Attorney General Dan Rayfield and 18 other attorneys general today filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit, supporting the right of the American people to cast their ballots free from racial discrimination. The amicus brief, filed in Turtle Mountain Band of Chippewa Indians v. Howe, specifically argues in defense of the ability of private citizens to file lawsuits under Section 2 of the Voting Rights Act (VRA) when their rights are violated.
“For nearly 60 years, the Voting Rights Act has protected the right to vote. Taking that power away now would strip one of our most important tools for fighting racial discrimination in our elections,” Rayfield said. “This case is about more than one map in one state, it’s about whether people can defend their rights when no one else will.”
Congress enacted the VRA in 1965 to guarantee that the voting rights of the American people would not be denied or restricted based on race. Section 2 of the VRA specifically prohibits state and local governments from enacting such racially discriminatory policies. For nearly 60 years, individual Americans have been able to file lawsuits to enforce Section 2 of the VRA when they believed it was violated. Without this right of private enforcement, only the U.S. Attorney General would be able to enforce the Section 2 rights of voters in the Eighth Circuit.
In 2022, individual voters and the Turtle Mountain Band of Chippewa Indians filed a lawsuit under Section 2 of the VRA challenging North Dakota’s recently enacted legislative map. After a trial, a district court found that the map diluted Native Americans’ votes, making it nearly impossible for them to have an electoral effect. A three-judge panel of the Eighth Circuit Court of Appeals reversed this decision and despite 60 years of practice to the contrary, ruled that individual voters and organizations could not sue to enforce Section 2 of the VRA. The amicus brief asks for the full Eighth Circuit court to rehear the case.
In their brief, the coalition argues that private enforcement of the VRA is essential, having served as the primary method of enforcing the VRA since its enactment. The coalition notes that approximately 400 private VRA cases have been filed nationwide, compared to only about 40 brought by the U.S. Attorney General. The U.S. Attorney General lacks the resources to monitor, investigate, and prosecute voting-rights violations in every corner of the country.
Without a private right of action, voters will have no recourse if the U.S. Attorney General does not address their concerns. The coalition also explains that lawsuits brought under Section 2 of the VRA often have a high degree of urgency since they typically pertain to upcoming elections. Without the private right of action, Americans may be limited to simply sharing their concerns with the federal government and then waiting to see whether their voting rights will be defended.
Additionally, the attorneys general emphasize the deterrent effect of having meaningful rights to enforce our voting laws. Eliminating the private right of action could lessen the likelihood that the VRA will be enforced, thereby reducing the incentives for state and local officials to comply with the VRA when crafting policy. As evidence, they point to the fact that, after a Supreme Court effectively struck down the VRA’s provision that required certain jurisdictions with a history of racial discrimination to receive federal pre-approval before changing voting laws, states previously subject to preclearance promptly enacted restrictive voting laws.
Joining Attorney General Rayfield in this amicus brief were the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota Nevada, New Mexico, New Jersey, New York, Vermont, Washington, and the District of Columbia.
