The next major challenge to the Voting Rights Act

Earlier this week, a decision by the Supreme Court to return two federal appeals cases to the lower courts will likely start another significant challenge to the Voting Rights Act of 1965 about who can file violation claims about election districts.

On Monday, in an unsigned order, the justices returned State Board of Election Commissioners v. Mississippi State Conference of the NAACP and Turtle Mountain Band of Chippewa Indians v. Howe to the lower courts to be reconsidered in light of the Supreme Court’s recent decision in Louisiana v. Callais. In that 6-3 ruling from late April, the Court narrowed the ability of states to use race as a determining factor under the Voting Rights Act’s Section 2 in creating election districts.

In his majority opinion in Callais, Justice Samuel Alito wrote that any use of race in considering the composition of voting districts needed to meet the Court’s most demanding test: strict scrutiny. Justice Elena Kagan called the majority ruling “the latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”

The unsigned order will start the process of integrating the Court majority’s thinking from Callais into how the lower courts may consider when private parties can file claims of racial discrimination in election redistricting cases.

The question of private enforceability of the Voting Rights Act

The Turtle Mountain Band of Chippewa Indians and Mississippi State Conference of the NAACP cases were argued in different courts, but they dealt with same issue: Who can file a voting district discrimination claim under the Voting Rights Act or Section 1983, a powerful civil rights statute dating back to the Reconstruction era? In the Turtle Mountain Band case, the Turtle Mountain Band of Chippewa Indians, the Spirit Lake Tribe, and three Native American voters sued the North Dakota Secretary of State, alleging that new district election boundaries discriminated against their rights under the Voting Rights Act’s Section 2.

While a district court ruled in the Turtle Mountain Band’s favor, the Eighth Circuit Court of Appeals reversed that decision. The appeals court said that only the attorney general, and not private parties, could seek to enforce Section 2 violations. It also held that the plaintiffs could not cite Section 1983 as allowing them to pursue a claim in court.

In the Mississippi NAACP case, a three-judge panel for the United States District Court for Southern District of Mississippi Northern Division agreed with the plaintiffs that the state’s 2022 state legislature redistricting maps violated Section 2 of the Voting Rights Act as racial gerrymanders. The state appealed to the Supreme Court, claiming private parties may not sue to enforce Section 2 of the Voting Rights Act or seek Section 1983 action to pursue a claim.

The precedents about private enforceability

The big question in the Turtle Mountain Band and Mississippi NAACP cases is the fate of the precedents about the implied rights of private parties to pursue their own Voting Rights Act or Section 1983 enforcement actions. In Turtle Mountain’s writ of certiorari to the Supreme Court, the petitioner cited data from various sources that, nationally, private plaintiffs brought approximately 91 percent of all Voting Rights Act Section 2 challenges between 1982 and 2024. “Section 2 has always been enforced primarily by private litigants. The Eighth Circuit’s decision thus deprives voters in seven states of the ability to protect their own rights under Section 2,” they argued in their petition.

The petitioners also claimed that the Eighth Circuit’s ruling conflicted with the Supreme Court’s precedent of Morse v. Republican Party of Virginia (1996), where the Court agreed that a private right of action existed to enforce Section 10 of the Voting Rights Act. They also cited another precedent, Gonzaga v. Doe (2002), which allows for statutory tests for causes of private action under Section 1983.

Among the arguments against private enforceability of the Voting Rights Act is the decision from a divided Eighth Circuit in 2025 that cited its own recent precedent in Arkansas State Conference NAACP v. Arkansas Board of Apportionment (2023). In that decision, a divided panel upheld a district court ruling that “the Voting Rights Act lists only one plaintiff who can enforce Section 2: the Attorney General.”

North Dakota’s secretary of state Michael Howe, in his response to the Turtle Mountain Band’s petition, argued that the courts have not fully considered private enforceability questions. “Until very recently, few courts appear to have actually analyzed whether vote dilution claims are properly enforced by private parties, whether directly under Section 2 or through Section 1983. And long-held assumptions—especially about whether Congress intended to allow statutory claims to be privately enforced—have proven to be unfounded once the Court takes a closer look.”

Howe cited Medina v. Planned Parenthood (2025), where a divided Supreme Court decided that the Medicaid Act’s "any qualified provider" provision did not create a private right of action that individuals can enforce in federal court under Section 1983.

The Supreme Court’s order calls for the two lower courts to consider the Callais decision as a factor in deciding who can bring a Voting Rights Act or Section 1983 challenge about voting districts. The new stricter evidence requirements from Callais would also require higher levels of proof of present-day intentional racial discrimination to pursue a claim. For now, the two cases are starting over in the lower courts, but they may not stay there for long.

In his concurring opinion in Brnovich v. Democratic National Committee (2021), Justice Neil Gorsuch noted that “our cases have assumed—without deciding— that the Voting Rights Act of 1965 furnishes an implied cause of action under Section 2. Lower courts have treated this as an open question.” While that question was not at the Court in Brnovich, it will be in front of justices soon.

As for Monday’s order, it was issued with objections from Justice Ketanji Brown Jackson. The two cases presented “only the question of Section 2’s private enforceability, which our decision in Louisiana v. Callais did not address,” Jackson wrote in Monday’s order. She would have affirmed the Mississippi decision and reversed the Turtle Mountain Band decision.

Scott Bomboy is the editor in chief of the National Constitution Center.