 1957, President Eisenhower famously federalized the Arkansas National Guard and sent the 101st Airborne to ensure the admission of nine Black students into Little Rock High School.[25] The next president, President John F. Kennedy, similarly used the military to enforce civil rights in the South after egregious police actions were publicized, such as spraying protestors with fire hoses and letting police dogs attack protestors.[26] President Kennedy also attempted to pass comprehensive civil rights legislation in 1963.[27] After President Kennedy’s assassination, this legislation was backed by his successor President Lyndon B. Johnson.[28] This legislation would ultimately be enacted, and is known as the Civil Rights Act of 1964.[29]
Other political efforts specific to voting were taking place in the background behind the violence that led to the Civil Right Act.[30] Particularly, the Civil Rights Act of 1957 empowered the Civil Rights Division of the Department of Justice to sue for injunctions of voting laws violating the 15th Amendment.[31] In 1960, Congress empowered federal courts to appoint “voting referees” who would ensure fair registration practices after the court found discrimination.[32] Notably, both of these laws required violations to occur before the federal government was empowered to act.[33] As such, the VRA represented a change in the federal approach to voting rights; prior to its enactment, the federal government adopted an after-the-fact approach where it rectified a discriminatory practice after it had occurred, but the new federal approach with the VRA aimed to stop discrimination before it happened.[34]
To this end, the VRA was signed into law by President Lyndon B. Johnson in 1965.[35] The original Section Two prohibited states from implementing standards or preconditions to voting based on race or color.[36] New voting laws passed in states with a history of discriminatory voting practices, as determined by a formula that considers things like whether the state had tests or devices in place to prevent minorities from voting, levels of voter registration, and voter participation in recent elections, had to receive prior approval from the United States Attorney General or a three-judge panel located in Washington D.C to enact these changes.[37] This formula made it so most Southern states had to receive prior approval but also included Northern States like Michigan and South Dakota.[38] The purposes of Section Two were frustrated by the United States Supreme Court’s 1980 decision in City of Mobile v. Bolden, which interpreted Section Two as requiring proof of discriminatory intent to sustain a challenge to a state’s voting laws.[39] The requirement to show discriminatory intent made it much harder to prove claims of voter discrimination.[40] In response, Congress amended Section Two to provide that discriminatory effect is sufficient to prove a Section Two claim.[41]
The Eighth Circuit’s decision revolved around the “who-gets-to-sue question.”[42] The VRA provides for a suit by the Attorney General for “preventive relief; injunctive or other relief.”[43] In the majority’s view, this is a simple issue: whether the inclusion of the Attorney General as a person who can sue to enforce the VRA excludes others from having the right to enforce.[44] In its interpretation of the statute, the majority simply applied the basic principle of construction that the inclusion of one is the exclusion of others.[45]
In support of its conclusion that the VRA does exclude other private actors from suing, the majority noted a few Supreme Court civil rights cases regarding when to apply private causes of action.[46] When who gets to sue is not explicitly stated in legislation, the court states, they will not imply a cause of action except where text and structure require it.[47] Section Two’s lack of clarity, and the rule that private rights are only created when the statute is “phrased in terms of the persons benefitted” led the court to conclude no private right of enforcement exists.[48]
The question of “who-gets-to-sue”[49] is not as clear as the majority wants it to be, and it cannot be fairly said that the inclusion of one is always to the exclusion of others. Context from the VRA reveals that this rule is not the case. First, there is no textual support in the VRA that Congress intended to do away with the fundamental common law principle that there is no right without a remedy.[50] But this is what the court is suggesting by its construction of Section Two and the VRA as a whole.[51] It presumes, because it is not explicitly stated, that Congress intended to grant a right to be free from discriminatory voting laws, but that only the United States Attorney General has this right of enforcement over and above the individual suffering from the discriminatory voting practice.[52] To push the Attorney General to enforce this right, however, voters need to make sure the United States Attorney General: (1) is paying attention to every state’s voting laws; (2) is willing to use the office to enforce the voters’ rights; (3) has the resources to enforce these rights; and (4) is not one of the people who would support the state law allegedly infringing on the voters’ rights.[53] The majority’s construction of the statute means millions of individuals must rely on one person to enforce their rights under Section Two, an absurd conclusion.
The underpinning of the majority’s argument is expressio unius est exclusio alterius, the expression of one thing is the exclusion of the other.[54] The majority asserts that because only the Attorney General is named as a person who may enforce the VRA, any other right to private actions from the voters themselves are precluded by the VRA.[55] Admittedly, a difficulty arises because Section Two itself has no enforcement mechanism.[56] So, the majority looked elsewhere to see who can enforce Section Two, and focused on Section Twelve of the VRA, which provides for various civil and criminal penalties under the VRA.[57] The problem with this interpretation is that this puts the whole Voting Rights Act at issue in this case, rather than focusing only on Section Two. The entire text of the VRA is not relevant to resolving the dispute, as a court only looks to an entire enactment to give words consistent meaning throughout, but here the court is not construing the meaning of words but the effect of the structure of the Act.[58] In other words, it does not need to look outside Section Two to find an answer available in Section Two. Further, Section Two grants the right to be free from voting discrimination as a statutory right.[59] By conferring the right, Congress has already assigned the remedy and the person who may enforce the Act, the right-holder. If this is not the case, then Congress has only created a right in which the right-holder is dependent on another person to enforce; this is no right at all. With this in mind, it should be assumed that Congress gave the right to vote alongside the right to pursue a remedy.[60] Further, in Section Twelve, they additionally gave the enforcement right to the Attorney General.[61]
Though the Supreme Court has never expressly decided whether Section Two includes the right to a private cause of action, it has heard several Section Two cases without mentioning this issue.[62] For that matter, it has decided a Section Two case as recently as 2021.[63] For the first time, in 2021, a Justice asked, without answering, whether such a cause of action exists.[64] But in every case where the Supreme Court has had a Section Two issue, they have proceeded as if there were a cause of action.[65] As Chief Judge Smith notes in his dissent, the cause of action has always been implied by federal courts because of the Blackstonian principle that there is no right where there is no remedy.[66] Furthermore, although the Supreme Court has not explicitly held that a private cause of action exists under Section Two, it has held private causes of action exist in other parts of the VRA where it is not explicitly set forth.[67] In particular, the Court has adopted a reasoning in two cases that could have applied in Ark. State Conference NAACP. In Allen v. State Board of Elections, the Court held that a private cause of action exists to challenge a change in voting laws without prior approval under Section Five.[68] As well, the Court found in Morse v. Republican Party of Virginia that an implied private cause of action exists when alleging an unlawful poll tax under Section Ten of the VRA even though the Attorney General is explicitly enabled to enforce Section Ten.[69] And in Morse the Court stated, “[a]lthough § 2, like § 5, provides no right to sue on its face, ‘the existence of the private right of action under Section 2 . . . has been clearly intended by Congress since 1965.’”[70] While this is dicta, as deciding whether a private cause of action exists under Section Two was not at issue in this case, the Court treats as obvious the conclusion that the VRA, particularly Section Two, is privately enforceable.[71]
Both the Section 5 and the Section 10 decisions by the Supreme Court are highly persuasive, if not binding, precedent the Eighth Circuit should have followed. If the structure of the VRA permits a finding of a private cause of action under Section Five, even though it is not explicit, the same should be true of Section Two, and even more so if a private cause of action can be implied under Section Ten which is express in giving the Attorney General enforcement power. As such, the majority erred in not abiding by the Supreme Court’s reasoning in past VRA cases.
The Court in Allen noted the goals of the VRA could be “severely hampered . . . if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General.”[72] And of course this is true; the Attorney General, regardless of how much he or she cares about fair voting practices, will never care about them as much as the person who is denied the opportunity to participate in a fair election. Particularly, without private rights to sue under Section Two, Black voters are left without a remedy for the widespread practices diluting the value of their vote,[73] although they putatively still have the “right” to engage in a fair election.[74]
Without the remedy in their hands, it remains to be seen what will come of that right. As gerrymandering becomes more prominent, and districts become increasingly partisan, not having a remedy is the same as not having a right.[75] And for the sixteen and a half percent of the population of Arkansas who are Black, that may mean they are never treated as sixteen and a half percent of the population, forever destined to be treated as only eleven percent,[76] merely because the remedy has been taken away from them.
The VRA was enacted to address “entrenched racial discrimination in voting.”[77] So entrenched is the racial discrimination that led to the VRA that nearly sixty years after its enactment, drawing election lines based on race is still commonplace, perhaps more commonplace, than at its passage.[78] Now is a terrible time to divorce the rights promised in the VRA from the remedies private plaintiffs have sought for sixty years under Section Two of the VRA. But by incorrectly applying canons of construction and ignoring the Supreme Court’s VRA cases to exclude private plaintiffs, the Eighth Circuit has done just that. So, for now, Black voters in Arkansas have the right to participate in fair elections, they just can’t do anything under the law to ensure elections are fair in the first place.[79]
[1]See e.g., Marbury v. Madison, 5 U.S. 137, 163 (1803) (citing vol. 3 of Blackstone’s Commentaries on the Laws of England and Wales to support the proposition that the English common law has always provided a cause of action where the law has provided a right).
[2]Id.
[3]3 William Blackstone, Commentaries on the Laws of England 23 (Avalon Project ed. 2008) (1768).
[4]Ark. State Conference NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1206–07 (8th Cir. 2023).
[5]Id. at 1207.
[6]Id. The majority rather flippantly describes this kind of litigation as “[q]uarreling over district lines” instead of voter disenfranchisement, the actual claim brought. Id.
[7]Julia Kirschenbaum & Michael Li, Gerrymandering Explained, Brennan Ctr. for Just. (June 9, 2023), https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained [https://perma.cc/6NHC-K7F6].
[8]Id.; John Adams, II. To John Penn, 27 March 1776, Founders Online, https://founders.archives.gov/documents/Adams/06-04-02-0026-0003 [https://perma.cc/DVR7-9GVU] (last visited Jan. 22, 2025).
[9]See Kirschenbaum & Li, supra note 7.
[10]See id.
[11]Michael Li & Tim Lau, Q&A: The Emerging Fight Over Gerrymandering, Brennan Ctr. for Just. (Mar. 16, 2021), https://www.brennancenter.org/our-work/research-reports/emerging-fight-over-gerrymandering [https://perma.cc/8SL6-H4KD]. Nevertheless, both parties gerrymander; it is not solely a Republican tactic. Id.
[12]See Kirschenbaum & Li, supra note 7.
[13]Ark. State Conference NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1209–13 (8th Cir. 2023).
[14]Id. at 1207
[15]Id.
[16]America Counts Staff, Arkansas Population Topped 3 Million in 2020, United States Census Bureau (Aug. 25, 2021), https://www.census.gov/library/stories/state-by-state/arkansas-population-change-between-census-decade.html.
[17]Ark. State Conference NAACP, 86 F.4th at 1207.
[18]Id. The majority phrases these allegations as mere “[q]uarreling over district lines”, a rather demeaning take on alleged infringements of voting rights. Id.; see also Kirschenbaum & Li, supra note 7.
[19]Id. at 1208 (emphasis in original).
[20]Id. at 1207–08, 1218.
[21]Id. at 1207–08.
[22]Shelby Cnty. v. Holder, 570 U.S. 529, 535 (2013).
[23]R. Sam Garrett, Cong. Rsch. Serv., R47520, The Voting Rights Act: Historical Development and Policy Background 5–6 (2023). During Reconstruction, Black men’s voting rights were enforced by Federal troops, but once Reconstruction ended, and Jim Crow laws were implemented, the Fourteenth and Fifteenth Amendments were disregarded by legislatures in the South. Id. In the absence of Federal presence, disenfranchisement was commonplace in the form of “literacy tests, poll taxes, and property qualifications” among others. Id. at 6.
[24]Id. at 8–9.
[25]Gerald D. Jaynes, Little Rock Nine, Brittanica (Dec. 12, 2024), https://www.britannica.com/topic/Little-Rock-Nine [https://perma.cc/J84N-GCBT].
[26]The Civil Rights Act of 1964: A Long Struggle for Freedom, Libr. of Cong., https://www.loc.gov/exhibits/civil-rights-act/civil-rights-era.html [https://perma.cc/5SZD-WTSW] (last visited Jan. 23, 2025).
[27]Id.
[28]Id.
[29]Id.
[30]See generally id.
[31]Introduction to Federal Voting Rights Laws, Civ. Rts. Div.: U.S. Dep’t of Just. ( Aug. 16, 2018) [hereinafter Civil Rights Division], https://www.justice.gov/crt/introduction-federal-voting-rights-laws [https://perma.cc/3FZ9-2LYK].
[32]Id.
[33]See Garrett, supra note 23, at 10.
[34]Id.
[35]Id. at 5.
[36]Id. at 10.
[37]Civil Rights Division, supra note 31; Garrett, supra note 23, at 11 (citing § 5 of the Voting Rights Act of 1965).
[38]About Section 5 of the Voting Rights Act, Civ. Rts. Div.: U.S. Dep’t of Just. (Nov. 17, 2023), https://www.justice.gov/crt/about-section-5-voting-rights-act [https://perma.cc/RV4Q-XYE2]; Civil Rights Division, supra note 31.
[39]City of Mobile v. Bolden, 446 U.S. 55, 62 (1980).
[40]Nabiha Aziz, Dog Whistles and Discriminatory Intent: Proving Intent Through Campaign Speech in Voting Rights Litigation, 69 Duke L.J. 669, 679 (2019).
[41]Garrett, supra note 23, at 21 (citing Voting Rights Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 445). Compare the original language, “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color[,]” Voting Rights Act (1965), National Archives, https://www.archives.gov/milestone-documents/voting-rights-act [https://perma.cc/5TUE-79E7] (last visited Jan. 23, 2025), with the current language, “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a) (emphasis added).
[42]Ark. State Conference NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1208 (8th Cir. 2023).
[43]52 U.S.C. § 10308(d).
[44]Ark. State Conference NAACP, 86 F.4th at 1208.
[45]Id. at 1211 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012)).
[46]See id. at 1209.
[47]Id. at 1208 (“Many statutes simply say when a private right of action is available. . . . When those details are missing, it is not our place to fill in the gaps, except when ‘text and structure’ require it.”). This would seem to stand in contradiction to Blackstone stating that the grant of a right is always accompanied by the right to seek remedy for its violation. Blackstone, supra note 3.
[48]Ark. State Conference NAACP, 86 F.4th at 1209.
[49]Id. at 1208.
[50]See generally 52 U.S.C. § 10301; Marbury v. Madison, 5 U.S. 137, 163 (1803).
[51]Ark. State Conference NAACP, 86 F.4th at 1207–11.
[52]See id.
[53]These are only a few of the considerations; another may be that the Attorney General is apathetic or outright opposed to the Voting Rights Act itself. See e.g., Julia Craven, Jeff Sessions Calls Voting Rights Act ‘Intrusive’, HuffPost (Jan. 10, 2017), https://www.huffpost.com/entry/jeff-sessions-voting-rights-act_n_587520a2e4b099cdb0ffc2c1 [https://perma.cc/6SSQ-Y9YY] (describing a past Attorney General’s indifference towards enforcing the VRA).
[54]Ark. State Conference NAACP, 86 F.4th at 1208; Expressio Unius Est Exclusio Alterius, Black’s Law Dictionary (11th ed. 2019).
[55]Ark. State Conference NAACP, 86 F.4th at 1210.
[56]See 52 U.S.C. § 10301.
[57]Ark. State Conference NAACP, 86 F.4th at 1210–11.
[58]The “whole-text canon” or “textual-integrity canon” does not apply here as it applies only to give words consistent meaning throughout an entire statute or Act. See Whole-Text Canon, Black’s Law Dictionary (11th ed. 2019). The term “textual-integrity canon” is more appropriate in stating the scope of the canon, namely that a word in a statute or Act has a consistent meaning throughout. Here, the court is not construing a word but a legal effect of the Act’s structure.
[59]§ 10301.
[60]See Marbury v. Madison, 5 U.S. 137, 163 (1803).
[61]§ 10308(d).
[62]Ark. State Conference NAACP, 86 F.4th at 1218–19 (Smith, C.J., dissenting).
[63]See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2330 (2021).
[64]Id. at 2350 (Gorsuch, J., concurring).
[65]Ark. State Conference NAACP, 86 F.4th at 1218–19 (Smith, C.J., dissenting). See generally e.g., Bartlett v. Strickland, 556 U.S. 1 (2009); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006); Voinovich v. Quilter, 507 U.S. 146 (1993). For a longer list of the Supreme Court’s Section Two cases, refer to the citations in Chief Judge Smith’s dissent in Ark. State Conference NAACP, 86 F.4th at 1218–19.
[66]Ark. State Conference NAACP, 86 F.4th at 1220 (Smith, C.J., dissenting).
[67]See e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 557 (1969).
[68]Id. at 556–57. For a brief discussion of Section Five, refer to discussion, supra Section II.B.
[69]Morse v. Republican Party of Virginia, 517 U.S. 186, 231–32 (1996).
[70]Id. at 232.
[71]Id.
[72]Allen, 393 U.S. at 556.
[73]See discussion supra Section I.
[74]52 U.S.C. § 10301.
[75]See discussion, supra Section I.
[76]Ark. State Conference NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1207 (8th Cir. 2023); Arkansas Population Topped 3 Million in 2020, supra note 16.
[77]Shelby County v. Holder, 570 U.S. 529, 535 (2013).
[78]See discussion on gerrymandering’s prevalence, supra Section I.
[79]See Ark. State Conference NAACP, 86 F.4th at 1207.