The Supreme Court, continuing to sort out voting rights, on Monday morning issued two brief new orders – with no explanation.  The near-silence deepened a constitutional mystery that has lingered for years: will the conservative majority allow the main federal voting rights law to remain, in a workable form?

While the six conservative Justices who control what the Court does on major issues do not seem fully ready to strike down, entirely, the famous Voting Rights Act of 1965, they have gone far toward weakening its power to promote racial equality at the polls.

A major decision in late April made it more difficult now to enforce what remains of the Act, and that is already beginning to be applied in many state legislatures to eliminate congressional election districts which were drawn to give black and Hispanic voters more chance to prevail.

On Monday, the Court had an opportunity to take up, and settle, another question that some of the Justices themselves have wanted answered: who will be allowed to enforce what remains of the 1965 Act?

For seven states, a lower court has ruled that only the federal Justice Department can sue to carry out the Act’s Section 2, a provision that made a nationwide promise of racial equality in voting.  In the other 43 states, though, lower courts have allowed private voters and civil rights groups to sue – as they have done, for years, in the vast majority of cases.

The current Justice Department, as part of the Trump Administration, is strongly critical of the Voting Rights Act and is unlikely to step in now to bring more cases favoring minority voters, especially if the Department were to become the sole enforcement power over Section 2.

Unless Congress steps in to resolve this dispute, and there appears to be little chance of that, it will be up to the Court to declare what the Act means.  That is what the Court had been asked to do, in two new cases – from Mississippi and North Dakota – in which the sole question raised was the Section 2 enforcement issue.

Because of the conflicting rulings on the point by lower courts, it seemed highly likely that the Court would grant review and resolve the controversy.  However, in two similarly worded orders issued today, the Court ignored that issue, without saying why, and told the lower courts involved to take a new look at how to apply the Justices’ ruling on April 29 in a Louisiana congressional districts case.

Only one Justice, Ketanji Brown Jackson, dissented from the two orders.  Noting that the enforcement question had not been a factor in the Louisiana ruling last month, Jackson wrote in response to each order: “I see no basis for vacating the lower court’s judgment.”  (The rulings at issue had gone in opposite ways on enforcement.)

Jackson added that she would instead act on both of the new cases by relying on a 1996 decision by the Court, in the case of Morse v. Republican Party of Virginia.  In that ruling, the Court had said explicitly that Section 2 can be enforced by private individuals or groups.  That outcome had not been overruled, and Jackson treated it as still binding.

This new activity at the Court involved disputes under Section 2 over maps for districts for members of those states’ legislatures.  In the Mississippi case, black voters and the state chapter of the National Association for the Advancement of Colored People challenged maps that failed to provide additional districts with black majority populations.  In the North Dakota case, two Native American tribes and three of their tribal members who are voters challenged state maps that had led to the loss of two seats in the state legislature for tribal members.

In the Mississippi case, the appeal was filed by state officials; the appeal in North Dakota was filed by the two tribes and three tribal voters.

Because the Justices opted not to step in to clear up the enforcement question, that will linger in lower courts until someone can persuade the Supreme Court to act.

Among the possible explanations for the two orders issued Monday were these: the majority does not yet have the votes, or the inclination, to get involved right now in another hotly contested question of election law; the majority felt that it was more important to get further development on how its April decision will be applied in lower courts; or the Court was simply unwilling, at this late stage in its current term, to take up the disputes arising from state legislative redistricting rather than from congressional districting.