Arkansas Voting Rights

Case 4:21-cv-01239-LPR Document 100 Filed 02/17/22 Page 1 of 42
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ARKANSAS STATE
CONFERENCE NAACP et al. PLAINTIFFS
v. Case No.: 4:21-cv-01239-LPR
THE ARKANSAS BOARD OF

APPORTIONMENT et al. DEFENDANTS
ORDER
This is a § 2 Voting Rights Act case. The Plaintiffs are the Arkansas State Conference
NAACP (“the Arkansas NAACP”) and the Arkansas Public Policy Panel (“the Panel”). 1 The
Defendants are the Arkansas Board of Apportionment (“the Board”), the Board’s three members,
and the State of Arkansas. 2 The Board’s three members—who are sued in their official capacities
only—are Governor Asa Hutchinson, Attorney General Leslie Rutledge, and Secretary of State
John Thurston. 3 The sole claim alleged in the Complaint is that the 2021 reapportionment plan
for the Arkansas House of Representatives (“the Board Plan”), which was approved by the Board,
“dilutes Black voting strength in violation of Section 2 of the Voting Rights Act . . . .” 4
Section 2(a) of the Voting Rights Act provides that “[n]o voting qualification or
prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State
or political subdivision in a manner which results in a denial or abridgment of the right of any
1
See Compl. (Doc. 1) ¶¶ 3–4.
2
Id. ¶¶ 5–9.
3
Id. ¶¶ 7–9.
4
Id. ¶¶ 34–35. When the Court uses the term “reapportionment plan,” it is in reference to the redistricting for the
Arkansas House of Representatives that has occurred as a result of the 2020 census.
citizen of the United States to vote on account of race or color . . . .” 5 Section 2(b) further clarifies
this prohibition as follows:
A violation . . . is established if, based on the totality of circumstances, it is shown

that the political processes leading to nomination or election in the State or political
subdivision are not equally open to participation by members of a [protected] class
of citizens . . . in that its members have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of their
choice. 6
The Supreme Court has long held that the scope of § 2’s prohibition encompasses the alleged
dilution of Black votes. 7
This is not a case alleging intentional or purposeful discrimination by the Board or its
members. As Plaintiffs themselves emphasize, “[i]n 1982, ‘Congress substantially revised § 2 to
make clear that a violation could be proved by showing discriminatory effect alone and to establish
as the relevant legal standard the “results test” . . . .’” 8 Plaintiffs have repeatedly made clear in
their filings and in their oral presentations that their case is primarily focused on the results of the
Board Plan. 9 The nub of their argument is as follows:
The challenged plan contains just eleven majority-Black House districts even
though more than sixteen percent of the state’s population is Black[,] and it would
be possible to draw sixteen (out of 100) geographically compact, majority-Black
House districts. As a result, the challenged plan impermissibly dilutes Black voting
strength in violation of Section 2. 10
5
52 U.S.C. § 10301(a).
6
Id. § 10301(b).
7
See, e.g., Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2332–33 & 2333 n.5 (2021) (collecting cases).
8
Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (Doc. 3) at 8 (quoting Thornburg v. Gingles, 478 U.S. 30, 35–36 (1986)).
9
See, e.g., id. at 8, 10; Prelim. Inj. Hr’g Tr., Vol. V (Doc. 94) at 1096:20–23 (Plaintiffs’ counsel: “Section 2 of the
Voting Rights Act . . . prohibits voting practices and procedures that result in unequal electoral opportunity on the
basis of race, color or membership in a language minority.”).
10
Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (Doc. 3) at 1.
2
Pending before the Court is Plaintiffs’ Motion for a Preliminary Injunction. 11 From what
the Court has seen thus far, there is a strong merits case that at least some of the challenged districts
in the Board Plan are unlawful under § 2 of the Voting Rights Act. 12 For the reasons discussed
below, however, the Court cannot reach the merits. After a thorough analysis of the text and
structure of the Voting Rights 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.
Before dismissing this case, however, the Court will give the United States five calendar days from
the date of this Order to join the case as a plaintiff. If the United States chooses to become a
plaintiff in this case, it is the Court’s intention to move expeditiously to a final merits
determination.
I. BACKGROUND AND PROCEDURAL HISTORY
The Arkansas Constitution requires that districts for the Arkansas House of Representatives
be redrawn every ten years upon completion of the census. 13 The census is performed by the
federal government, which shares the data (once it is compiled) with Arkansas. The Board uses
this census data to draw new district lines for the Arkansas House of Representatives and the
11
Pls.’ Mot. for Prelim. Inj. (Doc. 2). During the preliminary injunction hearing, Plaintiffs orally moved to exclude
portions of the testimony of two witnesses offered as experts by the Defendants. The Court conditionally allowed the
testimony but took the motions under advisement. See Prelim. Inj. Hr’g Tr., Vol. III (Doc. 88) at 598:18–24 (Dr. Brad
Lockerbie); Prelim. Inj. Hr’g Tr., Vol. IV (Doc. 93) at 901:15–23 (Andy Davis). These two Daubert motions are also
pending before the Court.
12
By using the word “strong,” this Court does not mean to imply, and is not implying, that “the underlying merits are
entirely clearcut in favor of the plaintiff.” Merrill v. Milligan, Nos. 21-1086 & 21-1087, 2022 WL 354467, at *2 (U.S.
Feb. 7, 2022) (Kavanaugh, J., concurring in Order granting stay of preliminary injunction). The strength of the merits
case is predicated on the current analytical framework by which the Supreme Court decides vote-dilution cases. The
seminal Supreme Court case on vote dilution is Thornburg v. Gingles, 478 U.S. 30 (1986). That case, and its progeny,
are “notoriously unclear and confusing.” Merrill, 2022 WL 354467, at *3 (Kavanaugh, J., concurring in Order
granting stay of preliminary injunction). Indeed, “it is fair to say that Gingles and its progeny have engendered
considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” Id., at *4
(Roberts, C.J., dissenting from Order granting stay of preliminary injunction) (collecting cases and scholarly articles).
13
Ark. Const. art. 8, §§ 1, 2, 4.
3
Arkansas Senate. 14 Because there was a significant delay in collection and compilation of the
census data by the federal government, there was a concomitant significant delay in providing the
necessary data to Arkansas (and other states). 15 Accordingly, the Board Plan was not released to
the public until October 29, 2021. 16 On November 29, 2021, after a one-month comment period,
the Board adopted the Board Plan. 17 The Board Plan took legal effect on December 29, 2021.18
That same day, the Arkansas NAACP and the Panel filed this lawsuit and the pending Motion for
a Preliminary Injunction. 19
As it was originally filed, Plaintiffs’ Motion for a Preliminary Injunction sought
“preliminary injunctive relief prohibiting the State from implementing the dilutive plan for the
2022 election cycle and from failing to implement a plan that complies with Section 2.”20
Essentially, Plaintiffs requested that the Court require the creation of a new districting plan for the
2022 election. Plaintiffs also requested expedited consideration of the Motion, explaining that
they needed to obtain the requested preliminary relief before March 1, 2022. 21
On December 30, 2021, one day after the Plaintiffs’ Complaint and Motion were filed, the
Court set a schedule that wrapped up motion briefing by Thursday, January 20, 2022, and called
14
Id.
15
Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (Doc. 3) at 37 (“[T]he State started the redistricting process later than usual
because of the delayed release of the census data . . . .”); Prelim. Inj. Hr’g Tr., Vol. IV (Doc. 93) at 1045:21–1046:16
(Josh Bridges, from the Arkansas Secretary of State’s Office, testifying that “[i]t’s not only the House and Senate
district boundaries that were held up by the delay of the census data . . .”).
16
Prelim. Inj. Hr’g Tr., Vol. IV (Doc. 93) at 748:4–6.
17
Id. at 748:7–15; Compl. (Doc. 1) ¶ 12.
18
Compl. (Doc. 1) ¶ 12.
19
Compl. (Doc. 1); Pls.’ Mot. for Prelim. Inj. (Doc. 2).
20
Br. in Supp. of Pls.’ Mot. for Prelim. Inj. (Doc. 3) at 1.
21
Id. at 40.
4
for a motion hearing to begin on Monday, January 24, 2022. 22 Subsequently, Defendants asked
for an extension of both the briefing schedule and the hearing date. 23 The Court granted this
request in part and denied it in part, providing a smaller extension than Defendants sought. The
Court reshuffled the schedule so that briefing would wrap up on Wednesday, January 26, 2022,
and the hearing would begin on Thursday, January 27, 2022. The Court explained that “[t]here
[was] good cause for a very limited extension . . . considering how fact intensive this case is and
the size and scope of Plaintiffs’ filings,” but that “Plaintiffs [were] . . . correct about the importance
of getting to a decision without delay.” 24 The Court attempted to balance these two competing
interests.
22
First Scheduling Order (Doc. 9).
23
Defs.’ Mot. for Extension of Time (Doc. 30). In the meantime, on December 31, 2021, Plaintiffs filed a motion
asking the Court to recuse from this case. (Doc. 27). Plaintiffs were clear that the motion was not predicated on an
allegation of an actual conflict or actual bias, but rather was focused on the alleged appearance of impartiality. The
Court denied the motion, concluding that a reasonable person would not question the Court’s impartiality. See Order
Den. Pls.’ Mot. for Recusal (Doc. 42).
Subsequently, on January 14, 2022, Plaintiffs subpoenaed seven witnesses to testify at the preliminary injunction
hearing, including the Governor, the Arkansas Attorney General, and the Arkansas Secretary of State. Defendants
moved to quash the subpoenas of these three state officials, but did not move to quash the subpoenas of the other four
potential Board-staff witnesses. See Defs.’ Mot. to Quash (Doc. 59). The Court quashed the three subpoenas,
concluding that (in the context of a preliminary injunction hearing) requiring the testimony of these state officials
would be unduly burdensome when balanced against the minimal relevance of their potential testimony and the
availability of similar information from other sources, both documentary and testimonial. See Order Granting Defs.’
Mot. to Quash (Doc. 74). However, in that Order, the Court noted that, at the close of evidence at the preliminary
injunction hearing, the Court would allow Plaintiffs to proffer to the Court (in an ex parte manner) written questions
that they still wanted to ask the three state officials. Id. at 16–17 n.69. The Court explained that, if the questions and
developments at the preliminary injunction hearing warranted requiring information from the constitutional officers,
the Court would make the state officials answer the written questions. Id. At the close of evidence at the preliminary
injunction hearing, Plaintiffs said: “[W]e believe that we elicited the testimony we wanted from the lower level
witnesses and don’t need to proffer any questions for the constitutional officers.” Prelim. Inj. Hr’g Tr., Vol. IV (Doc.
93) at 1089:4–12.
Plaintiffs issued two additional subpoenas for testimony from Kevin Niehaus, Director of Public Relations for
Secretary of State Thurston, and Andres Rhodes, Counsel to Governor Hutchinson. Defs.’ Br. in Supp. of Mot. to
Quash (Doc. 80) at 1. These subpoenas were issued one day before the preliminary injunction hearing began. Upon
motion of the Defendants, the Court quashed these subpoenas because they asked for testimony within an unreasonable
timeframe. Prelim. Inj. Hr’g Tr., Vol. I (Doc. 86) at 28:24–29:19. Federal Rule of Civil Procedure 45(d)(3)(A)(i)
tells a court to quash subpoenas that “fail[] to allow a reasonable time to comply.” The subpoenas commanded that
testimony be given somewhere around 48–72 hours after they were issued. That is not a reasonable timeframe,
especially since Plaintiffs had known for weeks that a hearing was going to take place.
24
Second Scheduling Order (Doc. 37).
5
Briefing proceeded on schedule. However, sometime during the weekend of January 23,
2022, and despite being vaccinated and boosted, court personnel (me) contracted COVID-19. 25
This necessitated moving the preliminary injunction hearing to Tuesday, February 1, 2022. 26 The
preliminary injunction hearing consisted of four lengthy days of testimony—interrupted by a two-
day winter storm that closed the courthouse—and one lengthy day of closing arguments and legal
presentations. The hearing ended on Tuesday, February 8, 2022.
A fairly seismic development occurred as the preliminary injunction hearing was coming
to a conclusion. Recall that Plaintiffs were originally asking, as a matter of preliminary relief, that
the Court require the creation of a new districting plan for the upcoming 2022 election. In
opposition to this request, Defendants argued that such relief would be impossible to implement
without causing potentially catastrophic confusion and administrative errors given the current
election schedule. 27 Plaintiffs disagreed with this apocalyptic prognostication, suggesting that
there was plenty of time before the election, and that the Court could extend or move any
problematic election-related deadlines. 28 Plaintiffs’ argument on this point relied heavily on a
recent decision from a federal court in Alabama granting preliminary relief similar to the relief
Plaintiffs wanted in our case. 29 But their reliance on this decision turned out to be premature.
25
See Order (Doc. 63).
26
See Notice of Hr’g (Doc. 66).
27
Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. (Doc. 53) at 73–77.
28
Pls.’ Reply in Supp. of Prelim. Inj. (Doc. 68) at 42–46; Prelim. Inj. Hr’g Tr., Vol. V (Doc. 94) at 1133:4–1134:4.
29
See Pls.’ Reply in Supp. of Prelim. Inj. (Doc. 68) at 44–45 (citing Milligan v. Merrill, No. 2:21-cv-1530 (N.D. Ala.
Jan. 24, 2022)). The Milligan plaintiffs challenged Alabama’s congressional map on constitutional and statutory
grounds. Milligan, slip op. at 2. Milligan was consolidated with Singleton v. Merrill for the “purpose of expedited
preliminary injunction proceedings” and heard by a three-judge panel. Id. Singleton was solely a constitutional
challenge to Alabama’s congressional map. Id. On January 24, 2022, the three-judge panel found that the Milligan
plaintiffs were “substantially likely to establish that the [congressional map] violates Section Two of the Voting Rights
Act,” and that “the other requirements for preliminary injunctive relief” had been proven. Id., slip op. at 4–5.
Accordingly, the three-judge panel granted the Milligan plaintiffs’ motion for a preliminary injunction and enjoined
the Alabama Secretary of State from “conducting any congressional elections according to” the challenged map. Id.,
6
On the penultimate day of the preliminary injunction hearing in our case, the Supreme
Court stayed the preliminary injunction that had been granted by the federal district court in
Alabama. In a statement concurring in the grant of the stay, Justice Kavanaugh (joined by Justice
Alito) explained that the Alabama district court’s order violated the Purcell principle that “federal
courts ordinarily should not enjoin a state’s election laws in the period close to an election.”30
Essentially, the concurrence explained that the merits of the Alabama case were “not clearcut in
slip op. at 5. The three-judge panel also stayed Alabama’s candidate-qualification deadline for fourteen days to allow
sufficient time to draw a new congressional map. Id., slip op. at 6–7.
One member of that three-judge panel, Judge Manasco, was sitting as a single judge in Caster v. Merrill, No. 2:21-
cv-1536-AMM (N.D. Ala. Jan. 24, 2022). The Caster plaintiffs challenged the congressional map solely on § 2
grounds. Id., slip op. at 1. The Milligan and Caster parties “coordinate[d] their presentations of their statutory claims”
and the parties agreed “that all evidence admitted in either case was admitted in both cases . . . .” Id., slip op. at 4.
Accordingly, in Caster, Judge Manasco “adopt[ed] the recitation of the evidence, legal analysis, findings of fact and
conclusions of law explained in the preliminary injunction, memorandum opinion and order” entered in Milligan. Id.
30
The concurrence elaborated on the Purcell principle as follows:
This Court has repeatedly stated that federal courts ordinarily should not enjoin a state’s election
laws in the period close to an election, and this Court in turn has often stayed lower federal court
injunctions that contravened that principle.
That principle—known as the Purcell principle—reflects a bedrock tenet of election law: When an
election is close at hand, the rules of the road must be clear and settled. Late judicial tinkering with
election laws can lead to disruption and to unanticipated and unfair consequences for candidates,
political parties, and voters, among others. It is one thing for a State on its own to toy with its
election laws close to a State’s elections. But it is quite another thing for a federal court to swoop
in and re-do a State’s election laws in the period close to an election.
Some of this Court’s opinions, including Purcell itself, could be read to imply that the principle is
absolute and that a district court may never enjoin a State’s election laws in the period close to an
election. As I see it, however, the Purcell principle is probably best understood as a sensible
refinement of ordinary stay principles for the election context—a principle that is not absolute but
instead simply heightens the showing necessary for a plaintiff to overcome the State’s
extraordinarily strong interest in avoiding late, judicially imposed changes to its election laws and
procedures. Although the Court has not yet had occasion to fully spell out all of its contours, I
would think that the Purcell principle thus might be overcome even with respect to an injunction
issued close to an election if a plaintiff establishes at least the following: (i) the underlying merits
are entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent
the injunction; (iii) the plaintiff has not unduly delayed bringing the complaint to court; and (iv) the
changes in question are at least feasible before the election without significant cost, confusion, or
hardship.
Merrill, 2022 WL 354467, at *2 (Kavanaugh, J., concurring in Order granting stay of preliminary injunction)
(collecting cases) (internal citations omitted).
7
favor of the plaintiffs” and that the plaintiffs had not established that the election-related changes
ordered by the district court were “feasible without significant cost, confusion, or hardship.” 31
In response to this development, Plaintiffs in our case took two tacks. Plaintiffs first argued
that there was some legally significant daylight between the situation in Alabama and the one here
in Arkansas. Specifically, Plaintiffs suggested that they had a more clearcut case than the one in
Alabama, and that the election schedule in Arkansas would make judicially imposed changes
easier to accomplish and less burdensome on state and county election officials. 32 Without getting
into the weeds too much, it suffices to say that this argument is an incredibly difficult sell. Indeed,
Plaintiffs likely know as much—which explains their new, alternative request for relief. That new
request would have the Court allow the 2022 elections to take place using the challenged Board
Plan, but then order a special election for all Arkansas House districts in 2023 using a new map. 33
II. DISCUSSION
Sometimes one or more threshold issues prevent a judge from reaching the merits of a
motion or a case. This is one of those times. And the Court is well aware that the inability to “get
to the merits” can be frustrating to the parties, lawyers, and public alike. In such circumstances, it
is important for a judge to fully explain what the threshold issues are and why they are so
important. That discussion follows.
Our democratic republic is anchored by a strong federal government of enumerated powers.
Both its strength and its status as a government of enumerated powers are vital to the American
experiment. And they are not just a happy accident. They are a product of experience, crisis,
31
Id. at *3.
32
Prelim. Inj. Hr’g Tr., Vol. V (Doc. 94) at 1135:17–1136:7.
33
Id. at 1136:9–1138:14.
8
deliberate thought, and significant compromise. During the Revolutionary War, the States created
a confederation with an intentionally weak central government. 34 For numerous reasons, that set-
up proved disastrous. 35 Soon, nearly everyone in the founding era understood the need to
strengthen the central government. 36 This feeling ultimately gave birth to a constitutional
convention. 37 Although some wanted to maintain (but moderately strengthen) the central
government created by the Articles of Confederation, most sought to alter our confederated system
into a federated one and create a vastly stronger national government. 38 The debates at the
constitutional convention and during the ratification era were focused on how strong the new
national government should be and how to ensure that a national government strong enough to
function effectively would not trample on the rights and liberties of its people. 39
The genius of our founders lay in their answer to this latter question. They came up with
two principal restraints to place upon the federal government that remain with us to this day. First,
unlike the state governments, the federal government is a government of enumerated powers. That
means that the federal government (including the judiciary) only has the specific powers
affirmatively set forth in the Constitution. 40 Second, the enumerated powers are intentionally
divided among the three branches of the federal government in a way that motivates each branch
34
G. Edward White, Revisiting the Ideas of the Founding, 77 Cin. L. Rev. 969, 972–74 (2009).
Gregory E. Maggs, A Concise Guide to the Articles of Confederation as a Source for Determining the Original
35
Meaning of the Constitution, 85 Geo. Wash. L. Rev. 397, 414–17 (2017).

36
Id. at 417.
37
Id. (citing 32 Journals of the Continental Congress 1774–1789, at 71–74 (Roscoe R. Hill ed., 1936)).
38
Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court’s Quest for Original Meaning, 52 UCLA
L. Rev. 217, 234–38 (2004).
39
The Federalist No. 45, at 289 (James Madison) (Clinton Rossiter ed., Signet Classics 2003) [hereinafter Federalist];
Federalist No. 84, at 515–19 (Alexander Hamilton).
40
McCulloch v. Maryland, 17 U.S. 316, 405 (1819).
9
to use its powers to curb the potential excesses of the other branches. 41 Every American knows
the name of this principle: checks and balances. What every American might not know—but
should—is that the creation of a limited and divided government combined with the use of checks
and balances is the great bulwark of our liberty. 42 Of course, the Bill of Rights and later
amendments to the Constitution contain incredibly important protections of individual liberty. But
the founders knew that such amendments would amount to little more than words on a page unless
the federal government was structured in a way that inherently prevented (or at least mitigated)
aggrandizements of power.
Indeed, in Federalist No. 47, James Madison acknowledged the critical importance “of the
political maxim that the legislative, executive, and judiciary [branches] ought to be separate and
distinct.” 43 He called this an “essential precaution in favor of liberty,” and explained that “[n]o
political truth is certainly of greater intrinsic value, or is stamped with the authority of more
enlightened patrons of liberty . . . .” 44 In Federalist No. 78, quoting no less a source than
Montesquieu’s Spirit of Laws, Alexander Hamilton emphasized that “there is no liberty if the
power of judging be not separated from the legislative and executive powers.” 45 He added that
“liberty can have nothing to fear from the judiciary alone, but would have everything to fear from
its union with either of the other [branches] . . . .” 46 It should be no surprise, then, that the most
famous of the Federalist Papers, No. 51, is dedicated to the principle of checks and balances:
41
Federalist No. 51, at 318–19 (James Madison).
42
See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (“Without a secure structure of separated
powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted,
or even improved upon, the mere words of ours.”).
43
Federalist No. 47, at 297 (James Madison).
44
Id. at 297–98.
45
Federalist No. 78, at 465 (Alexander Hamilton).
46
Id.
10
To what expedient, then, shall we finally resort, for maintaining in practice the
necessary partition of power among the several [branches] as laid down in the
Constitution? The only answer that can be given is that as all these exterior
provisions are found to be inadequate the defect must be supplied, by so contriving
the interior structure of the government as that its several constituent parts may, by
their mutual relations, be the means of keeping each other in their proper places.
...
[T]he great security against a gradual concentration of the several powers in the
same [branch] consists in giving to those who administer each [branch] the
necessary constitutional means and personal motives to resist encroachments of the
others. 47
The foregoing principles enshrined in the structure of the Constitution are relevant to our
case in two ways. First, Article III of the United States Constitution only extends the federal
judicial power to “cases or controversies.” 48 The case-or-controversy requirement ensures that
federal courts do not step outside their constitutional boundaries by rendering advisory opinions.49
Second, the Constitution expressly gives Congress the power to create “inferior Courts,” 50 like the
federal district and circuit courts. This includes the power to define by statute the subject-matter
jurisdiction of federal courts, i.e., which cases a federal court has the authority to decide. Federal
courts must do their utmost to scrupulously honor these constitutional limitations and statutory
checks on judicial power.
A. Standing
In most cases, and certainly in this one, the Article III case-or-controversy requirement
boils down to a standing analysis. Standing is the “irreducible constitutional minimum” that must
47
Federalist No. 51, at 317–19 (James Madison).
48
Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 929 (8th Cir. 2016).
49
Pub. Water Supply Dist. No. 8 of Clay Cnty., v. City of Kearny, 401 F.3d 930, 932 (8th Cir. 2005).
50
U.S. Const. art. III, § 1.
11
be met before a federal court has the constitutional authority to adjudicate a plaintiff’s claim. 51
When a plaintiff seeks to invoke the federal judicial power, he or she must sufficiently allege: (1)
that he or she has suffered an injury-in-fact; (2) that the injury is fairly traceable to the alleged
wrongdoing of the defendant; and (3) that a favorable judicial decision will cure the injury. 52 The
Article III case-or-controversy requirement is so important that a federal court has an independent
obligation to ensure that a plaintiff has standing even if a defendant does not raise the issue. 53
In Lujan v. Defenders of Wildlife, the Supreme Court explained that “each element [of
standing] must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the successive stages of
the litigation.” 54 Accordingly, before this Court could grant the pending Motion for a Preliminary
Injunction, Plaintiffs would have to prove with actual evidence that they were “likely to prevail”
on the Article III standing issue. 55 However, as discussed elsewhere in this Order, the Court is not
reaching the merits of the Motion for a Preliminary Injunction. Accordingly, at most, the standing
analysis in this Order should reflect the plausibility standard applicable at the motion-to-dismiss
stage. 56
There is no question that an individual Black voter living in a district alleged to violate § 2
of the Voting Rights Act would meet the requirements for Article III standing. But there are no
51
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
52
Id.
53
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).
54
Lujan, 504 U.S. at 561.
55
See Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732–33 (8th Cir. 2008) (en banc) (holding that
the “likely to prevail” standard applies when a plaintiff seeks a preliminary injunction to prevent “government action
based on presumptively reasoned democratic processes”).
56
See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“The plausibility standard requires a
plaintiff to show at the pleading stage that success on the merits is more than a ‘sheer possibility.’”) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
12
individual voters in this case. Instead, both Plaintiffs are organizations that seek to enforce § 2 on
behalf of their members. That is, Plaintiffs seek to proceed based on “associational standing,”
essentially by stepping into the shoes of their members. To do so at this stage of the litigation,
Plaintiffs must allege sufficient facts that, if proven, would establish that: (1) the organization’s
members have standing to sue in their own right; (2) the interests asserted in the lawsuit are
“germane” to the organization’s purpose; and (3) the lawsuit does not require the individual
members to participate in the litigation. 57 This is known as the Hunt test.
Supreme Court precedent is clear that redistricting lawsuits must proceed district-by-
district. 58 Accordingly, to have constitutional standing to bring a vote-dilution claim, an individual
plaintiff (or in this case, a member of the Plaintiff-organizations) must live in a district that is
allegedly “packed” or “cracked.” 59 Plaintiffs’ Complaint alleged that the Arkansas NAACP and
the Panel each has “members who are African-American registered voters in each of the areas
where the plaintiffs allege that vote dilution is occurring.” 60 The Complaint went on to allege that
“[t]hese members are irreparably harmed by living and voting in districts whose boundaries dilute
Black voting strength.” 61 The Court was concerned that the language used in the Complaint—
especially the phrase “each of these areas”—was vague and general. At no point in the Complaint
57
Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
58
See Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (“To the extent the plaintiffs’ alleged harm is the dilution of their
votes, that injury is district specific. . . . The boundaries of the district, and the composition of its voters, determine
whether and to what extent a particular voter is packed or cracked. This disadvantage to the voter as an individual
therefore results from the boundaries of the particular district in which he resides.”) (cleaned up); see also Ala. Legis.
Black Caucus v. Alabama, 575 U.S. 254, 262 (2015) (stating that racial gerrymandering claims must proceed “district-
by-district”).
59
Gill, 138 S. Ct. at 1930–31. Gill was a partisan gerrymandering case. The Court reached its conclusion by relying
on racial gerrymandering cases such as United States v. Hays, 515 U.S. 737 (1995). Many lower courts have applied
the reasoning of Hays and Gill to determine whether a plaintiff has standing to pursue a § 2 vote-dilution claim. See
Larry v. Arkansas, No. 4:18-cv-00116, 2018 WL 4858956, at *5–8 (E.D. Ark. Aug. 3, 2018) (collecting cases).
60
Compl. (Doc. 1) ¶¶ 3–4.
61
Id.
13
did Plaintiffs expressly allege that they had members in all of the particular districts they were
challenging.
The Court requested that the Plaintiff-organizations provide more information to ensure
that both could proceed under the associational standing doctrine. 62 Specifically, the Court asked
each Plaintiff-organization to inform the Court whether it had members in all of the Board Plan
districts that allegedly diluted Black voting strength. 63 Both organizations filed supplemental
declarations. 64 From these declarations, it is clear that each organization is alleging that it has
members in each of the challenged districts. In the context of this case and at this stage of the
litigation, those allegations are really all that is necessary to meet the first prong of Hunt. 65 And
no one is arguing that Plaintiffs have any problems with respect to the second or third prong of
Hunt.
At the preliminary injunction hearing, through witness examination and then in argument,
Defendants emphasized that the Panel does not have a traditional membership structure and has
an overly broad definition of members that includes, for example, anyone who has donated to the
Panel even once in the last three years. 66 If the Court were to reach the merits of the Motion for a
Preliminary Injunction, evidence such as this might impact the determination of whether the Panel
is likely to actually meet the first prong of the Hunt test. But since the Court cannot reach the
62
Order (Doc. 44) at 2 (quoting Ala. Legis. Black Caucus, 575 U.S. at 270–71).
63
Id.
See Decl. of Bill Kopsky on Behalf of the Panel (Doc. 57); Decl. of Barry Jefferson on Behalf of the Arkansas
64
NAACP (Doc. 58).

65
What about redressability? There have been no allegations that Plaintiffs’ members who reside in the challenged
Board Plan districts would ultimately end up in any of the majority-Black districts presented in Plaintiffs’ Illustrative
Plan. The Court has considered this issue and finds that requiring such allegations is unnecessary. The Illustrative
Plan serves to show that a remedy is possible. It is not meant to be the Plaintiffs’ exact or only remedy. See, e.g., Mo.
State Conf. NAACP v. Ferguson-Florissant Sch. Dist., 894 F.3d 924, 934 (8th Cir. 2018).
66
See Prelim. Inj. Hr’g Tr., Vol. V (Doc. 94) at 1176:17–1179:2.
14
merits of the Motion for a Preliminary Injunction, the standing analysis is confined to whether the
Panel sufficiently alleged that it has members in all relevant districts. It did. Because the Panel
therefore has standing, the Court need not address any argument concerning the Arkansas
NAACP’s standing. 67
B. Subject-Matter Jurisdiction
The existence of an Article III case or controversy is necessary for a federal district court
to hear and decide a lawsuit. But it is not sufficient. A federal district court must also have subject-
matter jurisdiction over the suit. Subject-matter jurisdiction is conferred on a federal district court
by statute. 68 And the requirement that a judge not act unless a statute gives him or her jurisdiction
to do so is the principal manifestation (as to the judiciary) of the horizontal separation of powers
that our founders knew was critical to the success of our form of government. 69 That is likely why
courts have an independent obligation to assure themselves that they have subject-matter
jurisdiction over a lawsuit before they reach the merits. 70
This is the threshold issue that prevents the Court from reaching the merits of Plaintiffs’
Motion for a Preliminary Injunction. In short, because no private right of action exists to enforce
§ 2 of the Voting Rights Act, none of the jurisdictional statutes identified by Plaintiffs actually
confer jurisdiction on this Court. Before explaining in detail how the Court reached this
conclusion, it is worthwhile to make clear the specific question before the Court. The question is
67
Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 986 (8th Cir. 2011).
68
Patchak v. Zinke, 138 S. Ct. 897, 907 (2018) (“[W]ith limited exceptions, a congressional grant of jurisdiction is a
prerequisite to the exercise of judicial power.”).
69
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (noting that a court acting “beyond the bounds
of authorized judicial action . . . offends fundamental principles of separation of powers”); see also supra notes 41–
49 and accompanying text.
70
See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
15
not whether the Court believes the Voting Rights Act has been and continues to be a force for good
and progress in our society. (I do.) The question is not whether the Court believes that sometime
in the last fifty-seven years Congress should have expressly included a private right of action in
the Voting Rights Act. (I do.) The question is not whether the Court believes cases like this one
are important to pursue. (I do.) The narrow question before the Court is only whether, under
current Supreme Court precedent, a court should imply a private right of action to enforce § 2 of
the Voting Rights Act where Congress has not expressly provided one. The answer to this narrow
question is no. Only the Attorney General of the United States can bring a case like this one.
1. Judicial Implication of a Private Right of Action to Enforce § 2
It is undisputed that Congress did not include in the text of the Voting Rights Act a private
right of action to enforce § 2. Plaintiffs contend that this Court should—actually, Plaintiffs contend
that this Court must—nonetheless judicially imply a private right of action to enforce § 2. 71 In a
concurring opinion in a recent § 2 case, Brnovich v. Democratic National Committee, Justice
Gorsuch (joined by Justice Thomas) wrote separately to “flag” an issue “not decide[d]” by the
Supreme Court that day: the existence or non-existence of a private right of action to enforce § 2.
Our cases have assumed—without deciding—that the Voting Rights Act of 1965
furnishes an implied cause of action under § 2. Lower courts have treated this issue
as an open question. 72
It is to this “open question” the Court now turns. 73
71
In response to the Court’s request to the parties for briefing on the private-right-of-action question, the United States
submitted a Statement of Interest. (Doc. 71). The Court has reviewed this Statement and the law it cited. The United
States’ legal argument is generally the same as Plaintiffs’ legal argument. Accordingly, for the most part, the Court’s
references to the Plaintiffs’ legal arguments should be taken to include the similar legal arguments raised by the United
States.
72
141 S. Ct. at 2350 (Gorsuch, J., concurring).
73
Plaintiffs contend that the private-right-of-action question is not really an “open” one. Their point seems to be that
because (1) no court has affirmatively held that § 2 is not privately enforceable, (2) some courts have held that § 2 is
privately enforceable, and (3) many courts have assumed that § 2 is privately enforceable, then the only possible
conclusion is that § 2 is privately enforceable. Pls.’ Reply in Supp. of Prelim. Inj. (Doc. 68) at 37–41. This argument
16
The Supreme Court’s current jurisprudence on implied private rights of action is
notoriously tight-fisted. That’s to be expected; after all, the question at hand is whether a court
should “read into” a statute something that Congress did not “write into” the statute. What a
strange thing for courts to do—especially in the modern era.
A line of Supreme Court cases, beginning with Alexander v. Sandoval, has made quite clear
that judicially implied private rights of action are now extremely disfavored. 74 If Congress wants
private litigants to be able to enforce federal statutes, Congress should express that desire in the
statute. Sandoval and its progeny don’t entirely foreclose the possibility of implied private rights
of action. However, those cases do set pretty strict requirements for when a court may imply a
private right of action to enforce a statutory provision. First, Congress must use rights-creating
language in the statutory provision at issue. 75 Second, Congress must provide for a private
remedy. 76 Both are necessary before a private party can enforce a federal statute. The Court need
not determine whether § 2 of the Voting Rights Act contains rights-creating language. Even if it
does, Plaintiffs cannot show that Congress provided for a private remedy to enforce § 2.
is in one sense reasonable. It certainly gives the Court pause to be the first federal court in the nation to affirmatively
conclude that the judiciary may not imply a private right of action to enforce § 2. However, to the extent Plaintiffs
mean to suggest that this Court is somehow bound by the way other courts have treated this question, Plaintiffs are
wrong. As explained in this Order, neither the Supreme Court nor the Eighth Circuit has decided this issue one way
or the other. It is true, as Justice Gorsuch noted, that the Supreme Court has assumed the existence of a judicially-
implied private right of action. So has the Eighth Circuit. But assumptions like these are not binding.
74
532 U.S. 275 (2001); see also Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); Stoneridge Inv. Partners, LLC v.
Scientific-Atlanta, 552 U.S. 148 (2008); Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).
75
Sandoval, 532 U.S. at 286–88.
76
Id. Typically, plaintiffs suing under 42 U.S.C. § 1983 don’t have much trouble satisfying the private-remedy prong
of the test “because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes.”
Gonzaga Univ., 536 U.S. at 284. Section 1983 “presumptively” creates a private remedy, id., although that
presumption can be rebutted if the rights-creating statute contains a remedial scheme that is “sufficiently
comprehensive” to suggest that Congress intended to preclude the § 1983 remedy. Middlesex Cnty. Sewerage Auth.
v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19–20 (1981); see also Sandoval, 532 U.S. at 290. In any event, Plaintiffs
do not bring suit in this case under § 1983. Thus, the only question for the Court is whether the Voting Rights Act
itself contains a private right of action to enforce § 2.
17
When analyzing whether Congress provided for a private remedy to enforce a particular
provision of federal law, “[t]he judicial task is to interpret the statute Congress has passed to
determine whether it displays an intent to create . . . a private remedy.” 77 “Statutory intent on this
. . . point is determinative.” 78 To discern the statutory intent, a court begins (and often ends) by
examining “the text and structure” of the statute. 79 If this examination makes it clear one way or
the other whether the statute provides a private remedy, then the private-remedy inquiry ends.
a. The Text and Structure of the Voting Rights Act
Section 2 of the Voting Rights Act has two subsections. The first subsection prohibits a
State or political subdivision from imposing or applying any voting qualification, prerequisite,
standard, practice, or procedure “which results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color . . . .” 80 The second subsection elaborates
on how a violation of the “results test” set forth in the first subsection is proven.
Section 2’s scope goes well beyond the voting guarantees of the Constitution. For example,
while the Fourteenth Amendment and § 2 of the Voting Rights Act both prohibit vote dilution
based on race, a racially dilutive voting map violates the Fourteenth Amendment only if the map
was enacted or maintained with discriminatory intent. 81 On the other hand, § 2 is violated if the
results of a map dilute Black voting strength, even if the purpose behind the map was entirely race-
77
Sandoval, 532 U.S. at 286.
78
Id.
79
Id. at 288 n.7.
80
52 U.S.C. § 10301(a).
81
See Rogers v. Lodge, 458 U.S. 613, 617–22 (1982); see also City of Mobile v. Bolden, 446 U.S. 55 (1980). The
Supreme Court has never held, nor even “suggested,” that the Fifteenth Amendment addresses vote dilution. Reno v.
Bossier Parish Sch. Bd., 528 U.S. 320, 334 n.3 (2000) (Reno II).
18
neutral. To be clear, § 2 protects a right different from, and broader than, the right secured by the
Constitution. 82
Section 2 is completely silent as to the remedies available for a violation of that statutory
provision. Of course, Congress is not required to place a remedy in every provision of every statute
it passes. The Voting Rights Act is a large and complex statute. It is necessary to consider the
text and structure of the entire Act when analyzing whether the Act “manifests an intent ‘to create
. . . a private remedy’” for § 2 violations. 83
Section 12 of the Act (“Civil and criminal sanctions”) appears to be the only remedial
provision that Congress provided for violations of § 2. 84 A comprehensive reading of § 12 clearly
establishes that it is focused entirely on enforcement proceedings instituted by the Attorney
General of the United States. That’s a problem for the Plaintiffs because “[t]he express provision
of one method of enforcing a substantive rule suggests that Congress intended to preclude
others.” 85
For example, consider subsections (a) and (c) of § 12. Those subsections provide that
anyone who violates, attempts to violate, or conspires to violate §§ 2, 3, 4, 5, 10, or 11 of the Act
shall be fined up to $5,000 and/or be imprisoned for up to five years. 86 It would be highly
82
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 482 (1997) (Reno I). As discussed in more detail below, the Voting
Rights Act itself distinguishes between constitutional and statutory rights. Compare 52 U.S.C. §§ 10302, 10310, with
52 U.S.C. § 10308.
83
Gonzaga Univ., 536 U.S. at 284 (emphasis removed) (quoting Sandoval, 532 U.S. at 286); Does v. Gillespie, 867
F.3d 1034, 1043 (8th Cir. 2017) (“Congressional intent or meaning is not discerned by considering merely a portion
of a statutory provision in isolation, but rather by reading the complete provision in the context of the statute as a
whole.”).
84
52 U.S.C. § 10308.
85
Sandoval, 532 U.S. at 290; see also Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453,
457–58 (1974); Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929) (“When a statute limits a thing to be
done in a particular mode, it includes the negative of any other mode.”).
86
52 U.S.C. § 10308. Subsection (b) is not relevant to this case.
19
unusual—to say the least—to conclude that Congress intended for private enforcement of such
fines and imprisonment. 87 There is nothing in the Act to suggest Congress intended §§ 12(a) and
(c) to be enforced by private parties. Indeed, Plaintiffs do not argue that §§ 12(a) or (c) creates or
suggests a private right of action to enforce § 2.
There’s even more to § 12 that suggests a private right of action cannot be implied to
enforce § 2. Consider § 12(d):
Whenever any person has engaged or there are reasonable grounds to believe that
any person is about to engage in any act or practice prohibited by [§§ 2, 3, 4, 5, 10,
or 11], section 1973e of Title 42, or subsection (b) of this section, the Attorney
General may institute for the United States, or in the name of the United States, an
action for preventive relief, including an application for a temporary or permanent
injunction, restraining order, or other order, and including an order directed to the
State and State or local election officials to require them (1) to permit persons listed
under chapters 103 to 107 of this title to vote and (2) to count such votes. 88
So, when “there are reasonable grounds to believe” that a violation of § 2 is forthcoming, § 12(d)
affirmatively authorizes the Attorney General of the United States to seek a preliminary or
permanent injunction to prevent the violation. But § 12(d) makes no mention of private parties,
which (as noted above) strongly implies their exclusion. This is another problem for the Plaintiffs,
especially considering that injunctive relief to prevent a § 2 violation is exactly what they seek.
It’d be hard to find a provision more on point than this one.
Neither party (nor the United States) argues about whether § 12(f) supports a private right
of action. However, that is the only portion of § 12 that might potentially cut in Plaintiffs’ favor.
It is therefore worth a detailed discussion. Section 12(f) provides:
The district courts of the United States shall have jurisdiction of proceedings
instituted pursuant to this section and shall exercise the same without regard to
whether a person asserting rights under the provisions of chapters 103 to 107 of this
87
See, e.g., Frison v. Zebro, 339 F.3d 994, 999 (8th Cir. 2003) (noting that “it is well-settled that criminal statutes will
rarely [provide a private right of action under] § 1983”) (collecting cases).
88
52 U.S.C. § 10308(d).
20
title shall have exhausted any administrative or other remedies that may be provided
by law. 89
Read in isolation, this subsection might indicate that Congress thought any person could bring suit
to enforce § 2 (part of Chapter 103). After all, it is unnatural to talk of anyone other than a private
litigant as having to exhaust administrative remedies.
But we know that § 12(f) must be read “in view of its structure and of the physical and
logical relation” to the rest of § 12. 90 And once § 12(f) is read in light of § 12(e), it becomes
apparent that § 12(f) is not creating, recognizing, or assuming a private right of action. Section
12(e) provides:
Whenever . . . there are observers appointed . . . [and] any persons allege to such an
observer within forty-eight hours after the closing of the polls that notwithstanding
(1) their listing under chapters 103 to 107 of this title or registration by an
appropriate election official and (2) their eligibility to vote, they have not been
permitted to vote in such election, the observer shall forthwith notify the Attorney
General if such allegations in his opinion appear to be well founded. Upon receipt
of such notification, the Attorney General may forthwith file with the district court
an application for an order providing for the marking, casting, and counting of the
ballots of such persons and requiring the inclusion of their votes in the total vote
before the results of such election shall be deemed final and any force or effect
given thereto. The district court shall hear and determine such matters immediately
after the filing of such application. The remedy provided in this subsection shall
not preclude any remedy available under State or Federal law. 91
The “person asserting rights” language in § 12(f) is not describing a hypothetical private plaintiff
in a § 2 enforcement proceeding. Instead, “the person asserting rights” language in § 12(f) is
referencing a person on whose behalf the Attorney General of the United States brings suit under
§ 12(e).
89
Id. § 10308(f).
90
Gillespie, 867 F.3d at 1043 (“Perhaps no interpretive fault is more common than the failure to follow the whole-
text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical
and logical relation of its many parts.”) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 167 (2012)).
91
52 U.S.C. § 10308(e).
21
On this read of the two subsections, § 12(f)’s discussion of exhaustion of remedies makes
perfect sense. It means that the Attorney General of the United States does not have to wait to
pursue a § 12(e) action until the individual voter exhausts administrative remedies or other legal
remedies (such as state law remedies or § 1983 litigation). Correspondingly, § 12(e) reserves for
the voter “remed[ies] available under State or Federal law,” but it does not create any new
remedies. 92 Essentially, §§ 12(e) and (f) work in combination such that the Attorney General of
the United States can quickly bring a § 12(e) suit on behalf of a voter, while the voter can
individually bring his or her own suit under state law or other federal law if such law provides a
private right of action. Nothing about this set-up suggests—much less requires—the conclusion
that § 12(f) recognizes or assumes the private enforceability of § 2.
Plaintiffs primarily point to two other sections of the Voting Rights Act to suggest that the
statute manifestly intended to create a private right of action to enforce § 2. Neither section carries
the water they want it to. Let’s first consider § 3 of the Voting Rights Act, which appears to
authorize specific relief in certain lawsuits brought by either the Attorney General of the United
States or an “aggrieved person” (i.e., an injured potential voter). 93 The difficulty for Plaintiffs is
that § 3 is speaking of relief only for cases where the Attorney General of the United States or an
aggrieved person “institutes a proceeding under any statute to enforce the voting guarantees of the
fourteenth or fifteenth amendment.” 94 In 1982, Congress amended § 2 to reach conduct that would
92
Id.
93
Id. § 10302.
94
The precise order of the words used, but not the words themselves, differ between § 3’s subsections. Subsection
(a) says “[w]henever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce
the voting guarantees of the fourteenth or fifteenth amendment . . . .” 52 U.S.C. § 10302(a). Subsection (b) says “[i]f
in a proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting
guarantees of the fourteenth or fifteenth amendment . . . .” Id. § 10302(b). Finally, subsection (c) says “[i]f in any
proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting
22
not violate the Constitution. 95 After the 1982 amendment, a proceeding to enforce § 2 of the
Voting Rights Act is not a proceeding “to enforce the voting guarantees of the fourteenth or
fifteenth amendment” 96 because the voting rights protected by § 2 are different from, and broader
than, the far narrower guarantees in the Fourteenth and Fifteenth Amendments. 97
Section 14 is no different. Section 14 allows for attorneys’ fees, expert fees, and other
litigation costs to be awarded to the “prevailing party, other than the United States,” in “action[s]
or proceeding[s] to enforce the voting guarantees of the fourteenth or fifteenth amendment.” 98 By
its text, § 14 is obviously concerned only with lawsuits brought to enforce the Fourteenth or
Fifteenth Amendment. Plaintiffs’ best argument here is that, contrary to the clear text of § 14, the
Eighth Circuit has granted attorneys’ fees in § 2 cases in reliance on this provision. But those
cases can’t bear the weight plaintiffs put on them. In those cases, no party argued that a § 2 claim
falls outside the scope of § 14 because it is not a “proceeding to enforce the voting guarantees of
the fourteenth or fifteenth amendment.” 99 So the Eighth Circuit did not resolve such an issue. The
guarantees of the fourteenth or fifteenth amendment . . . .” Id. § 10302(c). These minor differences are irrelevant to
the interpretative analysis.
95
Chisom v. Roemer, 501 U.S. 380, 393 (1991).
96
Reno I, 520 U.S. at 482 (“Because now the Constitution requires a showing of intent that § 2 does not, a violation
of § 2 is no longer a fortiori a violation of the Constitution. Congress itself has acknowledged this fact.”).
97
Plaintiffs contend that the Court is misreading § 3. Plaintiffs read the various subsections in § 3 to say that the
statute under which the proceeding is instituted—not the proceeding itself—must enforce the voting guarantees of the
Fourteenth or Fifteenth Amendment; Plaintiffs then contend that the Voting Rights Act is such a statute. See Prelim.
Inj. Hr’g Tr., Vol. V (Doc. 94) at 1165:22–1167:19. The biggest flaw in this argument is that it violates the normal
canons of statutory construction and the ordinary rules of grammar. To accept Plaintiffs’ position, the Court would
have to rewrite the relevant subsections. Instead of speaking of “a proceeding under any statute to enforce the voting
guarantees of the fourteenth or fifteenth amendment,” the hypothetically rewritten statute would speak of “a
proceeding under any statute that enforces the voting guarantees of the fourteenth or fifteenth amendment.” Without
such a revision, it is unclear to the Court how Plaintiffs’ reading could be the right one. And, obviously, courts don’t
just rewrite statutes. We assume Congress chose its words intentionally.
98
52 U.S.C. § 10310(e).
99
In Shakopee Mdewakanton Sioux Cmty. v. City of Prior Lake, the dispute was whether attorneys’ fees were
appropriate even though “the district court did not need to reach the [plaintiffs’] civil rights violations claims.” 771
F.2d 1153, 1159 (8th Cir. 1985). Moreover, in that case the plaintiffs had brought a Fourteenth Amendment challenge.
Id. at 1155. In Jeffers v. Clinton, only the amount of the fees awarded was at issue, and the plaintiffs’ motion for
23
assumption (or dicta) in those cases—that § 14 fees and costs are somehow applicable to a § 2
case—is not binding on this Court. Certainly, it is not controlling on the bigger question of whether
§ 2 is privately enforceable. The text of § 14 is clear. Section 14 is about proceedings to enforce
the guarantees of the Fourteenth or Fifteenth Amendment. That is not what a § 2 case does.
For the reasons described above, the Court concludes that the text and structure of the
Voting Rights Act does not “manifest[] an intent ‘to create . . . a private remedy’” for § 2
violations. 100 If anything, the text and structure strongly suggest that exclusive enforcement
authority resides in the Attorney General of the United States. 101 Accordingly, under the private-
right-of-action jurisprudence that the Supreme Court currently employs, this Court cannot imply a
private right of action to enforce § 2 of the Voting Rights Act.
b. Precedent Does Not Support a Private Right of Action
Plaintiffs dedicated very little of their arguments to the text and structure of the Voting
Rights Act. Most of their arguments were about precedent. Fair enough. But on closer
examination, the precedent they cite is not all that they make it out to be.
attorneys’ fees came after rulings that both § 2 and the Fifteenth Amendment had been violated. 992 F.2d 826, 828
(8th Cir. 1993). In Emery v. Hunt, the parties were not disputing whether “plaintiffs [were] entitled to an award of
attorney fees under” § 14 and 42 U.S.C. § 1988. 272 F.3d 1042, 1046 (8th Cir. 2001). The issue was whether fees
were appropriate where the plaintiffs were only successful on a state law claim. Id. The Eighth Circuit said the
unsuccessful § 2 claim was sufficiently “related” to the successful state law claim to justify attorneys’ fees. Id. at
1047. Finally, in Bone Shirt v. Hazeltine, the only issue in front of the Eighth Circuit was whether § 14’s allowance
of expert fees should be applied retroactively. 524 F.3d 863, 865 (8th Cir. 2008).
100
Gonzaga Univ., 536 U.S. at 284 (quoting Sandoval, 532 U.S. at 286).
101
Plaintiffs rely on the 1982 committee reports from the Senate and House. Specifically, Plaintiffs note that both
reports include a brief statement that § 2 contains a private right of action. See Pls.’ Reply in Supp. of Prelim. Inj.
(Doc. 68) at 38–39. This is precisely the way legislative history should not be used. Where the text and structure give
a clear answer, the inquiry is at an end. Sandoval, 532 U.S. at 288 n.7. Committee reports—which are neither passed
by Congress nor signed by the President—are not law. N.L.R.B. v. SW General, Inc., 137 S. Ct. 929, 942 (2017)
(“What Congress ultimately agrees on is the text that it enacts, not the preferences expressed by certain legislators.”);
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in the judgment) (“The greatest defect of
legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.”). Committee
reports cannot be employed by unelected judges to alter the effect of the actual words used in the bill that became law.
24
We should start at (or close to) the beginning. In 1969, four years after the Voting Rights
Act became law, the Supreme Court decided Allen v. State Board of Elections. 102 In Allen, the
Supreme Court implied a private right of action to enforce § 5 of the Voting Rights Act. The Allen
Court readily acknowledged that Congress did not include in the text of the Voting Rights Act a
private right of action. Nevertheless, the Court went on to judicially create just such a private right
of action based on policy considerations:
The achievement of the Act’s laudable goal could be severely hampered, however,
if each citizen were required to depend solely on litigation instituted at the
discretion of the Attorney General. For example, the provisions of the Act extend
to States and the subdivisions thereof. The Attorney General has a limited staff and
often might be unable to uncover quickly new regulations and enactments passed
at the varying levels of state government.
The guarantee of [§] 5 that no person shall be denied the right to vote for failure to
comply with an unapproved new enactment subject to [§] 5, might well prove an
empty promise unless the private citizen were allowed to seek judicial enforcement
of the prohibition. 103
Allen has been relegated to the dustbin of history. As far as its specific holding regarding private
enforceability of § 5, the Supreme Court’s 2013 Shelby County v. Holder decision essentially
precludes any enforcement of § 5 (whether private enforcement or enforcement by the Attorney
General of the United States). 104 And as far as Allen’s reasoning, the Supreme Court has since
made clear that private rights of action are not to be implied merely because they are “desirable . .
. as a policy matter, or [] compatible with the statute.” 105 Allen is a hallmark example of this sort
of discredited rationale. In fact, the Supreme Court has specifically identified Allen as a defective
102
393 U.S. 544 (1969).
103
Id. at 556–57.
104
570 U.S. 529 (2013).
105
Sandoval, 532 U.S. 286–87.
25
product of an outdated jurisprudence that too loosely implied private rights of action where
Congress had created none:
During this “ancien regime,” the Court assumed it to be a proper judicial function
to “provide such remedies as are necessary to make effective” a statute’s purpose.
Thus, as a routine matter with respect to statutes, the Court would imply causes of
action not explicit in the statutory text itself. 106
Long story short, everyone agrees that the Supreme Court’s current private-right-of-action
jurisprudence has abandoned the reasoning of Allen in favor of the newer, stricter standard set forth
in Sandoval and its progeny.
This is not the end of the story. In 1996, well after the 1982 amendments to the Voting
Rights Act, the Supreme Court decided Morse v. Republican Party of Virginia. 107 Morse had no
majority opinion. Five of the Justices, however, agreed to imply a private right of action to enforce
§ 10 of the Voting Rights Act. Justice Stevens, writing for himself and Justice Ginsburg,
announced the judgment of the Court. Justice Stevens explained that “[t]he District Court
dismissed appellants’ claim under § 10 of the Act because that section only authorizes enforcement
proceedings brought by the Attorney General and does not expressly mention private actions.”108
But the Supreme Court reversed this ruling.
Justice Stevens acknowledged that the district court’s ruling “might have been correct if
the Voting Rights Act had been enacted recently,” but concluded that the ruling “fail[ed] to give
effect to our cases holding that our evaluation of congressional action ‘must take into account its
contemporary legal context.’” 109 Justice Stevens seems to have recognized that the Supreme
106
Ziglar, 137 S. Ct. at 1855 (internal citations omitted). Ziglar cited Allen as an example of this type of concerning
judicial creativity. Id.
107
517 U.S. 186 (1996).
108
Id. at 230.
109
Id. at 230–31 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 698–99 (1979)).
26
Court’s 1996 jurisprudence was far less likely than its 1965 jurisprudence to tolerate the free-
wheeling style of judicially implying private rights of action espoused by the Allen Court. (And
that was even before Sandoval.) But despite this recognition, Justice Stevens believed that the
implied-right-of-action analysis should still account for the “highly liberal standard for finding
private remedies” that was commonplace in the 1960s. 110 According to Justice Stevens,
considering this “contemporary legal context” was the proper way to determine what Congress
wanted when it passed the Voting Rights Act. 111 So, for example, it was important to Justice
Stevens (if not dispositive) that Congress “acted against a ‘backdrop’ of decisions in which implied
causes of action were regularly found.” 112 The three Justices concurring in the judgment—Justices
Breyer, O’Connor, and Souter—were far more succinct. Essentially, they found “that the rationale
of [Allen] applies with similar force” to § 10. 113
Much like Allen itself, the Morse approach to the private-right-of-action analysis does not
survive Sandoval and its progeny. In Sandoval, the Supreme Court expressly refused to “revert .
. . to the understanding of private causes of action that held sway . . . when [the statute] was
enacted.” 114 The Court was explicit that use of “contemporary legal context” to smuggle the old
110
Id. at 231.
111
Id.
112
Id. Justice Stevens also pointed to § 3’s “aggrieved person” language and § 14’s allowance of attorneys’ fees as
implying a private right of action to enforce § 10. Id. at 233–34. He noted, however, that § 10 “by its terms” is “a
statute designed for enforcement of the guarantees of the Fourteenth and Fifteenth Amendments.” Id. at 234 (emphasis
added). Section 2, on the other hand, is by design not such a statute. See supra notes 95–97 and accompanying text.
113
Id. at 240 (Breyer, J., joined by O’Connor and Souter, JJ., concurring in the judgment) (citing S. Rep. No. 97-417,
pt. 1, p. 30 (1982)). Justice Breyer also suggests that Allen applies to § 2. But this is purely dicta.
114
Sandoval, 532 U.S. at 287. Consistent with this admonition, the Supreme Court has recently cautioned against
employing outdated methods of statutory interpretation when construing § 2 of the Voting Rights Act. In Brnovich,
the Supreme Court stated that when addressing § 2 in a new context, “a fresh look at the statutory text is appropriate”
because current “statutory interpretation cases almost always start with a careful consideration of the text . . . .” 141
S. Ct. at 2337. Simply because previous § 2 cases had “jumped right to the” legislative history was not a reason to
abandon the prevailing method of statutory interpretation in Brnovich and the same holds true here. Id. (discussing
the dispositive weight given to legislative history in Gingles and subsequent vote-dilution cases).
27
ways of judicial invention into modern times was a non-starter. 115 According to Sandoval,
“contemporary legal context” is only relevant “to the extent it clarifies text.” 116 It cannot be used
to read into a statute a private remedy that is not there. 117
To be sure, Allen and Morse are binding precedent insofar as they held that §§ 5 and 10 are
privately enforceable. But these cases cannot be stretched any further. 118 Any discussion about
private enforcement of § 2 in those cases is not only dicta, but dicta based on methods of
interpretation that the Supreme Court has long since abandoned. Absent binding precedent that
extends Allen or Morse to § 2, those cases are simply inapplicable here.
The only potentially binding precedent comes from a 1989 Eighth Circuit case, Roberts v.
Wamser. 119 In that case, the Eighth Circuit framed “the precise issue [as] whether the Voting
Rights Act can properly be understood as granting an unsuccessful candidate the right to maintain
115
Sandoval, 532 U.S. at 288.
116
Id.
117
Even if the contemporary-legal-context principle were still in good standing, it wouldn’t help Plaintiffs very much.
Some courts have concluded that Congress’ decision to add “or aggrieved person” to § 3 in 1975 indicated a desire
for the entire Voting Rights Act to be privately enforceable. See, e.g., Ala. State Conf. of NAACP v. Alabama, 949
F.3d 647, 652–53 (11th Cir. 2020), cert. granted and judgment vacated, 141 S. Ct. 2618 (2021); Fla. State Conf. of
NAACP v. Lee, No. 4:21-cv-187, 2021 WL 6072197, at *8–9 (N.D. Fla. Dec. 17, 2021). But that language could just
as easily be nothing more than congressional recognition that there was now (because of Allen) an implied private
right of action in § 5.
Indeed, that latter interpretation appears to get stronger with time. In 1982, when Congress intentionally divorced §
2 from the Fourteenth and Fifteenth Amendments, it left § 3 intact. Doing so when § 3 speaks only of proceedings to
enforce constitutional voting rights at least suggests § 3 was not referencing a private right of action to enforce § 2.
Congress knew, at the time of the 1982 amendments, that the Supreme Court was considerably narrowing its private-
right-of-action jurisprudence, including by not treating prior cases implying private rights of action for one section of
a statute as automatically creating a private right of action for other sections of the same statute. See Touche Ross &
Co. v. Redington, 442 U.S. 560, 577–78 (1979) (refusing to extend the implied private right of action from J.I. Case
Co. v. Borak, 377 U.S. 426 (1964)); see also Allen, 393 U.S. at 557 (relying on Borak to imply a private right of action
in § 5 of the Voting Rights Act). Congress had every reason to know that, if it wanted to create a private right of
action for § 2, it could have and should have spoken more clearly.
118
See Stoneridge, 552 U.S. at 165 (“Concerns with judicial creation of a private cause of action caution against its
expansion. The decision to extend the cause of action is for Congress, not for us. Though it remains the law, the
[previously implied] private right should not be extended beyond its present boundaries.”).
119
883 F.2d 617 (8th Cir. 1989).
28
a judicial challenge to allegedly discriminatory voting procedures that allegedly caused him to lose
the election.” 120 The Eighth Circuit treated § 2 of the Voting Rights Act as privately enforceable.
Latching onto the “aggrieved person” language in § 3 of the Act, Roberts suggested that an
“aggrieved person” could bring a § 2 lawsuit. Thus, the outcome of the case turned on whether an
unsuccessful candidate counted as an “aggrieved person.” 121 Ultimately, the Eighth Circuit held
that an unsuccessful candidate is not an “aggrieved person” because the candidate is not someone
“whose voting rights have been denied or impaired.” 122
Roberts’s holding is simply that a losing candidate cannot bring suit to enforce § 2 of the
Voting Rights Act. Even if one over-stretched the concept of a holding, Roberts at most controls
the question of whether a losing candidate meets the definition of “aggrieved person” as that term
is used in § 3. But Roberts did not purport to announce a sweeping rule that all voters can enforce
§ 2 of the Voting Rights Act. Even if it had wanted to do so, any such rule would have been
unnecessary to the resolution of the case and would therefore have constituted non-binding dicta.
Roberts is most fairly read as saying that if private enforcement of § 2 is authorized, then that
authorization would be found in the “aggrieved person” language of § 3. And because an
unsuccessful candidate does not fall within the definition of “aggrieved person,” that candidate
would not be authorized to sue whether or not § 3 in fact authorized or contemplated private
enforcement of § 2 in other contexts.
To be clear, Roberts’s 30,000-foot discussion of private enforcement of § 2 is dicta. Dicta
from the Eighth Circuit, of course, is often of great persuasive value. However, Roberts’s brief
120
Id. at 620.
121
Id. at 621.
122
Id. at 624.
29
and highly generalized discussion of Allen and § 3 has been seriously “enfeebled” by Sandoval
and later Supreme Court cases in the same way that Allen and Morse have been. 123 Any persuasive
value from Roberts has long since faded into jurisprudential oblivion. 124 Under the current
Supreme Court framework, it would be inappropriate to imply a private right of action to enforce
§ 2 of the Voting Rights Act. 125 Section 2 can and should be enforced by the Attorney General of
the United States.
2. Defendants’ Potential Waiver of the Private-Right-of-Action Issue
In addition to their substantive arguments on the private-right-of-action question, Plaintiffs
also raise a procedural argument. Specifically, Plaintiffs contend that the Court should ignore the
private-right-of-action question (at least for now) because Defendants did not raise it in their
Opposition to the Motion for a Preliminary Injunction. 126 At bottom, Plaintiffs’ argument is that
the question of the existence of a private right of action to enforce a statute is not a jurisdictional
question, but rather a merits question. If the private-right-of-action question is jurisdictional, the
Court has an independent obligation to decide the issue. If, however, Plaintiffs are right that the
123
See In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064–65 (8th Cir. 2017).
124
The Eighth Circuit’s silent assumption in Cross v. Fox that a private person could bring a § 2 case is not an
affirmative holding that would control. 23 F.4th 797 (8th Cir. 2022).
125
There’s one further issue lurking at the margins that merits mention. Even if a court determined that a private right
of action should be implied to enforce § 2, it is unclear why that right should be available to anyone other than a voter.
In the context of this case, the question would be whether the implied private right of action is expansive enough to
allow organizations to sue on behalf of voters. That seems to be a different question than the Article III associational
standing question. See Stoneridge, 552 U.S. at 165 (“The determination of who can seek a remedy has significant
consequences for the reach of federal power.”); United Food & Com. Workers Union v. Albertson’s, Inc., 207 F.3d
1193, 1198 (10th Cir. 2000) (finding that labor organization was not statutorily authorized to bring suit on behalf of
members); Cnty., Mun. Emps’ Supervisors & Foreman’s Union Local No. 1001, 240 F. Supp. 2d 827, 831 (N.D. Ill.
2003) (“[I]t would seem dubious at best to permit a carefully defined statutory provision to be overridden by [Article
III associational standing]—a doctrine that Congress has not chosen to incorporate in ERISA . . . .”); see also Perry
Grossman, The Case for State Attorney General Enforcement of the Voting Rights Act Against Local Governments,
50 Mich. J.L. Reform 565 (2017). In any event, the Court need not answer this question today as it concludes § 2 is
not privately enforceable.
126
Pls.’ Reply in Supp. of Prelim. Inj. (Doc. 68) at 37.
30
private-right-of-action question is a merits question, then the issue is waivable and, in this instance,
was waived by Defendants for purposes of the Motion for a Preliminary Injunction.
Plaintiffs’ argument has some force to it. Indeed, in the Order requesting briefing on the
private-right-of-action question, the Court specifically raised the potential waiver issue and asked
the parties to address it. 127 In response, Plaintiffs pointed to two Supreme Court cases: Verizon
Maryland, Inc. v. Public Service Commission of Maryland and Steel Co. v. Citizens for a Better
Environment. 128 In Verizon, while briefly addressing a party’s argument that subject-matter
jurisdiction was lacking because “the [statute being enforced] does not create a private cause of
action,” the Supreme Court quoted an oft-repeated line from Steel Co. that appears to settle the
jurisdictional-vs.-merits issue:
It is firmly established in our cases that the absence of a valid (as opposed to
arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the
courts’ statutory or constitutional power to adjudicate the case. 129
Justice Gorsuch’s concurrence in Brnovich—the very concurrence that flagged the private-right-
of-action question as an “open question” in the lower courts—took the same position: “Because
no party argues that the plaintiffs lack a cause of action here, and because the existence (or not) of
a cause of action does not go to a court’s subject-matter jurisdiction, this Court need not and does
not address that issue today.” 130
127
The Court directed the parties in the case at bar to address: (1) whether the Court has an independent obligation to
determine whether the Voting Rights Act provides a private right of action to enforce § 2; and (2) whether the Voting
Rights Act contains a private right of action. The Court made clear that if the private-right-of-action question was
ultimately not jurisdictional, it would not raise the matter sua sponte. The Court likewise stated that Defendants would
be considered as having waived any private-right-of-action arguments for purposes of the Motion for a Preliminary
Injunction because they did not raise such arguments in their Response to the Motion. See Order (Doc. 55).
Pls.’ Reply in Supp. of Prelim. Inj. (Doc. 68) at 37 (citing Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.
128
635, 642–43 (2002) (quoting Steel Co., 523 U.S. at 89).

129
Verizon, 535 U.S. at 642–43 (quoting Steel Co., 523 U.S. at 89).
130
Brnovich, 141 S. Ct. at 2350 (Gorsuch, J., concurring) (internal citations omitted).
31
So far so good for the Plaintiffs. But there’s a wrinkle. Just a few weeks ago, the Eighth
Circuit handed down a case called Cross v. Fox. 131 In Cross, the Eighth Circuit very clearly held
that the existence (or non-existence) of a private right of action is a jurisdictional question because
it is inextricably connected to a plaintiff’s asserted basis for subject-matter jurisdiction.
[T]he ICRA does not contain a private right of action to seek injunctive or
declaratory relief in federal court, and therefore, the district court lacked subject-
matter jurisdiction under 28 U.S.C. § 1331.
In Santa Clara Pueblo, the Supreme Court held that the ICRA does not “authorize
the bringing of civil actions for declaratory or injunctive relief to enforce its
substantive provisions.” The only federal remedy for ICRA violations authorized
by Congress is a writ of habeas corpus, which is not sought here. “Congress’ failure
to provide remedies other than habeas corpus was a deliberate one.” Accordingly,
“actions seeking other sorts of relief for tribal deprivations of rights must be
resolved through tribal forums.”
Absent a private right of action to enforce the ICRA in federal court for the relief
sought, there can be no jurisdiction under 28 U.S.C. § 1331. Therefore, the district
court did not err in dismissing the ICRA claims. 132
The conclusion reached by the Eighth Circuit in this portion of Cross was not haphazard. Indeed,
the rest of the Cross opinion reveals a court very intently focused on the jurisdiction-vs.-merits
question and very sensitive of the potential to conflate one with the other. 133
131
23 F.4th 797 (8th Cir. 2022).
132
Id. at 802–03 (internal citations omitted). It is worth noting that the Eighth Circuit’s jurisdictional holding on the
ICRA claim in Cross was on an entirely “separate ground” than that of the district court. Id. at 802. The district court
dismissed for failure to exhaust tribal remedies and acknowledged that the exhaustion requirement in that case was a
“matter of comity, not a jurisdictional prerequisite.” Cross v. Fox, 497 F. Supp. 3d 432, 436 (D.N.D. 2020) (quoting
Stanko v. Oglala Sioux Tribe, 916 F.3d 694, 699 (8th Cir. 2019)).
133
In a previous portion of the Cross opinion, the Eighth Circuit addressed a § 2 Voting Rights Act claim—specifically
the argument that § 2 did not proscribe the activities of Indian tribes. 23 F.4th at 801. The Cross Court explained
that, because § 2’s language prohibits acts by “States and political subdivision[s],” and because Indian tribes are not
“States [or] political subdivision[s],” § 2 does not apply to Indian tribes. Id. The Cross Court further explained that,
unlike the ICRA issue, this issue was not jurisdictional:
Although we agree that the VRA does not regulate Indian tribes, the parties improperly treated this
provision as jurisdictional. “Subject matter jurisdiction in federal-question cases is sometimes
erroneously conflated with a plaintiff’s need and ability to prove the defendant bound by the federal
law asserted as the predicate for relief—a merits-related determination.” The proper course is to
32
Before Cross, there was a fair level of confusion in the Eighth Circuit caselaw as to whether
the existence of a private right of action implicated subject-matter jurisdiction. 134 Cross seems to
answer the question—at least on this Court’s reading of it. Defendants share this Court’s reading
of Cross, and Plaintiffs do not really contest this reading. 135 Instead, Plaintiffs argue that (1) Cross
is inconsistent with two other recent Eighth Circuit cases, and (2) Cross is inconsistent with
Supreme Court precedent. 136
With respect to their first argument, Plaintiffs point to United States v. Harcevic 137 and
Principal Securities, Inc. v. Agarwal. 138 Harcevic was decided in 2021, and Agarwal was decided
seventeen days after Cross. But neither of these cases touch on the presence (or absence) of a
private right of action. Instead, both are concerned with what Cross would easily consider to be
merits issues.
Harcevic involved a federal prosecution for providing material support to terrorists. That
case reiterated the longstanding rule that a defect in a criminal indictment “affect[s] the merits of
a case,” but does not implicate a federal court’s “jurisdiction to adjudicate the criminal case.” 139
The Eighth Circuit held that the “district court had jurisdiction to adjudicate whether the indictment
determine whether the VRA’s limitation on coverage to states and political subdivisions “is
jurisdictional or simply an element of a plaintiff’s claim for relief.”
Id. (internal citations omitted).
134
Compare Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 736 n.3 (8th Cir. 2005) (“Because the
Housing Authority did not raise the issue, and because the question of whether a statute creates a private right of action
is not a question of subject matter jurisdiction, we need not determine whether such a right exists.”), with Anthony v.
Cattle Nat’l Bank & Tr. Co., 684 F.3d 738, 739 (8th Cir. 2012) (affirming district court’s ruling that “federal-question
jurisdiction did not exist” because there was no “private right of action”).
135
Prelim. Inj. Hr’g Tr., Vol. V (Doc. 94) at 1152:23–1154:22.
136
Id.
137
999 F.3d 1172 (8th Cir. 2021).
138
No. 20-3312, 2022 WL 273267 (8th Cir. 2022).
139
999 F.3d at 1179.
33
charged Harcevic with conduct that violated [the statute].” 140 Harcevic is about whether a claim
had been established, not whether the United States had the legal authority to bring any such claim
in the first place.
Likewise, Agarwal was not a private-right-of-action case. In Agarwal, a company sued
Mr. and Mrs. Agarwal to enjoin an arbitration proceeding that the Agarwals had filed with the
Financial Industry Regulatory Authority. 141 The district court issued the injunction, and the
Agarwals appealed. 142 The Eighth Circuit noted that the Federal Arbitration Act “does not permit
a court to enjoin arbitration based on an issue’s nonarbitrability.” 143 However, the Agarwal Court
ignored the problem because the Agarwals did not raise it: “The Agarwals have not raised an issue
regarding the district court’s authority to enter an injunction enjoining arbitration. Because the
issue is not jurisdictional or in the nature of a jurisdictional bar, the Agarwals have waived the
cause-of-action issue and we decline to address it.” 144 The Eighth Circuit was not discussing
whether the plaintiff-company had the legal authority to bring an action under the Federal
Arbitration Act, which would be a private-right-of-action question. Instead, the Agarwal Court
was discussing whether the Federal Arbitration Act contains a prohibition on “wrongful
arbitration.” 145 That’s a merits issue that does not implicate or call into question Cross’s holding.
With respect to Plaintiffs’ second argument—that Cross is inconsistent with Supreme
Court precedent—the short answer is that the Eighth Circuit’s decision in Cross comes long after
140
Id.
141
2022 WL 273267, at *1.
142
Id.
143
Id. at *3.
144
Id. (citing Steel Co., 523 U.S. at 89).
145
Id.
34
the Supreme Court precedent that Plaintiffs identify. We are not in a situation where the Eighth
Circuit has issued a ruling and then a later Supreme Court case overrules or otherwise clearly
vitiates the Eighth Circuit’s decision. Because Cross comes (significantly) after the Supreme
Court precedents at issue, this Court has no choice but to follow Cross. This Court cannot assume
that the Eighth Circuit missed, ignored, or acted contrary to the Supreme Court cases identified by
Plaintiffs. Rather, this Court must assume the Eighth Circuit believes Cross is a faithful
understanding and application of Supreme Court precedent. Said another way, whether Plaintiffs
are correct that Cross contravenes Verizon and Steel Co. is a question that only the Eighth Circuit
or the Supreme Court can address. Until one or both of them does so, this Court is bound by Cross.
This is especially true because Cross does not appear to be some kind of one-off outlier. 146
There are published cases in the First, Fifth, Sixth, Seventh, and Ninth Circuits containing
language that suggests that the existence (or non-existence) of a private right of action is a
jurisdictional inquiry because the absence of a private right of action is fatal to subject-matter
jurisdiction. 147 Unpublished cases in the Third and Eleventh Circuits appear to say the same
146
The Cross Court cites previous Eighth Circuit cases as holding that the private-right-of-action question is
jurisdictional. 23 F.4th at 800.
147
See E. Cent. Ill. Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc., 3 F.4th 954, 961 (7th
Cir. 2021) (“A federal right of action is a separate requirement, and § 1331 does not itself provide a right of action.”);
Buntin v. City of Boston, 857 F.3d 69, 72 (1st Cir. 2017) (“[T]he federal courts lack subject-matter jurisdiction if [the
statute] does not provide [plaintiff] with a private right of action for damages.”); Stew Farm, Ltd. v. Nat. Res.
Conservation Serv., 767 F.3d 554, 566 (6th Cir. 2014) (“Because the absence of a private right of action means the
district court lacked subject-matter jurisdiction . . . .”); Int’l Union of Operating Eng’rs, Loc. 150 v. Ward, 563 F.3d
276, 281 (7th Cir. 2009) (“Thus, when the basis of the action is a federal statute, a federal cause of action must exist
for a federal court to hear a given claim; the general grant of federal question jurisdiction contained in § 1331, without
a federal cause of action, is not enough.”); In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1229 (9th Cir. 2008)
(“If, however, [the statute] does not contain a private right of action, the district court properly dismissed the [statutory]
claim for lack of subject matter jurisdiction.”); Acara v. Banks, 470 F.3d 569, 571–72 (5th Cir. 2006) (“We hold there
is no private cause of action under HIPAA and therefore no federal subject matter jurisdiction over Acara’s asserted
claims.”).
35
thing. 148 So do cases from federal district courts in the Fourth, Tenth, and D.C. Circuits. 149 It’s
difficult to believe that all these circuit and district courts would be openly flouting, or unaware
of, Supreme Court precedent. 150
Perhaps the Eighth Circuit (and other circuits) are trying to distinguish between elements
of a claim on the one hand and a plaintiff’s legal authority to bring suit on the other. For an
example related to the case at bar, consider the following two questions: (1) does a private party
have the ability to bring suit under § 2 of the Voting Rights Act at all; and (2) would the private
party be able to successfully establish a violation of § 2. Might it be that the “firmly established”
rule from Steel Co.—that “the absence of a valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction”—is only concerned with the second question, and does not
address whether the first question is jurisdictional? There’s certainly a fair way to derive this
148
See Nelson v. Bank of Am., N.A., 446 F. App’x 158, 159 (11th Cir. 2011) (affirming district court’s “holding that
there was no private right of action under [the statute] and that, as a result, it lacked subject matter jurisdiction.”);
Gallenthin Realty Dev., Inc. v. BP Prods. of N. Am., 163 F. App’x 146, 151 (3d Cir. 2006) (“Because no private right
of action—express or implied—is provided by [the statute], the District Court properly concluded that [the statute]
cannot serve as a basis for the exercise of federal question jurisdiction.”).
149
See Volvo Group N. Am., LLC v. Int’l Union United Auto. Aerospace & Agric. Implement Workers of Am., 451 F.
Supp. 3d 570, 576 (W.D. Va. 2020) (“Because . . . [the statute] does not create a private right of action, the court lacks
subject matter jurisdiction over Volvo’s claim.”); Elec. Priv. Info. Ctr. v. Drone Advisory Comm., 369 F. Supp. 3d 27,
36–38 (D.D.C. 2019) (dismissing “for lack of subject matter jurisdiction” because the statute provided “no private
right of action”); Hampton Univ. v. Accreditation Council for Pharmacy Educ., No. 4:20-cv-118, 2021 WL 3566867,
at *2 (E.D. Va. Aug. 12, 2021) (“A claim can be dismissed for lack of subject-matter jurisdiction when the federal
law invoked by a private plaintiff does not include a private right of action.”); Express Dev., Inc. v. Okla. Hous. Fin.
Agency, No. CIV-14-280-C, 2014 WL 12843857, at *2 (W.D. Okla. May 19, 2014) (“Consequently, there is no private
right of action under [the statute] and the Court lacks subject matter jurisdiction to consider Plaintiffs’ claims.”).
150
A rule that private rights of action are jurisdictional seems more in line with the Supreme Court’s emphasis on the
separation-of-powers principles that underlie both the private-right-of-action analysis and the federal courts’
obligation to assure themselves of their subject-matter jurisdiction. See, e.g., Patchak, 138 S. Ct. at 907 (“Congress’
power over federal jurisdiction is ‘an essential ingredient of separation and equilibration of powers, restraining the
courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects.’”)
(quoting Steel Co., 523 U.S. at 101); Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018) (noting the “separation-
of-powers concerns that counsel against courts creating private rights of action”); Sosa v. Alvarez-Machain, 542 U.S.
692, 727 (2004) (“[T]his Court has recently and repeatedly stated that a decision to create a private right of action is
one better left to legislative judgment in the great majority of cases.”). Congress holds the power to decide what cases
the federal courts hear. Bowles v. Russell, 551 U.S. 205, 212–13 (2007). Congress’ ability to decide exactly who gets
to bring suit is a substantial aspect of that power. Stoneridge, 552 U.S. at 165.
36
distinction from Steel Co. 151 The problem is that later Supreme Court cases (such as Owasso
Independent School District No. I-011 v. Falvo 152 and Verizon 153) apply the Steel Co. rule to
private-right-of-action questions. 154 At any rate, the tension in the caselaw is something that is
going to have to be resolved by the Eighth Circuit or the Supreme Court. 155 For now, this Court
is duty-bound to follow the Eighth Circuit’s recent holding in Cross.
In the present case, Plaintiffs base the Court’s subject-matter jurisdiction on several
statutes: 28 U.S.C. § 1331, 156 28 U.S.C. § 1343(a)(3)–(4), 157 28 U.S.C. § 1357, 158 28 U.S.C. §
151
In Steel Co., there was no dispute that a private right of action existed. 523 U.S. at 87 (discussing the statute’s
“citizen-suit provision” that authorized “any person [to] commence a civil action”); see also Rockwell Int’l Corp. v.
United States, 549 U.S. 457, 467–68 (2007) (“[W]e concluded in [Steel Co.] that establishing the elements of an
offense was not made a jurisdictional matter merely because the statute creating the cause of action was phrased as
providing for ‘jurisdiction’ over such suit.”).
152
534 U.S. 426 (2002).
153
535 U.S. 635 (2002).
154
The Supreme Court’s decision in Lexmark Int’l, Inc. v. Static Control Components, Inc. is different. 572 U.S. 118
(2014). In that case, the Supreme Court acknowledged that the statutory provision at issue was privately enforceable
and analyzed whether a particular private plaintiff was among the class of private plaintiffs to which the private right
of action extended. Id. at 128–29. Lexmark boiled down to a question of whether the plaintiff’s asserted injury was
“within the zone of interests protected by the statute,” and whether that injury was “proximately caused by” the
defendant’s statutory violation. Id. at 137. Lexmark’s treatment of this issue as a merits question does not suggest
that the question of whether a statute is privately enforceable at all is a merits question.
155
In some sense, Justice Gorsuch’s concurrence in Brnovich helps illustrate the lack of clarity on this topic. Justice
Gorsuch cites Mata v. Lynch, 576 U.S. 143 (2015) (which in turn cites Steel Co.) for the proposition that private-right-
of-action questions are not jurisdictional. Brnovich, 141 S. Ct. at 2350 (Gorsuch, J., concurring). But neither Mata
nor Steel Co. were private-right-of-action cases. Instead, just like Steel Co., the issue in Mata went to whether the
plaintiff could succeed on the merits of the underlying claim. Mata, 576 U.S. at 149–50 (noting a court “retains
jurisdiction even if [a plaintiff’s] appeal lacks merit”) (emphasis added). Whether the plaintiff was statutorily
authorized to bring that claim at all was not in dispute in Mata. Id.
156
28 U.S.C. § 1331 provides subject-matter jurisdiction over “all civil actions arising under the Constitution, laws,
or treaties of the United States.”
157
28 U.S.C. § 1343(a)(3)–(4) provide subject-matter jurisdiction over “any civil action authorized by law to be
commenced by any person to redress the deprivation, under color of any State law . . . of any right, privilege or
immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United States; [or to] recover damages or to secure equitable or
other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.”
(emphasis added).
158
28 U.S.C. § 1357 provides subject-matter jurisdiction over “any civil action commenced by any person . . . to
enforce the right of citizens of the United States to vote in any State.”
37
2201(a), 159 and 52 U.S.C. § 10308(f). 160 But, of course, jurisdictional statutes do not create private
rights of action. 161 Each of these statutes only confer jurisdiction on the Court if the Voting Rights
Act provides a private right of action to enforce § 2. Because the Court has concluded above that
the Voting Rights Act does not provide such a private right of action, these jurisdictional statutes
do not confer jurisdiction on the Court. This is not a problem that Defendants can waive. 162
Therefore, the Court is without jurisdiction to hear and decide this matter, unless and until the
Attorney General of the United States joins the case. 163
CONCLUSION
Earlier in this Order, the Court wrote of the genius of our Constitution. The Court would
be remiss not to point out that the Constitution was and is an imperfect document, as any document
159
28 U.S.C. § 2201(a) provides that “[i]n a case of actual controversy within its jurisdiction . . . any court of the
United States, upon the filing of an appropriate pleading, may declare the rights and other legal obligations of any
interested party seeking such declaration, whether or not further relief is or could be sought.”
52 U.S.C. § 10308(f) provides subject-matter jurisdiction over “proceedings instituted pursuant to [§12 of the
160
Voting Rights Act].”

161
Touche Ross & Co., 442 U.S. at 577 (“The source of plaintiffs’ rights must be found, if at all, in the substantive
provisions of the [statute] which they seek to enforce, not in the jurisdictional provision.”); see also Ohlendorf v.
United Food & Com. Workers Int’l Union, 883 F.3d 636, 642 (6th Cir. 2018) (citing Touche Ross & Co., 442 U.S. at
577).
162
Given the fairly unique procedural posture of this case, the waiver discussion may well be an academic exercise.
Here’s why. Upon agreement of the parties, the Court extended the deadline for an answer or a motion to dismiss to
fourteen days after the Court resolved the Motion for a Preliminary Injunction. See Order Granting Unopposed Motion
to Extend Responsive Pleading Deadline (Doc. 47). So, Defendants have not yet filed an answer or a motion to
dismiss. Accordingly, if the private-right-of-action question is really a merits question, Defendants would have
waived the argument only for purposes of the Motion for a Preliminary Injunction. They remain free to raise the issue
in their answer or a motion to dismiss. And it seems like they will do so, considering that they extensively briefed the
issue in their Surreply in Opposition to Plaintiffs’ Motion for a Preliminary Injunction, and argued the issue during
the preliminary injunction hearing. Moreover, given the Court’s ruling today, not raising the private-right-of-action
issue in an eventual answer or motion to dismiss would be close to malpractice.
163
Defendants agree that, under Cross, the private-right-of-action question is jurisdictional. Defs.’ Surreply in Opp’n
to Pls.’ Mot. for Prelim. Inj. (Doc. 77) at 5–6. Defendants also agree that no private right of action exists. Id. at 7–
12. However, Defendants nevertheless ask this Court to reach the merits of the Motion for a Preliminary Injunction.
Id. at 6. After reviewing the applicable caselaw, the Court does not believe it can reach the merits of the Motion after
determining it does not have jurisdiction to hear the case. See Pub. Sch. Sys. of Mo. v. State Street Bank & Trust Co.,
640 F.3d 821, 825 (8th Cir. 2011); Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d
812, 816 (8th Cir 2009).
38
created by people is likely to be. Everyone knows the Constitution had many defects—ranging
from minor to serious—that required attention from later generations of Americans. 164 In addition
to its defects, the Constitution had one vile sin: The acceptance and prolonging of the subjugation
and enslavement of nearly an entire race of Americans. This depravity led to a Civil War, but that
War and the Amendments that followed have yet to fully root out the vestiges of our country’s
original sin. The Court is keenly aware that the Voting Rights Act has been and continues to be
an important instrument for ensuring racial equality in voting, which in turn helps to advance racial
equality in society. And the Court is keenly aware that many people are concerned about whether
the Voting Rights Act will remain a strong tool for equality in the future. It is to them the Court
wishes to convey the following.
First, as explained elsewhere in today’s Order, nothing in this Order forecloses
enforcement of § 2 of the Voting Rights Act. Today’s Order simply means that the Attorney
General of the United States must be the plaintiff in such an enforcement action. It is true that the
Statement of Interest filed by the Department of Justice in this case says that there “are limited
federal resources available for Voting Rights Act enforcement . . . .” 165 But this has the
recognizable scent of a litigating position that doesn’t necessarily line up with reality. Indeed, in
June of 2021, the Attorney General of the United States made clear that the Department of Justice
intends to prioritize enforcement of the Voting Rights Act:
To meet the challenge of the current moment, we must rededicate the resources of
the Department of Justice to a critical part of its original mission: enforcing federal
law to protect the franchise for all voters.
164
See, e.g, U.S. Const. am. XII (fixing the manner in which the President and Vice-President were elected so as to
avoid those officials being from two different parties); U.S. Const. am. XXII (limiting the President to essentially two
terms); U.S. Const. am. XIX (providing women the right to vote).
165
United States’ Statement of Interest (Doc. 71) at 8.
39
In 1961, Attorney General Robert Kennedy called into his office the newly
appointed Assistant Attorney General for Civil Rights, Burke Marshall; and
Marshall’s now First Assistant, John Doar. At that time, before the 1965 Act with
its preclearance provision was enacted, the only way to guarantee the right of Black
Americans to vote was to bring individual actions in each county and parish that
discriminated against them.
Kennedy told his assistants that was what he wanted to do. “Well General,” Burke
Marshall replied, “if you want that, we’ve got to have a lot more lawyers.”
Well, today we are again without a preclearance provision. So again, the Civil
Rights Division is going to need more lawyers. Accordingly, today I am
announcing that—within the next thirty days—we will double the division’s
enforcement staff for protecting the right to vote.
We will use all existing provisions of the Voting Rights Act, the National Voter
Registration Act, the Help America Vote Act, and the Uniformed and Overseas
Citizens Absentee Voting Act to ensure that we protect every qualified American
seeking to participate in our democracy.
We are scrutinizing new laws that seek to curb voter access, and where we see
violations, we will not hesitate to act.
We are also scrutinizing current laws and practices in order to determine whether
they discriminate against Black voters and other voters of color. 166
Protecting the civil and political rights of Black Americans has been a primary mission of the
Department of Justice since its inception. 167 In the Voting Rights Act itself, Congress “authorized
to be appropriated such sums as are necessary to carry out the provisions of [the Voting Rights
Act].” 168 The Court is confident that the Attorney General of the United States has the resources
to litigate this Voting Rights Act case.
166
Merrick B. Garland, Att’y Gen. of the United States, Policy Address Regarding Voting Rights (June 11, 2021),
https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivered-policy-address-regarding-voting-
rights. The Court takes judicial notice of the fact that this speech appears on the Department of Justice’s website. See
Fed. R. Evid. 201.
167
Garland, supra note 166 (noting that “only a few weeks after [ratification of the Fifteenth Amendment], Congress
created the Department of Justice, and President Grant charged it with enforcing the [Ku Klux Klan] Act and protecting
the rights promised by the Fourteenth and Fifteenth Amendments”).
168
52 U.S.C. § 10312.
40
Second, the private-right-of-action question is an important one. This Court will not be the
last word on it. And this Court is thankful for that. Judges should not be allergic to acknowledging
that any one of our legal conclusions might be wrong. Judges are just humans in robes. We try to
have as high a batting average as possible, but no one can get it right all of the time. All a judge
can do is try his or her best to fairly, honestly, and faithfully interpret and apply the statute at issue
and the relevant caselaw. If the strength of Plaintiffs’ private-right-of-action arguments is really
as overwhelming as they suggest it is, then the Eighth Circuit or the Supreme Court will overrule
today’s decision. 169 And even if the Eighth Circuit or Supreme Court affirm today’s ruling that a
private right of action cannot be implied to enforce § 2 of the Voting Rights Act, Congress has the
power to enact an express private right of action in the Voting Rights Act if it so chooses.
Finally, it is important to note that today’s decision has nothing to do with lawsuits to
enforce the protections of the Fourteenth and Fifteenth Amendments. Voters can still bring suits
to prevent violations of their constitutional rights, including the right to vote and the right to equal
protection under the law. But only the Attorney General of the United States may bring suit to
enforce § 2 of the Voting Rights Act. The Court will hold the Judgment of Dismissal in this case
for five calendar days to allow the Attorney General of the United States time to decide whether
to join this case as a plaintiff and press on with this litigation.
169
It is true, of course, that appeals take time. But here, where the Supreme Court has essentially made clear in Merrill
that a district court should not order a new redistricting map and alter election-related deadlines at this point in the
election cycle, this Court would almost certainly not have been able to require a new map be used in the 2022 election
anyway. Whether or not this Court agrees with the Supreme Court’s decision in Merrill, this Court would have had
to faithfully apply its reasoning.
41
IT IS SO ORDERED this 17th day of February 2022.
________________________________
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE
42

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Case 4:21-cv-01239-LPR Document 100 Filed 02/17/22 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT

v. Case No.: 4:21-cv-01239-LPR

THE ARKANSAS BOARD OF

this prohibition as follows:

A violation . . . is established if, based on the totality of circumstances, it is shown

dilution of Black votes. 7

members. As Plaintiffs themselves emphasize, “[i]n 1982, ‘Congress substantially revised § 2 to

Board Plan. 9 The nub of their argument is as follows:

I. BACKGROUND AND PROCEDURAL HISTORY

As it was originally filed, Plaintiffs’ Motion for a Preliminary Injunction sought

preliminary injunction hearing consisted of four lengthy days of testimony—interrupted by a two-

presentations. The hearing ended on Tuesday, February 8, 2022.

problematic election-related deadlines. 28 Plaintiffs’ argument on this point relied heavily on a

important. That discussion follows.

Our democratic republic is anchored by a strong federal government of enumerated powers.

Meaning of the Constitution, 85 Geo. Wash. L. Rev. 397, 414–17 (2017).

judicial power to “cases or controversies.” 48 The case-or-controversy requirement ensures that

checks on judicial power.

members to participate in the litigation. 57 This is known as the Hunt test.

district. 58 Accordingly, to have constitutional standing to bring a vote-dilution claim, an individual

NAACP (Doc. 58).

jurisdiction over a lawsuit before they reach the merits. 70

1. Judicial Implication of a Private Right of Action to Enforce § 2

concurring opinion in a recent § 2 case, Brnovich v. Democratic National Committee, Justice

It is to this “open question” the Court now turns. 73

The Supreme Court’s current jurisprudence on implied private rights of action is

strange thing for courts to do—especially in the modern era.

a. The Text and Structure of the Voting Rights Act

. . . a private remedy’” for § 2 violations. 83

provision that Congress provided for violations of § 2. 84 A comprehensive reading of § 12 clearly

establishes that it is focused entirely on enforcement proceedings instituted by the Attorney

suggests a private right of action to enforce § 2.

enforce § 2. Consider § 12(d):

It’d be hard to find a provision more on point than this one.

It is therefore worth a detailed discussion. Section 12(f) provides:

litigant as having to exhaust administrative remedies.

in a § 2 enforcement proceeding. Instead, “the person asserting rights” language in § 12(f) is

that § 12(f) recognizes or assumes the private enforceability of § 2.

or proceeding[s] to enforce the voting guarantees of the fourteenth or fifteenth amendment.” 98 By

§ 2 is privately enforceable. The text of § 14 is clear. Section 14 is about proceedings to enforce

private right of action to enforce § 2 of the Voting Rights Act.

b. Precedent Does Not Support a Private Right of Action

of action based on policy considerations:

precludes any enforcement of § 5 (whether private enforcement or enforcement by the Attorney

Congress had created none:

in Sandoval and its progeny.

But the Supreme Court reversed this ruling.

of [Allen] applies with similar force” to § 10. 113

to read into a statute a private remedy that is not there. 117

extends Allen or Morse to § 2, those cases are simply inapplicable here.

“whose voting rights have been denied or impaired.” 122

authorization would be found in the “aggrieved person” language of § 3. And because an

enforcement of § 2 in other contexts.

To be clear, Roberts’s 30,000-foot discussion of private enforcement of § 2 is dicta. Dicta

the United States.

2. Defendants’ Potential Waiver of the Private-Right-of-Action Issue

In addition to their substantive arguments on the private-right-of-action question, Plaintiffs

not address that issue today.” 130