In Brnovich v. Democratic National Committee, Justice Neil Gorsuch posited in a short concurrence that Section 2 of the Voting Rights Act (“VRA”) does not confer a private right of action. That idea seemingly came out of nowhere, as Supreme Court precedent was clear and no one had suggested that the VRA did not allow private parties to bring suit. Justice Gorsuch’s one-paragraph concurrence was both unsupported and wrong. Even the single case he cited did not support his proposition.

An Arkansas district court and then the Eighth Circuit, however, followed Justice Gorsuch’s lead, ruling that only the federal Department of Justice (“DOJ”) may bring suits to challenge voting practices that violate Section 2 of the VRA. These holdings are yet another attempt to further undermine the vital protections of the VRA. The implications of giving the DOJ the sole responsibility for bringing all Section 2 cases is stark, as it will ultimately lead to underenforcement of the Act. The plaintiffs, likely fearful of a bad decision from the Supreme Court that would apply nationwide, chose not to appeal. Therefore, at least in the states within the Eighth Circuit, the VRA has lost some of its force given that private plaintiffs cannot bring suit.

History and precedent, however, show that Section 2 of the VRA implicitly confers a private right of action. Although the plaintiffs in the Eighth Circuit chose not to seek Supreme Court review, the issue is sure to recur. When it does reach the Supreme Court, the Justices should reject the Eighth Circuit’s holding and rule that private plaintiffs may bring claims under Section 2. More broadly, this episode shows that Justices should pay close attention to the seemingly offhand comments that other Justices make and refute them explicitly.