Supreme Court declines to resolve VRA Section 2 private-right-of-action question, leaving private enforcement in circuit-split limbo

On May 18, 2026, the United States Supreme Court issued two brief, unsigned per curiam orders in Board of Election Commissioners v. NAACP (No. 25-234, from the Fifth Circuit) and Turtle Mountain Band v. Howe (No. 25-253, from the Eighth Circuit). The orders granted certiorari, vacated the lower-court judgments, and remanded both cases for reconsideration "in light of" the Court's April 29, 2026 decision in Louisiana v. Callais. The Court declined to address the legal question both cases had squarely presented: whether private voters and civil-rights organizations retain a right to bring suit to enforce Section 2 of the Voting Rights Act of 1965, or whether only the U.S. Department of Justice may do so.

The procedural posture matters. The Fifth Circuit had held in the Mississippi case that private parties may sue under Section 2; the Eighth Circuit had held in the North Dakota case that they may not. The two cases together teed up a clean circuit split that the Court could have resolved. By declining to do so and sending both back for reconsideration under Callais — a ruling that substantively raised the bar for what counts as a Section 2 redistricting violation but did not address private enforceability — the Court leaves the split in place. In the Eighth Circuit's jurisdiction, private VRA Section 2 suits remain blocked; in the Fifth Circuit's, they remain permitted. Lower courts will now apply Callais's narrower substantive standard to each case without guidance on who may bring the action in the first instance.

Justice Ketanji Brown Jackson dissented from both orders, noting in the NAACP dissent that "this case presents only the question of Section 2's private enforceability" — a question not addressed by the Callais decision — and that the cases should therefore have been resolved on their merits rather than remanded. NPR characterized the move as the Court "sidestep[ping] weighing in" on the enforcement question; CNN described it as the conservative majority "put[ting] off a fight" over Section 2 lawsuits.

This entry records the narrowing not of the substantive Section 2 standard itself (which was the work of Callais in April) but of the enforcement mechanism — the practical ability of voters and civil-rights organizations, rather than only the federal government, to bring suits challenging racially discriminatory voting practices. The Department of Justice's posture under the current administration makes this distinction materially consequential: a Section 2 protection that can only be enforced by an agency unwilling to enforce it is, as a practical matter, less of a protection.