Eighth Circuit Trump Judge David Stras has written an opinion doing great harm to the Voting Rights Act. Hopefully, this will be a bridge too far even for the current right-wing majority on the Supreme Court. The November 2023 case is Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment. 

What is this case about?

This is a lawsuit brought by civil rights groups to enforce the Voting Rights Act. After the 2020 Census, the Arkansas legislature adopted new district lines for the state House of Representatives. The Arkansas NAACP and others argue that the Republican-majority legislature drew lines that unlawfully dilute Black votes. 

Section 2 of the Voting Rights Act prohibits voting laws that have the effect of discriminating on the basis of race. It is one of the most important civil rights laws in American history. For decades, when those in power have schemed to impose racially discriminatory voting laws, Section 2 has stood in their way. For more than half a century, both the federal government and private parties have gone to court and used Section 2 to challenge illegal barriers to the right to vote. 

But in the new Eighth Circuit case, Trump Judge David Stras wrote an opinion ruling that private parties can’t go to court to enforce Section 2. In the divided 2-1 panel decision, the court read Section 2 to give this authority solely to the federal government, not to anyone else. So they ordered the dismissal of NAACP’s lawsuit against Arkansas. 

The ruling applies to the states of the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota). It will likely be appealed to the Supreme Court.

Civil rights groups have been filing cases like these for years. What’s changed?

No, you didn’t miss a news report saying that Congress had weakened the Voting Rights Act. It isn’t the VRA that’s changed. It’s the courts that have changed. Donald Trump and Mitch McConnell packed the courts with judges who are deeply hostile to our fundamental rights, including the right to vote. After just four years, one third of the Supreme Court and more than 30 percent of the nation’s circuit court judges were appointed by Trump. 

Yet even the current Supreme Court has continued to hear Section 2 cases brought by private parties. They have accepted such cases without asking whether those private parties had a right to file their lawsuits in the first place. The idea that the Supreme Court and the entire federal judiciary has misunderstood the VRA for over half a century is quite extreme. 

But perhaps not too extreme for Neil Gorsuch and Clarence Thomas. They brought up the issue in last June’s Allen v. Milligan case (in a dissent) and 2021’s Brnovich v. Democratic National Committee (in a concurrence). They went out of their way comment on the fact that the question of whether the parties had a right to go to court in the first place was not before the Court. 

This was a not-so-subtle invitation to far-right forces to bring them a case making that argument. It was also an invitation to far-right lower court judges to rule that way. 

Who were the judges in the Eighth Circuit case?

The majority opinion was written by David Stras, a Trump judge whose nomination People For the American Way opposed. He was joined by George W. Bush judge Raymond Gruender. 

Their attack on the VRA was too much for another Bush judge, Lavenski Smith. As Judge Smith pointed out, courts have routinely been hearing Section 2 cases brought by private parties for decades. It is not up to a lower court to assume that the Supreme Court has been making a mistake all this time. He also stressed the real-world impact of the majority’s decision: 

Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection. Resolution of whether § 2 affords private plaintiffs the ability to challenge state action is best left to the Supreme Court in the first instance. 

What can we do?

Stras made the Eighth Circuit’s decision possible by casting the deciding vote. The American people have seen the impact of having far-right judges on our courts. That is why the Biden administration has worked so hard to nominate a diverse group of fair-minded judges. And it is why Senate leaders like Majority Leader Chuck Schumer and Judiciary Committee Chair Dick Durbin are working hard to get them confirmed. 

That work will continue if senators hear from their constituents. So call your senator and let them know you support confirmation of all the judicial nominees pending on the Senate floor. Time is running out.