Section 2 of the Voting Rights Act of 1965 (“VRA”) prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the specified minority groups.^[1] Although the Supreme Court has continuously narrowed the scope of the VRA throughout the Roberts Court era, there was little question that Section 2 allowed private litigants to bring claims alleging a violation. For decades, private individuals and groups have had the ability to file lawsuits under Section 2 challenging state and local governments that create discriminatory voting maps or take other election-related actions that minimize the political power of people of color.^[2]

Native Americans especially have relied on Section 2’s private right of action to vindicate their voting rights, since the government has failed to otherwise step in and enforce the law. In the past twenty years, the Department of Justice (DOJ), the entity able to bring a suit on behalf of voters, has “brought only one lawsuit to enforce Native voting rights under Section 2.”^[3] Meanwhile, private lawsuits “ha[ve] led to a host of wins for Indigenous voters” in the Eighth Circuit,^[4] including a 2024 settlement in Nebraska that provided a redistricting plan that gave fair representation to Native voters,^[5] a 2006 decision preventing South Dakota from packing Native Americans into one state house district, ^[6] and two cases that led to more equal access to early voting sites and registration for the Oglala Sioux.^[7] The private right of action implied in Section 2 has been critical in these challenges.

However, over the past three years, the Eighth Circuit has undermined this ability in two cases. One, a decision removing Section 2’s private right of action, is now on the doorstep to the Supreme Court. On July 16, 2025, the Supreme Court issued a stay in the case Turtle Mountain Band of Chippewa Indians, et al., v. Howe, pending the Supreme Court’s decision on whether to grant the plaintiffs’ writ of certiorari.^[8] In Turtle Mountain, two Indian tribes and three individual Native American voters sued North Dakota’s Secretary of State in federal court, seeking to challenge the state’s 2021 redistricting.^[9] The plaintiffs argued that the redistricting plan diluted Native American voting strength, in violation of Section 2 of the VRA and 42 U.S.C. § 1983.^[10] In the decision, the Eighth Circuit held that because § 1983’s private right of action only covers situations where the government interferes with individual rights, it cannot be used to fight a Section 2 claim because “§ 2 does not unambiguously confer an individual right.”^[11]

As we wait to see whether the Supreme Court grants certiorari, it is important to understand the context in which Turtle Mountain was decided. For one, the Eighth Circuit stands alone in being the only court of appeals to rule that Section 2 does not grant a private right of action. Over the past five years, “conservative appellate courts in the Fifth and Eleventh Circuits have . . . agreed that individuals and groups can sue [under Section 2].”^[12]

Secondly, ramifications on the restriction of voting rights for Native Americans cannot be overstated. Across the United States, Native Americans have the highest poverty rate among all minority groups (25.4%), almost 5% higher than the next highest, and 17% higher than the rate among White Americans.^[13] This naturally leads to a decrease in political power and voting rights: “Almost every study ever done of inequality and voting shows that economic deprivation and bad health reduce voter participation—and thus political power.”^[14]

In 2017 and 2018, the Native American Voting Rights Coalition (founded by the Native American Rights Fund) released a report providing detailed evidence that Native people face obstacles at every turn in the electoral process.^[15] The report names 29 specific barriers to five aspects of the electoral process: civic participation, voter registration, casting a ballot, having those votes counted, and voting by mail.^[16] Private Native American voters and tribes were able to combat some of these issues using Section 2, such as unequal access to early voting and the use of arbitrary population thresholds to establish polling places. Now, without a private right of action, and without support from the DOJ, Native American voters would be left without recourse when local and state governments, or the federal government, engage in erecting these barriers. Any DOJ support is unlikely, given that 70% of the Civil Rights Division of the Department has been cut, its remaining lawyers have been ordered to dismiss almost all Section 2 cases, and its abysmal track record in bringing claims on behalf of Native Americans in the past.^[17]

In the event the Supreme Court takes the case, several Justices have already indicated their stance on the issue at hand. Although the Supreme Court has “considered numerous Section Two cases brought by private plaintiffs,”^[18] Justice Neil Gorsuch, joined by Justice Clarence Thomas, has deemed the existence of a Section 2 private right of action “an open question.”^[19] In the previous term, dissenting to a decision for re-argument in another voting rights case, Louisiana v. Callais, Justice Thomas argued that Section 2’s requirement for majority-minority districts in certain circumstances makes “this Court’s § 2 jurisprudence broken beyond repair.”^[20] The case might be close, however, given that the Eighth Circuit stands alone in this ruling, and there are two conservative-leaning circuits ruling that individuals and groups can sue under Section 2.

Should the Supreme Court grant certiorari in Turtle Mountain, Native Americans will have a national stage to demonstrate how integral Section 2 has been for securing the right to vote for populations that are so often marginalized and left without ways to participate in the democratic process. It is up to the Justices as to whether that tool is taken away.

[1] See The Voting Rights Act of 1965, 52 U.S.C. § 10301.

[2] See Hansi Lo Wang, How a Supreme Court Justice’s Paragraph Put the Voting Rights Act in More Danger, Nat’l Pub. Radio (Feb. 26, 2023), https://www.npr.org/2023/02/26/1157248572/supreme-court-voting-rights-act-private-right-of-action-arkansas [https://perma.cc/EFW5-XKNB].

[3] Id.

[4] Andrew Garber, Appeals Court Strips Voters’ Ability to File Voting Rights Act Lawsuits in 7 States, The Brennan Center (July 24, 2025), https://www.brennancenter.org/our-work/analysis-opinion/appeals-court-strips-voters-ability-file-voting-rights-act-lawsuits-7 [https://perma.cc/DN22-S7MF].

[5] Winnebago v. Thurston Cnty., 2024 U.S. Dist. LEXIS 13985, *5, 2024 WL 302390; see also Nebraska County Redistricting (Winnebago v. Thurston County), Native American Rights Fund (2023), https://narf.org/cases/thurston-nebraska-redistricting/ [https://perma.cc/D7K3-YS44].

[6] See Bone Shirt v. Hazeltine, 200 F. Supp. 2d 1150 (D.S.D., May 2, 2002); see also Garber, supra note 4.

[7] See Brooks v. Gant, 2012 U.S. Dist. LEXIS 139070 (D.S.D., Sept. 27, 2012); Bear v. County of Jackson, 2016 U.S. Dist. LEXIS 79150 (D.S.D., June 17, 2016); see also Garber, supra note 4.

[8] See — S.Ct. —-, 2025 WL 1943858 (Mem).

[9] Turtle Mountain Band of Chippewa Indians, v. Howe, 137 F.4th 710, 713 (8th Cir. 2025).

[10] Id.

[11] Turtle Mountain, 137 F.4th at 721.

[12] Garber, supra note 4.

[13] See Dedrick Asante-Muhammad, et al., Racial Wealth Snapshot: Native Americans, Nat’l Cmty. Reinvestment Coal. (Feb. 14, 2022), https://ncrc.org/racial-wealth-snapshot-native-americans/ [https://perma.cc/Z4Y3-U5HE].

[14] Jeremy Adam Smith & Teja Pattabhiraman, How Inequality Keeps People from Voting, Greater Good Mag. (Oct. 29, 2020), https://greatergood.berkeley.edu/article/item/how_inequality_keeps_people_from_voting  [https://perma.cc/Y7TF-4WQG]; see also Matt Stevens, Poorer Americans have much lower voting rates in national elections than the nonpoor, a study finds, N.Y. Times (Aug. 11, 2020), https://www.nytimes.com/2020/08/11/us/politics/poorer-americans-have-much-lower-voting-rates-in-national-elections-than-the-nonpoor-a-study-finds.html [https://perma.cc/SS9Z-N77X].

[15] See generally, Native Am. Rts. Fund, Obstacles at Every Turn: Barriers to political Participation Faced by Native American Voters (2020), https://www.narf.org/wordpress/wp-content/uploads/2020/05/NARF_2020FieldHearingReport_SummaryDocument.pdf [https://perma.cc/8EZ2-FQPU].

[16] Id.

[17] See Chiraag Bains, What Just Happened: The Trump Administration’s Dismissal of Voting Rights Lawsuits, Just Sec. (May 27, 2025), https://www.justsecurity.org/113745/wjh-trump-dismissal-voting-rights-lawsuits/ [https://perma.cc/SJ3X-A976].

[18] See e.g., Arkansas State Conference NAACP v. Arkansas Board of Apportionment, 86 F.4th 1204, 1218–19 (8th Cir. 2023) (Smith, C.J., dissenting) (quoting Singleton v. Merrill, 582 F.Supp.3d 924, 1031 (N.D. Ala. 2022) (per curiam) (three-judge court) (citing, inter alia, Brnovich v. Democratic Nat’l Comm., 594  U.S. 647 (2021); Bartlett v. Strickland, 556 U.S. 1 (2009); League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399 (2006); Voinovich v. Quilter, 507 U.S. 146, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993); Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991); Hous. Laws.’ Ass’n v. Att’y Gen., 501 U.S. 419 (1991); Thornburg v. Gingles, 478 U.S. 30 (1986)), order clarified, No. 2:21-CV-1291-AMM, 2022 WL 272637 (N.D. Ala. Jan. 26, 2022), appeal dismissed sub nom. Milligan v. Sec’y of State for Alabama, No. 22-10278-BB, 2022 WL 2915522 (11th Cir. Mar. 4, 2022), aff’d sub nom. Allen v. Milligan, 599 U.S. 1 (2023); see also Caster v. Merrill, No. 2:21-CV-1536-AMM, 2022 WL 264819, at *81 (N.D. Ala. Jan. 24, 2022) (same), aff’d sub nom. Allen, 599 U.S. at 1).

[19] Brnovich v. Democratic National Committee, 594 U.S. 647, 690 (2021) (Gorsuch, J., concurring).

[20] 606 U.S. —- (2025) (Thomas, J., dissenting), ordered for re-argument.