It is clear that the United States can sue under Section 2 of the Voting Rights Act. But can a private litigant bring such a lawsuit? Nothing in the text of the statute expressly grants this right. Does Article 2 contain an implied private right of action? Recently, the Eighth Circuit held that this was not the case.However, in Robinson v Ardoin (2023), a Fifth Circuit panel disagreed. Last month, Louisiana’s deputy attorney general filed a petition for an en banc hearing to resolve a split between the Eighth and Fifth Circuits. The petition would skip a three-judge panel, which is bound by circuit court precedent. The petition explains that an initial en banc hearing would “save” the court’s resources:
A group stage briefing on this threshold issue would also be meaningless under the rules of order. The appellants therefore seek to advance judicial economy by holding a “preliminary plenary hearing … without requiring the case to futilely filter through a panel,” as this Court has done. Williams v. Catoe, 946 F.3d 278, 279 (5th Cir. 2020) (En banc). If the en banc court rules in favor of the appellants, dismissal of the appeal on clean legal grounds would not require a panel to spend extensive time and resources reviewing the district court’s 91-page filing of nearly 150 alleged House and Senate violations of Rule 2 Opinion.
The Clerk informed the Secretary that he would not circulate the petition to the Full Court until the appeal was fully briefed. The United States and private plaintiffs objected. Under FRAP 35, objections to en banc petitions can be raised only upon request from the court. But here the clerk refers to the petition as “sports Hearing en banc”, the respondent may file an objection.
On May 15, the Louisiana SG filed a “motion to immediately circulate the petition for a first hearing before the full House and to suspend the briefing schedule.” According to a quick search of the Westlaw docket database, such a motion has never been filed before. But the situation is somewhat special. Louisiana believes that comprehensive presentation of a complex case that could be addressed on private rights of action issues would be a waste of resources, especially where there are clear circuit differences.
The Fifth Circuit has granted preliminary en banc hearings in a number of cases over the years, including williams v catto (5th 2020).
stay tuned.
