A federal appeals court on Wednesday shut down the ability of private individuals to bring Voting Rights Act lawsuits challenging election policies that allegedly discriminate based on race in several states, a major blow to the civil rights law that has long been under conservative attack.
The ruling, which leaves enforcement of the VRA’s key provision to the US attorney general, comes as the Trump Justice Department is gutting its civil rights division and pivoting away from the traditional voting rights work. The DOJ, for instance, dropped major lawsuits previously brought against Texas and Georgia.
The new ruling from the 8th US Circuit Court of Appeals covers the seven midwestern states covered in the St. Louis-based Circuit. The opinion means that in those states, only the Justice Department can bring lawsuits enforcing a key provision of the Voting Rights Act, which was passed by Congress in 1965 to address racial discrimination in election policies.
The 2-1 ruling from the 8th Circuit said that a separate civil rights law, known as Section 1983, did not give private individuals the right to bring VRA cases. That question had been left unanswered in a previous ruling from the circuit that said the VRA itself conferred no private right of action.
Those rulings cut against decades of cases successfully brought by individual voters to challenge election policies that violate the VRA by discriminating based on race. Several of the cases traveled up to the Supreme Court and produced rulings affirming the lower court decisions in the voters’ favor, supporting the long-term understanding that the VRA gave private individuals ability to enforce the law with lawsuits.
While some conservative justices have questioned whether such private lawsuits could be brought under the VRA, the high court has never addressed the question directly.
The 8th Circuit’s Wednesday opinion, written by George W. Bush-appointee Raymond Gruender and joined by Donald Trump appointee Jonathan Kobes, concluded that Congress had not “unambiguously” conferred a private right of action in the VRA text, while asserting that it needed to do so under Supreme Court precedent.
A dissent from 8th Circuit Chief Judge Steve Colloton, a George W. Bush appointee, pushed back on that reasoning.
“Since 1982, private plaintiffs have brought more than 400 actions based on §2 that have resulted in judicial decisions. The majority concludes that all of those cases should have been dismissed because §2 of the Voting Rights Act does not confer a voting right,” Colloton wrote.
The new ruling stems from a lawsuit alleging that North Dakota discriminated against Native Americans in its state legislative redistricting plan.
“If left intact, this radical decision will hobble the most important anti-discrimination voting law by leaving its enforcement to government attorneys whose ranks are currently being depleted,” Mark Graber, senior director for redistricting at Campaign Legal Center, which is representing the Native Americans, said in a statement. “The immediate victims of today’s decision are North Dakota’s Native American voters, who a trial court found were subjected to a map that discriminated against them on account of race.”
North Dakota’s Secretary of State office, which was defending the maps, did not respond to CNN’s inquiry.
If they seek to appeal the ruling, the Native American voters could seek a review by the full 8th Circuit – a court made up of almost entirely of GOP appointees – or they could take it straight to the Supreme Court, and its 6-3 conservative majority.
The latter path risks the gamble that the conservative majority would adopt the conclusions of the 8th Circuit panel, which would end nationwide privately brought lawsuits under the VRA’s relevant provision and leave that provision’s enforcement to the US attorney general alone.
Meanwhile, there has been a mass exodus under the second Trump administration of career officials in the DOJ Civil Rights Division, which houses the department’s voting section, and the Department has been backing out of longstanding voting rights cases.
In 2013, the Supreme Court’s conservative majority gutted a separate section of the VRA that required states with a history of racial discrimination in voting practices to get federal approval for changes in election policy.
CNN’s Ethan Cohen contributed to this report.
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