In 1965, Congress passed the Voting Rights Act to protect voting rights for racial minorities and members of certain language-minority groups. Since then, Congress has amended the federal law five times, expanding protections that ensure all eligible voters have equal access to the ballot box and that their votes are counted.

During the past several years, however, federal courts have begun to chip away at those protections as more and more state legislatures have begun to challenge specific aspects of the 1965 legislation in order to prevent certain voters from exercising their political power.

The first major blow was dealt by the Supreme Court’s decision in Shelby County v. Holder (2013) when the Court struck down a key provision used to identify states whose voting procedures require review by the Justice Department before the procedures are implemented. This section of the law, Section 5, is now inoperative, which has allowed states to implement voting procedures that effectively disenfranchise protected minorities. Since Shelby v. Holder, individuals and voting rights activists have been able to bring suit under Section 2 of the Voting Rights Act. Section 2 prohibits discriminatory voting practices such as racially gerrymandered districts. Lawsuits brought under Section 2 have aimed to redress “vote deprivation” or disqualification (violations of the right to vote) and “vote dilution” (violations of equal representation, such as through redistricting).

On November 20 of this year, however, a three-judge panel of the Eighth U.S. Circuit Court of Appeals ruled that private individuals and groups such as the NAACP and the League of Women Voters do not have standing—the legal right to file a lawsuit—under Section 2. The Court ruled that only the U.S. attorney general can bring Section 2 lawsuits. The decision thus requires the Department of Justice to direct resources to enforcement of the Voting Rights Act and has made it prohibitive to pursue the numerous lawsuits currently brought using the federal statute under the former standard. The ruling issued by the Circuit Court applies only to Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. This decision will certainly be reviewed by the full Circuit Court or appealed to the Supreme Court.

For more information on the status of Section 2 of the Voting Rights Act, refer to the following reliable sources:

• National Public Radio, “An appeals court has struck down a key path for enforcing the Voting Rights Act,” https://www.npr.org/2023/11/20/1152732216/voting-rights-act-supreme-court-section-2-private-right-of-action
• “A 15-Minute Crash Course in Making Political Change,” a TED talk by Michigan voting rights activist Katie Fahey, at https://www.ted.com/talks/katie_fahey_a_crash_course_in_making_political_change?language=en
• U.S. Supreme Court, SCOTUSblog, “Section 2 of the Voting Rights Act: Vote Dilution and Vote Deprivation,” at https://www.scotusblog.com/election-law-explainers/section-2-of-the-voting-rights-act-vote-dilution-and-vote-deprivation/

—Martha Zavala