Can Citizens Sue for Vote Dilution? 8th Circuit Says 'No'

A recent decision in the 8^th Circuit Court of Appeals may have passed under your radar, but this ruling is incredibly significant. It involves vote dilution and could shape the fabric of democracy that is so foundational to the United States. But the court didn't actually rule on anything about vote dilution itself. Rather, it knocked some teeth off of voting rights laws by deciding that citizens cannot sue for violations — only the government can enforce them. We'll give you a low-down on voting laws and explain why this decision is so controversial.

Vote Dilution: 'Packing' & 'Cracking'

“Vote dilution" is a buzzword you may have heard a lot in the past decade, especially around national elections. This is a type of voting rights violation that occurs when the structure or process established around an election does not give certain demographic groups an equal opportunity to elect candidates they support. This means that their votes do not have equal power to influence the outcome of elections. The debate often centers on whether voters of color are being disadvantaged.

Vote dilution has a number of harmful consequences. When minority votes are diluted, they are less likely to have their voices heard in government, which can lead to policies that are not reflective of the needs of minority communities. It's also a bit of a self-perpetuating cycle: when voters feel like their votes do not matter or that the system is rigged against them, they are less likely to participate in elections, which makes it more difficult for them to hold their elected officials accountable. Further, this system creates distrust in the results of elections, which can erode faith in democracy and lead to civic unrest.

How does vote dilution happen? It can take many forms, and a major one, “gerrymandering," is done through redistricting. Redistricting to the point of gerrymandering involves drawing electoral districts in a way that vastly favors one party. There are a couple of different ways to gerrymander, and the complaint in this case brings up two of them: packing and cracking.

In the context of vote dilution, “packing" is a tactic that involves drawing electoral district lines in a way that concentrates a specific group of voters into a single district. This group is often characterized by a shared racial, ethnic, or political identity. By packing a large number of these voters into one district, their voting power is diluted in all other districts, reducing their overall influence on election outcomes.

Packing is often used in conjunction with another gerrymandering tactic called “cracking." This is when a group's voters are dispersed across districts in a way that prevents them from having a significant voice in any one district. Both packing and cracking achieve a similar goal: diminishing the influence of a specific group on election outcomes. MIT's Election Lab provides some helpful charts and further explanations of packing and cracking strategies.

The Voting Rights Act

Are these strategies illegal? After all, the Voting Rights Act of 1965 prohibits discrimination against racial or language minority voters in voting. It was passed to address entrenched racial discrimination in voting; states with a history of discrimination had to “preclear" any voting-law changes with the Attorney General or a three-judge court in D.C. Other provisions of the act had to be followed regardless of the state. Importantly, section 2 of the VRA prohibits states and their subdivisions from enacting any “standard, practice, or procedure" that denies or abridges “the right of any citizen of the United States to vote on account of race or color."

At first, the new law was interpreted to mean that only purposeful exclusion of voters was against the law. It was not enough to just show that the effect of the law was discriminatory. But this changed when Congress rewrote the law to include situations where the result was abridged voting rights, regardless of the intention.

Packing is typically considered illegal under the Voting Rights Act if it can be shown to be based on racial or ethnic discrimination. However, proving such intent can be challenging. When only the effect and not the intention can be shown to be discriminatory, the legal battle gets a lot closer.

Arkansas Advocates Attempt to Sue

One such battle was waged in Arkansas recently, brought by the Arkansas State Conference NAACP and the Arkansas Public Policy Pane, two advocacy groups with members in the state. These plaintiffs alleged that when the state's Republican politicians drew the new map of voting districts, they engaged in both packing and cracking. They argued this violates the Voting Rights Act by abridging black residents' right to vote by creating supermajorities in a few districts and spreading out the remaining black voters in the others.

They pointed to the fact that about 16.5% of the population in Arkansas was black, but that only 11% of black voters' preferred candidates are predicted to win. Why the disparity? The plaintiffs say that only 11 out of the 100 state House districts under the new voting map are majority-Black districts, meaning candidates with majority-Black support should do well. The plaintiffs did not allege that the discrimination was intentional but still asked the court to intervene to stop the new map from being used because the effects were still discriminatory.

If this seems like a straightforward legal case, here's the monkey wrench you've been waiting for: it wasn't clear whether or not the advocacy groups could bring the lawsuit in the first place. Sure, the law made the type of action in question possibly illegal. But like many statutes, the Voting Rights Act also specified who could bring the suit. For someone to bring a lawsuit under this law or any other, “Congress must have both created an individual right and given private plaintiffs the ability to enforce it," as the court said.

Furthermore, the law did not make the answer to the question of whether parties like the advocacy groups from Arkansas had a right to action. When statutes are murky on questions, it means Congress failed to write the answer into the text of the statute (or failed to write it clearly) when they wrote the law in the first place. It also means that the question is then passed to the courts to answer it.

Court Wary of Judicial Overreach

The problem is that courts don't like doing Congress' job for them. This is sometimes referred to broadly as “judicial activism" in milder cases, or “judicial overreach" in more aggressive ones. Specifically, as the 8^th Circuit stated, the question of when to imply a cause of action has been controversial for a while largely because having the courts decide the question of who can sue bypasses the legislative process. After all, the U.S. Supreme Court has ruled that “private rights of action to enforce federal law must be created by Congress."

Originally, various provisions of the statute including section 2 said that the Attorney General could bring a lawsuit for violations of the Act, but did not mention who else could do the same. Other provisions such as section 12 explicitly gave this ability to individuals who were affected by the violation. And yet other provisions such as section 3 originally mentioned only the Attorney General having this power, but were later amended by Congress to explicitly extend that ability to “aggrieved persons," meaning people that were directly affected by their vote being diluted.

But section 2 was never amended to explicitly extend the right to sue to anyone beyond the Attorney General. The majority wrote: “If the 1965 Congress 'clearly intended' to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended § 2?" They were not convinced, and held that the parties in this case could not sue under the law.

What Next for Violated Voters?

Although that might have been the appellate court's ruling here, all hope is not lost for such plaintiffs. The issue is far from settled, even at the 8^th circuit; the decision was far from unanimous, and the Chief Judge wrote a notable dissent. He wrote that while the Supreme Court has never directly addressed the existence of a private right of action under § 2, it has repeatedly considered such cases. In some cases, SCOTUS has held that private rights of action exist under other sections of the VRA; in others, it has concluded that a private right of action exists under § 2. He said: “Until the Court rules or Congress amends the statute, I would follow existing precedent that permits citizens to seek a judicial remedy."

The Chief Judge also highlighted why the ruling is so significant: “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government's agents for protection." What does all of this mean? It's a sign that SCOTUS will one day, maybe soon, have to answer the question it's been avoiding to finally settle the law of the land.

Related Resources

• Voting Laws: All You Need to Know (Findlaw's Voting Rights)
• The Voting Rights Act of 1965 Overview (Findlaw's Learn About the Law)
• Courts Continue to Pass the Buck on Gerrymandering Cases (Findlaw's Federal Courts)