As the Rainstorm Continues, Must We Throw Out the Raincoat Too? Private Enforcement of Section 2 of the Voting Rights Act

Authors

Derek A. Zeigler, University of Michigan Law SchoolFollow

Abstract

For almost six decades, the Voting Rights Act (VRA) has been a bulwark against the worst impulses of government actors who would rather manipulate the rules to stay in power than vigorously compete on the battleground of ideas. In the modern era, the U.S. Supreme Court has routinely weakened the Act’s protections, including its core remaining enforcement provision, Section 2, which protects voters from racially discriminatory policies. Today, Section 2’s continued vitality is at risk. In November 2023, the Eighth Circuit held that Section 2 lacks an implied private right of action—a decision at odds with three of its sister circuits. If the Supreme Court adopts the same position in the future, then only the U.S. Attorney General—and not private individuals—could sue to enforce Section 2. Such a result would upend decades of legal practice, undermine statutory text and congressional intent, and strip away from millions one of the most powerful means of protecting their voting rights. While the future of Section 2 private enforcement remains uncertain, this Note aims to critically examine how we got here and chart a path forward to protect the fundamental right to vote.

Recommended Citation

Derek A. Zeigler, As the Rainstorm Continues, Must We Throw Out the Raincoat Too? Private Enforcement of Section 2 of the Voting Rights Act, 123 Mich. L. Rev. 968 (2025).
Available at: https://repository.law.umich.edu/mlr/vol123/iss5/5