After a major rewriting by the Supreme Court last month of the meaning of a historic federal voting rights law, significantly reducing the rights of minorities at the polls, the Court is scheduled tomorrow to examine a sequel in private.

If, as the three dissenting Justices have complained, the Court’s conservative six-Justice majority is determined to dismantle what remains of the 1965 Voting Rights Act, this might be the test.

At the heart of a case unfolding at the Court since last summer is this basic question: does federal law allow individual voters and civil rights groups to go to court to enforce the Act, or does it allow  only the Justice Department to do so?  That is a question that has divided lower courts — a conflict of the kind that the highest court is usually inclined to settle.

The Justice Department, as it exists in the current Trump Administration, is openly hostile to the Act, and strongly supported what the Court did to the law at the end of April.  In that ruling, by a 6-to-3 vote, the Court made it much more difficult to enforce the voting rights of minority voters under the Act’s once-powerful Section 2.  (That is the only significant part of the Act still partly intact after several rulings by the Court, going back to 2013, that have steadily eroded the Act’s breadth and authority.)

Section 2, applying nationwide, seeks to outlaw any election practice or method that impairs the chances of a racial minority to elect candidates of their choice.  It was passed by Congress to enforce the Constitution’s 15^th Amendment, outlawing racial discrimination in voting.

One widely-cited study found that, between 1982 (when Congress strengthened Section 2) and the end of 2024, private individuals or groups were the only ones to sue in 396 out of 466 cases nationwide (85 per cent).  In the federal courts in seven states (the region involved in the new sequel, a case from North Dakota), private voters or groups took part in every one of the 41 cases in the same time span.

The federal appeals court that has authority in those seven states, the Eighth U.S. Court of Appeals, has ruled twice on the enforcement issue.  By dividing votes, it ruled that Section 2 can only be enforced by the Justice Department, because no federal civil rights law specifically creates a private right to sue or can be interpreted to create such a right.  Every other federal appeals court and a number of federal trial courts that have ruled on the issue have disagreed, allowing private enforcement.

Much of the activity under Section 2 has been pursued to enforce the voting rights of black or Hispanic minorities.  The sequel case is unusual: it is a lawsuit by two Indian tribes and three of their members who are voters in North Dakota.   After a new redistricting map went into effect for the 2022 election, Native Americans lost two of the three seats they held in the state senate or assembly.  They then sued in federal court, relying on Section as well as on an 1871 civil rights law.

Native Americans are not considered, under U.S. law, to be a racial minority.  The Supreme Court, in a major decision in 1974 (Morton v. Mancari) ruled that laws that protect or benefit tribes and their members are not racially biased but simply represent the special relationship between the government – as a kind of guardian — and tribes and their members.

A year later, in 1975, Congress changed the Voting Rights Act to give Native American voters legal protection at the polls, treating them as a “language minority.”  (The state of North Dakota would not allow tribal members to vote unless they severed their tribal relationships and adopted the dress, religion and customs of white people.)

The North Dakota case now developing at the Supreme Court, Turtle Mountain Band of
Chippewa Indians v. Howe, involves that tribe along with the Spirit Lake Tribe and three Native American voters belonging to the tribes.  The case reached the Court last July, after the latest ruling in the appeals court.  The Justices have taken only one significant action on it so far, putting the appeals court ruling on hold until the Supreme Court can act on it more fully.

When the Court makes up its mind what to do next, three of the Justices may already sent a signal about how they will react to the controversy.  They dissented when the appeals court ruling was blocked by their colleagues last July 2.  They three were Justices Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas.  While they did not spell out their views at that time, Gorsuch and Thomas had signed a brier opinion five years ago, in another Section 2 case, questioning whether r private lawsuits could be filed to enforce that provision; they commented that lower courts had been treating that as unsettled.

So far, the Court has had a look at the North Dakota only twice, in a preliminary way each time, apparently waiting to take more significant action until after it had decided the Voting Rights Act case in late April.  That ruling did not make any reference to who could sue to enforce Section 2, so it is not clear why the North Dakota case was held.

If the three Justices who wanted to allow the appeals court to take effect last summer seek to persuade their colleagues not to review the Native Americans’ appeal, that may be a difficult chore because the six other Justices were at least enough uncertain about the appeals court ruling to block it temporarily.  It takes the votes of five Justices to issue that kind of order.  One issue to consider when doing so is that there is a fair chance that the appeals court decision at issue will be overturned when the Supreme Court issues a final decision.

The appeals court, under that July order, will remain postponed if the Court votes to decide the North Americans’ appeal and issues a final decision.  A final ruling may not come until sometime next year.