The 8th Circuit out to end democracy

Republicans have done a remarkable job eviscerating voting rights in America. Given that Chief Justice John Roberts has arguably made it his life’s work to make voting harder for millions of people, it’s unsurprising to see the lower courts following suit.

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Immediately after Shelby County [2013] came down, states previously covered by the preclearance rule moved to pass laws designed to make it harder to vote. Texas’s photo ID law went into effect only 24 hours after the decision. That law had been challenged by the Texas NAACP and the Mexican-American Legislative Caucus because the acceptable forms of ID listed in the law disproportionately affected Black and Latino voters. North Carolina enacted a photo ID law, got rid of same-day voter registration and voter registration drives, and drastically restricted early voting. That law was challenged by the DOJ, the League of Women Voters, and the North Carolina NAACP. Those suits were all brought under Section 2 of the VRA, which bans any law that denies or limits the right to vote based on race or color.

So, even though Section 4’s preclearance requirement was gone, groups like the NAACP and the ACLU could still sue states over racist voting laws under Section 2.

Until now.

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[N]ow, the Eighth Circuit Court of Appeals has gone further than Roberts ever did, and its ruling will make it even more difficult to use the courts to ensure free and fair elections.

The ruling the Eighth Circuit handed down last week eliminates the right of private groups to sue to enforce the Voting Rights Act (VRA).

  Public Notice

Voters can't sue for voting rights. Sure.  And that means, in essence and in practice, voting is no longer a right.  

Now, at least in the Eighth Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota — only the DOJ can pursue these cases.

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Most challenges to voting laws are brought by groups like the NAACP, the League of Women Voters, the ACLU, and Common Cause. These organizations have the organizational capacity and institutional knowledge to effectively fight the near-ceaseless barrage of laws restricting voting rights, particularly after the 2013 Shelby County decision.

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The Eighth Circuit’s decision in Arkansas State Conference NAACP v. Arkansas Board of Apportionment eliminates the ability of any private group or person to sue to enforce the VRA. The majority opinion was written by Judge David Stras, a former Clarence Thomas clerk and Trump appointee, and it radically reshapes the voting rights landscape.

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DOJ doesn’t have enough attorneys to cover the whole country all at once, and “over the course of over 50 years, private plaintiffs have also brought those cases so that residents of a small county in Arkansas are just as well protected as residents of the entirety of the state of California.”

Not any more.

And do you think Trump's DOJ if he gets elected will file ANY suits to protect voters?

[In Trump's first term,] Bill Barr’s DOJ worked to protect voting restrictions rather than fighting them, and his administration brought no cases at all under the VRA until May 2020.

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The Eighth Circuit’s decision is so extreme that it puts that court at odds with the Fifth Circuit, arguably the most conservative appellate court in the country. Earlier this month, a three-judge panel of the Fifth Circuit came to the opposite conclusion, throwing out Louisiana’s attempt to limit voting rights enforcement to the DOJ only. Having two different federal courts of appeal come to two different conclusions sets up a circuit split, which typically has to be resolved by the US Supreme Court.

Place your bets.

...but hey, do what you want...you will anyway.