Conservatives recently fired another torpedo at the Voting Rights Act (VRA), threatening the legal right to challenge voter suppression schemes.  

In a stunning decision against the Arkansas NAACP, on Nov. 20, the 8th Circuit Court of Appeals panel upheld a lower court’s ruling that only the federal government – not private citizens and advocacy groups – could bring a legal challenge under Section 2 of the VRA.

The case, Arkansas NAACP v. Arkansas Board of Appointment, stems from District Judge Lee Rudofsky, a President Donald Trump appointee, dismissing the lawsuit in 2022 that challenged Arkansas’ new state House districts for allegedly diluting the Black vote. 

Rudofsky ruled that only the U.S. Justice Department could sue to enforce Section 2 of the VRA. 

Passed in 1965, the VRA outlawed racially discriminatory voting practices many southern states adopted after the Civil War. Opponents have chipped away at the VRA over the decades. VRA suffered a significant blow in 2013 when the U.S. Supreme Court gutted key provisions in Shelby County v. Holder.

The New York Times reports that individuals and groups, like the NAACP, have initiated the majority of legal challenges against discriminatory election laws and racially biased voting maps. The ruling would further erode the once robust VRA if allowed to stand.

The circuit court’s ruling applies only to the seven states in its jurisdiction — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, according to the Washington Post.

However, many voting rights experts predict that the Supreme Court could hear the case if the plaintiffs appeal their 8th Circuit defeat.

Here are three takeaways from the circuit court’s ruling.

1. Legal precedent

Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, told The Times that legal precedence is on the side of the plaintiffs, Arkansas NAACP and Arkansas Public Policy Panel. 

She said individuals and advocacy groups have successfully filed scores of voting rights cases under Section 2 of the VRA. 

Most recently, two of the court’s conservative justices – Chief Justice John Roberts and Justice Brett Kavanaugh – sided in June with the three justices on the court’s liberal wing in a VRA case brought by several civil rights groups against Alabama.

The U.S. Department of Justice lists multiple cases spanning decades involving a Section 2 challenge.

Weiser said she “would be surprised if this decision stands.” 

2. Conflicting conservative court rulings

The 8th Circuit’s 2-1 split decision is out of step with other judicial circuits that have considered this issue. 

As The Associated Press notes, on Nov. 10, a conservative-dominated 5th U.S. Circuit Court of Appeals in New Orleans rejected the claim that the VRA doesn’t permit private citizens and organizations to sue in a case involving a dispute over Louisiana’s congressional redistricting map. 

The 5th Circuit ordered Louisiana’s GOP-controlled Legislature to enact a new congressional map by Jan. 15 to correct district lines that diminished Black voting power.

3. We can likely expect more of these cases

The Arkansas case worries many voting rights advocates. According to The Post, some legal experts believe more judges feel emboldened to challenge longstanding precedent and diminish voting rights.

This legal environment stems from a 2021 case in which the U.S. Supreme Court’s conservative majority upheld two Arizona voting restrictions.

U.S. Supreme Court Justice Neil Gorsuch wrote a concurring opinion stating that there was no need for the justices to consider who may sue in that case. He said the court had yet to decide if the VRA allows such suits under Section 2.

“I join the court’s opinion in full, but flag one thing it does not decide. Our cases have assumed — without deciding — that the Voting Rights Act of 1965 furnishes an implied cause of action under section 2,” Gorsuch wrote, joined by Justice Clarence Thomas.

For many VRA opponents, that paragraph is an invitation to bring the issue before the courts.