8th Circuit Court upholds ruling that says only the federal government can bring voting rights lawsuits

People gather in the rotunda of the state Capitol in Little Rock for a protest over Congressional redistricting bills in this Thursday, Oct. 14, 2021 file photo.(Arkansas Democrat-Gazette/Thomas Metthe)

A challenge to voting rights in which a federal judge ruled that private citizens have no right of action has been upheld by the 8th Circuit Court of Appeals, making it more likely that the ruling, issued by U.S. District Judge Lee Rudofsky, will go to the U.S. Supreme Court for the final word.

On Monday, a three-judge panel of the 8th Circuit — Chief Judge Lavenski Smith and Judges Raymond W. Gruender and David Stras — held that, "The who-gets-to-sue question is the centerpiece," of the lawsuit, "Arkansas State Conference NAACP et al v. Arkansas Board of Apportionment," saying that the U.S. Attorney General is the only plaintiff named in the Voting Rights Act with the standing to enforce Section 2. The implication of a cause of action, the judges ruled, "is bigger than just this case."

"The practice has long been controversial," the ruling said, "in part because having the judiciary decide who can sue bypasses the legislative process."

With Smith dissenting, the panel ruled to affirm Rudofsky's ruling dismissing the lawsuit but modified the dismissal to be "with prejudice," meaning the lawsuit cannot be refiled by the plaintiffs in the same court. 

In his dissent, Smith said that although the U.S. Supreme Court has never said expressly that a private right of action does exist in the enforcement of Section 2, "it has repeatedly considered such cases, held that private rights of action exist under other sections of the VRA, and concluded in other VRA cases that a private right of action exists under [Section] 2."