The U.S. Supreme Court has been asked to intervene in a case that could significantly limit the scope of the Voting Rights Act (VRA), the 1965 law that prohibits racial discrimination in elections.
Why It Matters
On Tuesday, two North Dakota tribes—the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe—alongside three Native American voters, petitioned the Supreme Court to block a lower court ruling and preserve their ability to enforce voting rights through private lawsuits.
“Everywhere else in the country, private plaintiffs can rely on an unbroken line of Supreme Court and circuit precedent to enforce the individual rights given to them by Congress in the Voting Rights Act,” the tribes wrote. “But the decision below extinguished the only remaining pathway for private enforcement of Section 2 of the VRA in the Eighth Circuit. … There is a reasonable probability this Court will grant review of the Eighth Circuit’s decision to ensure uniform application of the law.”
The appeal followed a decision by the U.S. Court of Appeals for the Eighth Circuit, which holds that only the federal government, not private citizens or organizations, can sue under Section 2 of the VRA in its jurisdiction of seven Midwestern states.
This legal battle stands to reshape how the VRA—a critical civil rights law for 60 years—can be enforced, particularly across North Dakota, South Dakota, Minnesota, Iowa, Missouri, Nebraska and Arkansas. Section 2 of the VRA has long enabled private citizens and advocacy groups to challenge discriminatory redistricting or voting laws in federal court.
Leonard Powell, staff attorney for the Native American Rights Fund, told Newsweek via email on Wednesday that he and plaintiffs are glad that Justice Brett Kavanaugh issued an order on Wednesday staying the Eighth Circuit’s mandate pending further order of Kavanaugh or the High Court.
“The Eighth Circuit’s ruling wrongly deprives voters of their ability to sue when they are racially discriminated against in violation of the Voting Rights Act,” Powell said. “We accordingly have asked the Supreme Court to stay that decision.”
Newsweek reached out to North Dakota Secretary of State Michael Howe’s office for comment.
What To Know
From 1982 to August 2024, about 96.4 percent of successful Section 2 claims were brought by private plaintiffs, not the U.S. Department of Justice, according to the tribes. They were also the sole litigants in 86.7 percent of such decisions.
With the 8th Circuit’s May decision, this avenue is closed in its jurisdiction, potentially removing a major enforcement tool for minority voters and undermining Congress’ strongest civil rights statute.
Drew Angerer/Getty Images
Andrew Garber, counsel in the Brennan Center’s Voting Rights and Elections Program, told Newsweek on Wednesday that Section 2 of the VRA allows private individuals and groups to bring lawsuits to argue discrimination in voting. That doesn’t have to prove intent; rather, just the result of a law or policy or map being discriminatory.
“In this case the tribes challenged a state legislative map drawn by North Dakota, and their argument was basically that the map was drawn to minimize the voting power of native voters, to make sure that districts were cracked and packed to make sure as few of the districts would represent the will of native voters as opposed to white voters,” Garber said.
In 2023, U.S. District Court Judge Peter Welte sided with the tribes, ruling the map discriminatory and ordering new district lines. Elections with Welte’s map in place led to three Native American lawmakers being elected from District 9 in 2024—including a historic first, Spirit Lake Nation’s Collette Brown.
North Dakota appealed the decision, and the 8th Circuit in May ruled that private plaintiffs have no authority to enforce Section 2 of the VRA—contradicting decades of established practice and decisions in other circuits.
The court instructed the district court to dismiss the lawsuit, making the 8th the only circuit in the country where private enforcement of the VRA is barred.
The legal dispute began after North Dakota adopted a 2021 legislative redistricting map that the plaintiffs argued diluted the voting power of Native American communities.
“If this ruling holds the immediate and really jarring ramification is that Section 2 with Voting Rights Act will basically not be enforced in seven states in the center of the country, because private individuals and groups can’t bring these lawsuits,” Garber said. “Right now, the federal Department of Justice clearly isn’t going to be bringing any Section 2 lawsuits.
“And even when there’s a motivated DOJ…[it] has never been able to enforce this law alone; they always needed private enforcement as well. That’s really, really damaging to voters of color in those states. Some of these states, including the Dakotas, Nebraska, Minnesota have a lot of native voters, really strong native communities.”
Somewhat ironic is that such native voters have “winning claims” in that they’re continuing to face racial discrimination in voting, Garber added, yet they wouldn’t even be able to bring those claims at all if this case moves forward as intended.
Plaintiffs argue that losing the ability to challenge discriminatory maps directly endangers the representation of Native American legislators and could set a precedent for other states to follow.
They warned that, absent Supreme Court action, the 2021 map—which was previously deemed discriminatory—could be used in the 2026 elections, potentially resulting in the removal of current Native American lawmakers.
Garber said whether or not the Supreme Court takes up this case is still in question.
In 2023, the High Court ruled in favor of Black registered voters and organizations in the Alabama case Allen v. Milligan, in which the plaintiffs successfully challenged their legislative map, arguing that the state had illegally packed Black voters into a single district while dividing other clusters across multiple districts. The court ultimately voted 5-4 to freeze a lower court ruling.
“It’s really hard to tell [if the Court will take up this case],” Garber said. “This Court has been extraordinarily unfriendly to the Voting Rights Act over the last couple of decades, gutted some of its key provisions. … There is a lot at stake here, and the efforts to undermine Section 2 over the last decade-plus; sections have been attacked on all fronts. The kind of core idea of it has continued to survive.”
What People Are Saying
New York City trial attorney Nicole Brenecki told Newsweek: “Given the Supreme Court’s recent trajectory of limiting the scope of the Voting Rights Act, particularly in decisions like Shelby County v. Holder and Brnovich v. DNC, it’s possible the Court may further curtail federal oversight of state election laws.
“While the Court has occasionally maintained key provisions, such as in Allen v. Milligan, the broader trend suggests a willingness to defer to states even when voting protections are at risk. Any upcoming challenges could test how far the Court is willing to go in redefining the Act’s core principles.”
What Happens Next
The Supreme Court has directed North Dakota to respond to the plaintiffs’ emergency motion by July 22. The justices have yet to decide whether to block the 8th Circuit ruling or grant full review of the case.
Legal observers expect that the court’s decision could profoundly affect enforcement of voting rights protections in the United States, especially for minority communities.