It is evident that the United States has the ability to bring a lawsuit under Section 2 of the Voting Rights Act. However, the question remains: can private litigants also bring such a suit? The text of the statute does not explicitly grant this right. Does Section 2 imply a private right of action? The Eighth Circuit recently ruled that it does not. On the other hand, in the case of Robinson v. Ardoin (2023), a panel of the Fifth Circuit disagreed. Last month, the Louisiana Solicitor General filed a petition for an initial en banc hearing to resolve the split between the Eighth and Fifth Circuits. This petition aimed to skip the three-judge panel, which was bound by circuit precedent. The petition argued that an initial en banc hearing would “conserve” the Court’s resources:
Panel-stage briefing on this threshold issue would be pointless under the rule of orderliness. Appellants seek to advance judicial economy by requesting an “initial en banc hearing…without requiring the matter to percolate uselessly through a panel.” (Williams v. Catoe, 946 F.3d 278, 279 (5th Cir. 2020) (en banc)). If the en banc Court rules in favor of Appellants, a dismissal on clear legal grounds would eliminate the need for a panel to extensively review the district court’s 91-page opinion for alleged Section 2 violations across nearly 150 House and Senate districts.
The clerk informed the Solicitor General that the petition would not be circulated to the full en banc court until the appeal’s merits are fully briefed. The United States and the private plaintiffs filed oppositions. According to FRAP 35, oppositions to en banc petitions are typically filed after a court request. However, in this case, the clerk labeled the petition as a “motion for an en banc hearing,” allowing the appellees to file an opposition brief.
On May 15, the Louisiana Solicitor General filed a “motion for immediate circulation of the petition for an initial en banc hearing and to hold the briefing schedule in abeyance.” This type of motion has never been filed before, as per a search of the Westlaw briefs database. However, the unique circumstances of this case led Louisiana to argue that fully briefing a complex case that could potentially be resolved on the private right of action issue, especially with a clear circuit split, would be a waste of resources.
Over the years, the Fifth Circuit has granted initial en banc in a few cases, such as Williams v. Catoe (5th Cir. 2020).
Stay tuned for updates on this developing legal issue.
