As the Rainstorm Continues, Must We Throw Out the Raincoat Too? Private Enforcement of Section 2 of the Voting Rights Act

Derek A. Zeigler* March, 2025

For almost six decades, the Voting Rights Act (VRA) has been a bulwark against the worst impulses of government actors who would rather manipulate the rules to stay in power than vigorously compete on the battleground of ideas. In the modern era, the U.S. Supreme Court has routinely weakened the Act’s protections, including its core remaining enforcement provision, Section 2, which protects voters from racially discriminatory policies. Today, Section 2’s continued vitality is at risk. In November 2023, the Eighth Circuit held that Section 2 lacks an implied private right of action—a decision at odds with three of its sister circuits. If the Supreme Court adopts the same position in the future, then only the U.S. Attorney General—and not private individuals—could sue to enforce Section 2. Such a result would upend decades of legal practice, undermine statutory text and congressional intent, and strip away from millions one of the most powerful means of protecting their voting rights. While the future of Section 2 private enforcement remains uncertain, this Note aims to critically examine how we got here and chart a path forward to protect the fundamental right to vote.

Introduction

On June 8, 2023, the U.S. Supreme Court resoundingly reaffirmed the guarantees of Section 2 of the Voting Rights Act, which prohibits states from enacting racially discriminatory voting policies.¹ The Court’s precedent-abiding Allen v. Milligan decision² shocked many, particularly because the “incredibly strong opinion”³ came down like a dam in a long stream of cases eroding—or outright washing away—entire sections of the Act.⁴ However, threats against Section 2 remain.⁵

One of the most nefarious anti-VRA arguments is that Section 2 does not confer a private right of action⁶—the right of private plaintiffs to sue to enforce a statute⁷—such that only the U.S. Department of Justice (DOJ) can sue to enforce it.⁸ Section 2, though, only lacks an explicit private right of action; for decades, courts have adjudicated Section 2 cases brought by private plaintiffs, assuming it confers an implied private right of action.⁹ From 1982 to 2022, the federal courts addressed at least 439 Section 2 claims.¹⁰ At least 182 were successful. Of these 182, the DOJ brought a mere 15. Private plaintiffs brought the remaining 167.¹¹ Even after the acceleration of efforts to eliminate Section 2’s private right of action in 2022, private plaintiffs have continued bringing Section 2 claims with favorable outcomes.¹² Indeed, private plaintiffs won Milligan at the Supreme Court in 2023.¹³ Absent an implied private right of action, therefore, most Section 2 enforcement would cease.

Those who argue that Section 2 lacks an implied private right of action ignore almost four decades of discourse between Congress and the Court on how to interpret the VRA’s text. This history demonstrates that Congress and the Court concurred that Section 2 does indeed confer an implied private right of action.¹⁴ Both this history and the contemporary legal context within which the VRA was born and routinely amended, respectively, are pivotal to any cogent understanding of whether Section 2 confers an implied private right of action under modern doctrine.

Nonetheless, detractors insist that private plaintiffs lack statutory authority to bring Section 2 claims. This theory gained new life after Justice Gorsuch’s concurrence in Brnovich v. Democratic National Committee. He noted that the Court’s cases “have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied cause of action under § 2.”¹⁵ Although the Court did not address that issue in Brnovich,¹⁶ Justice Gorsuch’s concurrence invited challengers to argue that Section 2 lacks an implied private right of action. As expected, litigants—and courts—accepted his invitation.¹⁷

In 2022, a federal district court ruled for the first time that Section 2 does not provide an implied private right of action.¹⁸ In Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the district court departed from Supreme Court,¹⁹ intercircuit,²⁰ and intracircuit precedent²¹ to hold that no implied private right of action exists. In so doing, the court also contravened the Act’s extensive legislative history, which demonstrates that Congress intended for private parties to sue under Section 2.²² It held, instead, that Section 2’s text and structure “strongly suggest that exclusive enforcement authority resides in the Attorney General of the United States.”²³ It withheld entering the judgment for five days to allow the DOJ to join as a plaintiff.²⁴ The DOJ refused, claiming that “[t]hroughout decades of Section 2 litigation challenging redistricting plans and voting restrictions in Arkansas and elsewhere, courts have never denied a private plaintiff the ability to bring Section 2 claims.”²⁵ Consequently, the court dismissed the case.²⁶ Plaintiffs appealed to the Eighth Circuit.²⁷

While that appeal was pending, on November 10, 2023, the Fifth Circuit contrarily held that Section 2 does contain an implied private right of action.²⁸ Ten days later, the Eighth Circuit upheld the district court’s precedent-upending ruling.²⁹ Plaintiffs appealed the case for rehearing en banc in front of the full Eighth Circuit but were again rebuffed when, in a fractured opinion, the court denied their petition.³⁰ After months of anticipation, the plaintiffs shocked the voting-rights community and court watchers by deciding not to appeal the decision to the Supreme Court.³¹ This leaves in place a circuit split that renders private plaintiffs in the Eighth Circuit’s seven-state jurisdiction unable to vindicate their Section 2 rights without the federal government doing so for them.³² While the Supreme Court will not directly consider Arkansas NAACP, it may nonetheless have the opportunity to evaluate the theory in related cases percolating in the appellate courts.³³ If the Supreme Court adopts this theory in a future case, the DOJ will act as Section 2’s sole enforcer, leaving future enforcement subject to the vicissitudes of funding and allocation decisions of future congresses and presidential administrations.³⁴

However, the Supreme Court has available to it a legally sound solution to save Section 2—and what remains of the VRA’s anti-discriminatory capacity. This solution is available despite the Supreme Court’s ruling in Alexander v. Sandoval, which requires courts to strictly interpret statutory text to determine whether an implied private right of action exists.³⁵ In Arkansas NAACP, the Eighth Circuit interpreted Sandoval to require strong textual support for courts to determine whether statutes confer implied private rights of action.³⁶ But Sandoval’s strict textual approach may not apply as clearly to the VRA as the Eighth Circuit suggests. Sandoval permits courts to consider statutes’ “ ‘contemporary legal context’ . . . to the extent it clarifies text.”³⁷ The VRA has a unique history given that it was both enacted and routinely amended during an era in which the Supreme Court took a highly liberal approach to finding implied private rights of action.³⁸ This distinctive history of congressional reliance on liberal judicial constructions provides an opportunity for the Supreme Court to uphold private plaintiffs’ ability to sue under Section 2 and dispense with contradictory theory without overruling or disrupting Sandoval’s framework.³⁹ The Supreme Court should take the earliest opportunity to do so.

Over a decade ago, in Shelby County v. Holder, the Supreme Court nullified the VRA’s preclearance regime, one of the most effective statutory voting rights protections in U.S. history.⁴⁰ In response, Justice Ginsburg issued a blistering dissent, stating that throwing out that key part of the VRA regime “when it has worked and is continuing to work . . . is like throwing away your umbrella in a rainstorm because you are not getting wet.”⁴¹ The Court, however, left voters with a raincoat to protect themselves against this storm: Section 2.⁴² The storm rages still today—indeed, its intensity has only increased since Shelby County.⁴³ The Eighth Circuit’s decision in Arkansas NAACP left voters to weather this storm without any protection. If the Supreme Court agrees and holds that Section 2 lacks an implied private right of action, it will effectively throw away the raincoat, too, for good.

Accordingly, this Note examines the Arkansas NAACP decision and its ramifications for privately enforcing Section 2. Part I discusses the contemporary legal context within which Congress developed the VRA against the backdrop of the Supreme Court’s evolving implied private right of action doctrine and tells the story of how each influenced the other. Part II analyzes the circuit split between the Eighth Circuit and the Fifth, Sixth, and Eleventh circuits. Part III proposes a pathway within modern implied private right of action doctrine, through which the Supreme Court should guarantee that private plaintiffs can continue using Section 2 to vindicate their voting rights.

I. The Voting Rights Act and Implied Private Rights of Action

The Civil War ended formalized chattel slavery of African Americans in the United States.⁴⁴ After the Confederacy’s defeat and the ratification of the Reconstruction Amendments, freed African American men⁴⁵ received, ostensibly, the right to vote.⁴⁶ Reconstruction policies initially allowed them to exercise that right and elect the United States’ first African American congressmen.⁴⁷ However, with the end of the federal government’s Southern military occupation in 1877, the Reconstruction Amendments’ guarantees all but vanished; by the 1890s, virtually all of this progress had been erased.⁴⁸ In the eight decades following 1877, African Americans were increasingly subjected to a lesser political status as organized racial violence, legalized racial discrimination, and discriminatory policies of the political party apparatuses decimated their fundamental right to vote.⁴⁹

The Civil Rights Acts of 1957 and 1960, which allowed the DOJ to sue actors who denied citizens the right to vote on the basis of race, were the first signs of meaningful change.⁵⁰ However, this individualized process was extremely time-consuming—one case could take thousands of hours—and faced extensive resistance by both local officials and federal courts.⁵¹ From 1957 to 1964, the DOJ brought only seventy-one cases with sporadic success and minimal effect.⁵² For example, Black voter registration in Mississippi rose from 4.4% to only 6.4% between 1954 and 1964.⁵³ One state over, in Alabama, Dallas County had a voting-age population of about 29,500. About half (15,000) were African Americans. Only 156 of them were registered to vote, compared to approximately 9,500 registered white voters in the county.⁵⁴

Against this historical backdrop, Congress enacted the VRA in 1965, marking a turning point in the effort to eradicate racial discrimination from the voting system.⁵⁵ It had an immediate impact. For example, in Mississippi, approximately 6.7% of people of color were registered to vote in 1965. By 1967, that rose to 59.8%.⁵⁶ This incredible and long-lasting impact is why the Act has been called the “legislative crown jewel of the civil rights era”⁵⁷ and is “one of the most consequential election[] laws ever enacted.”⁵⁸

Unlike past efforts, the VRA ushered in a “joint effort” between Congress and the Supreme Court to expand voting access;⁵⁹ the Court quickly affirmed the VRA’s constitutionality,⁶⁰ which cemented those gains for decades to come. The VRA’s unique structure implemented permanent prohibitions, like Section 2, on racial discrimination in voting alongside temporary restrictions, like Section 4, that required Congress to periodically reenact and amend the Act.⁶¹ Congress has amended the Act five times: in 1970, 1975, 1982, 1992, and 2006.⁶² Throughout its history, the VRA has faced unending assault, granting the Supreme Court ample opportunities to opine on the law⁶³ and facilitating a decades-long discussion between Congress and the Court over interpreting the VRA’s key provisions, including Section 2.

During that same period, Congress and the Court were also engaged in another, broader discussion about when statutes generally confer implied private rights of action—“rights to sue to enforce statutes that do not expressly authorize private suits.”⁶⁴ The Court’s answer to this question has radically changed in the last sixty years from a highly permissive approach focused on intent and purpose⁶⁵ to a highly skeptical approach focused on text and structure, as adopted in Alexander v. Sandoval.⁶⁶ In the VRA context, Congress has largely relied on the first of these approaches—that implied private rights of action should be liberally found in the text even where not provided.⁶⁷

The VRA sits at the center of the discussion over implied private rights of action. Before Sandoval’s strict textualist approach, the Court had held that Sections 5 and 10 conferred implied private rights of action.⁶⁸ Between the recent circuit split and the additional cases addressing the issue in the lower courts, the Supreme Court will likely have the opportunity to address the question for Section 2 soon. Although Congress has made its intent clear through legislative history that Section 2 confers an implied private right of action,⁶⁹ the Court will likely have to directly decide whether Section 2 does in fact confer such a right—this time under Sandoval’s framework. This Part juxtaposes the core historical developments of the VRA, particularly Section 2, with the evolution of the implied private right of action doctrine. Their complementary development shows that Congress and the Court had already come to an agreement before Sandoval: Section 2 does confer an implied private right of action.

A. Enactment: A Purposive Approach and Congressional Acquiescence

In the early years after the VRA’s enactment in 1965, Congress continued to endorse the Court’s purposive approach to finding a private right of action. The 1960s witnessed the crescendo of the civil rights movement and the consequent enactment of core civil rights laws that millions continue to rely on, including the Civil Rights Act of 1964 (CRA) and the VRA. Amid that movement, the Supreme Court issued a decision in an oft-forgotten case about something entirely unrelated—corporate mergers—that would help to cement those laws for generations: J.I. Case Co. v. Borak.⁷⁰

Decided a month before the CRA’s enactment, the Borak Court concluded that Section 27 of the Securities and Exchange Act, which regulates security markets and fraudulent activity against corporate investors, conferred an implied private right of action.⁷¹ In doing so, the Court crafted a standard focused on Congress’s statutory purpose. Under this standard, what matters for a court that seeks to determine whether a statute possesses an implied right of action is the “broad remedial purposes” Congress intended to achieve.⁷² Where a law’s core purpose is to protect a class of individuals, the Court held that “it is the duty of the courts to be alert to provide such remedies as are necessary” to effectuate that purpose.⁷³ Without the ability to sue, these individuals would be unable to take advantage of the law’s promises absent the federal government’s intervention. Therefore, where Congress has not explicitly written in a private right of action, federal courts must nevertheless impute one to protect individuals as Congress intended.⁷⁴ In the decade following Borak, courts applied this purposive approach to infer implied private rights of action in various federal statutes, including the nascent VRA.⁷⁵

Congress enacted the VRA against this doctrinal and historical backdrop, which makes the Act’s remedial purpose clear. On March 7, 1965, peaceful protesters, led by Dr. Martin Luther King, Jr., were brutally attacked during a civil rights march from Selma to Montgomery, Alabama. In response, President Lyndon Johnson gave an empowered speech at the Capitol Rotunda “for the dignity of man and the destiny of democracy,” calling on Congress to enact a voting rights bill.⁷⁶ Congress introduced the VRA that month and, less than five months later, President Johnson signed it into law.⁷⁷

The House Judiciary Committee Report that accompanied the Act noted Congress’s “salient obligation and responsibility” to effectuate the Fifteenth Amendment’s guarantee that governments “shall not” deny or abridge “the right to vote . . . on account of race or color.”⁷⁸ The VRA was an experiment in an area where Congress’s “national achievements . . . ha[d] fallen far short of [its] aspirations.”⁷⁹ To address the “upsurge of public indignation against the systematic exclusion” of African Americans from voting in the preceding decades, Congress tried new tactics that went beyond its failures of the 1957 and 1960 Civil Rights Acts.⁸⁰ It moved from a DOJ-only enforcement framework to a hybrid model centered around administrative action, with the judicial process as a backstop.⁸¹ Sections 2 through 5 embodied the core of this hybrid model.

Sections 2 and 3 are permanent nationwide provisions, whereas Sections 4 and 5 are geographically limited and temporary, requiring periodic renewal.⁸² When originally enacted, Section 2 provided in full:

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.⁸³

This language, virtually unchanged despite subsequent amendments, remains operative today.⁸⁴ Section 3, as originally enacted, gave federal courts jurisdiction to hear cases brought “by the Attorney General under any statute to enforce the guarantees of the fifteenth amendment” against any “qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” that discriminates based on race.⁸⁵ Section 2, however, is silent about who can bring a suit. But, with respect to the Attorney General’s role, Sections 2 and 3 operate similarly to the 1957 and 1960 Civil Rights Acts.⁸⁶

Sections 4 and 5, on the other hand, introduced an entirely new approach.⁸⁷ Section 4 created the “coverage formula,” which classified parts of the country based on two criteria: whether a locality had a test or device on November 1, 1964, to restrict voter registration opportunities and whether 50 percent or less of the locality’s voting age population was registered to vote.⁸⁸ Areas that met both criteria were then subject to Section 5’s preclearance regime, which required covered localities to submit any election-law changes to the DOJ for approval before they could take effect.⁸⁹ These preclearance provisions were immediately challenged upon enactment, but the Supreme Court upheld their constitutionality under the Fourteenth and Fifteenth Amendments.⁹⁰ The Court relied on “voluminous legislative history” to determine that Congress intended to replace the unsuccessful DOJ-only enforcement system with “sterner and more elaborate measures” to “rid the country of racial discrimination in voting.”⁹¹ The Court lauded Congress’s use of an “array of potent weapons against [that] evil, with authority in the Attorney General to employ them effectively” to address this goal.⁹² It concluded on a hopeful note, stating: “We may finally look forward to the day when truly ‘[t]he rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.’ ”⁹³

But the Court’s days of interpreting the VRA were far from over. Three years after upholding Section 5 under the Reconstruction Amendments, the Court had to address a statutory attack that threatened to undermine the VRA’s entire preclearance regime: whether Section 5 conferred an implied private right of action.

In Allen v. State Board of Elections, private plaintiffs—without the Attorney General—challenged Virginia’s practices that prohibited using labels to vote for write-in candidates.⁹⁴ Defendants moved to dismiss the claims, arguing that Section 5 provides no private right of action.⁹⁵ The Supreme Court rejected that argument under Borak, after assessing Section 5’s history and “in light of the major purpose of the Act,” by holding that the text confers an implied private right of action.⁹⁶ The Court reasoned that the Attorney General alone could not adequately enforce the Act as Congress intended.⁹⁷ Therefore, without private enforcement, achieving the “Act’s laudable goal [would] be severely hampered”; thus, Borak commanded the Court to permit the private plaintiffs their day in court.⁹⁸

A year after Allen, President Johnson’s pronouncement that the VRA was “one of the most monumental laws in the entire history of American freedom,” began to become a reality.⁹⁹ The VRA had the greatest impact on African American registration during its first five years, with increases upwards of between 30 to 50 percent in some states.¹⁰⁰ However, that progress was under threat, with Section 4’s coverage formula and Section 5’s preclearance regime both set to expire in 1970. Congress rose to the challenge and amended the VRA to extend Section 4’s coverage formula for another five years.¹⁰¹ In so doing, Congress did not take the opportunity to create an explicit private right of action in Section 5 but did affirm that Section 5 confers an implied private right of action. The House Judiciary Committee Report for the amendment stated that: “[T]he Court’s decision makes clear that private persons have authority to challenge the enforcement of changed voting practices or procedures pursuant to section 5.”¹⁰² It noted that private suits were “an integral part of the rights afforded by the 1965 act,” and reprinted the Court’s language that the “achievement of the act’s laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General.”¹⁰³ Thus, Congress embedded the Court’s approach in Borak and Allen to broadly interpret the VRA to include implied private rights of action where not explicitly provided. Relying on that interpretation, Congress chose not to amend Section 5, or any other section, to include an explicit private right of action.¹⁰⁴

In 1975, however, the Court began to question Borak’s purposive approach. In Cort v. Ash,¹⁰⁵ the Court refined its implied private right of action inquiry to a four-factor test. Those factors include whether (1) the statute was designed to benefit a special class of person, (2) there is explicit or implicit legislative intent to create or deny a private remedy, (3) implying such a remedy is consistent with or would frustrate the purposes of the legislative scheme, and (4) the claim and legal area at issue are traditionally left to the states such that it is inappropriate to infer a federal cause of action.¹⁰⁶ Purpose remained important under Cort; indeed, the first three factors all investigate the meaning of the text based on its underlying purpose. But Cort increased the degree to which purpose must be explicit when the Court infers purpose from nontextual materials.¹⁰⁷

Cort was not a VRA case, and it never cited Allen, making it unclear how, or even if, its holding would map onto other VRA provisions. Further, Cort did not overrule Borak; instead the two cases somewhat complement each other—both allow courts to consider statutory policy and purpose—but Cort focuses more acutely on Congress’s intent to create an implied private right of action, whereas Borak focuses on whether the statute was designed to benefit a particular class of individuals.¹⁰⁸ Principally, Cort suggested that Congress should henceforth show more directly—through text or the congressional record—that private suits would effectuate an act’s core purposes if it wanted courts to imply a private right of action. Congress did just that for Section 5 by referencing Allen favorably and noting that private suits are necessary to achieve Section 5’s goals.¹⁰⁹ But what about other VRA provisions, particularly Section 2?

B. Refinement: Section 2’s Implied Private Right of Action

In its 1975 and 1982 amendments to the VRA, Congress included ample evidence that indicated private VRA enforcement was not only possible but necessary to fully effectuate its goals. Two months after Cort, Congress again amended the VRA to extend Section 4’s coverage formula until 1982.¹¹⁰ Congress also took this opportunity to amend Section 3—one of the two provisions granting the Attorney General statutory enforcement power.¹¹¹ Specifically, Congress struck out “Attorney General” and added instead “Attorney General or an aggrieved person.”¹¹² Consequently, the new Section 3 provided federal courts with jurisdiction “in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment.”¹¹³ That language remains in effect today.

The accompanying House and Senate Judiciary Committee Reports demonstrate that Congress intended the new language to broadly provide private plaintiffs with a private remedy to enforce VRA provisions.¹¹⁴ The reports state that the amendment authorizes federal courts to grant relief to “private parties in suits brought to protect voting rights in [preclearance] covered and noncovered jurisdictions.”¹¹⁵ The key term here is “noncovered” jurisdictions: all those jurisdictions not subject to Section 5’s preclearance regime where the Supreme Court, via Allen, had already held that private plaintiffs could sue to enforce their voting rights under the Reconstruction Amendments.¹¹⁶ By including “noncovered” jurisdictions within this scope, Congress was demonstrating an intent to “afford to private parties the same remedies which Section 3 [before 1975] afford[ed] only to the Attorney General” explicitly—remedies to enforce non-Section 5 provisions that also guaranteed rights under the Reconstruction Amendments, like Section 2.¹¹⁷ Furthermore, Congress did not include “aggrieved person” to displace the DOJ’s enforcement power; instead, Congress intended a “dual enforcement mechanism” where the DOJ possesses “enforcement responsibility” and “private persons acting as a class or on their own behalf” gain private remedies.¹¹⁸ The reports thus conclude that “it is sound policy to authorize private remedies to assist the process of enforcing voting rights.”¹¹⁹ This language naturally provides a private remedy to create a private right of action in Section 2 as well.¹²⁰

Congress also added Section 14(e) to expand the remedies available to private plaintiffs. This section allows for the recovery of attorney’s fees “[i]n any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment . . . [by] the prevailing party, other than the United States.”¹²¹ Congress borrowed this language from the CRA of 1964 and noted its similar suitability “in voting rights cases because there, as in . . . other civil rights cases, Congress depends heavily upon private citizens to enforce the fundamental rights involved.”¹²² Recouping attorney’s fees was a “necessary means of enabling private citizens” to vindicate their rights under the VRA.¹²³

These amendments strongly suggest that private enforcement of the VRA was necessary to effectuate its goals. And the connection between private individuals’ roles in enforcing the VRA and the CRA is pivotal to another implied private right of action case: Cannon v. University of Chicago, which established a potentially crucial standard if the Supreme Court decides to address whether Section 2 confers an implied private right of action. ¹²⁴ In Cannon, the Court used the four Cort factors and held that Title IX of the 1972 Education Amendments conferred an implied private right of action.¹²⁵ But the Court took an additional step. It noted the important “contemporary legal context” within which Congress enacted Title IX.¹²⁶ Specifically, it emphasized the importance of its implied private right of action jurisprudence between Borak in 1964 and Cort in 1975.¹²⁷ During this time period—when the VRA, CRA, and Education Amendments became law—the “Court had consistently found implied [private] remedies” in statutes.¹²⁸ Courts must take into account this contemporary legal context because “it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with these unusually important precedents from this and other federal courts and that it expected its enactment to be interpreted in conformity with them.”¹²⁹

By emphasizing this context, the Court explicitly recognized the importance of its dialogue with Congress on how to interpret the VRA. It recognized Borak’s purposive approach to finding implied private rights of action¹³⁰ as having undeniably influenced Congress’s VRA language.¹³¹ Recognition of the jurisprudence between Borak and Cort, like Allen,¹³² cemented this legal context and engendered trust in Congress that the Court would continue to interpret the VRA’s provisions to confer implied private rights of action where doing so effectuated, rather than hindered, its statutory purpose.¹³³ Any additional insight on statutory purpose that Congress could provide, such as with the 1970 and 1975 VRA amendments, was a bonus. Although Cort’s four-factor test restrained this broader approach for statutes of later eras, acts enacted after Borak and before Cort seemed to hold a special status in the Court’s pedigree of implied private right of action cases.¹³⁴

But just a year after Cannon, the Supreme Court addressed new questions about interpreting the VRA, specifically about Section 2. In City of Mobile v. Bolden, the Court had to determine whether Section 2 protected voters from policies resulting in discriminatory effects, or only from intentional race discrimination.¹³⁵ In Bolden, private plaintiffs sued Mobile, Alabama, arguing that its at-large electoral system violated Section 2 by unfairly diluting their voting strength—a discriminatory results claim.¹³⁶ To reach the merits, the Court assumed “for present purposes, that there exists a private right of action to enforce [Section 2].”¹³⁷ Ultimately, the Court concluded that Section 2 prohibited only intentional racial discrimination, foreclosing plaintiffs’ ability to bring results claims.¹³⁸

Congress responded in force. Section 4 was set to expire in 1982,¹³⁹ giving Congress an opportunity to address the Court’s foreclosure of discriminatory results claims and whether Section 2 confers an implied private right of action. Congress renewed Section 4 for twenty-five years.¹⁴⁰ In doing so, it directly abrogated Bolden’s holding that Section 2 protects only against intentional race discrimination¹⁴¹ by adding a new Section 2 provision known as the “results” test.¹⁴² As for the implied private right of action issue, Congress answered that question too, but not by creating an explicit private right of action. Instead, it again demonstrated its reliance on and acquiescence to the contemporary legal context that the VRA was enacted within—against the backdrop of Borak’s purposive approach to finding implied private rights of action.¹⁴³

Specifically, Congress provided this additional insight into Section 2’s statutory meaning in the House Judiciary Committee Report accompanying the amendments. The Committee stated its intent that “citizens have a private cause of action to enforce their rights under Section 2.”¹⁴⁴ Likewise, the accompanying Senate Judiciary Committee Report affirmed that an implied “private right of action [exists] under Section 2, as has been clearly intended by Congress since 1965.”¹⁴⁵ Senators’ statements in the legislative record further support this conclusion. Senator Edward Kennedy (D-MA) indicated that both the “Attorney General or private plaintiffs” could challenge a practice under Section 2.¹⁴⁶ Senator Orrin Hatch (R-UT) wrote that in “addition to prosecution by the Justice Department, [S]ection 2 would permit private causes of action against communities. Individuals or so-called ‘public interest’ litigators could bring such actions.”¹⁴⁷

Four years later, the Court decided whether the revitalized Section 2 authorized discriminatory results claims or if the revisions were for naught. In Thornburg v. Gingles—brought by private plaintiffs—the Court held that Section 2 claims require showing “neither causation nor intent”; in other words, the Court authorized Section 2 discriminatory results claims.¹⁴⁸ The Court did not mention the implied private right of action issue.¹⁴⁹ However, when interpreting Congress’s new results test, the Court relied extensively on the 1982 Senate Report—the “authoritative source” for interpreting Section 2—and its nine factors to assess Section 2 results claims.¹⁵⁰ Ever since Gingles, the Court has relied on the Report’s “Senate Factors” to analyze discriminatory results claims¹⁵¹—demonstrating the extent to which unenacted congressional reports have influenced and even become Section 2 doctrine. Most importantly, the 1970, 1975, and 1982 amendments, along with congressional statements interpreting their meaning, demonstrate how Congress, when amending the VRA, has acquiesced to and relied on the Court’s Borak approach to inferring implied private rights of action in statutory text. This extensive and unique contemporary legal context suggests a special relationship between the two branches in interpreting the VRA, including Section 2: Congress expects the Court to interpret VRA provisions broadly to permit implied private rights of action based on congressional purpose, and it has routinely relied on that understanding when revising the Act.

C. Retrenchment: Final VRA Amendments and a More Hostile Legal Doctrine

Congress amended the VRA twice after Gingles, in 1992 and 2006,¹⁵² but it never amended Section 2 after 1982. Since then, plaintiffs have brought over 450 Section 2 cases. Private plaintiffs have been a part of over 96% of these cases and the sole litigants in over 86%.¹⁵³ Congress has never amended Section 2 to include an explicit private right of action—despite repeatedly affirming that Section 2 implicitly contains such a right¹⁵⁴—which makes sense given that Congress legislated against the backdrop of Borak, Allen, and Cannon, and thus relied on the Court’s liberal standard.

However, two cases decided after 1982 are important to the story. In Morse v. Republican Party of Virginia, the Supreme Court addressed whether Section 10 of the VRA, which provides a right of action to challenge the enforcement of poll taxes, confers an implied private right of action.¹⁵⁵ Later, in Sandoval, the Court reformed its implied private right of action doctrine, overruling Borak’s approach and turning to a stricter textual and structural approach while still considering “ ‘contemporary legal context’ . . . to the extent it clarifies text.”¹⁵⁶

In Morse, the Court held that private plaintiffs may sue under Section 10.¹⁵⁷ The Court noted that the VRA “was passed one year after [Borak], which applied a highly liberal standard for finding private remedies.”¹⁵⁸ The Court reaffirmed Cannon’s instruction that courts must consider contemporary legal context: Section 10 conferred an implied private right of action because, at least in part, Congress’s VRA revisions during the 1964 to 1975 era strongly support congressional acquiescence to the Court’s liberal approach to finding implied private rights of action in the VRA.¹⁵⁹ Indeed the Court had held, post-Borak, that Section 5 confers an implied private right of action—showing that such liberal construction was paramount in the VRA context, specifically.¹⁶⁰

The decades-long congressional and judicial agreement over the VRA’s interpretation was vital to Morse’s outcome. The Court discussed at length the importance of Congress ratifying Allen’s holding on Section 5 through later amendments and extending its logic to other VRA provisions.¹⁶¹ Further, it noted that it “would be anomalous, to say the least, to hold that both § 2 and § 5 are enforceable by private action but § 10 is not, when all lack the same express authorizing language.”¹⁶² As in Gingles, congressional records accompanying the amendments were pivotal: “Although § 2, like § 5, provides no right to sue on its face, ‘the existence of the private right of action under Section 2 . . . has been clearly intended by Congress since 1965.’ ”¹⁶³ Based on that instruction, the Court noted that it had “entertained cases brought by private litigants to enforce § 2.”¹⁶⁴ Therefore, to conclude that Section 10 confers an implied private right of action, the Court explicitly reasoned that Section 2 also confers an implied private right of action.¹⁶⁵

Although the Morse Court’s statements on Section 2 are dicta, the reliance it placed on contemporary legal context to infer Section 10’s implied private right of action is central to the decision and is extendable to Section 2. The Court pointed to Congress’s 1975 VRA amendments¹⁶⁶ in which Congress extended a private right of action to “aggrieved person[s]” under Section 3.¹⁶⁷ The Court adopted the Senate Report’s explanation for this change: “[T]he purpose of the change was to provide the same remedies to private parties as had formerly been available to the Attorney General alone.”¹⁶⁸ Consequently, because Section 10 enforces the Fourteenth and Fifteenth Amendments, “Congress must have intended [Section 10] to provide private remedies.”¹⁶⁹ This, combined with Congress granting “prevailing part[ies], other than the United States,” attorney’s fees in VRA suits, demonstrated that a private right of action exists within Section 10.¹⁷⁰

The Court viewed it as unnecessary for Congress to provide an explicit private right of action in Section 10 because of these other provisions and the historical backdrop within which the VRA was enacted and amended.¹⁷¹ Such logic and analysis readily applies to Section 2—thus, Section 2 is interchangeable with Section 10 for the purposes of this analysis.¹⁷² Indeed, in his concurrence, Justice Breyer noted that Allen’s rationale—which conferred an implied right of action under Section 5—“applies with similar force not only to § 2 but also to § 10.”¹⁷³ Justice Breyer found it implausible that Congress would want to treat Section 10’s enforcement differently from that of Sections 2 and 5 after the 1975 revisions. So, he concurred that “Congress intended to establish a private right of action to enforce § 10,” just as “it did to enforce §§ 2 and 5.”¹⁷⁴

In Morse, the multidecade congressional–judicial conversation on the VRA’s meaning, the implied private right of action doctrine, and Section 2’s jurisprudence all converged.

Although the VRA’s contemporary legal context supports an implied private right of action for Section 2, Morse’s statements on Section 2 were ultimately dicta. Almost thirty years later, this allowed the Eighth Circuit to disregard Morse’s statements on Section 2 as “the least valuable kind” of dicta.¹⁷⁵ But, the Eighth Circuit felt comfortable disregarding Morse and this context because of a pivotal Supreme Court case that fundamentally altered implied private right of action doctrine: Alexander v. Sandoval.¹⁷⁶

Sandoval, decided just five years after Morse, considered whether Section 602 of Title VI of the 1964 CRA, which prohibits organizations that receive federal funding from racially discriminating against individuals, conferred an implied private right of action for results claims.¹⁷⁷ Even though Congress enacted the CRA, like the VRA, in the 1960s—during the liberal era for inferring implied private rights of action—the Court concluded private plaintiffs could not sue under the section.¹⁷⁸ In stark contrast to Morse, and this time in the non-VRA context, the Court severely criticized the use of “contemporary legal context” in deciding whether a statute confers an implied private right of action.¹⁷⁹ To dismiss its importance, the Court stated that only three of the Court’s many implied private right of action cases have found contemporary legal context relevant; neither Allen nor Morse made the cut.¹⁸⁰ In none of the three recognized cases did the Court “accord[] dispositive weight to context shorn of text.”¹⁸¹ Accordingly, the Court did not feel the need to consider contemporary legal context for the statute at issue—Title VI. The Court did not, however, completely abandon using contemporary legal context, nor did it overrule the precedent relying on it; instead, it stated that “[i]n determining whether statutes create private rights of action . . . legal context matters only to the extent it clarifies text.”¹⁸² Thus, context still matters under the right circumstances.

The Court replaced the four-factor Cort approach with a two-part test that requires a statute’s text and structure to demonstrate an intent to create both a “private right [and] also a private remedy.”¹⁸³ This new hyperfixation with the text also starkly broke from Borak’s more generous view, which provided that courts should infer an implied private right of action to help effectuate the statute’s purpose even where not directly supported by the text.¹⁸⁴ Instead, text and structure became the whole ballgame.¹⁸⁵ If the statute contains private “ ‘rights-creating’ language,” then the private-right prong is satisfied.¹⁸⁶ For example, the Court noted that Section 601 of Title VI,¹⁸⁷ which states that “[n]o person . . . shall . . . be subjected to discrimination,” provides rights-creating language that confers a private right.¹⁸⁸ For the private-remedy prong, the Court held that the “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.”¹⁸⁹ For example, if the statute only provides the Attorney General with power to sue, then the text precludes private lawsuits.¹⁹⁰ Even with clear rights-creating language, “[s]tatutory intent on th[e remedy] point is determinative.”¹⁹¹

In Sandoval, the Court stated that Congress must legislate clearly and include a private right and remedy within the statute’s text or structure to ensure that private plaintiffs can sue.¹⁹² This made, and continues to make, it exceedingly difficult for private plaintiffs to sue unless the statute confers an express private right of action¹⁹³—something older acts like the VRA did not always do. The Court’s wooden textualist approach placed Section 2 on shaky footing and opened the door for decisions like Arkansas NAACP, where the Eighth Circuit adopted a strict, textualist interpretation of statutory text enacted when Congress and the Court mutually understood that the VRA—including Section 2—was privately enforceable.¹⁹⁴

In 2006, Congress had the chance to address the problem that Sandoval posed to Section 2 when it extended Section 4’s coverage formula for another twenty-five years.¹⁹⁵ However, Congress did not amend Section 2’s text to include an explicit private right of action.¹⁹⁶ The accompanying House and Senate Judiciary Committee reports, which the Court had previously heavily relied on when interpreting Section 2,¹⁹⁷ did not mention Sandoval or clarify Congress’s intent.¹⁹⁸ Although this silence was uncharacteristic of Congress’s and the Court’s four-decade-long VRA dialogue, it also may demonstrate Congress’s belief that the Court’s VRA implied private right of action rulings were secure, particularly since the Court did not overrule old cases that relied on the contemporary legal context framework.¹⁹⁹ Together, the Court’s decisions in Allen (Section 5)²⁰⁰ and Morse (Sections 2 and 10),²⁰¹ along with Congress’s periodic amendments,²⁰² establish a private right of action in virtually every relevant VRA provision. By not directly addressing the issue, however, Congress left open the door to attacks on the VRA by courts in an emerging textualist era. The Eighth Circuit was simply the first one to step through.

II. The Circuit Split: Arkansas NAACP versus Mixon, Alabama NAACP, and Robinson

On November 20, 2023, the Eighth Circuit ruled that Section 2 does not contain an implied private right of action.²⁰³ The court’s decision broke longstanding judicial precedent and practice,²⁰⁴ and came just five months after the Supreme Court upheld Section 2’s constitutionality in Allen v. Milligan—a case brought solely by private plaintiffs.²⁰⁵ To reach its result, the Eighth Circuit woodenly applied Sandoval’s strict textual approach to a statute enacted in an era defined by a decades-long history of congressional acquiescence to and reliance on the Supreme Court’s purposive approach to infer implied private rights of action.²⁰⁶ Consequently, it created a circuit split with the Fifth,²⁰⁷ Sixth,²⁰⁸ and Eleventh²⁰⁹ Circuits. Accordingly, this Part contrasts other circuits’ decisions with the Eighth Circuit’s Arkansas NAACP decision while offering critiques of the latter, arguing that the Eighth Circuit’s interpretation is egregiously wrong based on precedent, text and structure, and history.

A. The Fifth, Sixth, and Eleventh Circuits: Mixon, Alabama NAACP, and Robinson

Following the Supreme Court’s decision in Morse, but prior to Sandoval, the Sixth Circuit first addressed the issue of whether Section 2 confers an implied private right of action in Mixon v. Ohio. While addressing a related question on state-sovereign-immunity abrogation, the court held that an “individual may bring a private cause of action under Section 2.”²¹⁰ This statement was the extent of the court’s Section 2 analysis, cementing it as the first circuit court to hold that Section 2 confers such a right.

Twenty-one years later, with Sandoval now law, the Eleventh Circuit followed the Sixth Circuit’s lead in Alabama State Conference of the NAACP v. Alabama.²¹¹ Unlike the Sixth Circuit, however, the Eleventh Circuit analyzed the VRA’s text and structure to reach its holding that Section 2 confers an implied private right of action.²¹² It noted that in 1975, Congress amended Section 3 to allow the Attorney General as well as “an aggrieved person” to “institute[] a proceeding ‘to enforce the voting guarantees of the fourteenth and fifteenth amendment[s] in any State or political subdivision.’ ”²¹³ Because Section 2 enforces these constitutional amendments, reading “§ 2 and § 3 . . . together[] imposes direct liability on States for discrimination in voting and explicitly provides remedies to private parties to address violations under the statute.”²¹⁴ When “read as a whole, the VRA makes it clear that Congress intended to permit ‘aggrieved person[s]’ to bring proceedings against ‘any State or political subdivision’ ” under Section 2, an interaction which, the court noted, the Supreme Court recognized in Morse.²¹⁵ With Alabama NAACP, the Eleventh Circuit became the first circuit to hold that Section 2 confers an implied private right of action post-Sandoval.

On November 10, 2023, the Fifth Circuit joined its sister circuits in Robinson v. Ardoin.²¹⁶ The Fifth Circuit’s conclusion that individuals may sue under Section 2 relied primarily on precedent. It found that “most of the work on this issue” was already finished by its own precedent in OGA-Greater Houston v. Texas, which held that Section 2 abrogates state sovereign immunity.²¹⁷ Based on that precedent, and a short sentence noting that Section 3’s aggrieved person language shows that Congress intended “States to be sued by someone,” the court held that “there is a right for [private] Plaintiffs” to sue under Section 2.²¹⁸

Although their methodologies differed, the Fifth, Sixth, and Eleventh Circuits each squarely held that Section 2 confers an implied private right of action. Mere days after the Fifth Circuit’s decision, the Eighth Circuit disagreed—charting a new path within the circuit courts’ discourse on Section 2’s implied private right of action.²¹⁹

B. The Eighth Circuit: Arkansas NAACP

In Arkansas NAACP—which the district court described as a “strong merits case”—private plaintiffs, sued state officials under Section 2 for drawing state legislative districts that diluted Black voters’ voting strength.²²⁰ Nevertheless, the district court dismissed the lawsuit after holding—for the first time in the history of the VRA—that private plaintiffs could not sue to remedy a Section 2 violation.²²¹ The Eighth Circuit affirmed.²²² In doing so, it did not reference its sister circuits’ holdings to the contrary and dismissed the importance of the contemporary legal context within which the VRA was enacted and amended.²²³

Unlike its sister circuits, the Eighth Circuit reached its conclusion after conducting a full Sandoval analysis.²²⁴ Through that analysis, the court determined that it was “unclear” whether Section 2’s text and structure contain the rights-creating language necessary to confer a private right.²²⁵ The court was, however, certain on the second prong: Section 2’s text and structure do not confer a private remedy.²²⁶ Therefore, the court held that private citizens lack Section 2 enforcement power.²²⁷ But although Sandoval undoubtedly replaced contextual analyses with a textual and structural method,²²⁸ Section 2 does confer an implied private right of action even under that tougher standard. The Eighth Circuit incorrectly held otherwise.

1. Private Right

Sandoval’s first step requires courts to determine whether the statute’s text and structure contain “ ‘rights-creating’ language” that clearly demonstrates an intent to create a private right.²²⁹ A year after Sandoval, in Gonzaga University v. Doe, the Court clarified that statutes passing this first prong are phrased “with an unmistakable focus on the benefited class.”²³⁰ The Court gave as an example the CRA’s Section 601—“[n]o person in the United States shall . . . be subjected to discrimination.”²³¹ Section 601 unmistakably focuses solely on a benefited class by protecting all persons from discrimination.²³² Statutes that do not confer private rights generally focus on the class of persons regulated or the regulating agencies, rather than the class of persons protected. Sometimes, statutes refer to both the class of persons protected and the regulated entity—such is the case with Section 2. Specifically, Section 2 prohibits “any State or political subdivision” (the regulated entities) from enacting practices and policies that result in the abridgement of the right to vote of “any citizen of the United States” (the benefited class of persons).²³³ Faced with this situation, the Eighth Circuit threw its hands up, stating that Section 2 was “unclear” on Sandoval’s private-right prong.²³⁴ What should have been an easy analysis resulted in one of the court’s most glaring errors.

The “any State or political subdivision” language refers to the regulated entities, whereas the “right of any citizen” language, according to the Eighth Circuit, “ ‘unmistakabl[y] focus[es] on the benefited class’: those subject to discrimination in voting.”²³⁵ Nevertheless, the court concluded that it is “unclear what to do when a statute focuses on both.”²³⁶ However, the Supreme Court has already explained, in Health & Hospital Corp. v. Talevski, that courts should not construe Doe as limiting finding a private right in statutes that refer to both regulators and benefited individuals. ²³⁷ Specifically, Talevski stated that “it would be strange to hold that a statutory provision fails to secure rights simply because it considers, alongside the rights bearers [(voters)], the actors that might threaten those rights [(states and political subdivisions)] (and we have never so held).”²³⁸ Consequently, when a statute focuses on both the regulated entities and protected individuals, like Section 2, the rights-creating language remains operative, granting private parties a private right under Sandoval’s first prong.²³⁹

The Eighth Circuit even stated that Section 2’s “right of any citizen . . . to vote” language unmistakably focuses on a benefited, private class.²⁴⁰ Its blatant refusal to hold that Section 2 confers that private right contradicts Talevski and unjustifiably undercuts Section 2’s protections for private plaintiffs. If the Supreme Court decides to address this circuit split, it should disagree with Arkansas NAACP on this ground.

2. Private Remedy

The Eighth Circuit’s erroneous conclusion on Sandoval’s private-right question created shaky footing for its private-remedy analysis. If a statute confers a private right, that is strong evidence that it also confers a private remedy because “the right- or duty-creating language . . . [is] generally . . . the most accurate indicator of the propriety of . . . a cause of action.”²⁴¹ Therefore, had the Eighth Circuit correctly concluded, per Talevski, that Section 2 conferred a private right, it would have been operating under the starting presumption that the statute also conferred a private remedy. Nonetheless, even looking at its prong two discussion in isolation, the Eighth Circuit’s analysis fails to pass muster.

Sandoval’s second prong requires courts to determine whether the statute’s text and structure clearly evince an intent to confer a private remedy.²⁴² The answer to this second prong is “determinative” even if the first prong is met, meaning that a private right can exist without a private remedy; it isn’t until both are present that an implied private right of action exists.²⁴³ Paramount to the private-remedy inquiry is whether Congress provided an alternate enforcement mechanism exclusive of private enforcement; for example, if Congress stated that only the Attorney General could sue to enforce a statutory provision or that only a federal agency could fine statutory violators. Where it has, that forecloses private plaintiffs’ ability to sue as the “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.”²⁴⁴ However, if the text and structure as a whole demonstrate that Congress created a dual-enforcement mechanism—such as allowing the DOJ and private-plaintiffs to sue—then both can operate simultaneously.²⁴⁵ Therefore, because Section 2’s text “contains no private enforcement mechanism,” the Eighth Circuit focused its analysis on Sections 3, 12, and 14 instead to determine whether those sections provide sufficient support for inferring a private remedy to accompany Section 2’s private right.²⁴⁶

Section 3 provides that the “Attorney General or an aggrieved person” can sue to enforce statutes that guarantee the right to vote under the Fourteenth and Fifteenth Amendments.²⁴⁷ This provision’s “aggrieved person” language provides strong evidence that private plaintiffs—not just the DOJ—can sue to enforce Section 2. Section 14 strengthens this contention by providing that “prevailing part[ies] other than the United States,” may receive attorney’s fees when suing to enforce “the voting guarantees” of the Fourteenth and Fifteenth Amendments.²⁴⁸ Combined, these provisions envision a private-enforcement mechanism for VRA provisions that were enacted to guarantee individuals’ voting rights under the Reconstruction Amendments, like Section 2.²⁴⁹ However, the Eighth Circuit cast aside this evidence and, instead, argued that (1) Section 3, when amended in 1975 to include “aggrieved person,” was meant merely to recognize that private parties could sue under VRA provisions that the Supreme Court had already found conferred an implied private right of action as of 1975 or may find to confer one in the future; and (2) Section 14 allows merely states and political subdivisions, not private parties, to recoup attorney’s fees.²⁵⁰

Further, the Eighth Circuit leaned heavily on the text of Section 12(d) to make its affirmative case that Congress only provided a public enforcement mechanism for Section 2, which would foreclose the possibility of a private one.²⁵¹ Section 12(d) grants the Attorney General alone the power to “institute for the United States, or in the name of the United States,” actions for relief when violations of Section 2 (and other VRA provisions) occur.²⁵² The court found this provision dispositive and that, based on Section 12’s overarching framework, it “was no accident” that Congress omitted mention of aggrieved private parties here.²⁵³ The court reimagined that framework as one that provides private plaintiffs with the ability to sue in only a very narrow selection of cases outside the scope of Section 2 and that authorizes the DOJ alone to enforce all other provisions of the Act, including Section 2.²⁵⁴ The court could only find such strong evidence in Section 12, however, by draining Sections 3 and 14 of all meaning. In doing so, it ultimately held that these provisions demonstrate that Congress did not intend to provide a private remedy, and therefore that no implied private right of action exists to enforce Section 2.²⁵⁵

a. Sections 3 and 14

The Eighth Circuit dedicated much of its opinion to an attempt at refuting the contention that Section 3 confers a private remedy for an implied private right of action under Section 2. Section 3 empowers the Attorney General to sue to enforce VRA provisions.²⁵⁶ However, it also provides individual plaintiffs a private remedy by stating that the “Attorney General or an aggrieved person [can] institute[] a proceeding under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment.”²⁵⁷ Indeed, it was based on this language that the Fifth and Eleventh Circuits held that Section 2 confers an implied private right of action—they both found sufficient textual support in the words “aggrieved person” to hold Section 2 conferred an implied private right of action.²⁵⁸ But the Eighth Circuit concluded otherwise.

The court noted that, as originally passed, Section 3 did not contain “aggrieved person”; instead, it reasoned, Congress added this language in 1975 only because courts had started to recognize between 1964 and 1975 that private plaintiffs could enforce some VRA provisions, like Section 5. This language was not a congressional effort to create an all-encompassing private remedy in the VRA.²⁵⁹ To reach this conclusion, the court relied on Justice Thomas’s Morse dissent, which speculated that the “ ‘most logical deduction from’ [adding aggrieved person] ‘is that Congress meant to address those cases brought pursuant to the private right[s] of action that’ already existed or that would be created in the future.”²⁶⁰ In other words, this amendment solidified Allen’s holding that Section 5 conferred an implied private right of action and gave the courts room to find rights in other VRA provisions in the future if they so choose.²⁶¹ The Eighth Circuit stated that Section 3’s text supports this interpretation because when the text provides that the DOJ and aggrieved persons can bring a “proceeding under any statute,” Congress must have been referring to “statutes that already allow for private lawsuits,” like Section 5, rather than ones that did not yet, like Section 2.²⁶² “An already existing proceeding, in other words, not a new one created by § 3.”²⁶³ Lastly, the court found further support for its position in the VRA’s “history and structure.” Specifically, it argued that Section 3 itself, even before the 1975 amendments, never granted the DOJ a cause of action to enforce VRA provisions because Section 12(d) “already gave the Attorney General the ability to bring one.”²⁶⁴ Therefore, the court reasoned, Congress could not have intended Section 3 as the basis for any cause of action—DOJ or private, pre- or post-1975—because to do so would “create a redundancy: a second, duplicate authorization for the Attorney General to sue.”²⁶⁵ If Section 3 confers a cause of action for the DOJ to sue, it would render Section 12’s public cause of action superfluous. Consequently, it is impossible that Congress’s addition of “aggrieved person” to a provision that never created a cause of action in the first place could suddenly create a cause of action for private plaintiffs.²⁶⁶

The Eighth Circuit’s articulation of Section 3 upended precedent, distorted statutory text and structure, and contradicted a rich congressional history that approves of the VRA’s enforcement by private plaintiffs. First, the court relied on Justice Thomas’s Morse dissent rather than the majority’s position. Morse held that Section 10 confers an implied private right of action by reasoning that Section 3 provided the private remedy—because, just like Section 2, Section 10 is a provision “designed for enforc[ing] the guarantees of the Fourteenth and Fifteenth Amendments.”²⁶⁷ Had the Morse majority agreed with Justice Thomas that the “most logical deduction” from including “aggrieved person” in Section 3 was to give private plaintiffs only rights of action where they already existed via judicial construction, it would have said so and held that Section 10 did not confer an implied private right of action. Under the Eighth Circuit’s and Justice Thomas’s theory, Section 3 would confer an implied private right of action only in Section 5 since the Supreme Court held that one existed in Section 5 prior to 1975.²⁶⁸ That’s it.

But that’s not the route that the majority took. Instead, Morse held that an implied private right of action existed where one did not exist before the 1975 “aggrieved person” revision.²⁶⁹ By holding that Section 10 confers an implied private right of action, Morse shows that the revised Section 3 can be the basis for conferring implied private rights of action in sections other than Section 5. At bottom, it demonstrates that Section 3 enables private plaintiffs to enforce their rights under like provisions that did not explicitly confer an implied private right of action before 1975, such as Section 2. The Eighth Circuit incorrectly relied on Justice Thomas’s dissent and, consequently, improperly dismissed Section 3 as irrelevant in its Sandoval analysis to determine whether Section 2 confers an implied private right of action. Had it properly weighed the importance of Section 3 in this inquiry, it likely would have arrived at the opposite conclusion as its sister circuits did.²⁷⁰

Second, textual and structural evidence demonstrates that Section 3 imbues Section 2 with an implied private right of action. Section 3’s title, “Proceeding to enforce the right to vote,” suggests both that a private right (to vote) exists and that Section 3’s text specifies who can enforce it (private persons or the DOJ).²⁷¹ Section 2 provides the necessary private right.²⁷² Therefore, the “most logical deduction,” via Morse, is that Section 3’s “aggrieved person” language confirms the private remedy’s existence. ²⁷³ Contrary to its reasoning that any other understanding renders Section 12 superfluous,²⁷⁴ the Eighth Circuit’s own reading renders “aggrieved person,” which Congress enacted after Section 12, superfluous. That’s because Section 12(d) provides only the Attorney General with a public right of action to sue to enforce the VRA’s provisions.²⁷⁵ As noted in Morse, the entire purpose behind adding “aggrieved person” to Section 3 “was to provide the same remedies to private parties as had formerly been available to the Attorney General alone.”²⁷⁶ These sections can coexist: Section 3 can confer an implied private right of action for Section 2 without disrupting the DOJ’s explicit public right of action that exists in Section 12.²⁷⁷ The Eighth Circuit’s reading, however, renders inoperative the new language Congress added in 1975 in favor of Justice Thomas’s more limited view that went unadopted by the Court.

Moreover, the court’s reasoning renders the 1975 addition of Section 14(e) redundant as well. Section 14(e) provides: “In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”²⁷⁸ As the accompanying Senate Judiciary Committee Report explains, Congress added this language because it “depends heavily upon private citizens to enforce the fundamental rights involved” in VRA suits and viewed recouping attorney’s fees as a “necessary means of enabling private citizens” to vindicate their rights.²⁷⁹

The court held that it need not read “prevailing party” to include “aggrieved persons” because “part[ies]” could refer to prevailing “States or political subdivisions” in Section 2.²⁸⁰ This enabled the Eighth Circuit to retain Section 14(e)’s meaning without having to interpret Section 2 to confer an implied private right of action; instead it “provides no support” for implying one.²⁸¹ This interpretation is untenable and should be rejected by the Supreme Court for three reasons. First, if the VRA allows only the DOJ to sue to enforce Section 2 (and only against states or political subdivisions) then Congress would not need to use “prevailing part[ies]”—it could have just said “prevailing states or political subdivisions.” Second, Section 14(e) provides that parties “in any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment”²⁸² can recover attorney’s fees, which is nearly identical to language used by Section 3 after giving the “Attorney General or an aggrieved person” power to sue.²⁸³ No equivalent language appears in Section 12—the other Section empowering the Attorney General to bring VRA claims.²⁸⁴ Third, claiming Section 14(e)’s fee-shifting provision does not apply to private plaintiffs upends the purpose of these provisions in the Civil Rights era statutes that the Supreme Court has long recognized—encouraging private plaintiffs to sue to vindicate the public interest.²⁸⁵ While “prevailing party” can include both governmental defendants and private plaintiffs, private plaintiffs face a more lenient standard that presumes recoverability compared to governmental parties which must demonstrate that plaintiffs’ cases are “frivolous, unreasonable, or without foundation.”²⁸⁶ The Eighth Circuit flips this standard on its head by not just making it harder for private plaintiffs to recover fees but impossible to do so, because they apparently cannot bring claims in the first place. Therefore, Section 14(e) is best understood as referring to prevailing private plaintiffs pursuant to Section 3 rather than just providing attorneys’ fees to prevailing state and political subdivision defendants.²⁸⁷

Lastly, the VRA’s history supports the conclusion that Section 3 provides a private remedy for private suits under Section 2. The Eighth Circuit claimed that history supported its position but failed to mention any VRA history that supported its conclusion.²⁸⁸ It merely speculated that Congress could not have meant for Section 3 to provide a cause of action for the DOJ, or private parties, in 1965 because Section 12 already provided that cause of action.²⁸⁹ The court did not acknowledge the game-changing 1975 amendments.

The 1975 House and Senate Reports accompanying the amendments show that inserting “aggrieved person” was meant to empower private plaintiffs to sue under the VRA generally, which includes Section 2. Both reports show that these amendments authorized federal courts to grant relief to “private parties.”²⁹⁰ An “aggrieved person” was not a government actor but instead “an individual or an organization representing the interests of injured persons.”²⁹¹ Perhaps most importantly, Congress did not intend to displace the DOJ’s enforcement power; instead, it aimed to keep that power intact through both Section 3 and Section 12. This “dual enforcement mechanism” protects the DOJ’s “enforcement responsibility” and allows private persons to act “as a class or on their own behalf” to obtain private remedies.²⁹² The reports concluded that “it is sound policy to authorize private remedies to assist the process of enforcing voting rights.”²⁹³ Section 14(e)’s fee-shifting provision further encouraged private lawsuits by rewarding victorious plaintiffs, rather than just defendant-violators of the statute.²⁹⁴ Congress explicitly reaffirmed this understanding in its 1982 amendments, stating in accompanying reports that there is a “private right of action under Section 2, as has been clearly intended by Congress since 1965.”²⁹⁵ With this history in view,²⁹⁶ it is difficult to grasp the court’s confusion when it stated: “How could adding ‘or an aggrieved person’ to a provision that created no right of action transform it into one that creates many?”²⁹⁷ Congress already told the court how: Section 3 operates separately from Section 12(d) to provide private persons with a private remedy to enforce statutory provisions that guarantee their right to vote. Including “aggrieved person” in Section 3 changed the VRA’s underlying remedy structure. The 1975 amendments did, in fact, mean something.

The Eighth Circuit raised one additional concern to this straightforward understanding of Section 3: Adding “aggrieved person” into Section 3 “created new private rights of action for every voting-rights statute that did not have one, including § 2.”²⁹⁸ Here, the court was primarily worried about the term “any”—that aggrieved parties may institute proceedings under “any statute”—being too all-encompassing.²⁹⁹ To accept that interpretation, it “would have to conclude that Congress hid the proverbial ‘elephant[] in [a] mousehole[].’ ”³⁰⁰ Further, the Court was worried that it would make a “mess of other statutes,” like Section 1983, that do not explicitly confer a right to vote.³⁰¹ However, this fear is only realized if one takes the broadest possible interpretation of “any,” rather than a more reasonable, narrower reading of the term within its statutory context: that it confers an implied private right of action only for those statutes that explicitly designate the right to vote using rights-creating language.³⁰² This interpretation covers Section 2, which explicitly protects against the “denial or abridgement of the right of any citizen . . . to vote.”³⁰³ But it would exclude voting statutes that lack such rights-creating language like those solely focusing on regulated entities or regulators. It also avoids the court’s concern regarding Section 1983, which does not use right-to-vote language.³⁰⁴ At the end of the day, maybe the elephant isn’t an elephant—maybe it’s just a mouse in the mousehole.

The historical record and text of Section 3, combined with Sections 2 and 14, provide compelling evidence that private plaintiffs can legally enforce Section 2. The Eighth Circuit, however, did not even begin its analysis with Section 3, but with Section 12: It held that Section 12 alone demonstrates that Section 2, even combined with Sections 3 and 14, does not confer an implied private right of action.³⁰⁵

b. Section 12

The Eighth Circuit viewed Section 12(d) as containing the VRA’s primary enforcement mechanism—notwithstanding Sections 3 and 14. Section 12, titled “Civil and criminal sanctions,” reads as follows:

Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section [2, 3, 4, 5, 10, or 11] of this title . . . the Attorney General may institute for the United States, or in the name of the United States, an action for preventative relief . . . .³⁰⁶

It specifically empowers the Attorney General to enforce other VRA sections, including Section 2. The court noted that omitting private parties in Section 12(d) “was no accident” because of Section 12’s overarching framework.³⁰⁷ The court divided this framework into “two paths”: one dealing with jurisdictions subject to federal observers where private individuals have a notice power but lack independent power to sue, and a second where the Attorney General alone enforces the Act’s other provisions.³⁰⁸ After describing these “narrow” paths as all the “remedies . . . the text provides,” the court held that this framing provided dispositive evidence that Section 2 confers no private remedy that could satisfy Sandoval’s private-remedy requirement.³⁰⁹ It concluded:

Congress not only created a method of enforcing § 2 that does not involve private parties, but it also allowed someone else to bring lawsuits in their place. If the text and structure of § 2 and § 12 show anything, it is that “Congress intended to place enforcement in the hands of the [Attorney General], rather than private parties.”³¹⁰

Therefore, without a private remedy, Section 2 confers no implied private right of action.

The Eighth Circuit effectively made an expressio unius³¹¹ argument: Because Section 12(d) only gives the Attorney General authority to enforce VRA provisions, including Section, the text implicitly excludes private plaintiffs from doing so.³¹² Under Sandoval, this is enough to find no private remedy and, thus, no implied private right of action.³¹³ However, if other sections include alternate enforcement mechanisms—such as allowing for the DOJ and private-plaintiffs to bring lawsuits—then both can operate simultaneously.³¹⁴ Such an alternate mechanism plainly exists, for example, in Section 3’s aggrieved person language.³¹⁵

In fact, Section 12 also includes an alternate enforcement mechanism, which further calls into question the Eighth Circuit’s conclusion that Congress intended the Attorney General alone to have enforcement power. Section 12(f) grants district courts’ jurisdiction over proceedings where a “person asserting [their] rights” has exhausted administrative or other remedies.³¹⁶ The statute’s use of the term “person,” which the Dictionary Act defines as “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,”³¹⁷ suggests that Congress envisioned lawsuits brought by actors other than the DOJ; otherwise, it would have stated, as it did elsewhere,³¹⁸ the “United States” or “States and political subdivisions.”³¹⁹

This is where the court’s “two paths” theory comes into play. The court claimed that Section 12(f) merely modifies Section 12(e), which provides that private “persons,” in localities where the VRA authorizes federal election observers, can notify those observers if a government officer violated their voting rights.³²⁰ The election observers can then alert the DOJ, which can petition a court to count those individuals’ ballots.³²¹ To the Eighth Circuit, private plaintiffs may only pursue this narrow notice “path”; in contrast, the DOJ can sue to enforce any other VRA provision pursuant to the public cause of action under Section 12(d).³²²

However, the statutory text betrays the court’s understanding because Section 12(f) does not cabin “persons” to remedies under Section 12(e)—it instead provides that they can recover under all the provisions in chapters 103 through 107 of the VRA, which includes Section 2, 3, 5, 10, 14, and others. To that end, Section 12(f) notes that these persons may exhaust all “administrative or other remedies” available under the VRA.³²³ The court’s interpretation instead confines these private parties to the administrative remedy of notifying federal-election observers and petitioning the DOJ to act.³²⁴ In doing so, it renders Section 12(f)’s provision for “other remedies” available to private persons as surplusage. This interpretation has significantly broader consequences for the act as well. If this notice and petition power is the only enforcement power that private persons possess, then Section 3’s “aggrieved person” language is rendered a nullity. It also renders Section 14’s fee-shifting provision for prevailing parties “other than the United States” similarly meaningless.

More broadly, the court’s interpretation of the Attorney General’s enforcement power under Section 12(d) renders large swaths of the Act surplusage and upends longstanding judicial understandings of other provisions. Under the court’s Section 12(d) and (f) interpretation, private plaintiffs possess only a notice and petition remedy, whereas the DOJ alone can sue to enforce Section 2 and the Act’s other provisions. This cramped logic leaves no room for private plaintiffs to sue under Sections 5 and 10 as well and allows only the DOJ to sue to enforce those provisions.³²⁵ Therefore, such a conclusion effectively overturns both Allen and Morse, where the Supreme Court held that private plaintiffs possess an implied private right of action to enforce Sections 5 and 10, respectively.³²⁶ It renders all other express references to private enforcement by Congress in the Act—such as Sections 3, 12(f), and 14—surplusage.³²⁷ Arkansas NAACP’s all-or-nothing holding on Section 12 simply cannot coexist with the Supreme Court’s textual interpretations of the Act that allow private plaintiffs to sue to enforce some provisions alongside the DOJ nor can it coexist with straightforward readings of the statutory text as a whole.

The Eighth Circuit also ignored part of Section 12(d)’s text to reach its conclusion. Section 12(d) provides the Attorney General with two distinct avenues to sue: “for the United States, or in the name of the United States.”³²⁸ We must assume that Congress meant these clauses to have two different meanings; otherwise, why make them distinct? Reading them identically would cause one to have no effect, violating the surplusage canon of statutory interpretation.³²⁹ One potential way to interpret these two distinct clauses is to read one as allowing the DOJ to sue to remedy a violation directly on the United States’ behalf—for example, the Attorney General sues directly a state or political subdivision that violates Section 2, as the Eighth Circuit stipulates. The second clause, then, could be read to provide the DOJ with the power to join an already existing lawsuit by a private party against a violator state or political subdivision, which would ensure the United States is represented in the suit even if it did not initiate the suit.³³⁰ Reading these two clauses as distinct authorizations to sue better effectuates all provisions of the VRA, including those provisions evincing a congressional intent to allow private enforcement of the Act (Sections 3, 12(f), and 14(e)).³³¹ The Eighth Circuit’s analysis stops short and only considers the first potential meaning of these clauses. This renders the other, distinct clause superfluous and also nullifies the other provisions that envision private enforcement.³³² The court should have adopted the interpretation posited here, which effectuates all the clauses of Section 12(d) and other private-enforcement-oriented sections, rather than its more cramped view.

Finally, the court argued that Section 12 precludes private lawsuits because, in addition to only granting the Attorney General enforcement authority (notwithstanding Section 12(f)), it creates criminal penalties, which private parties cannot seek.³³³ It relegated this argument to a footnote, and for good reason. The court never dispositively showed legislative intent to preclude private enforcement. The Act’s criminal penalties are largely siloed in Sections 12(a)–(c) and 14(a).³³⁴ Rather than rendering obsolete all VRA language that suggests private enforcement—including Sections 3, 12(f), and 14—a more cogent interpretation is that Congress intended the Attorney General to pursue criminal sanctions, while empowering both the Attorney General and private plaintiffs, through Sections 3, 12(f), and 14, to pursue civil remedies elsewhere in the Act. The fact that Congress decided to place both civil and criminal sanctions in one section does not undercut this interpretation.

This deep dive into the Eighth Circuit’s Sandoval analysis shows that the opposite conclusion—that Section 2 does confer a private right of action—more readily flows from its interpretive methods. The court’s conclusion on the private-right prong was plainly wrong under current precedent. Although the case for a private remedy is less clear-cut than the private-right question, strong arguments still support the interpretation that Section 3 creates a private remedy sufficient to confer an implied private right of action under Section 2. Supreme Court precedent and an overwhelming historical record support this conclusion. Meanwhile, the Eighth Circuit’s decision makes Section 2 practically inoperable.

This Part presented textual and structural arguments for overruling Arkansas NAACP. If the Supreme Court found such arguments alone insufficient in a future case, however, it should also consider a unique path that relies more explicitly on contemporary legal context to uphold private plaintiffs’ ability to sue under Section 2.

III. History as a Guide: How “Contemporary Legal Context” Could Save Section 2

In Arkansas NAACP, the Eighth Circuit relied on Sandoval to conduct an unduly strict textual and structural analysis to hold that Section 2 does not confer an implied private right of action, ignoring the contemporary legal context surrounding the VRA and Section 2.³³⁵ Sandoval’s strict focus on a statute’s text and structure undeniably makes it harder for federal courts to conclude that statutes confer implied private rights of action.³³⁶ However, the Court did not overrule prior cases stating that “contemporary legal context” provides useful evidence of Congress’s meaning.³³⁷ Although the Court limited the usefulness of such context, stating that it “matters only to the extent it clarifies text” or buttresses a “conclusion independently supported by the text of the statute,” it has never outright prohibited its use in statutory interpretation to find implied private rights of action.³³⁸ These cases remain good law. Indeed, courts still use contemporary legal context, alongside textual and structural analysis, to hold that statutes confer implied rights.³³⁹

The Eighth Circuit should have considered contemporary legal context in its analysis. This Part argues that the Supreme Court can rely on the VRA’s contemporary legal context to remedy the Eighth Circuit’s error in a future case if the Court decides to address whether Section 2 confers an implied private right of action. In doing so, the Court need not reject Sandoval entirely; instead, it could invoke the VRA’s unique history, and the reliance on that history by Congress and the Court, to place the VRA in a category all its own to ensure an implied private right of action under Section 2 survives.

The Supreme Court’s “contemporary legal context” standard, announced in Cannon, encompassed statutes enacted between 1964 and 1975 when the Court fully employed the purposive Borak standard in deciding whether statutes conferred implied private rights of action.³⁴⁰ It noted that “it is not only appropriate but also realistic to presume that Congress” knew that the Court would employ this liberal standard for implied private rights of action when interpreting statutes enacted during this era.³⁴¹ The Court upheld this understanding as recently as 2019, stating, “It is a commonplace of statutory interpretation that ‘Congress legislates against the backdrop of existing law.’ ”³⁴² Congress enacted the VRA during this pivotal era and has amended it five times since then.³⁴³ The VRA’s text strongly suggests that Section 2 confers an implied private right of action,³⁴⁴ and the Supreme Court can give special consideration to the VRA’s contemporary legal context to further “clarif[y]”³⁴⁵ that implication.

The VRA’s complex and unique history was built around congressional reenactment and judicial interpretation. The VRA closely followed the CRA of 1964 and preceded the Education Amendments of 1972—both of which, the Supreme Court has held, confer implied private rights of action largely due to their era of enactment.³⁴⁶ Private plaintiffs brought VRA claims during this time.³⁴⁷ Indeed, in 1969, the Court held that Section 5 confers an implied private right of action.³⁴⁸ When it amended the VRA in 1970, Congress did not insert an explicit private right of action into the text, but it specifically affirmed this interpretation in the legislative record,³⁴⁹ thereby showing its support for this liberal interpretive approach to the VRA.³⁵⁰

In 1975, Congress included language to confer a general private right of action for VRA provisions by amending Section 3 to include “aggrieved person,” giving individuals a private remedy to enforce their rights under the statute.³⁵¹ A few years later, in response to Bolden, where the Supreme Court assumed that a private right of action to enforce Section 2 existed to reach the merits,³⁵² Congress again amended the VRA. This time its intent for private plaintiffs to enforce Section 2 was indisputable. The House and Senate Judiciary Committee Reports specifically noted that “citizens have a private cause of action to enforce their rights under Section 2.”³⁵³ Further, Congress enacted the 1982 amendments against a backdrop of Section 2 cases brought by private plaintiffs.³⁵⁴ Crucially, in 1982, Congress did not meaningfully change the original 1965 text where Section 2’s implied private right of action resides but only added another substantive subsection to the statute.³⁵⁵ The Supreme Court has held that in such “context[s], the fact that a comprehensive reexamination and significant amendment of the [statute] left intact the statutory provisions under which the federal courts had implied a cause of action is itself evidence that Congress affirmatively intended to preserve that remedy.”³⁵⁶ This era’s legal practice and congressional action provide a robust contemporary legal context that further “clarifies”³⁵⁷ Congress’s understanding that private plaintiffs themselves can enforce Section 2. Ultimately, it adds even greater support to the already strong precedential, historical, and textual and structural arguments favoring finding that private plaintiffs can sue to enforce Section 2.³⁵⁸

It would hardly be anomalous for the Court to rely on the VRA’s contemporary legal context to conclude that Section 2 confers an implied private right of action; to the contrary, holding otherwise would depart from precedent and legislative intent. In Morse, the Court relied extensively on this exact contemporary legal context to conclude that Section 10, and implicitly Section 2, confer implied private rights of action.³⁵⁹ The Court cited the House and Senate Judiciary Committee Reports accompanying the 1982 Section 2 amendments for this conclusion.³⁶⁰ It further listed additional cases where it entertained Section 2 claims brought solely by private plaintiffs.³⁶¹ It is now (as it would have been then), to use the Court’s words, “anomalous, to say the least, to hold that both § 2 and § 5 are enforceable by private action but § 10 is not.”³⁶² As Morse was never overruled, Sandoval’s intervention does not diminish its reasoning on how this contemporary legal context clarifies Section 2’s text to demonstrate that it confers an implied private right of action.

Lastly, relying on the congressional record that enriches this contemporary legal context is fully consistent with Section 2 doctrine, which relies extensively on congressional reports to undergird its jurisprudence. Not only did the Court rely on the House Reports from 1970, 1975, and 1981 and Senate Reports from 1975 and 1982 to decide Morse³⁶³ but it also relied extensively on the 1982 Senate Report in Thornburg v. Gingles.³⁶⁴ There, the Court directly incorporated all nine factors, verbatim, from the Senate Report into Section 2 doctrine by holding that those factors determine whether plaintiffs have satisfied Section 2’s results test.³⁶⁵ In this Report, which the Court named the “authoritative source” for understanding the legislative intent of Section 2,³⁶⁶ Congress explicitly confirmed the “existence of the private right of action under Section 2.”³⁶⁷ Gingles’s doctrinal framework was reaffirmed by the Court just two years ago in Milligan.³⁶⁸ Private plaintiffs brought both cases.³⁶⁹

Legal context matters because Congress does not “legislate in a vacuum.”³⁷⁰ That is particularly true for the VRA—a statute that requires constant revision and reenactment. The VRA’s text and structure demonstrate that Section 2 confers an implied private right of action. But if the Court requires more evidence, the contemporary legal context corroborates this view and shows that, through its many revisions, Congress acquiesced to the Court’s broad interpretation of its text. The Eighth Circuit erred in holding otherwise, and the Supreme Court should remedy that mistake at the earliest opportunity.

Conclusion

This Note shows that Arkansas NAACP represents a sharp split with other circuit courts, a stark departure from the VRA’s history and contemporary legal context, and a strained use of textual and structural reasoning to reach its anomalous result. We should not let the storm blind us from pursuing potential solutions to preempt or correct the consequences of the Eighth Circuit’s decision. One of those solutions lies in the VRA’s unique contemporary legal context, which the Supreme Court should consider alongside the strong textual case for inferring an implied private right of action in Section 2. That approach remains viable under current precedent, which the Court should not overrule. Doing so would disrupt decades of legal practice and reliance by private individuals and the DOJ on being able to privately enforce Section 2.³⁷¹

A world without private enforcement is, effectively, a world where Section 2 ceases to exist.³⁷² The millions of individuals living within the Eighth Circuit’s jurisdiction now live in that reality—until and unless the Supreme Court rules otherwise. It would be a travesty of justice to extend the ruling beyond the Eighth Circuit’s walls. In the wake of Shelby County, without Section 5’s umbrella, Section 2’s raincoat is all that remains to protect citizens against the worst impulses of government officials.³⁷³ We cannot let that raincoat be cast off, lest the fundamental right to vote of millions of Americans be forever threatened.

* J.D., May 2024, University of Michigan Law School; M.P.P., May 2024, University of Michigan Gerald R. Ford School of Public Policy. I would like to thank Michigan Law professors Ellen Katz, Leah Litman, Gil Seinfeld, Michael Steinberg, Nina Mendelson, and Rebecca Eisenberg for their critiques and insights on this piece. Thank you as well to Jackson Skeen, José Urteaga, Edward Plaut, Lauren Miller, and my peers in the Michigan Law Student Scholarship Workshop for their review and feedback. I would also like to thank my wife Hannah and my parents for their love and support throughout the writing process.