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In 1965, Minnesotans were at the center of the effort to turn the constitutional promise of the right to vote into reality. The result was the Voting Rights Act.
So it's sad to learn that a recent opinion of the U.S. Court of Appeals for the Eighth Circuit, of which Minnesota is a part, dramatically cuts back on that promise.
One of the amendments added to the U.S. Constitution in the aftermath of the Civil War, the 15th Amendment, provided that the rights of citizens to vote "shall not be denied or abridged" by the federal or state governments based on race or color. Unfortunately, over the following century, that right remained illusory for many Black citizens.
In 1965, Congress finally strengthened this fundamental right. Among the strongest advocates of the new law were Minnesotans Roy Wilkins, Josie Johnson and Vice President Hubert Humphrey. The entire Minnesota congressional delegation (including future Gov. Al Quie and future Vice President Walter Mondale) spoke and voted for it.
The heart of their efforts was Section 2 of the act, which provided: "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color."
Seemingly clear enough. The citizens protected by this provision went to work to obtain federal court orders enforcing it. With the aid of such orders, Black registration, voting and representation grew.
In 1980, in one such citizen case, the U.S. Supreme Court read Section 2 narrowly, as requiring intentional discrimination. Amendments signed into law by President Ronald Reagan two years later clarified that the act prohibited discrimination in both intent and result. Judiciary committees in both houses of Congress noted the important role of the citizen cases that Congress "clearly intended."
Over the past 58 years, hundreds of Section 2 cases, most brought by Black citizens and organizations such as the NAACP, have been decided in federal court, including at least a dozen in the U.S. Supreme Court. Just last summer, the Supreme Court ruled against Alabama's redistricting plan in such a case.
Not once has the Supreme Court or any circuit court declared that citizens whose voting rights are denied or infringed can't go to federal court to stop the illegality.
Until now.
In a case brought by the Arkansas NAACP, an Eighth Circuit panel, by a 2-1 vote, has decided that only the attorney general — not "any citizen" — has the right to seek court relief for voting rights discrimination. Judge David Stras of Minnesota is the author of the opinion, joined by Judge Raymond Gruender of Missouri.
To reach its result, the majority employs the judicial method of "textualism" to read Section 2 in an illogical way. Even though Section 2 expressly protects the voting rights of "any citizen," it's still "unclear," the majority opines, whether that means that the victims of discrimination can go to court to stop it.
Because a later section in the act says that the attorney general can go to court, reasons the majority, it follows that citizens can't. The opinion dismisses the history of the 1982 bipartisan amendments as an illegitimate tool to read the underlying statute, and asserts that the hundreds of prior Section 2 decisions either don't answer the question directly or, if they do, contain "mere dicta" that need not be followed.
Dissenting, Chief Judge Lavenski Smith (incidentally, only the second Black judge on the Eighth Circuit in 150-plus years) sensibly relies on the "extensive history, binding precedent, and implied Congressional approval" of lawsuits by the victims of discrimination. We've had 58 years of such cases, Lavenski observes, many decided by the Supreme Court or by the Eighth Circuit itself. To disregard this judicial history and precedent would contradict the venerable legal doctrine that "for every wrong there must be a remedy."
In my view, the majority's reading of Section 2 is an example of judicial textualism run amok. I agree with the dissent that the majority fails to account for the context of the act's words, the obvious purpose of the law, and the 58 years of cases decided under it.
One would think that the first appellate opinion since 1965 to close the courthouse door on victims of discrimination might say something about the horrible history of racist efforts to keep Black people from voting and having their votes counted. Or it might acknowledge that the 1965 act and the 1982 amendments had the obvious goal of providing remedies for racial discrimination. Or it might at least acknowledge the importance of the right to vote in our constitutional framework.
But there's none of that. The majority shows no obvious discomfort with what it does or how its opinion affects victims of discrimination. In the states that compose the Eighth Circuit, victims' only remedy now — previous cases be damned — is to send emails or leave voice mails for the attorney general.
I hope that this unfortunate decision will be overturned, either by all of the Eighth Circuit judges or by the U.S. Supreme Court. It should become a historic outlier. And it's a shame that, after so many Minnesotans have done so much for voting rights, this opinion had to come from this circuit.
David Lillehaug is a former Minnesota Supreme Court justice.
