Published on
By: Eric Humphrey*
Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment, 86 F.4th 1204 (8th Cir. 2023).
I. Introduction
The Rorschach inkblot test is a psychiatric diagnostic tool.[1] During the test a psychiatrist shows a patient a series of ink blots and records the patient’s interpretation.[2] There are no right or wrong answers.[3] The theory is that the patient projects their feelings on ambiguous images, exposing how they project meaning onto the world.[4] Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment is a Rorschach test for judicial interpretation.[5]
The Arkansas NAACP and Public Policy Panel challenged the Arkansas Board of Apportionment’s federal election redistricting map under § 2 of the Voting Rights Act, alleging the map diluted black citizens’ voting power.[6] Section 2 prohibits voting practices that “result[] in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”[7]
This case is not about the merits of the plaintiffs’ claim.[8] Rather, the 8th Circuit addressed whether the plaintiffs had a right to sue under § 2.[9] Much like a Rorschach test, § 2 is the ambiguous ink blot that reveals how judges project meaning into statutes. There are two interpretive methodologies implicated by this case: textualism and intentionalism.[10] How you view § 2 of the Voting Rights Act will determine whether you are a textualist or an intentionalist. Unlike a Rorschach test, the law requires a right answer.[11] Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment provides a case study for determining what interpretive methods judges use and evaluating what method of interpretation is correct.[12]
II. Facts and Holding
On December 29, 2021, The Arkansas Board of Apportionment adopted a new election district map.[13] That same day, the Arkansas NAACP and Public Policy Panel, the Arkansas Board of Apportionment, filed suit against the state of Arkansas and various government officials under § 2 of the Voting Rights Act to prevent Arkansas from using the new map.[14] Despite neither party raising the issue, the district court, out of concern for subject-matter jurisdiction, questioned whether there was a private right of action under § 2 of the Act.[15]
The plaintiffs argued that the text of the Act indicated a private right of action in § 2.[16] Section 3 authorizes specific relief in lawsuits brought by the Attorney General or an “aggrieved person.”[17] Section 12(f) of the Act gives federal courts jurisdiction “whether a person asserting rights . . . [has] exhausted any administrative or other remedies.”[18] Section 14 provides that costs may be awarded to a “prevailing party, other than the United States.”[19] The plaintiffs argued sections 3, 12(f), and 14 implied a private right of action existed in § 2.[20] The plaintiffs also argued legislative history supported a private right of action.[21] When Congress amended § 2 in 1982, the House and Senate Judiciary Committees wrote Congress “clearly intended” to allow private enforcement “since 1965.”[22] Further, the plaintiffs argued the Supreme Court recognized a private right of action in § 2 in Morse v. Republican Party of Virginia.[23]
The defendants argued § 2 of the Act does not provide a private right of action.[24] Under Supreme Court precedent Alexander v. Sandoval,without statutory language that shows intent to create a private remedy, “a [right] of action does not exist and courts may not create one.”[25] The defendants noted § 12 of the Act gave the Attorney General a right of action to enforce § 2.[26] The defendants argued this enforcement mechanism was exclusive.[27]
The district court found no private right of action under § 2 of the Voting Rights Act.[28] The court rejected the plaintiffs’ interpretation of the Voting Rights Act and dismissed Morse as dicta.[29] Without a private right of action under § 2, the court asserted that it lacked subject-matter jurisdiction.[30] As such, the case was dismissed without prejudice.[31]
The 8th Circuit affirmed.[32] But, the 8th Circuit found the district court misinterpreted precedent on subject-matter jurisdiction.[33] The 8th Circuit held the district court had jurisdiction despite the lack of a private right of action and modified the dismissal with prejudice.[34]
III. Legal History
Some consider the earliest indication of an implied right of action to be Justice Marshall’s statement in Marbury v. Madison; “where there is a legal right, there is also a legal remedy.”[35] A private right of action allows a private plaintiff to bring a lawsuit based on a statute, the Constitution, or federal common law.[36] Congress can provide a private right of action expressly or by implication.[37]
The Supreme Court has gradually adopted a textualist approach to implied rights of action over time.[38] There are four main periods of implied right of action jurisprudence. The first era started with Texas & Pacific R. Co. v. Rigsby in 1916.[39] During this era, the Court implied rights of action to effectuate a statutes purpose in situations analogous to negligence per se in tort law.[40] However, the Rigsby era rarely applied the rule outside a railroad context.[41] The In the second era, the Supreme Court’s frequently implied of rights of action beginning with J. I. Case Co. v. Borak.[42] Borak marked a shift towards an expansive approach to implied rights of action that continued to emphasize statutory purpose.[43] The third era, Cort, was a transitionary period where the Court considered multiple factors when implying rights of action.[44] Further, in Cannon v. University of Chicago, the Supreme Court applied the Cort factor test in analyzing Title IX.[45] The Court noted Title IX’s enactment during a period where the Court consistently implied private rights of action, and “contemporary legal context” indicated a private right of action.[46]
In the fourth era, the Supreme Court used a textualist approach. This era spans from Sandoval to the present.[47] In Alexander v. Sandoval the Supreme Court adopted a textualist approach to implied rights of action.[48] The Court rejected the approach of Cannon, and its predecessor Cort,which considered the “contemporary legal context” of a statute.[49] Under Sandoval, the appropriate test for implied rights of action is “whether [the statute] displays an intent to create not just a private right but also a private remedy.”[50] To determine whether a statute confers a private right, the Court determined the appropriate test was whether the statute was phrased in terms of the persons benefited.[51] Statutes that “focus on the person regulated” do not intend to confer a private right.[52] With respect to whether the statute contained a private remedy, the express provision of one method of enforcement suggests the exclusion of other methods.[53] The Court noted that “legal context matters only to the extent it clarifies text.”[54]
Justice Stevens dissented, criticizing the majority for “blind[ing] itself to congressional intent” by not applying the Cort framework.[55] Justice Stevens argued congressional intent to create a private right of action must be considered in light of contemporary legal context.[56] Since “[a]t the time Congress was considering Title VI, it was normal practice for the courts to infer that Congress intended a private right of action.”[57]
The Sandoval approach led courts to frequently reject implied rights of action.[58] Despite the Supreme Court adopting a textualist method, there are many statutes outstanding with implied rights of action still being employed, including § 2 of the Voting Rights Act.[59]
IV. Instant Decision
The 8th Circuit began by noting both parties agreed the text of § 2 did not explicitly provide a private right of action.[60] Citing Sandoval, the court found that to imply a private right of action a statute must intend to confer a private right and a private remedy.[61] The appropriate test to determine whether § 2 conferred a private right was whether the statute was “phrased in terms of the persons benefited.”[62] Statutes that “focus on the person regulated” do not intend to confer a private right.[63] The court found both “persons-benefitted” and “person-regulated” language in § 2.[64] The court found that “it is unclear what to do when a statute focuses on both” the person benefitted and person regulated, so it turned to the private remedy question.[65]
The court addressed § 12 of the Act, which allows the Attorney General to sue in the place of individual voters.[66] Under Sandoval, “[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.”[67] Therefore, the court found that § 12 indicated no private right of action in § 2.[68]
Next, the court addressed the plaintiffs’ argument that sections 3, 12(f), and 14 of the Act contained language implying a private right of action existed in § 2.[69] The court found adding the phrase “aggrieved person” to § 3 did not create a right of action in § 2; it merely recognized rights of action that existed elsewhere.[70] The following phrase after “aggrieved person” is “a proceeding under any statute” which most logically referenced preexisting statutes, not a new implied right of action.[71] The court reasoned that when Congress passed the Voting Rights Act in 1965, § 3 would have been understood to supplement available remedies, not create a right of action.[72] Since § 3 did not originally create a private right of action, adding the phrase “or an aggrieved person” did not create a right of action either.[73]
Next, the court addressed the legislative history of § 2.[74] When Congress amended § 2 in 1982, the House and Senate Judiciary Committees wrote that Congress had “clearly intended” private enforcement since 1965.[75] The court noted that Sandoval sets the implied-cause-of-action rules, which focus on what the legislative history tells us about the “text and structure” of the statute.[76] The Legislative history did not reference any text in the Voting Rights Act.[77] In addition, the court did not find the 1982 legislative history persuasive, noting that Congress could not have known what a different set of legislators thought 17 years earlier.[78]
The court also evaluated Supreme Court precedent.[79] The court did not find Morse persuasive, as the Supreme Court in Morse merely assumed that a private right of action existed in § 2.[80] The court considered this assumption the “least valuable kind” of dicta because there was little analysis on why § 2 was privately enforceable, the determination was unnecessary to the court’s judgment, and the reasoning of Morse was inconsistent with Sandoval.[81]
Chief Judge Smith dissented.[82] Chief Judge Smith noted that federal courts have frequently considered private § 2 suits.[83] In addition, hundreds of cases acknowledge a private right of action in § 2.[84] Chief Judge Smith also took issue with the majority’s treatment of Morse, since a majority of the Supreme Court explicitly recognized a private right of action under § 2 in Morse.[85]
The plaintiffs sought rehearing en banc.[86] The 8th Circuit denied the petition.[87] Judges Stras and Gruender wrote an opinion concurring in the denial of rehearing en banc, joining the majority opinion.[88] Judge Stras defended the dismissal with prejudice contending the plaintiffs’ shift from a right of action under § 2 to one under § 1983 was not sufficient to keep the case alive.[89] The plaintiffs mentioned § 1983 for the first time in a footnote in their opening brief meant that plaintiffs were not entitled to amend their complaint.[90]
Judge Colloton, joined by Judge Kelly, dissented from denial of rehearing en banc.[91] The dissent took issue with the panel majority’s negative treatment of contemporary legal context, calling it “anachronistic error.”[92] The dissent pointed out that when “[c]ongress reenacted the Voting Rights Act in 1970, 1975, 1982, and 2006, it had no reason to add statutory language to authorize a right of action when the Supreme Court and other courts already had deemed explicit authorization unnecessary.”[93]
The dissent also claimed the panel majority should never have reached the right of action question in the first place.[94] The District Court erred in dismissing the action without prejudice for lack of subject-matter jurisdiction.[95] The dissent claimed, “[a]bsent a cross-appeal, an appellee may not seek to enlarge its rights or to lessen the rights of its adversary.”[96] By modifying the judgement to be with prejudice, the dissent argued the panel majority violated the cross-appeal rule.[97] The dissent claimed the proper disposition of the appeal was a remand.[98]
V. Comment
This case illustrates a conflict between textualism and intentionalism. Textualists believe that a judge must follow the text of a statute, not change it to conform “with the judge’s view of sound policy.”[99] Intentionalists believe a judge should ascertain the legislature’s intent, often using sources outside the text of the statute.[100] The District Court and panel majority of the 8th Circuit applied a textualist methodology, as shown by their emphasis on the text of the § 2 and reliance on Sandoval.[101] The panel dissent and dissent from denial of rehearing en banc defended the rationale of Supreme Court cases like Morse, which rely on determining congressional intent through extratextual sources like legislative history and contemporary legal context.[102] In this respect, the panel dissent and dissent from denial of rehearing en banc used an intentionalist framework.[103] Each camp uses authority that supports their claims, but their arguments show the real conflict is over which interpretive framework is correct.
The panel majority correctly applied Sandoval. Private rights of action must be created by Congress.[104] To imply a private right of action, a statute must display both an: (1) intent to confer a private right, and an (2) intent to confer a private remedy.[105] Under Sandoval, the express provision of one enforcement method suggests excluding other methods of enforcement.[106] The enforcement mechanism for § 2 is a lawsuit by the Attorney General.[107] As such, § 2 of the Act does not show intent to create a private remedy.[108] Therefore, the Majority is correct that the text and structure of the Act indicate there is no private right of action under § 2.
The dissenting Judges are correct that precedent, legislative history, and contemporary legal context surrounding § 2 of the Act indicate a private right of action. A majority of the Supreme Court in Morse found § 2 provided a private right of action as a necessary precondition to their holding that § 10 provided a private right of action.[109] After amending the Act in 1982, Congress noted in legislative history that a private right of action to enforce § 2 was “clearly intended by Congress since 1965.”[110] The Supreme Court has repeatedly considered § 2 cases brought by private plaintiffs.[111] Congress passed the Act in an era where the Court routinely implied private rights of action.[112] Therefore, the dissent is correct that the precedent, legislative history, and contemporary legal context surrounding § 2 of the Act indicate a private right of action.
The question is not just whether there is a private right of action in § 2, but also whether we should use a textualist or intentionalist framework to make that decision. This case note cannot settle the debate between textualism and intentionalism, but it can provide a case study for evaluating which theory is more desirable.
One critique of textualism is it does not provide a sensible basis to determine which text is most important when interpreting a statute.[113] That critique is pertinent here. The panel majority focused on the Attorney General’s ability to bring a civil action to enforce § 2.[114] However, the Court did not find the “aggrieved persons” language in § 3 and the “person asserting rights” language in 12(f) persuasive.[115] The panel majority argued the “aggrieved persons” language in § 3 was unavailing as “no one would have thought that § 3 created a right of action in favor of the attorney general” in 1965. Therefore § 3 did not create a private right of action when amended to reference “aggrieved persons” in 1982.[116]
That is likely the correct interpretation of the text of § 3, but it does not engage with the argument advanced by the dissent. The plaintiffs argued that Congress amended the language in § 3 to acknowledge an implied right of action that existed “since 1965,” not that § 3 itself created a right of action in its text.[117] This alternate interpretation is perhaps plausible, but it relies on divining congressional intent from extrinsic sources. A critic of textualism may argue that the panel majority arbitrarily decided what text in the Voting Rights Act was most important.[118] But the alternative, determining what extratextual context is important, is more problematic. If the goal is to move beyond the text and divine legislative intent, you must discern what context is most important. The universe of statutory context is much larger than the text of the statute itself. Therefore, deciding which part of the text is most important is more workable than deciding what context is most important. As such, the textualist approach is more sensible than the intentionalist approach.
Another critique of textualism is that it enforces absurd results, contrary to congressional intent.[119] That critique is pertinent here. After all, this case interpreted the Voting Rights Act in a manner that arguably makes it more challenging to protect voting rights. Even the District Court judge who raised the right of action issue sua sponte thought § 2 cases are important to pursue, and Congress should have expressly included a private right of action.[120]
The problem with this critique is that one person’s absurd result is another person’s policy goal. At least some Republicans intend to curtail the protections of the Voting Rights Act, contending that race-conscious district drawing is discriminatory.[121] I certainly disagree with that. I agree with the Department of Justice, that the Voting Rights Act is one of “the most successful piece[s] of civil rights legislation ever adopted by the United States Congress.”[122]
Another possible justification for giving sole enforcement power to the Attorney General rather than private plaintiffs is that the Attorney General has the expertise and incentive to enforce the Voting Rights Act more effectively than private plaintiffs. The prudence of that policy is certainly arguable, but it is not for judges to make that determination. We live in a system of separated powers. Courts cannot usurp the legislative function by attempting to improve upon a statute.[123] While private enforcement of § 2 may be desirable as a policy matter, the court’s task is to determine what the law is, not what it should be. Even if the task were desirable, divining congressional intent is a fiction. Congress is an ever-changing body of 535 people, with no uniform intent. “Because legislatures comprise many members, they do not have ‘intents’ or ‘designs,’ hidden yet discoverable. Each member may or may not have a design. The body as a whole, however, has only outcomes.”[124]
One response is that legislative history provides a clear statement of congressional intent. The plaintiffs and dissent in this case argue that legislative history indicated a private right of action “has been clearly intended by Congress since 1965.”[125] That statement comes from subsequent legislative history, 17 years after Congress enacted the Voting Rights Act.[126] The Supreme Court has repeatedly stated, “subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment.”[127] As the Court acknowledged, it is not “clear how the 1982 Congress could possibly have known what a different set of legislators thought 17 years earlier.”[128] As such, textualism does not ignore congressional intent, it properly acknowledges that there is no practical method of determining the intent of Congress and appropriately curtails its analysis to the statute itself. Textualism is not desirable because it invariably reaches desirable results. In this case textualist analysis reached an arguably undesirable result. Arkansas may still dilute the votes of its Black citizens, and now those citizens’ claims may never be considered.
Another critique of textualism is that it is a cover for conservative activism. Empirical studies attempt to demonstrate that effect.[129] Cases like this do little to dispel the notion that textualism is a cover for conservative activism. The district court erred when it raised the right of action issue sua sponte.[130] The panel majority modified the judgment to be with prejudice.[131] “[A]n appellee who does not cross-appeal may not ‘attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.’”[132] The defendants did not cross-appeal.[133]
The panel majority claimed plaintiffs were “put . . . on notice of the possible deficienc[y] in their original complaint.”[134] In the case they cite, the notice was the “defendants’ motion to dismiss, filed 47 days before the District Court dismissed the case.”[135] That is a far cry from a sua sponte order by the District Court. The panel majority stated, “[i]t would have been backwards to treat the plaintiffs’ choice not to add a § 1983 claim as the reason to decide they could.”[136] However, it was backwards for the panel majority to enlarge the judgement to be with prejudice in violation of the cross-appeal rule rather than remand or affirm the dismissal without prejudice. This is especially so when the cross-appeal rule in the 8th Circuit is completely discretionary.[137]
Judge Stras advanced a well-reasoned argument that adherence cross-appeal rule was not required in this case.[138] Theoretical status aside, not applying the cross-appeal rule in this case shows some contradiction, whether or not the rule was discretionary. Textualism purports to be a model of judicial restraint and objectivity.[139] Violating the cross-appeal rule does anything but evince judicial restraint. It looks exactly like what textualism claims to decry: judicial activism. As a theory, textualism is not inherently liberal or conservative.[140] However, cases like these do little to combat the popular perception of conservative bias in textualism. The panel majority adhered to principles of judicial restraint with respect to implying a cause of action in § 2 but departed from those principles when dismissing the case with prejudice. The panel majority looked at § 2 of the Voting Rights Act, an ambiguous ink blot, and expanded the judgement to arguably advance conservative policy. Section 2’s Rorschach test has worked.
VI. Conclusion
This case is just one battle in the never-ending war between judicial interpretive frameworks. However, this case is significant because it provides a Rorschach test for interpretive frameworks. A Rorschach test has no right or wrong answer, but the law requires a right answer. Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment shows that textualism is a desirable method of statutory analysis but can lead to the appearance of conservative activism.
[1] See Mia Belle Frothingham, Rorschach Inkblot Test: Definition, History & Interpretation, Simply Psychology, https://www.simplypsychology.org/what-is-the-rorschach-inkblot-test.html (last visited Apr. 11, 2024); Promoting the ethical use of the Rorschach Inkblot Test, Rorschach.org, https://www.rorschach.org/ (last visited Apr. 11, 2024).
[2] Id.
[3] All About the Rorschach Inkblot Test, PsychCentral, https://psychcentral.com/lib/rorschach-inkblot-test#definition (last visited Apr. 11, 2024).
[4] Frothingham, supra note 1.
[5] See Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204 (8th Cir. 2023).
[6] Id. at 1207.
[7] 52 U.S.C. § 10301(a). Section 2 prohibits both intentional discrimination and procedures that result in discrimination. 52 U.S.C. § 10301.
[8] See Ark. State Conf. NAACP, 86 F.4th at 1206–07.
[9] Id. at 1207.
[10] Textualists generally believe a judge’s job is to follow the law contained in the text of the statute, not change it to conform “with the judge’s view of sound policy.” Caroline Bermeo Newcombe, Textualism: Definition, and 20 Reasons Why Textualism Is Preferable to Other Methods of Statutory Interpretation, 87 Mo. L. Rev. 139, 143 (2022). Intentionalists believe a judge’s job when interpreting a statute is to ascertain the legislature’s intent, often using sources outside the text of the statute. Id. at 149.
[11] See All About the Rorschach Inkblot Test, supra note 3.
[12] See Ark. State Conf. NAACP, 86 F.4th at 1204.
[13] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893, 897 (E.D. Ark. 2022).
[14] Id. (Officials included “Sarah Huckabee Sanders, in her official capacity as the Governor of Arkansas, the Chairman of the Arkansas Board of Apportionment, John Thurston, in his official capacity as the Secretary of State of Arkansas and as a member of the Arkansas Board of Apportionment; Tim Griffin, in his official capacity as the Attorney General of the State of Arkansas and as a member of the Arkansas Board of Apportionment; State of Arkansas”).
[15] Arkansas State Conf. NAACP, 86 F.4th at 1207. “A private right of action allows a private plaintiff to bring an action based directly on a public statute, the Constitution, or federal common law.” Caroline Bermeo Newcombe, Implied Private Rights of Action: Definition, and Factors to Determine Whether A Private Action Will Be Implied from A Federal Statute, 49 Loy. U. Chi. L.J. 117, 120 (2017).
[16] Ark. State Conf. NAACP, 586 F. Supp. 3d at 906.
[17] 52 U.S.C. § 10302.
[18] 52 U.S.C. § 10308(f).
[19] 52 U.S.C. § 10310(e).
[20] Ark. State Conf. NAACP, 586 F. Supp. 3d at 908.
[21] Id. at 911 n. 101.
[22] S. Rep. No. 97–417, at 30 (1982); Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1213 (8th Cir. 2023).
[23] Ark. State Conf. NAACP, 86 F.4th at 1215. In Morse, a majority of the Supreme Court assumed a private right of action under § 2 existed as part of their rationale for recognizing a private right of action in § 10 of the Voting Rights Act. Morse v. Republican Party of Va., 517 U.S. 186 (1996).
[24] Defendants’ Surreply in Opp’n to Pls.’ Mot. for Prelim. Injunction, Ark. State Conf. NAACP v. Ark. Bd. of Apportionment (No. 4:21-cv-01239), 2022 WL 21831562 (E.D. Ark. Jan. 31, 2022).
[25] Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001); THE ARKANSAS STATE CONFERENCE NAACP, et al., Plaintiffs, v. THE ARKANSAS BOARD OF APPORTIONMENT, et al., Defendants., 2022 WL 21831562 (E.D.Ark.).
[26] Defendants’ Surreply in Opp’n to Pls.’ Mot. for Prelim. Injunction, Ark. State Conf. NAACP v. Ark. Bd. of Apportionment (No. 4:21-cv-01239), 2022 WL 21831562 (E.D. Ark. Jan. 31, 2022) (“Whenever any person has engaged . . . in any act or practice prohibited by section 10301 . . . the Attorney General may institute for the United States, or in the name of the United States, an action for preventive relief . . . .”); see 52 U.S.C. § 10308(d).
[27] Defendants’ Surreply in Opp’n to Pls.’ Mot. for Prelim. Injunction, Ark. State Conf. NAACP v. Ark. Bd. of Apportionment (No. 4:21-cv-01239), 2022 WL 21831562 (E.D. Ark. Jan. 31, 2022).
[28] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893, 905 (E.D. Ark. 2022). The district court gave the Attorney General five days to intervene. Id. He did not join the lawsuit. Id. The district court expressed regret in finding that there was no private right of action under § 2 and expressed favor for the Voting Rights Act. See Id.
[29] Id. at 914. The district court also addressed Allen v. State Board of Elections. Id. at 913. The court found that Allen was a “defective product of an outdated jurisprudence,” which was abandoned in favor of the “stricter standard set forth in Sandoval and its progeny.” Id. at 912–13. As such, the court rejected the logic of Allen, which implied a right of action in § 5 of the Voting Rights Act. Id. at 913.
[30] Id. at 905.
[31] Id.
[32] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1207 (8th Cir. 2023).
[33] Id. at 1217.
[34] Id.
[35] Marbury v. Madison, 5 U.S. 137, 163 (1803).
[36] Newcombe, supra note 15, at 120.
[37] Id.
[38] See Bradford C. Mank, Legal Context: Reading Statutes in Light of Prevailing Legal Precedent, 34 Ariz. St. L.J. 815, 816 (2002).
[39] Newcombe, supra note 15, at 124.
[40] Jonathan A. Marcantel, Abolishing Implied Private Rights of Action Pursuant to Federal Statutes, 39 J. Legis. 251, 256 (2013).
[41] See Cannon v. Univ. of Chi., 441 U.S. 677, 734 (1979) (Powell, J., dissenting); Mank, supra note 38, at 845.
[42] Newcombe, supra note 15, at 124.
[43] Mank, supra note 38, at 845.
[44] See Cort v. Ash, 422 U.S. 66, 78 (1975). The test considered (1) whether the plaintiff was one of the class for whose benefit the statute was enacted (2) whether there was legislative intent to create or deny a remedy (3) whether implying a remedy for the plaintiff was consistent with the purposes of the statute and (4) whether the right of action was traditionally relegated to state law. Id.
[45] Cannon, 441 U.S. at 687–88.
[46] Id. at 698, 699.
[47] See Mank, supra note 38, at 856.
[48] Alexander v. Sandoval, 532 U.S. 275, 288 (2001).
[49] Id. at 287–88.
[50] Id. at 286.
[51] Id. at 289.
[52] Id.
[53] See id. at 290.
[54] Id. at 288.
[55] Id. at 311 (Stevens, J., with Souter, Ginsburg, and Breyer, JJ., dissenting).
[56] Id. at 313 (Stevens, J., with Souter, Ginsburg, and Breyer, JJ., dissenting).
[57] Id. at 314 (Stevens, J., with Souter, Ginsburg, and Breyer, JJ., dissenting).
[58] See Brianna J. Fuller, III. Federal Question Jurisdiction, 37 Loy. L.A. L. Rev. 1443, 1455 (2004).
[59] See Brnovich v. Democratic Nat’l Comm., 594 US. 647, 689 (2021). Most recently, Justice Gorsuch’s concurring opinion in Brnovich v. Democratic Nat’. Comm. flagged the issue that Supreme Court cases “have assumed—without deciding—that the Voting Rights Act of 1965 furnishes an implied right of action under § 2.” Id. at 690 (Gorsuch, J., with Thomas, J., concurring).
[60] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1208 (8th Cir. 2023).
[61] Id.; Sandoval, 532 U.S. at 288–89.
[62] Ark. State Conf. NAACP, 86 F.4th at 1209; Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002).
[63] Ark. State Conf. NAACP, 86 F.4th at 1209; See Sandoval, 532 U.S. at 289.
[64] Ark. State Conf. NAACP, 86 F.4th at 1209.
[65] Id. at 1210.
[66] Id.
[67] 532 U.S. at 290; See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012); Ark. State Conf. NAACP, 86 F.4th at 1211.
[68] Ark. State Conf. NAACP, 86 F.4th at 1211.
[69] Ark. State Conf. NAACP, 586 F. Supp. 3d at 908.
[70] Ark. State Conf. NAACP, 86 F.4th at 1211.
[71] Id.
[72] Id.
[73] Id. In addition, the court reasoned that interpreting the 1982 amendment to § 3 to create a private right of action would make other statutes inconsistent. Id. at 1212. Since the “any[-]statute” language applies to both the Attorney General and private parties, then the Attorney general would have the same causes of action as private plaintiffs. Id. But private plaintiffs can bring “proceeding[s] … to enforce … voting guarantees” that the Attorney General cannot, for example § 1983 suits. Id.
[74] Id. at 1213.
[75] Id.
[76] Id. at 1214.
[77] Id.
[78] Id.
[79] Id. The court also addressed 8th Circuit precedent Roberts v. Wamser, 883 F.2d 617 (8th Cir. 1989). Id. at 1216–17. In Roberts, the 8th Circuit held that losing candidates are not “aggrieved person[s]” under the Act. Id. at 1216. The court also noted that “standing to sue under [the Act] is limited to the Attorney General and to ‘aggrieved persons.’” Id. at 1217. The court found Roberts v. Wamser unavailing because standing and the existence of a right of action are separate issues. Id. at 1217. As such, the court held there was no private right of action under § 2. Id. at 1206–07.
[80] See Morse v. Republican Party of Virginia, 517 U.S. 186 (1996); Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment, 86 F.4th 1204, 1215 (8th Cir. 2023).
[81] Ark. State Conf. NAACP, 86 F.4th at 1216. The court found further support in recent statements of the Supreme Court. See Brnovich, 141 S. Ct. at 2350 (Gorsuch, J., concurring, joined by Thomas, J.) (noting the availability of a private right of action is an “open question”).
[82] Id. at 1218 (Smith, C.J., dissenting).
[83] Id.
[84] Id. at 1219.
[85] Id. at 1223.
[86] Ark. State Conf. NAACP v. Arkansas Bd. of Apportionment, 91 F.4th 967, 967 (8th Cir. 2024) (mem.).
[87] Id.
[88] Id. (Stras, J., with Gruender, J., concurring).
[89] Id.
[90] Id.
[91] Ark. State Conf. NAACP, 91 F.4th at 969 (Colloton, J., with Kelly, J., dissenting).
[92] Id. at 970.
[93] Id. at 971.
[94] Id.
[95] Id. at 970.
[96] Id. at 972.
[97] Id. at 973.
[98] Id. at 972.
[99] Newcombe, supra note 10, at 143.
[100] Id. at 149.
[101] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893, 897 (E.D. Ark. 2022) (“After a thorough analysis of the text and structure of the Act, and a painstaking journey through relevant caselaw, the Court has concluded that this case may be brought only by the Attorney General of the United States.”); Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1206–07 (8th Cir. 2023) (“Did Congress give private plaintiffs the ability to sue under § 2 of the Act? Text and structure reveal that the answer is no, so we affirm the District Court’s decision to dismiss.”).
[102] Ark. State Conf. NAACP, 91 F.4th at 970 (Colloton, J., with Kelly, J., dissenting).
[103] See Ark. State Conf. NAACP, 86 F.4th at 1223; Ark. State Conf. NAACP, 91 F.4th at 971 (Colloton, J., with Kelly, J., dissenting from denial of rehearing en banc).
[104] See Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
[105] See id.
[106] Id. at 290.
[107] 52 U.S.C. § 10308(d); Ark. State Conf. NAACP, 86 F.4th at 1210.
[108] See Ark. State Conf. NAACP, 86 F.4th at 1210.
[109] Morse v. Republican Party of Virginia, 517 U.S. 186, 232 (1996) (“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”).
[110] S. Rep. No. 97–417, at 30 (1982); reprinted in 1982 U.S.C.C.A.N. 177, 208.
[111] E.g.,Brnovich v. Democratic Nat’l Comm., 594 U.S. 647 (2021); Bartlett v. Strickland, 556 U.S. 1 (2009); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006); Voinovich v. Quilter, 507 U.S. 146 (1993); Chisom v. Roemer, 501 U.S. 380 (1991); Hous. Laws.’ Ass’n v. Att’y Gen. of Tex., 501 U.S. 419 (1991).
[112] See Cannon v. Univ. of Chi., 441 U.S. 677, 718 (1979) (Rehnquist, J., with Stewart, J., concurring) (“Congress, at least during the period of the enactment of the several Titles of the Civil Rights Act, tended to rely to a large extent on the courts to decide whether there should be a private right of action, rather than determining this question for itself.”).
[113] See Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, 70 Ala. L. Rev. 667, 675 (2019).
[114] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1210 (8th Cir. 2023).
[115] Id. at 1211. The court did not address the plaintiff’s arguments regarding § 14. Id. at 1217.
[116] See id. at 1211.
[117] Id. at 1222.
[118] See Nourse, supra note 113, at 675.
[119] See Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117, 146 (2009).
[120] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893, 905 (E.D. Ark. 2022).
[121] Hansi Lo Wang, 3 Novel Legal Arguments by Republicans That Threaten the Voting Rights Act in 2024, National Public Radio (Jan. 6, 2024, 5:00 AM), https://www.npr.org/2024/01/06/1222875311/voting-rights-act-section-2.
[122] Introduction To Federal Voting Rights Laws, U.S. Department of Justice (Aug. 6, 2015), https://www.justice.gov/crt/introduction-federal-voting-rights-laws-1.
[123] Under Article III, Congress has control over the jurisdiction of lower federal courts. U.S. Const. art. III, § 1. Courts creating their own rights of action usurps the legislative function and enlarges the courts jurisdiction. Cannon v. Univ. of Chi., 441 U.S. 677, 730 (1979).
[124] Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983).
[125] S. Rep. No. 97–417, at 30 (1982); Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1213 (8th Cir. 2023).
[126] S. Rep. No. 97–417, at 30 (1982).
[127] Doe v. Chao, 540 U.S. 614, 615–16 (2004).
[128] Ark. State Conf. NAACP, 86 F.4th at 1214.
[129] Joseph Kimble, What the Michigan Supreme Court Wrought in the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 62 Wayne L. Rev. 347 (2017).
[130] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 91 F.4th 967, 971 (8th Cir. 2024) (mem.) (Colloton, J., with Kelly, J., dissenting from denial of rehearing en banc).
[131] Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1218 (8th Cir. 2023).
[132] Jennings v. Stephens, 574 U.S. 271, 276 (2015).
[133] Ark. State Conf. NAACP, 91 F.4th at 970 (mem.) (Colloton, J., with Kelly, J., dissenting from denial of rehearing en banc).
[134] See Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 963, 964 n.3 (8th Cir. 2015); Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment, 91 F.4th 967 (8th Cir. 2024).
[135] Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 963 (8th Cir. 2015).
[136] Ark. State Conf. NAACP, 91 F.4th at 968 (Stras, J., with Gruender, J., concurring in denial of rehearing en banc).
[137] See Greenlaw v. United States, 554 U.S. 237, 245 (2008); Gross v. FBL Fin. Servs., Inc., 588 F.3d 614, 621 (8th Cir. 2009) (“[T]he cross-appeal requirement is a non-jurisdictional rule of practice that can be avoided in the discretion of the court.”). The Supreme Court has done nothing to dispel that notion. Greenlaw v. United States, 554 U.S. 237, 245 (2008) (declining to decide whether the cross-appeal rule is jurisdictional or a rule of practice, declining to overrule 8th circuit precedent treating the rule as discretionary).
[138] Ark. State Conf. NAACP, 91 F.4th at 969 (Stras, J., with Gruender, J., concurring in denial of rehearing en banc).
[139] See Canaan Suitt, The Promise and Perils of Textualism for Environmental Advocacy, 46 Wm. & Mary Envtl. L. & Pol’y Rev. 811, 812 (2022); Margaret H. Lemos, The Politics of Statutory Interpretation Reading Law: The Interpretation of Legal Texts. by Antonin Scalia and Bryan A. Garner. St. Paul: 89 Notre Dame L. Rev. 849, 857 (2013); John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747, 748 (2017).
[140] See Paul Killebrew, Where Are All the Left-Wing Textualists?, 82 N.Y.U.L. Rev. 1895, 1899 (2007).