A decision by a three-judge panel of the United States Court of Appeals for the Eighth Circuit late last month concerning Section 2 of the federal Voting Rights Act of 1965 (VRA), in Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment, has caused a stir throughout the nation, especially among civil rights groups and voting rights advocates. The 2-1 ruling from the Eighth Circuit panel held, contrary to the seemingly settled practice in the Supreme Court and other federal appellate courts, that Section 2 of the VRA does not itself confer on private plaintiffs the right to sue defendants who are alleged to be violating the law. If allowed to stand (or become the law everywhere and not just in the Eighth Circuit), this ruling, say voting rights groups, could be catastrophic for voting equality in the United States.
My own take is, at least at this point, somewhat less extreme. To be sure, there may be many grounds for criticizing the Eighth Circuit panel’s opinion, and there are reasons to think the ruling might be undone, either by the whole circuit if the case is taken up en banc, or by the Supreme Court if it ends up reviewing this dispute. But even if the Eighth Circuit ruling remains intact (or is affirmed on its own terms by the court sitting en banc or the Supreme Court), I think (as I explain below) that there are readily available workarounds that victims of VRA breaches can invoke to redress violations.
But first, a quick look at the topic of “implied rights of action” under federal statutes, the doctrinal area in which the Eighth Circuit opinion is located.
When Congress enacts a law, it does not always make clear who shall be empowered to enforce the enactment. Is it the Department of Justice only? Or other federal administrative agencies? Or private individuals who suffer injury when the law is violated? Or all of them? Silence on Congress’s part often requires federal courts to decide whether a so-called private right to sue (or a private right of action) is “implied” by the way Congress wrote and structured the statute, notwithstanding Congress’ failure to address the question of private enforcement explicitly.
The Supreme Court’s attitude on “implied rights of action” has evolved over the last two generations. In cases from the 1960s and 1970s (such as 1964’s notable J.I. Case v. Borak ruling), the Court tended to be somewhat generous in inferring private causes of action in federal statutes, drawing largely on legislative history and the Court’s implicit presumption that private supplementation of public enforcement would generally align with Congress’s desires that would-be violators be deterred from statutory transgressions as much as possible. In recent decades, as the Eighth Circuit correctly noted, the Court’s attitude has changed a great deal, to the point where many Justices think that if a private cause of action is to be provided for, Congress, and Congress alone, should be the one to say so. As the Eighth Circuit put the point, “[g]one are the days of divining ‘congressional purpose.’”
It is against this backdrop that the Eighth Circuit evaluated Section 2 and the rest of the VRA. Section 2 prohibits race discrimination in voting by providing that:
No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.
Looking at this language, against the backdrop of the rest of the text of the VRA, the Eighth Circuit concluded that the modern test for recognizing a private right to sue—Congress’ enactment of an individual right and clear empowerment of private plaintiffs to enforce the right—had not been satisfied.
Without digressing too much into the Eighth Circuit’s reasoning, let me mention a few bases on which many people might disagree with it. The parsing of the statutory text might seem overly mechanical to some critics. More importantly, the application of the “modern” approach concerning implied causes of action to a statute, like the VRA, that was enacted by Congress at a time when the Supreme Court employed a very different (and more capacious) approach to the implied-rights-of-action question might seem like a bait and switch. (Recall that the seminal J.I. Case v. Borak ruling mentioned earlier that embodied the Court’s earlier approach was handed down just a year before the VRA.) Applying new regimes of statutory interpretation to statutes enacted at a time when earlier interpretive regimes were in place is always somewhat problematic.
Which brings us to statutory stare decisis (that is, statutory precedent by the courts); the fact that the other federal courts of appeals, and the U.S. Supreme Court, for that matter, have seemed to take for granted that there is a private right to sue under Section 2 of the VRA (putting aside whether most of these courts have so held explicitly), coupled with the fact that Congress has never stepped in to correct any misimpression these courts might be laboring under, is a relevant consideration. True, judicial assumptions about a private right of action are not the same thing as judicial holdings to that effect (since the question is not jurisdictional and courts have no duty to raise the question if the parties have not), but the fact that all parties seemed to have taken for granted the existence of a private right of action cannot be completely ignored, especially since statutory stare decisis has always been said to be stronger than constitutional stare decisis.
But let us assume that the Eighth Circuit is right on the merits of whether the VRA contains a private right of action. Even if so, how impactful is such a ruling? The existence of an implied right of action under a particular federal statute can be a very important question—which is why the Supreme Court Justices spend time dealing with such issues — but it tends to matter most when plaintiffs seek to sue private (as opposed to public) defendants, and when plaintiffs seek backward-looking damages (rather than forward-looking relief.) That is because, as regards public-official defendants against whom only forward-looking injunctive relief is sought, there are two big alternatives plaintiffs can use besides arguing for a private right of action under the particular statute they claim is being violated: 42 U.S.C. § 1983, and the so-called Ex Parte Young action. Both of these devices obviate the need for a specific overt or implied private right of action under the particular statute that is allegedly being flouted. And both of these devices would seem to be readily available to plaintiffs who sue under Section 2 of the VRA, since VRA defendants are almost always governmental actors (rather than private persons or entities), and the relief sought is almost always injunctive relief directed at the relevant state election officials to prevent them from implementing the election rules or voting mechanics that are said to discriminate on the basis of race.
Let’s look at Section 1983 first. It provides, in relevant part:
Every person who, under color of any [state law] subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . . . (emphasis added).
The key words, for our purposes today, are the italicized “and laws.” By its explicit terms, Section 1983 provides a cause of action against any person who uses state or local governmental authority to violate federal statutes, including the VRA. In the 1980 case of Maine v. Thiboutot, the Court held that “laws” goes beyond the Constitution and includes statutes enacted by Congress. In a case just last term, Health and Hospital Corp. of Marion County v. Talevski, at least six of the Justices firmly doubled down on Thiboutot’s holding that “laws” encompasses all federal statutes, and not some subset thereof. (In Talevski, the claim was unsuccessfully made that laws Congress enacts under its Spending Clause powers do not qualify under Section 1983 because such laws are essentially contracts between the federal government and states, and such contractual agreements should be enforceable only by the contracting parties—not private individuals who are more akin to third-party beneficiaries. Even had such an argument prevailed, it would have no relevance to the VRA, which is a regulatory statute that was enacted under federal powers other than the Spending Clause; states and localities are bound to comply with the VRA not because they voluntarily agree to.)
When invoking a “law” for purposes of Section 1983, a plaintiff need not show she has a private right of action under that law (lest Section 1983 would be essentially redundant), but a plaintiff still does need to show the “law” she invokes does confer (or, to use Section 1983’s term, “secure”) an individual “right” (as distinguished from a “right to sue” or “cause of action”) in the sense of a creating benefits that defendants are obligated to abide by for the class of which the plaintiff is a member. In this regard, Section 2 of the VRA would seem to pass muster. As the excerpt from the VRA above demonstrates, the VRA is explicitly designed to protect the “right” (emphasis added) of “any citizen” to vote free from racial discrimination. Such wording is, to use the Court’s phrase in Talevski, “rights-creating,” “individual-centric language” with an “`unmistakable focus on the benefited class”—namely, victims of racial discrimination at the ballot box.
At the very end of its opinion, the Eighth Circuit seemed to recognize this alternative route for VRA plaintiffs, but declined to allow the plaintiffs before it to amend their pleadings to add a Section 1983 claim, on the ground that it is not “beyond doubt” that Section 1983 would apply. Very little in this world is beyond doubt, but the Eighth Circuit certainly gave no reasons for thinking Section 1983’s clear reference to laws, especially in light of this summer’s reaffirmation in Maine v. Thiboutot, would not do the trick.
Which brings me to another avenue (one completely unmentioned by the Eighth Circuit) available to VRA plaintiffs who seek only forward-looking compliance on the part of state and local officials (which, as noted above, describes nearly all VRA plaintiffs): the Ex Parte Young device (named for a 1908 case by the Court). For over a century, the Supreme Court has, as Justice Antonin Scalia put things in an opinion eight years ago in Armstrong v. Exceptional Child Care, Inc., “long held that federal courts may . . . grant injunctive relief against state officers who are violating, or planning to violate federal law. . . . The ability to sue to enjoin . . . actions by state and federal officers [who are engaged in ongoing violations of federal law] is a creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” As many lower courts, taking their cue from the Supreme Court, have observed, to invoke Ex Parte Young to obtain federal court relief, the plaintiffs need only: (1) name as defendants the individual state officials responsible for enforcing the state rules that are alleged to violate federal laws; (2) allege an ongoing violation of federal law; and (3) seek relief that is properly characterized as forward-looking or prospective.
Thus, under Ex Parte Young, it is not even clear that a plaintiff need demonstrate enjoyment of an individual “right” under the federal statute that state officials are allegedly violating (as is required under Section 1983), much less a “right of action” under the relevant statute (the issue the Eighth Circuit addressed). To be sure, any plaintiff in federal court needs to have standing, which requires that a plaintiff assert an injury in fact, and which generally forbids a person from asserting the rights of others (a doctrine known as the general ban on “third-party” standing). So a VRA plaintiff in federal court would need to show she was injured by the alleged VRA violations, and that she is within the general zone of interests protected by the VRA such that she is not asserting someone else’s VRA rights. But establishing those standing requirements seems less onerous than proving one has a “right” under a statute, much less proving that one has a “right of action” under the statute.
To be sure, the Section 1983 and Ex Parte Young devices may both be hedged by some limitations (as to, for example, the precise scope of the remedies available, the availability of attorney’s fees, etc.) And Congress can, if it chooses, affirmatively displace Section 1983 actions and Ex Parte Young actions by providing alternative enforcement mechanisms that evince a desire to cut out private enforcement. But just as silence by Congress should not necessarily be read to support a private right of action (according to the reasoning of the Eighth Circuit), so too silence by Congress cannot be understood to displace Section 1983 or Ex Parte Young. There is a lot of analytic room between Congress not providing for a private right of action under a statute and Congress wanting rights under that statute to be excepted from Section 1983 and Ex Parte Young. And as far as the VRA goes, there is certainly no indication that Congress affirmatively disfavors private enforcement.
Some pessimists may fear that the Supreme Court will in the coming years pull back on Section 1983 and Ex Parte Young. Perhaps it will, although the recent Talevski case suggests otherwise with respect to Section 1983. It is possible that some Justices may continue to press for cutting back private suits invoking laws passed under the Spending Clause, but the VRA (which as pointed out earlier is a regulatory law that has nothing to do with any quasi-contract between the federal government and the states) seems a particularly unlikely statute for the Court to use to cut back on the meaning of “laws.” And while Court cases over the past few decades at the time seemed to some observers to portend additional limitations on the Ex Parte Young device (e.g., Seminole Tribe v. Florida in 1996 and Idaho v. Coeur D’Alene Tribe of Idaho in 1997), these cases did not end up changing the landscape much. But in any event, possible moves by the Supreme Court in the future have little to do with the Eighth Circuit’s recent ruling; with or without that ruling the Supreme Court will do what it will do. So my main point remains that the Eighth Circuit’s ruling by itself may not change much in the real world going forward (putting aside its impact on the particular VRA plaintiffs in that case, who apparently will be unable to go back and add a Section 1983 or Ex Parte Young claim).