Mother Jones; Carolyn Kaster/AP; Unsplash
On November 20, a three-judge panel on the 8th Circuit Court of Appeals ruled that private plaintiffs could not bring lawsuits to enforce Section 2 of the Voting Rights Act, the key remaining provision of the landmark civil rights law, which prohibits voting practices and procedures that discriminate against voters of color. “The statute is silent on the existence of a private right of action,” wrote Judge David Stras of Minnesota, who was appointed by Donald Trump. Stras’ opinion represented the latest salvo against voting rights by the dark-money network linked to Federalist Society co-chair Leonard Leo.
The 8th Circuit’s decision applies only to states under its jurisdiction—Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—but if adopted nationwide it would strike a near-fatal blow against the Voting Rights Act. The opinion said that only the US Attorney General could bring lawsuits to enforce Section 2, but the vast majority of such cases are brought by private plaintiffs, typically individual voters represented by voting rights groups. As Judge Lavenski Smith, an appointee of George W. Bush who is the only Black judge on the 8th Circuit, noted in his dissent, of the 182 successful Section 2 cases over the past 40 years, only 15 were brought solely by the attorney general. If voting rights litigation were dependent on the Justice Department, it would slow to a trickle—or, under a hostile administration, to a halt.
“The panel’s decision threatens to make the promise of the Voting Rights Act hollow,” says Sophia Lin Lakin, director of the ACLU’s Voting Rights Project. Voting rights groups recently filed a new motion asking the full 8th Circuit to rehear the case and overrule the holding of the three-judge panel.
Stras’ opinion was joined by Raymond Gruender, a George W. Bush appointee from Missouri. Both judges are longtime members of the Federalist Society who appeared on a short list of possible Supreme Court justices that Leo prepared for Donald Trump in the spring of 2016. Trump touted the list to solidify his standing with skeptical conservative voters, which helped him clinch the GOP nomination and win the presidency.
The appointment of right-wing judges was not the only way that Leo, a driving force behind the conservative movement, influenced the Voting Rights Act case. The Honest Elections Project, a group founded in 2020 with support from Leo to advocate for restrictive voting laws and oppose efforts to make voting easier during the pandemic, filed a friend-of-the-court brief before the 8th Circuit. The group said that it had a “significant interest in this case, as it implicates the legislature’s preeminent role in setting the rules for elections and election-related litigation.” It claimed that “a significant increase in the number of Section 2 cases brought by private litigation groups” had “undermine[d] the States’ efforts to protect election integrity and to discharge their duties to draw electoral maps” and had led to a “fast decline in the confidence in elections.”
The group’s argument was similar to the “independent state legislature” theory it had aggressively pushed before the Supreme Court, which held that state legislatures had near king-like authority to craft voting laws and electoral maps without review from state courts. The Supreme Court largely rejected that position over the summer in Moore v. Harper, but Leo’s network of dark money groups has had more success attacking the Voting Rights Act. He is pursuing a two-pronged strategy—appointing reactionary conservative judges to the bench, then pushing radical theories before the courts that those hand-picked judges turn into precedent.
“This deeply flawed decision was bought, paid for, and masterminded by Leonard Leo,” Caroline Ciccone, president of the watchdog group Accountable.US, said after the 8th Circuit decision. “Leo knows if Americans are empowered to vote, his vision for our country will never be realized. Instead, he stacks the federal judiciary—all the way up to the Supreme Court—with extremist judges willing to do his bidding.”
Leo declined a request for comment.
In 2021, the Supreme Court’s conservative supermajority made it much harder to strike down discriminatory voting measures, ruling that voters of color had to prove that they faced both a substantial and disproportionate burden under Section 2.
Neil Gorsuch joined the 6-3 decision but wrote separately to “flag one thing.” He said that the court had “assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under Section 2,” but that “lower courts have treated this as an open question.”
Gorsuch, like Stras and Gruender, had appeared on the Supreme Court shortlists that Leo prepared for Trump (he was on the second iteration). He met Trump through Leo, and Leo took a leave from the Federalist Society to work on Gorsuch’s nomination. The Judicial Crisis Network, another conservative group linked to Leo, spent $7 million opposing Merrick Garland’s nomination, then $10 million supporting Gorsuch’s nomination to fill Antonin Scalia’s open seat.
It was not, in fact, an “open question” whether private plaintiffs could bring Section 2 lawsuits, as Gorsuch claimed. They had done so since the inception of the VRA in 1965, and the Supreme Court had affirmed a private right to action in other sections of the law that extended to Section 2, deciding case after case brought by private plaintiffs. Even the lower court decisions Gorsuch cited only discussed the issue in passing and said they were “assuming…that there exists a private right of action to enforce this statutory provision.”
The only justice to sign onto Gorsuch’s concurrence was Clarence Thomas, who had been close friends with Leo for decades. Leo worked on Thomas’ Supreme Court nomination, which was nearly derailed by sexual harassment allegations, before joining the Federalist Society, and he named Thomas the godparent of one of his kids. He oversaw a $1.8 million ad campaign defending Thomas on the 20th anniversary of his Supreme Court nomination and invited him to exclusive retreats with wealthy donors like the Koch brothers. Leo directed tens of thousands of dollars to Thomas’ wife, while instructing that there be “no mention of Ginni,” in order to fund key amicus briefs before the Supreme Court, including one in a pivotal voting rights case that led to the gutting of the VRA in 2013.
Thomas raised Gorsuch’s point about a lack of private action under Section 2 two years later, when the Supreme Court ruled in June 2023 in favor of Black voters and civil rights groups who alleged that Alabama was required to draw a second majority-Black congressional district under the VRA. Only Gorsuch signed on to Thomas’ dissenting opinion.
Neither justice could recruit a majority to join their opinions, but they had the intended effect of encouraging conservative judges in the lower courts to take up the issue.
In December 2021, voting rights groups sued to invalidate a state House map in Arkansas, which they contended diluted the representation of Black voters. The case was assigned to Judge Lee Rudofsky, a 44-year-old Trump appointee who had been a member of the Federalist Society since 2002. Unprompted, Rudofsky asked the voting rights groups whether Section 2 gave them the power to sue, even though the state of Arkansas, which was defending the map, never raised that claim. “To my knowledge, I was unaware of even a fringe academic who was urgently pushing this issue,” says Jonathan Topez, a staff attorney for the ACLU who argued the case before Rudofsky.
In February 2022, Rudofsky wrote that “there is a strong merits case that at least some of the challenged districts” violated the Voting Rights Act, but “this case may be brought only by the Attorney General of the United States.” When Attorney General Garland declined to intervene within the five-day deadline set by Rudofsky, he dismissed the case.
The opinion stunned voting rights advocates, who assumed it would be overturned on appeal for violating decades of precedent. But it was affirmed by Stras, who had his own connections to Leo’s sprawling network. Stras clerked for Thomas alongside Carrie Severino, a protégé of Leo’s who would go on to lead the Judicial Crisis Network. The group ran ads supporting Stras’ nomination when it was blocked by Minnesota’s Democratic senators, convincing GOP senators to override his home state opposition and confirm him to the appellate court in 2018.
Like many of the judges championed by Leo, Stras claimed to adhere to the doctrine of originalism, the idea that laws should be judged solely by the intent of the people who wrote them. Stras wrote that he couldn’t find “a single word or phrase in the Voting Rights Act in support of the conclusion that a private right of action has existed from the beginning.”
But as is so often the case with the conservative legal movement these days, Stras cherry-picked the history of the VRA to support his radical conclusion. Not only had the Supreme Court and lower courts affirmed the right of private plaintiffs to file Section 2 lawsuits on multiple occasions, but Congress explicitly granted such a power when it reauthorized the VRA in 1982.
“It is intended that citizens have a private right of action to enforce their rights under Section 2,” wrote the House Judiciary Committee. A corresponding report from the Senate Judiciary Committee “reiterate[d] the existence of the private right of action under Section 2.” These statements were submitted before the 8th Circuit in a brief by a bipartisan group of members of Congress and congressional staffers who worked on the 1982 reauthorization. “These plain pronouncements of Congress’s intention should end the inquiry,” they wrote.
But Stras simply disregarded this persuasive evidence. “There are many reasons to doubt legislative history as an interpretive tool,” he wrote.
His myopic opinion shows the lengths that Trump-appointed judges will go to weaken the VRA. The law is now under attack from every angle. Just days after the 8th circuit opinion, Judge Lisa Branch of the 11th Circuit, another Trump appointee and Federalist Society member, overruled a lower court opinion invalidating the structure of Georgia’s Public Service Commission, which regulates public utilities and has had only two Black members in over 100 years, because it violated “general principles of federalism.” The 5th Circuit Court of Appeals, the most conservative court in the country, recently overruled a lower court ruling by a Trump-appointed judge striking down a county commissioners’ map in Galveston, Texas, that eliminated the only majority-minority district. The circuit suggested that minority groups who form a combined majority, such as Black and Hispanic voters in the Galveston area, are not protected under the VRA, which would further dilute representation for communities of color. The Supreme Court recently declined to block that order, which will keep the districts that the lower court found to be discriminatory in place for 2024. Louisiana and Republican attorneys general in thirteen other states are also asking the 5th Circuit to echo the 8th Circuit’s finding that Section 2 contains no private right to action.
In 2013, when the Supreme Court first gutted the VRA in Shelby County v. Holder, ruling that states with a long history of discrimination no longer needed to approve their voting changes and electoral maps with the federal government, Chief Justice John Roberts wrote that the decision “in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2.” But conservative judges who rose to power with the support of Leo and the Federalist Society are now trying to kill what remains of the VRA. That suggests their goal is not a gutted voting rights law, but no law at all.
