On Monday, the Supreme Court decided not to throw another stab at the nearly lifeless corpse of the Voting Rights Act.
The Voting Rights Act of 1965 is arguably the most successful civil rights legislation in American history. Before the Roberts Court began dismantling it, the VRA included a web of provisions intended to prevent states from denying anyone the right to vote because of their race. And the law began to repeal Jim Crow voter suppression soon after it went into effect. Just two years after it became law, Black voter registration rates in Mississippi rose from 6.7 percent to 60 percent.
But the Republican majority on the Supreme Court hates this law. As Justice Elena Kagan wrote in her 2021 opinion, her Court “it has not dealt with the worst law” than the Voting Rights Act. As a young White House lawyer, future Chief Justice John Roberts unsuccessfully pushed then-President Ronald Reagan to challenge the 1982 VRA amendment that the Court recently overturned. Louisiana vs. Callais (2026).
After Callisit is it is unclear whether the VRA has any power left.
The two orders the Court issued on Monday, meanwhile, dealt with an alternative proposal to repeal the Voting Rights Act that Justice Neil Gorsuch addressed in a concurring opinion. Brnovich vs. DNC (2021), the same case in which Kagan said that her Court had not dealt with a law worse than the VRA. But Monday’s order neither approved nor rejected Gorsuch’s theory — it simply asked two lower courts that had previously considered the theory to reconsider.
The orders came in two cases, Turtle Mountain Band v. Howewhere the lower court upheld Gorsuch’s attempt to overturn the VRA, and Board of Election Supervisors v. NAACPwhere the lower court rejected Gorsuch’s attack on the law.
It is unclear why this Supreme Court, which has been so hostile to the VRA, decided to fight the battle so soon until some future date. It’s also unclear whether this battle still matters, as the Court has already struck down the Voting Rights Act so thoroughly that the law can do nothing more.
Still, as it appears there is still one more major legal dispute looming over these most diminished federal laws, let’s examine how much of the Voting Rights Act remains.
Does the Voting Rights Act still do anything?
Before Republican judges began dismantling the VRA internally Shelby County v. Holder (2013), the law used several methods to ensure that voters of different races were not excluded from the jurisdiction. As originally enacted in 1965, the law required states with a history of discriminatory election practices to “clear” any new election laws with officials in Washington, DC, to ensure that those laws did not target voters because of their race. This law was effectively repealed by Shelby County.
Meanwhile, a 1982 amendment required some states to draw a small number of black or majority-Latino congressional districts. And it forbade the state election law that “result in rejection or shortening of the right of any American citizen to vote on account of race or color,” even if the plaintiffs challenging the law could not prove that it was enacted with racial intent.
This amendment of 1982 was effectively repealed by Callis.
That said, Callis it goes without saying that a Voting Rights Act plaintiff may still prevail in very limited circumstances. That law, Judge Samuel Alito claimed in his Callis opinion, “imposes liability only when the circumstances distort a strong impression that intentional discrimination occurred.” So a voting rights plaintiff can still win their case if they can show that the state law was motivated by racial prejudice.
Practically, however, this means that afterCallis The Voting Rights Act does not do any independent work. As Alito acknowledges in CallisThe Constitution already has a provision for voting rights – the 15th Amendment — that, in the words of Alito, “bar simply refers to an action ‘motivated by a discriminatory purpose.’” So state laws that intentionally discriminate on the basis of race were already illegal before the VRA became law.
Indeed, even before the passage of the VRA in 1965, the Supreme Court did frequently violates state election laws who intentionally discriminated on the basis of race, holding that they violated the 15th Amendment. The Voting Rights Act was important not because Jim Crow voting laws were legal, but because Jim Crow states were innovative. Whenever a court struck down a state law intended to prevent blacks from voting, Southern states would usually respond by enacting a new law that achieved the same goal in a different way — forcing civil rights advocates to bring another case that could take years before another judge issued a new injunction against the new law.
The whole preclearance step was prevent apartheid laws from going into effectthereby keeping Jim Crow legislators out of the slow-moving courts that were struggling to enforce the 15th Amendment.
Meanwhile, while Jim Crow lawmakers were often quite clear about their white privilege goals, by the 1980s many lawmakers who still held racist beliefs were shrewd enough not to say such things out loud. Amendments of 1982, which target the electoral laws of states that have racial discrimination effect – even if plaintiffs cannot prove racial discrimination intention – was designed to ensure that the VRA would still work even in a world where plaintiffs could not provide direct evidence that a state law was enacted for discriminatory reasons.
The combined effect of Shelby County, Brnovich, Callisand similar cases, in other words, are return (or, perhaps, retvrn) United States Voting Rights Act of 1964. Although some portion of the Voting Rights Act remains on the books, it does not appear to do any independent work that is not already done by the 15th Amendment.
And that brings us back to Gorsuch’s proposal in Brinovich, which, if taken to the extreme, could leave voting rights plaintiffs worse off than they were before the passage of the Voting Rights Act.
Gorsuch wants to make it impossible to sue for violations of the Voting Rights Act
Gorsuch’s concurring comments at Brnovich suggests that the Voting Rights Act does not include “the meaning of the cause of action.” This means that, if Gorsuch’s opinion were to prevail in the Supreme Court, no private plaintiff could ever bring suit claiming a violation of the VRA again (although the federal government could still do so, given that it was controlled by a president who supports voting rights).
Some federal laws expressly state that certain individuals or entities may sue to enforce them. While federal law does not contain such profanity, however, the Supreme Court has created a set of rules governing when parties can sue to enforce the law.
Until last year, these cases were governed by the law that the Court recently established Health and Hospital Corporation v. Talevski (2023), which held that a federal statute can be enforced by private lawsuits if it is “‘stated in terms of the beneficiaries’ and contains language that is ‘fair,’ based on the individual and ‘unmistakably aimed at the beneficiary class.’
So, for example, if a federal law says that “no state can prevent an athlete from riding a bicycle,” this law can be enforced in private cases because the text of the law is aimed at the people who benefit from it (athletes). Such a statute stating that “states shall not restrict access to bicycles” would be unenforceable by individual lawsuits, because the hypothetical statute lacks the “individual language” required by Talevski.
Two years later Talevskihowever, the Court seemed to abandon its system. In Medina vs. Planned Parenthood (2025), the Court considered whether a statute that allows “any person eligible for medical assistance” under Medicaid to choose their own health care provider can sue after the state denies Medicaid benefits to patients who choose Planned Parenthood as their health care provider.
Although this law allows Medicaid patients to file a lawsuit, at least under Talevski principle, the members of the Court gave a the confusing majority opinion disallows counsel. It is not known whether Medina it was meant to overturn Talevskior if it’s just a one-time decision that the Republican judges reached because they didn’t want to rule in favor of the abortion provider.
That said, Medina includes several pages proposing federal laws that use the word “fair” in their text can be enforced through individual cases.
So, in light of these two competing systems, consider the language of the Voting Rights Act:
No voting qualification or voting requirement or standard, practice, or procedure shall be established or applied by any State or any political subdivision in such a manner as to result in rejection or abridgement. the right of any American citizen voting because of race or color…
Under TalevskiThe VRA can be enforced through private lawsuits because the law is tailored to the people who benefit from it (“any US citizen”). Similarly, while the Medina decision is difficult to analyze, it does suggest that statutes using the word “rights” can be enforced by individual cases. And that word is front and center in Voting Right Act.
of Gorsuch Brnovich opinion is just a long paragraphthus it does not explain how Gorsuch came to the unusual conclusion that the VRA does not authorize private lawsuits. Gorsuch doesn’t even say if he thinks so Talevskisystem of, Medinasystem, or a confidential third party should control VRA cases.
But he wrote the opinion, and it was supported by Justice Clarence Thomas. So it appears that there are at least two votes for the Supreme Court to dismiss private cases under the VRA altogether.
One uncertain question is whether these two justices would still allow private plaintiffs to sue under the 15th Amendment. Like the Voting Rights Act The language of the 15th Amendment (“The right of a citizen of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or former condition of servitude”) should allow suit under either of Talevski or Medina. But, if Thomas and Gorsuch are willing to shut down VRA suits in the absence of any statute or precedent justifying such a finding, why wouldn’t they also shut down 15th Amendment suits?
We don’t know. But on Monday, the Court decided to delay resolving this question — the question of whether any private plaintiffs can sue under the VRA — until some future date. So we’ll have to wait until then to find out whether Thomas, Gorsuch, or any other right wants to make federal law less favorable to voting rights plaintiffs than it was under Jim Crow.
