Attorney General Mayes Urges Supreme Court to Grant Review to Protect Key Provision of Voting Rights Act

PHOENIX – Attorney General Kris Mayes today joined 22 other attorneys general in urging the Supreme Court to review a lower court decision that prevents individuals from suing to enforce the Voting Rights Act (VRA). The amicus brief, filed in Turtle Mountain Band of Chippewa Indians v. Howe, defends the right of individuals to sue to enforce Section 2 of the Voting Rights Act, a provision that is essential to ensuring Americans can cast ballots free from racial discrimination. 

"I'm proud to defend an individuals' right to protect themselves from discrimination while voting," said Attorney General Mayes.

Congress enacted the VRA in 1965 to guarantee that the voting rights of the American people would not be denied or restricted based on race. Section 2 of the law specifically prohibits state and local governments from enacting such racially discriminatory policies. For nearly 60 years, both the U.S. Attorney General and private citizens have been able to file lawsuits to enforce Section 2 of the VRA when they believed it was violated.  

In 2022, individual voters and two tribes filed a lawsuit under Section 2 of the VRA challenging North Dakota’s recently enacted legislative map. After a trial, a district court found that the map diluted Native Americans’ votes, making it nearly impossible for them to have an electoral effect. The United States Court of Appeals for the Eighth Circuit reversed this decision and, despite 60 years of practice to the contrary, ruled that individual voters and organizations cannot sue to enforce Section 2 of the VRA. This ruling ended the ability of private citizens in the seven states comprising the Eighth Circuit (Minnesota, Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota) to enforce Section 2 when faced with racial discrimination in the electoral process. The Eighth Circuit is the only federal circuit in the country that has adopted this restrictive view of Section 2. At the plaintiffs’ request, the Supreme Court temporarily halted the implementation of the Eighth Circuit’s ruling. The plaintiffs then requested that the Supreme Court hear the case and reverse the Eighth Circuit’s decision. The amicus brief filed by Attorney General Mayes and the coalition supports this request. 

In the amicus brief, the coalition argues that private enforcement of the VRA is essential, having served as the primary method of enforcing the VRA since its enactment, and that relying exclusively on the U.S. Attorney General to enforce Section 2 would be insufficient to protect voters from racial discrimination. Private citizens have been responsible for more than 90% (1379 of 1519) of all Section 2 challenges between 1982 and 2024. In that same timeframe, the U.S. Attorney General independently brought only 7.5% of all Section 2 challenges, 114 cases total, which amounts to less than three per year. The coalition points out that the U.S. Attorney General lacks the resources to monitor, investigate, and litigate voting rights violations all across the nation.  
 
The coalition also explains that leaving enforcement of Section 2 exclusively in the hands of one federal official because Section 2 enforcement should not vary based on political administrations. Officials may have political incentives to act or not act in certain circumstances.  
 
Furthermore, the coalition points out that a private right of action is essential given the urgency of Section 2 challenges, as they generally pertain to violations of voting rights with respect to an upcoming election. Without the private right of action, millions of Americans would be limited to simply sharing their concerns with the federal government, waiting to see whether their voting rights will be defended, and watching as the next election draws closer. 
 
Additionally, the coalition emphasizes the deterrent effect of having meaningful rights to enforce our voting laws. Eliminating the private right of action could lessen the likelihood that the VRA will be enforced, thereby reducing the incentives for state and local officials to comply with the VRA when crafting policy. As evidence, they highlight that, after a Supreme Court effectively struck down the VRA’s provision that required certain jurisdictions with a history of racial discrimination to receive federal pre-approval before changing voting laws, states previously subject to preclearance promptly enacted restrictive voting laws. 

Minnesota Attorney General Keith Ellison led the brief and was joined in filing it by Attorney General Mayes as well as the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

A copy of the amicus brief is here.