Supreme court to revisit voting rights act: key provisions under scrutiny

The Supreme Court may soon consider the scope of certain provisions under the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (VRA) and the Civil Rights Act of 1964, Pub. L. No.

88-352, 78 Stat. 241. _PRIVATE ENFORCEMENT OF SECTION 2 OF THE VOTING RIGHTS ACT_ Section 2 of the VRA bars states from denying or abridging voting rights on the basis of race, color, or

membership in a language minority group. 52 U.S.C. § 10301. Although Section 2 has historically been enforced by the U.S. Department of Justice, hundreds of cases have been brought by

private parties._ _The Supreme Court has assumed without deciding that Section 2 of the VRA provides for a private right of action. _Brnovich v. Democratic Nat’l Comm._, 594 U.S. 647, 690

(2021) (Gorsuch, J., concurring). Additionally, the Court recently upheld Section 2 in a lawsuit brought by private plaintiffs._ __Allen v. Milligan_, 599 U.S. 1 (2023). However, last year,

in a case stemming from a redistricting lawsuit, the Eighth Circuit held that there is no private right of action under Section 2 of the VRA, deviating from all other circuits addressing the

issue. Compare _Arkansas State Conf. of the NAACP v. Arkansas Bd. of Apportionment_, 86 F.4th 1204 (8th Cir. 2023) _with __Robinson v. Ardoin, _86 F.4th 574_ _(5th Cir. 2023)_ _(holding any

person “aggrieved” under Section 2 of the VRA has a private right of action) _and __Mixon v. State of Ohio_, 193 F.3d 389 (6th Cir. 1999) (holding, without analysis, that Section 2 conveys

a private right of action); _see also_ _Alabama State Conf. of the NAACP v. Alabama_, 949 F.3d 647, 652 (11th Cir. 2020), _judgment vacated as moot sub nom_. _Alabama v. Alabama State Conf.

of the NAACP_, 141 S. Ct. 2618 (2021) (observing that “[t]he VRA, as amended, clearly expresses an intent to allow private parties to sue the States”).  Although _Arkansas State Conference

of the NAACP_ will not be heard by the Supreme Court, what is required for plaintiffs to enforce Section 2 remains disputed. For instance, the Georgia Secretary of State has not only argued

that there is no private right of action under Section 2, but also asked the Eleventh Circuit to require an additional showing by the plaintiffs bringing Section 2 cases: requiring proof

that racially polarized voting is caused by race alone and demanding that the plaintiffs disentangle the reasons for voters’ preferences to disprove that polarization exists for political or

partisan reasons. Brief for the Secretary of State of Georgia, _Alpha Phi Alpha Fraternity, Inc. v. Secretary of State of Georgia_, No. 23-13914 (11th Cir. filed Feb. 7, 2024).

Additionally, an en banc panel of the Fifth Circuit recently signaled that multi-racial coalitions cannot jointly challenge voting maps under the proportional representation requirement of

Section 2 of the VRA. E.g., _Petteway v. Galveston Cnty., Tex._, 87 F.4th 721, 725 (5th Cir. 2023) (en banc) (per curium) (Oldham, J., concurring). _ACCESS TO THE POLLS AND MAIL-IN VOTING_

Issues around mail-in voting continue to be widely litigated, and many such cases around the country are winding their way through the courts. E.g., _Disability Rights Wis. v. Wis. Election

Comm’n_, No. 2024-CV-001141 (Wis. Cir. Ct. filed April 16, 2024); _Cal. Council of the Blind v. Weber_, No. 3:24-cv-01447 (N.D. Cal. filed Mar. 8, 2024); _Disability Rights Miss. v. Fitch_,

684 F. Supp. 3d 517 (S.D. Miss. 2023), _appeal docketed_, No. 23-60463 (5th Cir. Aug. 25, 2023). Litigation regarding the scope of the Materiality Provision of the Civil Rights Act as it

relates to mail-in voting has presented issues that may soon reach the Supreme Court. The Materiality Provision, 52 U.S.C. § 10101(a)(2)(B), aims to prevent the disenfranchisement of voters

because of trivial errors in voting paperwork. One such case challenges a Texas law known as S.B. 1, which imposes restrictions on mail-in voting that disproportionately impact older adults.

_La Union del Pueblo Entero v. Abbott, _No. 5:21-CV-0844-XR, 2023 WL 8263348 (W.D. Tex. Nov. 29, 2023), _appeal docketed sub nom. USA v. Paxton_, No. 23-50885 (5th Cir. Dec. 5, 2023). In

that case, the district court concluded that a voter’s ability to provide the identification numbers associated with their voter registration record is not material to their qualification to

vote in a given election. _La Union del Pueblo Entero_, 2023 WL 8263348, at *26. The court held that S.B. 1 violates the Materiality Provision, which prohibits state election officials from

denying anyone the right to vote for reasons that have no bearing on the individual’s voter qualifications. _Id._, at *33, *52. The Fifth Circuit will next decide whether the ballot-casting

requirements of S.B. 1 violate the Materiality Provision. Louis Lopez, [email protected] VIEW THE FULL SUPREME COURT PREVIEW