On Monday, Judge Lisa Branch, a Donald Trump appointee to the 11th Circuit, penned a startling dissent launching a novel attack against the Voting Rights Act. The power of the Voting Rights Act hinges on individual voters’ ability to raise the alarm over racially discriminatory election laws. Voters do this by suing the state or locality that is disenfranchising them. But Branch argued that voters cannot sue states to enforce the VRA. Branch’s opinion is, for now, just a dissent. But there is a real possibility that the Supreme Court could transform it into the law of the land and render the landmark civil rights statute toothless.
The VRA describes two kinds of parties who can sue to enforce its guarantees: the attorney general of the United States, and “an aggrieved person.” Congress added the “aggrieved person” language in 1975 to clarify that private parties could file suit under Section 2 of the VRA, which bars any law that would “deny or abridge” the right to vote on account of race. Since then, the vast majority of VRA lawsuits under Section 2 have been brought by citizens, not the attorney general. The attorney general has filed just four of the 61 enforcement actions under Section 2 since 2013. Trump’s Department of Justice has brought no VRA lawsuits at all.
As a general rule, citizens can’t bring lawsuits against their state in federal court, a principle known as sovereign immunity. But Congress can limit states’ sovereign immunity when it wants to enforce constitutional protections. Congress need only be “unmistakably clear” in its intentions to do so. In NAACP v. Alabama, the state, which has enacted some of the country’s most egregious voter suppression laws, argued that the VRA did not explicitly curb states’ sovereign immunity. Thus, Alabama claims that it, along with every other state, is immune from VRA suits.
Two federal courts of appeals have already rejected this claim, and on Monday an 11th Circuit panel joined them. The majority was composed of Judges Charles R. Wilson, a liberal, and Roger Vinson, a conservative most famous for declaring the entire Affordable Care Act unconstitutional. This unlikely duo made quick work of Alabama’s argument: The VRA, it noted, “clearly expresses an intent to allow private parties to sue the States.” These provisions impose “direct liability on States for discrimination in voting” while “explicitly” and “specifically” permitting “private parties to address violations under the statute.”
In her dissent, Branch made the bizarre argument that Congress did not limit sovereign immunity because it used the wrong preposition. The VRA, she wrote, allows any “aggrieved person” to “enforce” voting rights “in any State.” But to curb sovereign immunity, Branch insisted, the law had to “authorize proceedings ‘against’ a State” (emphasis added). In short, Branch would overturn decades of precedent because she disagrees with Congress’ grammatical choices.
If Branch’s dissent ever became the law, it might not have a particularly devastating impact in the short term. No one questions (for now) the ability of voters to sue state officials, rather than the state itself, under the VRA. This principle would allow voters to sue the secretary of state who carries out election laws when they illegally abridge minority suffrage. And a federal court could halt those officials from enforcing the illicit laws.
But another, more consequential dispute lurks just beneath the surface of this case. Alabama raised a separate argument that could have ruinous consequences for the VRA: It challenged the constitutionality of Section 2’s results test. This test prohibits election laws that place a disproportionate burden on minorities, even if they were not enacted with discriminatory intent. Branch conspicuously declined to reject this claim in a footnote that should put civil rights attorneys on high alert. Conservatives have been searching for a case that could take down the VRA’s results test, and NAACP v. Alabama might just be the one.
The conservative effort to sabotage the results test rests on the distinction between disparate impact and discriminatory intent. It is exceedingly difficult to prove that legislators enacted a law with discriminatory intent because few are foolish enough to leave behind a smoking gun demonstrating their racist goals. By contrast, it’s fairly easy to prove that election laws have a disproportionate effect on nonwhite voters. The VRA’s results test bars voting restrictions that have a racially discriminatory result, even if they weren’t proved to have a racially discriminatory purpose. Without this test, voters would have little hope of blocking voter ID laws or racial gerrymanders that have an outsized impact on communities of color.
In its brief to the 11th Circuit, Alabama argued that the results test is unconstitutional. It pointed out that, according to the Supreme Court, the 15th Amendment applies exclusively to intentional racial discrimination. And the Supreme Court has said that when Congress enforces other constitutional provisions, it can’t go beyond the meaning SCOTUS has assigned to them. Alabama asserts that this rule applies to the 15th Amendment (even though the Supreme Court has never said so). So the VRA cannot possibly let citizens sue states under the results test, because that test is unconstitutional.
The majority spurned this argument. “We take Chief Justice Roberts at his word,” it wrote, “when he explained” that Shelby County v. Holder, which gutted another part of the VRA, “in no way affects” Section 2. Branch did not agree. Instead, she wrote (ominously) that she would “not consider” the constitutionality of the results test, because she already decided it could not be enforced against the states. Her refusal to affirm the legality of the results test is troubling since the 11th Circuit already upheld the test back in 1984. But the court has changed since 1984. In November, Trump flipped the 11th Circuit, giving it a majority of Republican appointees. If the full court rehears this case, Trump’s judges may well adopt Branch’s opinion as the law and consider the broader question she flagged in her dissent: the legality of the results test itself.
Branch is not the first Trump judge to attempt to limit the VRA’s scope. Trump appointees on other appellate courts seem eager to hobble the law and give states carte blanche to discriminate against nonwhite voters so long as they conceal their racist intent. NAACP v. Trump may appear, at first, to be a wonky case over an arcane doctrine. But Branch’s dissent opens several new lines of attack against the VRA and tees up a potential SCOTUS showdown over Congress’ authority to protect the franchise. If the justices adopt Branch’s position, they could strip marginalized citizens of their last remaining defense against voter suppression.