In mid-May, two Republicans on a federal appeals court declared that the Voting Rights Act of 1965 — the landmark law that a Senate report once described as “the most successful civil rights statute in the history of the Nation” — is effectively null and void.
The Voting Rights Act was one of the Black civil rights movement’s signature accomplishments, and is widely considered one of the most consequential laws in American history because it was extraordinarily successful in ending Jim Crow restrictions on voting. Just two years after it became law, for example, Black voter registration rates in the former Jim Crow stronghold of Mississippi rose from 6.7 percent to nearly 60 percent.
The two Republicans’ decision in Turtle Mountain Band of Chippewa Indians v. Howe attempts to strip private litigants of their ability to enforce the law, which bans race discrimination in elections. If the lower court’s decision in Turtle Mountain is ultimately upheld by the Supreme Court, the Justice Department could still bring suits to enforce the law, but the Justice Department is currently controlled by President Donald Trump.
As federal Judge Lavenski Smith noted in a 2023 opinion, over the past 40 years various plaintiffs have brought 182 successful lawsuits under the Voting Rights Act. Only 15 of these suits were brought solely by the DOJ. So, even if the United States still had a Justice Department committed to voting rights, the premise of the two Republicans’ decision in Turtle Mountain is that the overwhelming majority of successful Voting Rights Act suits should have ended in failure.
Turtle Mountain arises on the Court’s “shadow docket,” a mix of emergency motions and other matters that the justices decide on an expedited basis. So the Court could reveal whether it intends to nuke the Voting Rights Act within weeks.
The idea that the Voting Rights Act is virtually unenforceable — and that, somehow, no one noticed this fact for four decades — appears to originate from Justice Neil Gorsuch, who suggested that the law may be a near-nullity in a 2021 concurring opinion. Ironically, less than a month ago, Gorsuch authored the Court’s majority opinion in Medina v. Planned Parenthood, which cuts against his own attack on the law.
Still, Gorsuch may ultimately prevail in his attack on this landmark law. Though much of the Medina opinion cuts against the lower court’s reasoning in Turtle Mountain, Medina changed many of the rules governing which federal laws may be enforced through private lawsuits. Gorsuch’s Medina opinion did not just narrow the rights of private litigants to bring suits enforcing federal law; it appeared to overrule the Court’s two-year-old opinion in Health and Hospital Corporation v. Talevski (2023), which read the rights of private litigants much more expansively.
It’s hard to identify a principled distinction between Talevski and Medina, but there is an important political distinction between the two cases. Unlike Talevski, the Medina lawsuit was brought by Planned Parenthood, an abortion provider that Republicans love to hate. So the most likely explanation for the Court’s shift in Medina is that the Republican justices wanted Planned Parenthood to lose, and were willing to change the rules to ensure this outcome.
The Court’s Republicans have shown similar contempt for the Voting Rights Act. In Shelby County v. Holder (2013), the Republican justices deactivated a core provision of the law, which required states with a history of racist election practices to “preclear” any new election laws with federal officials before they took effect. Other Supreme Court decisions have written arbitrary limits into the Voting Right Act that appear nowhere in the law’s text, such as legal protection for voting restrictions that were commonplace in 1982.
As Justice Elena Kagan said in a 2021 opinion, “in the last decade, this Court has treated no statute worse.”
So, while there are no good legal arguments supporting the lower court’s decision in Turtle Mountain, it is still possible that the Court’s Republican majority will neutralize the Voting Rights Act anyway.
The dispute at the heart of the case
Turtle Mountain is a dispute about what are known as “implied causes of action.” There are many federal laws that do not state explicitly that they can be enforced through private lawsuits, but that nonetheless are understood to permit such suits.
Unfortunately, the Supreme Court appears to change the rules governing when these suits are permitted about as often as Gorsuch changes his necktie.
For many years, the Court applied a strong presumption that federal laws must be enforceable. In Allen v. State Board of Elections (1969), an early Voting Rights Act case, the Court held that “a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.”
As the Court moved rightward, it started announcing increasingly more restrictive rules governing when federal laws could be enforced through private suits. In its 2023 Talevski decision, however, the Court finally seemed to settle on a rule that would govern these sorts of cases moving forward.
Under Talevski, a federal law may be enforced by private litigants if it is “‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”
Thus, for example, a law stating that “no state may prevent a hungry person from eating French fries” would be enforceable through private-person lawsuits, because the law’s text focuses on the people who benefit from it (people who are hungry). A similar statute saying that “states shall not impede access to fried potatoes” would not be enforceable, because it lacks the “individual-centric language” demanded by Talevski.
Two years later, however, in Medina, the Supreme Court considered a federal law that permits “any individual eligible for medical assistance” under Medicaid to choose their own health provider. South Carolina violated this law by forbidding Medicaid patients from choosing Planned Parenthood as their health provider, but the Republican justices declared that this law is unenforceable — despite the fact that it is “phrased in terms of the persons benefited” as Talevski demands.
Gorsuch’s Medina opinion is difficult to parse. Unlike Talevski, it does not state a clear legal rule explaining when federal laws are enforceable. It doesn’t even quote Talveski’s language about laws “phrased in terms of the persons benefited.”
That said, Medina does spend several pages suggesting that statutes, like the one in Talevski, which actually use the word “right” in their text — as in individuals’ rights — are enforceable. (Talevski involved several provisions of federal Medicaid law that protect nursing home residents, including a provision that protects the “right to be free from” physical or drug-induced restraints.)
In any event, the Voting Rights Act should be enforceable under either the clearly articulated rule announced in Talevski, or the more haphazard rule announced in Medina. Here is the relevant text from the act:
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color…
Under Talevski, this statute may be enforced through private lawsuits because it is phrased in terms of the person benefited: “any citizen of the United States.” Under Medina, the statute may also be enforced through private lawsuits because the law refers to “the right” of any citizen to vote.
This provision, moreover, appears in a section of the United States Code entitled “denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation.” That section appears in a chapter of the US Code entitled “Enforcement of Voting Rights.” And, of course, the law that created this provision is called the “Voting Rights Act.”
So, even under the silly standard that Gorsuch appeared to lay out in his Medina opinion, the Voting Rights Act may be enforced through private lawsuits.
The Supreme Court should not be allowed to change the rules, and then apply them retroactively to old laws
There is something remarkably cruel about this entire exercise. Congress could not possibly have known in 1965, when it enacted the Voting Rights Act, that the Supreme Court would declare decades later that statutes must have “individual-centric language” or they cannot be enforced by private litigants. Nor could it have known that, not long thereafter, the Supreme Court would hand down another decision that seems to scrap the Talevski rule and replace it with a new one that requires Congress to use the magic word “right.”
Similarly, as the Turtle Mountain plaintiffs point out in their brief to the justices, “from 1982 through August 2024, ‘private plaintiffs have been party to 96.4% of Section 2 claims that produced published opinions … and the sole litigants in 86.7% of these decisions.’” None of the courts that decided these cases could have anticipated Gorsuch’s logic in Medina.
In any event, it is a happy coincidence that the statute Congress wrote in 1965 happens to comply with both the rule that the Supreme Court announced in 2023, and the entirely different rule that it announced in 2025.
