This month, the Federal 8th Circuit Court ruled 2-1 that individual citizens and civil rights groups cannot bring voting rights lawsuits under Section 2 of the Voting Rights Act (VRA). They ruled that only the Department of Justice (DoJ) can do so because there is no specific language in the VRA allowing "a private right of action."
Section 2 is the last remaining portion of the VRA that our Republican-dominated Supreme Court (SCOTUS) has not yet completely gutted. For almost 60 years, individuals and groups have used Section 2 to defend the voting rights of nonwhite and poor Americans. But if this new ruling stands it will mean that enforcement of what remains of the VRA is left entirely in the hands of whichever political party controls the White House — even if they achieved that power through voter-suppression, racial gerrymandering, or outright fraud.
Prior to passage of the VRA in 1965, only individuals could file voting rights petitions and cases in federal courts under the previous civil rights acts and the constitution. The DoJ was not allowed to bring actions on its own. But Black folk who dared demand the right to vote in the South faced false arrests on trumped up charges, beatings, terrorist bombings, and assassinations. So too did they face economic terrorism — eviction, firing, and boycotts. Today, individuals who defy white supremacy also risk doxxing, cyberbullying, and cyberstalking.
Throughout the 1950s and early '60s, the Freedom Movement fought for a law that would allow the DoJ to file voting rights suits on its own. We tried to get that clause added to the Civil Rights Acts of 1957, 1960, and 1964 — but right-wing racists in Congress defeated us each time.
It was not until the VRA was enacted after Selma and the March to Montgomery in 1965, that language was included allowing the Attorney General (meaning the DoJ) to take action on its own without requiring individuals to put their lives and livelihoods on the line by filing a petition or suit. Since then, defense of voting rights has stood on two legs: direct DoJ action and private actions by individuals & organizations.
But today the situation is changed. As we saw during the Trump regime, an Attorney General can use the DoJ to undermine the voting rights of poor and nonwhite citizens rather than defending them. And now Trump-appointed judges have ruled that individuals cannot defend their voting rights in court under the VRA. If their ruling is upheld by SCOTUS, what little is left of the VRA will be gutted and national voting rights will rest solely in the hands of whomever is elected to the White House — possibly with fewer votes than their opponent, and possibly through voter suppression or a rigged election.
The Civil Rights Acts of 1957 and 1960 contained no explicit "private right of action" language, and only Title VII (employment discrimination) of the 1964 Act had such language. Yet individuals were able file petitions and lawsuits to enforce those acts because decades of SCOTUS rulings affirmed that — of course — individuals can use federal law to seek justice. So explicit "private right of action" language was not included in the VRA because the right of individuals to sue for redress under federal law was an assumed given.
The Trump-appointed judges who just rejected that long-standing assumption know that a Republican-dominated SCOTUS is eager to overturn decades of established law to further the political aims of their party. If SCOTUS upholds this 8th Circuit ruling, the rights of individuals to bring cases under all other civil rights laws about segregation, housing discrimination, gender equality, fair government funding and contracting, and so much more, can be eliminated by follow-on SCOTUS rulings based on their specious "no explicit language" argument.
And that is the long-range goal of the extreme, white-nationalist zealots who control the Republican Party.
For more background:
Federal Court Moves to Drastically Weaken Voting Rights Act, NY Times 11/20/23
How the Voting Rights Act, Newly Challenged, Has Long Been Under Attack, NY Times 11/21/23
Copyright © Bruce Hartford
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