Ark. State Conference NAACP v. Ark. Bd. of Apportionment

86 F.4th 1204

ARKANSAS STATE CONFERENCE NAACP; Arkansas Public Policy Panel, Plaintiffs - Appellants v. ARKANSAS BOARD OF APPORTIONMENT;Sarah Huckabee Sanders, in her official capacity as the Governor of ArkansasChairman of the Arkansas Board of Apportionment; John Thurston,in his official capacity as the Secretary of State of Arkansasand as a member of the Arkansas Board of Apportionment; Tim Griffin,in his official capacity as the Attorney General of the State of Arkansasand as a member of the Arkansas Board of Apportionment; State of Arkansas, Defendants - AppelleesUnited States of America, Interested party - Amicus on Behalf of Appellant(s)Former Department of Justice Attorneys;Bipartisan Group of Supporters of the 1982 Voting Rights Act Amendments;Lawyers' Committee for Civil Rights Under Law, Amici on Behalf of Appellant(s)Honest Elections Project; Senator Tom Cotton; State of Texas;State of Alabama; State of Florida; State of Georgia; State of Indiana;State of Kentucky; State of Louisiana; State of Mississippi; State of Missouri; State of Montana;State of Nebraska; State of Oklahoma; State of South Carolina;State of Utah, Amici on Behalf of Appellee(s)

No. 22-1395

United States Court of Appeals, Eighth Circuit

Submitted: January 11, 2023

Filed: November 20, 2023

Appeal from United States District Court for the Eastern District of Arkansas - Central

Counsel who presented argument on behalf of the appellant and appeared on the brief was Sophia Lin Lakin, of New York, NY. The following attorneys also appeared on the appellant brief; Bryan L. Sells, of Atlanta, GA., Angela Liu, of Chicago, IL., Gary L. Sullivan, of Little Rock, AR., Ceridwen Cherry, of Washington, DC., Jonathan Topaz, of New York, NY., Luke M. Reilly, of Philadelphia, PA., Matthew F. Williams, of San Francisco, CA., Neil Steiner, of New York, NY., Adriel I. Cepeda Derieux, of New York, NY.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Nicholas J. Bronni, AAG, of Little Rock, AR. The following attorneys also appeared on the appellee brief; Asher Steinberg, AAG, of Little Rock, AR., and Dylan L. Jacobs, of Little Rock, AR.

Counsel who presented argument on behalf of the amicus party in support of appellants United States and appeared on the brief was Jonathan Backer, of Washington, DC. The following attorney also appeared on the amicus brief of the United States in support of the appellants: Erin H Flynn, of Washington, DC.

The following attorneys appeared on the amicus brief of Former Department of Justice Attorneys in support of the appellants: Valencia Richardson, of Washington, DC., Jonathan Diaz, of Washington, DC., Orion de Nevers, of Washington, DC., Sam Horan, of Washington, DC., and Danielle Marie Lang, of Washington, DC.

The following attorneys appeared on the amicus brief of Lawyers' Committee for Civil Rights Under Law in support of the appellants: Jon M. Greenbaum, of Washington, DC., Ezra D. Rosenberg, of Washington, DC., and Pooja Chaudhuri, of Washington, DC.

The following attorneys appeared on the amicus brief of Bipartisan Group of Supporters of the 1982 Voting Rights Act Amendments in support of the appellants: Craig Coleman, of Minneapolis, MN., Jeffrey Justman, of Minneapolis, MN., Erica Abshez Moran, of Minneapolis, MN., Hannah M. Leiendecker, of Minneapolis, MN., and Alexandra K. Benton, of Denver, Colorado.

The following attorneys appeared on the amicus brief of Honest Elections Project in support of the appellees: Cameron Thomas Norris, of Arlington, VA., and Frank H. Chang, of Arlington, VA.

The following attorney appeared on the amicus brief of Senator Tom Cotton in support of the appellees: Jason Brett Torchinsky, of Washington, DC.

The following attorney appeared on the amicus brief of the States of Texas, Alabama, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, and Utah in support of the appellees: Ari Cuenin, AAG, of Austin, TX.

Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.

STRAS, Circuit Judge.

Did Congress give private plaintiffs the ability to sue under § 2 of the Voting Rights Act? Text and structure reveal that the answer is no, so we affirm the district court's¹ decision to dismiss.

I.

Quarreling over district lines begins like clockwork every ten years after the United States Census. In 2021, Arkansas experienced it firsthand when it created 11 majority-black districts out of 100 for electing members of its House of Representatives.

The Arkansas NAACP and the Arkansas Public Policy Panel, two advocacy groups with members living throughout the state, oppose the new map. They sued nearly everyone who had anything to do with it under § 2 of the Voting Rights Act. See 52 U.S.C. § 10301.

The complaint alleged "vote dilution," which comes in two forms. See Thornburg v. Gingles, 478 U.S. 30, 46 & n.11, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). The first is "packing," which involves drawing lines that concentrate a cohesive political group into a limited number of districts. Voinovich v. Quilter, 507 U.S. 146, 153-54, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993). An example is turning three possible majority-minority districts into just two by bunching the group's members into two supermajority districts. See id.; see also Gingles, 478 U.S. at 46 n.11, 106 S.Ct. 2752 (describing it as creating "an excessive majority"). The other, "cracking," is basically the opposite. Rucho v. Common Cause, — U.S. —, 139 S. Ct. 2484, 2492, 204 L.Ed.2d 931 (2019). It takes a cohesive political group and "divide[s]" its members "among multiple districts," where other voters can numerically overwhelm them. Id.

Here, Arkansas has allegedly done a combination of both, making it harder for black voters to elect the representatives they prefer. See Gingles, 478 U.S. at 47-51, 106 S.Ct. 2752. In the language of the Voting Rights Act, the new map allegedly "deni[es]" or "abridge[s]" their right to vote by creating supermajorities in just a few districts and then spreading out the black voters who remain. 52 U.S.C. § 10301(a).

The advocacy groups use basic statistics to back up their claim. They point to the fact that approximately 16% of Arkansas's population is black, yet the expectation is that only 11% of their preferred candidates will win. The disparity, they say, shows that Arkansas created some hyper-concentrated black districts through "packing" and then "cracked" the remaining black voters to give them minimal impact. Although the groups do not allege intentional discrimination, they seek an injunction preventing state officials from using the new map because of its "discriminatory effects." Allen v. Milligan, 599 U.S. 1, 143 S. Ct. 1487, 1507, 216 L.Ed.2d 60 (2023).

Early in the case, the district court started questioning whether the advocacy groups had a cause of action under § 2 at all. Following supplemental briefing and a hearing, it concluded "that the existence (or non-existence) of a private right of action is a jurisdictional question." And even if it was not, the defendants were sure to raise it anyway in a motion to dismiss. So either way, the question needed answering.

The answer it gave is why we are here today. After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that private parties cannot enforce § 2. The enforcement power belonged solely to the Attorney General of the United States, see 52 U.S.C. § 10308(d), who was given five days to join the lawsuit. When he declined, the case was dismissed.

On appeal, the advocacy groups argue they had the right to sue all along. Whether they do presents an issue of statutory interpretation that we review de novo. See Syngenta Seeds, Inc. v. Bunge N. Am., Inc., 773 F.3d 58, 63 (8th Cir. 2014).

II.

Congress passed the Voting Rights Act in 1965 "to address entrenched racial discrimination in voting." Shelby County v. Holder, 570 U.S. 529, 535, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). States with a history of discrimination had to "preclear[ ]" any voting-law changes with the Attorney General or a three-judge court located in Washington, D.C. Id. at 537, 133 S.Ct. 2612. It was an "extraordinary measure[ ] to address an extraordinary problem." Id. at 534, 133 S.Ct. 2612.

There were also provisions that all states had to follow, regardless of their history. One was § 2, which prohibited states and political subdivisions from enacting any "standard, practice, or procedure" that "den[ied] or abridge[d] the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973 (1970). Early on, it "had little independent force" because it was a mirror image of the Fifteenth Amendment: each prohibited intentional discrimination. Milligan, 143 S. Ct. at 1499.

The 1980s brought increased scrutiny to § 2. At the beginning of the decade, the Supreme Court confirmed what many already thought: without "purposeful exclusion" of voters from the political process, there was no § 2 or Fifteenth Amendment violation. City of Mobile v. Bolden, 446 U.S. 55, 61-65, 100 S.Ct. 1519, 64 L.Ed.2d 47 (1980) (plurality opinion). Discriminatory effects were not enough. See id.

Bolden did not sit well with Congress, which jumped into action the following year. In lieu of purposeful discrimination, the amended § 2 adopted a discriminatory-effects test. See Milligan, 143 S. Ct. at 1500 (describing the compromise that led to the § 2 amendments). It now reads:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to

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