The Supreme Court Could Upend Future Elections

It would be a development with profound implications for the enforcement of voting rights in the United States. The Supreme Court may well back a decision to allow only the government to sue to enforce provisions in the Voting Rights Act, experts have told Newsweek. It would bar outside actors from bringing legal action—a pivotal move with potentially far-reaching consequences for the civil rights legislation.

It follows a 2-1 decision by the federal 8th Circuit Court of Appeals that outside actors will not be able to bring legal action regarding the legislation in the states the court covers: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

The Voting Rights Act was passed in 1965 and outlaws racial discrimination in voting. Campaign groups and citizens have typically been allowed to sue to enforce Section 2 of the civil rights law.

Following a backlash which saw campaign groups accuse the court of voter suppression, voting rights groups expect the ruling will be appealed to the U.S. Supreme Court.

What's Behind The Controversy?

The case that led to the 8th Circuit Court's decision involved allegations of racial gerrymandering in Arkansas. The Arkansas State Conference NAACP and Arkansas Public Policy Panel argued that new redistricting maps diluted the voting power of Black citizens. A lower court initially ruled that these groups had no legal standing to sue, and the appellate court upheld this position.

The ruling has broader implications beyond the states directly covered. It sets a precedent that could make challenging voting rules in these states more difficult ahead of the 2024 election. Critics, including Sophia Lin Lakin from the ACLU's Voting Rights Project and Judith Browne Dianis from the Advancement Project, have criticized the ruling as an "outrageous" act for discarding what they see as critical voter protections, signaling a potential shift toward weakening federal oversight in favor of state autonomy in voting matters.

Will The Supreme Court Take The Case?

Some experts think so. Paul Smith, senior vice president at the nonpartisan Campaign Legal Center, said it was likely the Supreme Court would take the case if it comes to it.

"The plaintiffs have the option of asking the full 8th Circuit Court of Appeals ('en banc') to rehear the decision. Or they can go straight to a request to the Supreme Court to hear the case. It seems likely that the Supreme Court will take the case if and when that request comes, since this decision conflicts with the rule in other circuits and with 40 years of history," he told Newsweek.

Newsweek has contacted the Supreme Court by email for comment.

Is The Supreme Court Too Politicized?

That is the view of some groups. Analilia Mejia, co-executive director of the Center for Popular Democracy Action, an advocacy group that promotes progressive politics, doubts that it will make what she described as "a just ruling."

"The 8th U.S. Circuit Court of Appeals ruling is a radical decision that ignores precedent and serves only to advance conservatives' agenda to dismantle voting rights and silence organized people," she said.

"The case will likely make its way to the Supreme Court but we cannot expect such a politicized institution to make a just ruling, especially considering the Court's track record on voting rights. If anything, this is another example of how vital it is to depoliticize the Supreme Court through court reform measures."

Kaivan Shroff, a public interest attorney and senior adviser to The Institute of Education, said that Justice Clarence Thomas, the Supreme Court judge for whom 8th Circuit Court of Appeals judge David Stras was previously a clerk, would be likely to side with the decision.

"Given his judicial history, Justice Clarence Thomas is likely to side with this restrictive and ahistorical interpretation, aligning with a conservative agenda that increasingly undermines federal oversight in favor of state autonomy—even at the cost of basic rights," he told Newsweek.

Is There a Justification for Limiting Private Lawsuits?

While the ruling has faced criticism, others support the 8th Circuit Court of Appeal's decision. Arkansas Attorney General Tim Griffin has said that the decision helps to curb what he terms "meritless" lawsuits against state decisions on elections and redistricting.

He wants enforcement of the Voting Rights Act to be handled by politically accountable officials, not by outside special interest groups. This reflects a view that the federal government's role should be limited because states are better positioned to understand and manage their own voting landscapes.

What Could the Result Be?

A wide body of academic research supports the idea that the Voting Rights Act boosted voter turnout under Section 5, which required jurisdictions with a documented history of discrimination to obtain "preclearance" from the federal government before they could implement any changes to their voting laws or procedures.

For example, a 2020 study compared turnout in similar counties, differentiated only by Section 5 coverage, from 1968 to 1980. Its findings indicated a turnout increase of 6.5 to 11.5 percentage points per election, with turnout rising 2 percent for every 10 percent increase in Black population share.

However, in 2013, the U.S. Supreme Court, in the case of Shelby County v. Holder, effectively struck down the formula used to determine which jurisdictions were subject to preclearance. This decision effectively rendered Section 5 inoperative.

Since then at least 29 states have passed 94 restrictive voting laws, though some have been blocked by courts or repealed, according to the nonpartisan Brennan Center for Justice.

Dina Titus, a Democratic Nevada congresswoman, said the latest decision by the 8th Circuit Court of Appeals "will open a door for the further disenfranchisement of voters."

Some analysts fear that, if the decision is upheld, a partisan president may be able to instruct the Justice Department to stop bringing Section 2 lawsuits entirely. There are also concerns that the Justice Department may be too stretched to properly deal with potential cases.