On Monday, the Supreme Court issued two brief procedural orders involving Voting Rights Act (VRA) cases — one out of Mississippi, the other out of North Dakota. Neither case was decided on the merits. Instead, the Court “GVR’d” the cases, meaning it granted review of them, vacated lower court rulings, and remanded the cases to the lower courts for further consideration in light of the Court’s recent ruling in Louisiana v. Callais.
2/ Ditto with North Dakota: pic.twitter.com/lxdS0ZSdxM
— Margot Cleveland (@ProfMJCleveland) May 18, 2026
Despite their brevity, the orders may still have major implications for future VRA lawsuits. Justice Ketanji Brown Jackson dissented as to both orders, seemingly out of concern that the Court, even with these brief procedural orders, may be effectively destabilizing long-standing VRA enforcement. (More on that in a bit.)
Section 2 of the VRA prohibits voting practices or maps that dilute minority voting strength. Most Section 2 litigation involves claims that minority voters are either “packed” together into too few districts or “cracked” apart into too many districts. What Callais made clear, though, was that the solution isn’t further racial gerrymandering — Section 2 has constitutional limits. That changes the analysis, and so the Supreme Court is sending these cases back to the lower courts for a second look pursuant to the Callais holding.
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But it’s important to note that the two cases addressed in the Court’s Monday orders are different.
The Mississippi case, Board of Election Commissioners v. NAACP, involves state legislative redistricting maps (i.e., not congressional districts). The plaintiffs in that case allege that the maps dilute black voting strength in violation of Section 2. A three-judge panel in the Southern District of Mississippi found Section 2 violations and ordered Mississippi lawmakers to redraw certain state legislative districts.
The North Dakota case, Turtle Mountain Band v. Howe, involves a claim by Native American tribes that the state legislative maps dilute Native voting strength. In that case, however, the 8th Circuit Court of Appeals focused on the threshold issue of whether the plaintiffs even have the right to sue under Section 2 and ultimately held that Section 2 does not create a private right of action — i.e., it can only be enforced via suits brought by the Department of Justice (DOJ) — and that plaintiffs cannot use 42 U.S.C. § 1983 (Civil Action for Deprivation of Rights) to get around that. That ruling thus dramatically narrows VRA enforcement.
Of note, however, the Callais decision does not directly address the private right of action/enforcement issue. So, Jackson’s dissent in the North Dakota case arguably makes some sense:
This case presents onlythe question of Section 2’s private enforceability, which our decision in Louisiana v. Callais, 608 U. S. ___ (2026), did not address. Thus I see no basis for vacating the lower court’s judgment.
Except…this raises two additional issues: First, Jackson’s dissent in the Mississippi case contains identical verbiage, even though there are notable distinctions in the cases. (The lower court holding in the Mississippi case, while it did address the private enforceability argument, ultimately determined that private claims may proceed (unless/until SCOTUS clearly holds otherwise) and moved on to the substantive ruling regarding Section 2 violations.)
Second, note that Jackson is the lone dissenter — meaning that Justices Elena Kagan and Sonia Sotomayor seemingly do not share her alarm at simply remanding the cases back for further consideration in light of the Callais decision — a decision from which both Kagan and Sotomayor dissented, by the way.
While there’s very little in the way of tea leaves to read here, given the brevity of these orders, my sense is that Jackson is concerned that the lower courts will, after taking a post-Callais look at the cases, conclude that private rights of action are improper under Section 2, thereby limiting VRA litigation to suits brought by the DOJ, even though Callais doesn’t really address that issue. And further, that assumes that the 8th Circuit will reaffirm its determination, rather than reconsidering its stance on enforcement in light of the now narrower reading of Section 2 under Callais.
My takeaway here — which, admittedly, is purely inferential — is that Jackson is reading broader implications into the Court’s remands than her colleagues are. Once again, they are not on the same page.
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