Motion to affirm — State Board of Election Commissioners, et al., Appellants v. Mississippi State Conference of the National Association for the Advancement of Colored People, et al.
Supreme Court briefOct 3, 2025
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No. 25-234
IN THE
Supreme Court of the United States
STATE BOARD OF ELECTION COMMISSIONERS, ET AL.,
Appellants,
–––V.–––
MISSISSIPPI STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, ET AL.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
PLAINTIFFS-APPELLEES’ MOTION TO AFFIRM
Cecillia D. Wang
Ari Savitzky
Evelyn Danforth-Scott
Counsel of Record
AMERICAN CIVIL LIBERTIES
Ming Cheung
UNION FOUNDATION
Sophia Lin Lakin
425 California Street, Suite 700 Ethan Herenstein
AMERICAN CIVIL LIBERTIES
San Francisco, CA 94104
UNION FOUNDATION
Joshua Tom
125 Broad Street, 18th Floor
AMERICAN CIVIL LIBERTIES
New York, NY 10004
UNION OF MISSISSIPPI
(212) 549-2500
101 South Congress Street
asavitzky@aclu.org
Jackson, MS 39201
Adriel I. Cepeda Derieux
Damon Hewitt
AMERICAN CIVIL LIBERTIES
Robert Weiner
UNION FOUNDATION
Jennifer Nwachukwu
915
15th Street NW
M. David Rollins-Boyd
Washington, DC 20005
Javon Davis
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW
1500 K Street NW, Suite 900
Washington, DC 20005
Additional counsel listed on next page
John P. Lavelle, Jr.
Scott Michelman
MORGAN, LEWIS & BOCKIUS LLP AMERICAN CIVIL LIBERTIES
2222 Market Street
UNION FOUNDATION OF THE
DISTRICT OF COLUMBIA
Philadelphia, PA 19103
529 14th Street NW, Suite 722
Robert B. McDuff
Washington, DC 20045
MISSISSIPPI CENTER FOR JUSTICE
Carroll Rhodes
767 North Congress Street
LAW OFFICES OF CARROLL
Jackson, MS 39202
RHODES
P.O. Box 588
Hazlehurst, MS 39083
Counsel for Plaintiffs-Appellees the Mississippi State
Conference of the National Association for the Advancement of
Colored People, Dr. Andrea Wesley, Dr. Joseph Wesley,
Robert Evans, Gary Fredericks, Pamela Hamner,
Barbara Finn, Otho Barnes, Shirlinda Robertson,
Sandra Smith, Deborah Hulitt, Rodesta Tumblin,
Dr. Kia Jones, Marcelean Arrington, and Victoria Robertson
QUESTION PRESENTED
Whether private parties may sue to enforce
Section 2 of the Voting Rights Act, 52 U.S.C. § 10301.
i
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
TABLE OF AUTHORITIES ...................................... iv
INTRODUCTION ....................................................... 1
STATEMENT OF THE CASE .................................... 4
I.
STATUTORY BACKGROUND ........................... 4
A. 42 U.S.C. § 1983 ............................................ 4
B. Section 2 of the VRA, 52 U.S.C. § 10301 ...... 6
II. FACTUAL BACKGROUND .............................. 12
A. Mississippi Voters Challenge the 2022
State Senate and House Plans. ................... 12
B. A Panel of Mississippi Federal Judges
Unanimously Concludes that the Plans
Violate Section 2. ......................................... 13
C. This Appeal .................................................. 15
REASONS TO SUMMARILY AFFIRM ................... 16
I.
THIS COURT DECIDED THE QUESTION
PRESENTED IN MORSE. ................................ 16
II. PLAINTIFFS HAVE A RIGHT OF ACTION
TO ENFORCE SECTION 2 UNDER 42
U.S.C. § 1983. ..................................................... 18
A. Section 2 Unambiguously Confers an
Individual Right. ......................................... 19
B. Appellants
Cannot
Rebut
the
Presumption of Enforceability. ................... 25
ii
C. Summary Affirmance Would Avoid the
Need to Take Up Appellants’ Mistaken
Interpretation of Gonzaga. .......................... 27
III. ALTERNATIVELY, PLAINTIFFS HAVE AN
IMPLIED
RIGHT
OF
ACTION
TO
ENFORCE SECTION 2. .................................... 30
IV. THE QUESTION PRESENTED DOES NOT
REQUIRE PLENARY REVIEW. ....................... 34
CONCLUSION.......................................................... 37
iii
TABLE OF AUTHORITIES
Cases
Page(s)
Abbott v. Perez,
585 U.S. 579 (2018) .............................................. 9
Ala. State Conf. of NAACP v. Alabama,
949 F.3d 647 (11th Cir. 2020) ............................ 35
Alexander v. S.C. State Conf. of the NAACP,
602 U.S. 1 (2024) ................................................ 13
Alexander v. Sandoval,
532 U.S. 275 (2001) .............2, 7, 17, 21, 25, 30, 31
Allen v. Milligan,
599 U.S. 1 (2023) ...................................... 9, 18, 21
Allen v. State Bd. of Elections,
393 U.S. 544 (1969) .................... 6, 7, 9, 16, 33, 34
Bartlett v. Strickland,
556 U.S. 1 (2009) .................................................. 9
Bragdon v. Abbott,
524 U.S. 624 (1998) ............................................ 18
Brnovich v. Democratic Nat’l Comm.,
594 U.S. 647 (2021) .............................................. 9
Brown v. Baskin,
78 F. Supp. 933 (E.D.S.C. 1948) .......................... 5
Brown v. Post,
279 F. Supp. 60 (W.D. La. 1968) .......................... 7
Chapman v. Houston Welfare Rts. Org.,
441 U.S. 600 (1979) .............................................. 4
Chisom v. Roemer,
501 U.S. 380 (1991) ............................................ 20
iv
Citizens for a Better Gretna v. City of Gretna,
636 F. Supp. 1113 (E.D. La. 1986) ..................... 11
City of Boerne v. Flores,
521 U.S. 507 (1997) ........................................ 6, 32
City of Mobile v. Bolden,
446 U.S. 55 (1980) ................................................ 8
Clark v. Calhoun Cnty.,
88 F.3d 1393 (5th Cir. 1996) .............................. 10
Dir., Off. of Workers’ Comp. Programs, Dep’t of
Lab. v. Newport News Shipbuilding & Dry
Dock Co.,
514 U.S. 122 (1995) ............................................ 31
District of Columbia v. Heller,
554 U.S. 570 (2008) ............................................ 23
Ewing v. Monroe Cnty.,
740 F. Supp. 417 (N.D. Miss. 1990) ................... 11
Fitzgerald v. Barnstable Sch. Comm.,
555 U.S. 246 (2009) .................................. 2, 26, 27
Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230 (2009) ............................................ 17
Ga. State Conf. of NAACP v. Georgia,
No. 21-cv-5338, 2022 WL 18780945
(N.D. Ga. Sep. 26, 2022) ..................................... 35
Gonzaga Univ. v. Doe,
536 U.S. 273 (2002) ....................... 1, 2, 18, 19, 20,
22, 25, 27, 28, 30
Growe v. Emison,
507 U.S. 25 (1993) ................................................ 9
v
Gunn v. Chickasaw Cnty.,
166 F.3d 341 (5th Cir. 1998) .............................. 10
Health & Hosp. Corp. of Marion Cnty. v.
Talevski,
599 U.S. 166 (2023) .... 2, 19, 20, 21, 22, 23, 24, 25,
26, 27, 28, 29
Holder v. Hall,
512 U.S. 874 (1994) .............................................. 9
Houston Lawyers’ Ass’n v. Att’y Gen. of Tex.,
501 U.S. 419 (1991) .............................................. 9
Jamison v. City of Tupelo,
471 F. Supp. 2d 706 (N.D. Miss. 2007) .............. 11
Jordan v. Winter,
604 F. Supp. 807 (N.D. Miss. 1984) ................... 10
Katzenbach v. Morgan,
384 U.S. 641 (1966) .................................. 6, 29, 32
King v. Chapman,
62 F. Supp. 639 (M.D. Ga. 1945) ......................... 5
League of United Latin Am. Citizens v. Abbott,
No. 21-cv-529, 2021 WL 5762035
(W.D. Tex. Dec. 3, 2021) ..................................... 35
League of United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006) .............................................. 9
Livadas v. Bradshaw,
512 U.S. 107 (1994) ...................................... 26, 29
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ............................................ 33
LULAC v. Perry,
548 U.S. 399 (2006) ............................................ 24
vi
Maine v. Thiboutot,
448 U.S. 1 (1980) .................................................. 5
Mandel v. Bradley,
432 U.S. 173 (1977) ............................................ 35
Marks v. United States,
430 U.S. 188 (1977) ............................................ 16
Medina v. Planned Parenthood S. Atl.,
145 S. Ct. 2219 (2025) ........2, 5, 18, 19, 20, 21, 22,
23, 24, 25, 27, 28, 29, 33
Merrill Lynch, Pierce, Fenner & Smith, Inc.
v. Curran,
456 U.S. 353 (1982) ........................................ 7, 31
Mixon v. Ohio,
193 F.3d 389 (6th Cir. 1999) .............................. 35
Morris v. Fortson,
261 F. Supp. 538 (N.D. Ga. 1966) ........................ 7
Morse v. Republican Party of Va.,
517 U.S. 186 (1996) .....1, 10, 16, 17, 18, 30, 31, 34
N.Y. State Rifle & Pistol Ass’n, Inc.
v. City of New York,
590 U.S. 336 (2020) ............................................ 29
NAACP v. Fordice,
252 F.3d 361 (5th Cir. 2001) .............................. 10
Nw. Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 193 (2009) .............................................. 4
Ramos v. Louisiana,
590 U.S. 83 (2020) .............................................. 18
Ray v. Blair,
343 U.S. 214 (1952) .............................................. 5
vii
Reddix v. Lucky,
252 F.2d 930 (5th Cir. 1958) ................................ 5
Reynolds v. Sims,
377 U.S. 533 (1964) ............................................ 29
Robinson v. Ardoin,
86 F.4th 574 (5th Cir. 2023) .............................. 35
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996) .............................................. 16
Shelby Cnty. v. Holder,
570 U.S. 529 (2013) ............................ 3, 11, 12, 18
Singleton v. Allen,
No. 21-cv-1291, 2025 WL 1342947
(N.D. Ala. May 8, 2025) ..................................... 35
Slaughter-House Cases,
83 U.S. 36 (1872) .................................................. 4
Smith v. Allwright,
321 U.S. 649 (1944) .............................................. 5
South Carolina v. Katzenbach,
383 U.S. 301 (1966) .............................................. 6
Suter v. Artist M.,
503 U.S. 347 (1992) ............................................ 20
Teague v. Attala Cnty.,
92 F.3d 283 (5th Cir. 1996) ................................ 10
Terry v. Adams,
345 U.S. 461 (1953) .............................................. 5
Thomas v. Bryant,
938 F.3d 134 (5th Cir. 2019) .............................. 10
Thornburg v. Gingles,
478 U.S. 30 (1986) ...........3, 8, 9, 10, 13, 17, 18, 34
viii
United States v. Raines,
362 U.S. 17 (1960) .............................................. 33
Voinovich v. Quilter,
507 U.S. 146 (1993) .............................................. 9
West Virginia v. EPA,
597 U.S. 697 (2022) ............................................ 20
White v. State Bd. of Election Comm’rs,
No. 22-cv-62, 2025 WL 2406437 (N.D. Miss.
Aug. 19, 2025) ..................................................... 15
Constitutional Provisions
Page(s)
U.S. Const. amend. I ................................................. 23
U.S. Const. amend. II ............................................... 23
U.S. Const. amend. XIII ................2, 4, 5, 6, 22, 28, 29
U.S. Const. amend. XIV .....2, 4, 5, 6, 22, 23, 24, 28, 29
U.S. Const. amend. XV ..................2, 4, 5, 6, 22, 28, 29
U.S. Const. art. 1, § 8, cl. 1 ........2, 5, 19, 22, 28, 29, 36
Statutes
Page(s)
120 Stat. 577 (2006) ............................................ 11, 17
17 Stat. 13 (1871) ........................................................ 4
20 U.S.C. § 1232g ...................................................... 20
20 U.S.C. § 1681 ........................................................ 27
29 U.S.C. § 157 .......................................................... 30
42 U.S.C. § 1396r .......................................... 19, 20, 22
42 U.S.C. § 1988 ........................................................ 29
42 U.S.C. § 2000d ................................................ 24, 25
ix
52 U.S.C. § 10101 .................................................... 5, 9
52 U.S.C. § 10301 ................ i, 1, 2, 3, 6, 7, 8, 9, 10, 11,
12, 13, 15, 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 26, 27, 29, 30, 31, 33, 34, 35, 36
52 U.S.C. § 10302 .................................. 3, 8, 21, 31, 32
52 U.S.C. § 10303 ...................................................... 11
52 U.S.C. § 10304 ...................................... 7, 10, 11, 17
52 U.S.C. § 10306 .......................................... 10, 16, 17
52 U.S.C. § 10308 ...................................... 7, 21, 32, 33
52 U.S.C. § 10310(e).................................... 3, 8, 31, 32
Pub. L. No. 89-110, § 2, 79 Stat. 437 (1965) .............. 7
Pub. L. No. 89-110, § 3, 79 Stat. 437 (1965) ............ 31
Other Authorities
Page(s)
Br. in Opp’n,
Turtle Mountain Band of Chippewa Indians
v. Howe, No. 25-253 (S. Ct. Sep. 19, 2025) ........ 36
Civil Rights Act of 1957: Hearings on S.83,
85th Cong. (1957) ................................................. 6
H.R.Rep. 109-478 (2006),
as reprinted in 2006 U.S.C.C.A.N. 618.............. 11
H.R.Rep. No. 85-291 (1957),
as reprinted in 1957 U.S.C.C.A.N. 1966 .............. 6
H.R.Rep. No. 89-439 (1965),
as reprinted in 1965 U.S.C.C.A.N. 2437 ............ 20
H.R.Rep. No. 97-227 (1981) .................................. 9, 34
x
Katz, Ellen D., et al.,
Section 2 Cases Database, Univ. of Mich. L.
Sch. Voting Rights Initiative (2022) .................. 10
S.Rep. No. 94-295 (1975),
as reprinted in 1975 U.S.C.C.A.N. 774.......... 8, 32
S.Rep. No. 97-417 (1982),
as reprinted in 1982 U.S.C.C.A.N. 177...... 3, 9, 34
U.S. DOJ,
Cases Raising Claims Under Section 2 of the
Voting Rights Act ............................................... 10
U.S. Senate,
Roll Call Vote 109th Congress - 2nd Session
(July 20, 2006) .................................................... 11
xi
INTRODUCTION
A unanimous district court panel concluded that
Mississippi’s 2022 state legislative districting plan
violated Section 2 of the Voting Rights Act (“VRA”) by
cracking and diluting Black voting strength in three
areas of the State. Appellants do not claim error in
any aspect of the panel’s liability determination or the
remedy process. Instead, they submit that the injured
voters here—and every Section 2 voter-plaintiff for the
past sixty years—had no right to sue in the first place.
Appellants’ question presented does not warrant
plenary review. The Court can summarily affirm on
multiple independent grounds.
First, the Court can summarily affirm because the
question has already been answered. In Morse v.
Republican Party of Virgina, five Justices concluded
that private parties can sue to enforce Section 2 as a
necessary premise for their ultimate holding that
Section 10 of the Act is also privately enforceable. 517
U.S. 186, 232 (1996) (Stevens, J.) (plurality opinion);
id. at 240 (Breyer, J., concurring). Congress then
revisited the statute in 2006 and left Section 2
untouched, further cementing Morse’s holding. Morse
squarely forecloses Appellants’ argument.
Second, the Court can affirm because Section 2 is
enforceable pursuant to 42 U.S.C. § 1983 under a
straightforward application of Gonzaga University v.
Doe, 536 U.S. 273 (2002), and its progeny. Section 2
protects “the right of any citizen of the United States
to vote” free from discrimination “on account of race or
color.” 52 U.S.C. § 10301(a). The section title and
chapter title further focus on “right to vote” and
“voting rights,” and the overall legislation is entitled
1
the Voting Rights Act. Section 2 thus speaks in terms
of protectable “rights,” clearly identifies rightsholders, and creates enforceable legal rights under
Gonzaga. See Medina v. Planned Parenthood S. Atl.,
145 S. Ct. 2219, 2232-36 (2025); Health & Hosp. Corp.
of Marion Cnty. v. Talevski, 599 U.S. 166, 184-85
(2023). And the fact that it does so is unsurprising,
because Section 2 is a civil rights statute, enacted
pursuant to Congress’s rights-protecting powers
under the Reconstruction Amendments. It is not (as
Appellants wrongly imply) the type of funding statute,
enacted under Congress’ Spending Power, in which
the inclusion of enforceable private rights is
“atypical.” Medina, 145 S. Ct. at 2239 & n.9 (quoting
Talevski, 599 U.S. at 187); see also id. at 2240
(Thomas, J., concurring).
Because Section 2 creates an individual right, the
right is presumptively enforceable via Section 1983.
E.g., Talevski, 599 U.S. at 184. Appellants cannot
rebut that presumption. They claim the Attorney
General’s VRA enforcement powers implicitly
preclude Section 1983 enforcement, but mere parallel
public enforcement is not enough. Implicit preclusion
requires some narrower private remedy scheme in the
statute that would be “incompatible” with Section
1983. Talevski, 599 U.S. at 187-88; see also Fitzgerald
v. Barnstable Sch. Comm., 555 U.S. 246, 256 (2009).
There is no incompatible private remedy scheme here,
and the VRA’s public enforcement provisions are fully
compatible with Section 1983.
Third, the Court can summarily affirm by
applying the implied-private-right-of-action standard
from Alexander v. Sandoval, 532 U.S. 275 (2001).
2
Even without any presumption of enforceability, the
statute’s text and structure demonstrate Congress’s
understanding and intention that injured voters
would sue to enforce Section 2. For instance, it
repeatedly added language to other sections of the
VRA that would not make sense without such private
lawsuits. Section 3, as amended in 1975, refers to
proceedings brought by an “aggrieved person,” 52
U.S.C. § 10302. And Section 14 provides for attorneys’
fees for “[a] prevailing party, other than the United
States,” id. § 10310(e). Who else could that be?
Even if the text were ambiguous (and it is not),
Congress also specified its intentions in the legislative
history, “reiterat[ing] the existence of the private right
of action under Section 2.” E.g., S.Rep. No. 97-417, at
30 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 20708; see also Thornburg v. Gingles, 478 U.S. 30, 43 n.7
(1986) (1982 Senate Report is “authoritative source for
legislative intent” behind Section 2).
When this Court determined that the VRA’s
Section 5 preclearance process could no longer be
constitutionally applied, it underscored that Section 2,
which “individuals have sued to enforce,” remained a
“permanent” and “nationwide” protection. Shelby
Cnty. v. Holder, 570 U.S. 529, 537 (2013). That
protection has held in the 2020 redistricting cycle
because voters like Plaintiffs here sued to vindicate
their rights. But now Appellants, while identifying no
error in the vote-dilution analysis of a careful panel of
Mississippi federal judges, seek to tear it all down,
based on an argument foreclosed by clear text, binding
precedent, and the insurmountable weight of history.
The Court should summarily affirm.
3
STATEMENT OF THE CASE
I.
STATUTORY BACKGROUND
A. 42 U.S.C. § 1983
The Fifteenth Amendment provides that the right
to vote “shall not be denied or abridged . . . on account
of race.” U.S. Const. amend. XV, § 1. It was the last
of the three Reconstruction Amendments, which
collectively enshrined principles of racial equality
after the Civil War. See Slaughter-House Cases, 83
U.S. 36, 71 (1872). These amendments triggered a
backlash in Southern states: Black citizens who
“attempt[ed] to vote were met with coordinated
intimidation and violence,” as well as discriminatory
voting requirements. E.g., Nw. Austin Mun. Util.
Dist. No. One v. Holder, 557 U.S. 193, 218-20 (2009)
(Thomas, J., concurring in part and dissenting in
part).
Congress responded with legislation to enforce the
Reconstruction Amendments, see U.S. Const. amend.
XV, § 2, including the Enforcement Act of 1871,
Chapman v. Houston Welfare Rts. Org., 441 U.S. 600,
608, 610 n.25 (1979). The 1871 Act provided, among
other things, a federal cause of action for civil rights
violations. 17 Stat. 13 (1871); see Chapman, 441 U.S.
at 610 n.25, 611. The 1871 Act’s cause of action is now
codified at 42 U.S.C. § 1983. Id. at 608.
As originally drafted, Section 1983 authorized
private lawsuits to vindicate “the deprivation of any
rights, privileges, or immunities secured by the
Constitution of the United States.” Chapman, 441
U.S. at 608 n.15. Three years later, in 1874, Congress
amended that text to encompass violations of rights
4
granted by “the Constitution and laws” of the United
States, Maine v. Thiboutot, 448 U.S. 1, 7 (1980)
(emphasis added); accord 42 U.S.C. § 1983.
This Court has held that Section 1983 “broadly
encompasses violations of federal statutory . . . law.”
Thiboutot, 448 U.S. at 4-5. That proposition extends
even to legislation enacted pursuant to Congress’s
Spending Power, although the Court has
characterized congressional creation of individually
enforceable rights via such funding bills as “atypical.”
Medina v. Planned Parenthood S. Atl., 145 S. Ct. 2219,
2239 (2025). By contrast, the undisputed core of
Section 1983 remains the enforcement of the
Reconstruction Amendments and the civil rights
statutes they authorized. See id. at 2240 (Thomas, J.,
concurring).
Before the VRA’s enactment, voters used Section
1983 to enforce federal voting guarantees. For
example, in Smith v. Allwright, the landmark
challenge to Texas’s Whites-only primaries, plaintiffs
invoked Section 1983 to enforce both Reconstructionera voting-rights guarantees now codified at 52 U.S.C.
§ 10101(a)(1) and constitutional protections. 321 U.S.
649, 651 n.1 (1944); see also, e.g., Terry v. Adams, 345
U.S. 461, 480 nn.2 & 3 (1953) (Clark, J., concurring)
(noting, in “Jaybird primary” case, invocation of those
statutes); Ray v. Blair, 343 U.S. 214, 227 (1952);
Reddix v. Lucky, 252 F.2d 930, 933 (5th Cir. 1958);
Brown v. Baskin, 78 F. Supp. 933, 935 (E.D.S.C. 1948);
King v. Chapman, 62 F. Supp. 639, 639 & n.1, 650
(M.D. Ga. 1945), aff’d, 154 F.2d 460 (5th Cir. 1946).
The 1957 Civil Rights Act—the first voting
legislation since Reconstruction—newly authorized
5
voting enforcement lawsuits by the United States
Attorney General. By then, private enforcement of the
civil rights laws was so ingrained that Congress felt
the need to stress it was merely “supplement[ing]
existing law,” whereby statutory rights were enforced
via “Section 1983.” H.R.Rep. No. 85-291, at 11 (1957),
as reprinted in 1957 U.S.C.C.A.N. 1966, 1976.
Attorney General Brownell, whose office drafted the
bill’s public enforcement provisions, assured Congress
that “private people will retain the right they have
now to sue in their own name” to enforce the voting
laws. See Civil Rights Act of 1957: Hearings on S.83,
85th Cong. 67-73 (1957), https://perma.cc/MGN4ANP4. The understanding that Attorney General
enforcement would supplement—not supplant—
private enforcement of the voting laws continued with
the 1965 VRA and subsequent amendments. See, e.g.,
Allen v. State Bd. of Elections, 393 U.S. 544, 554
(1969).
B. Section 2 of the VRA, 52 U.S.C. § 10301
Congress enacted the VRA under its authority to
enforce the Reconstruction Amendments, in order “to
banish the blight of racial discrimination in voting.”
South Carolina v. Katzenbach, 383 U.S. 301, 308
(1966); see also City of Boerne v. Flores, 521 U.S. 507,
518 (1997); Katzenbach v. Morgan, 384 U.S. 641, 652
(1966). Recognizing that the 1957 and 1960 Civil
Rights Acts had fallen far short of this goal, Congress
created
new,
stronger
protections
against
discriminatory voting practices. Katzenbach, 383 U.S.
at 313-16. Section 2, which “broadly prohibit[ed] the
use of voting rules to abridge exercise of the franchise
6
on racial grounds,” was one of those. Id.; see Pub. L.
No. 89-110, § 2, 79 Stat. 437 (1965).
In 1965, when Congress enacted the VRA, private
plaintiffs had been enforcing the civil rights laws in
court, supra 5-6, and courts routinely recognized
implied private rights of action to enforce federal
statutes, see Alexander v. Sandoval, 532 U.S. 275, 287
(2001); Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Curran, 456 U.S. 353, 379, 381 (1982). Against that
baseline, Congress took care to ensure that the
Attorney General’s new parallel authority under the
VRA could be exercised in harmony with continued
private enforcement. Section 12 of the Act thus
provided that federal courts would have jurisdiction to
hear cases the Attorney General brought, whether or
not injured voters had exhausted any administrative
or legal remedies. 52 U.S.C. § 10308(f) (federal
jurisdiction lies “without regard to whether a person
asserting rights under the provisions of [this chapter]
shall have exhausted any administrative or other
remedies that may be provided by law”).
A year after the VRA’s enactment, the first of
numerous federal three-judge panels held that voters
could enforce Section 2 based on the “plain effect of
[Section 12(f)’s] language.” Morris v. Fortson, 261 F.
Supp. 538, 541, n.3 (N.D. Ga. 1966); see also, e.g.,
Brown v. Post, 279 F. Supp. 60 (W.D. La. 1968). Only
a few years later, this Court acknowledged the “force”
of that reasoning while holding that private litigants
can enforce Section 5 of the Act. See Allen, 393 U.S.
at 555 n.18.
In 1975, Congress amended the VRA and
addressed private enforcement in two important
7
ways. First, Congress extended the availability of
certain special remedies, like the imposition of federal
observers, to actions brought by an “aggrieved
person.” 52 U.S.C. § 10302(a), (b), (c); see also, e.g.,
S.Rep. No. 94-295, at 9-10, 40 (1975), as reprinted in
1975 U.S.C.C.A.N. 774, 775-76, 806-07 (Section 3
amended so “private persons are authorized to request
the application of the Act’s special remedies”).
Congress also added an attorneys’ fees provision to
Section 14, allowing a “prevailing party, other than
the United States,” to recover fees and costs for
actions under the statute. 52 U.S.C. § 10310(e); see
also, e.g., S.Rep. 94-295, at 40 (“Fee awards are a
necessary means of enabling private citizens to
vindicate these Federal rights.”).
In 1982, Congress amended Section 2 to abrogate
this Court’s decision in City of Mobile v. Bolden, 446
U.S. 55 (1980), and establish a Section 2 standard
based on discriminatory “results,” not just invidious
discriminatory intent. See Thornburg v. Gingles, 478
U.S. 30, 35 (1986). Today, subsection (a) of Section 2
provides:
No voting [rule] 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, . . . as provided in subsection (b).”
52 U.S.C. § 10301(a).
Subsection (b), which the 1982 amendments
added, then “sets out what must be shown to prove a
§ 2 violation,” articulating a “totality of the
circumstances” test. Brnovich v. Democratic Nat’l
8
Comm., 594 U.S. 647, 659 (2021). That test requires a
plaintiff to show that minority voters “have less
opportunity than other members of the electorate to
participate in the political process and to elect
representatives of their choice.” Id. (quoting 52 U.S.C.
§ 10101(b)).
With these changes, Congress made clear that it
understood Section 2 would be privately enforced. The
1982 Senate Report “reiterate[d] the existence of the
private right of action under Section 2, as has been
clearly intended by Congress since 1965.” S.Rep. No.
97-417, at 30 (1982), as reprinted in 1982
U.S.C.C.A.N. 177, 207-08 (citing Allen, 393 U.S. 544).
And the House Report declared Congress’s “inten[t]
that citizens have a private cause of action to enforce
their rights under Section 2 . . . [and] [i]f they prevail
they are entitled to attorneys’ fees.” H.R.Rep. No. 97227, at 32 (1981).
Four years later, this Court decided Gingles,
setting forth the Section 2 vote-dilution framework,
which was recently re-affirmed in Allen v. Milligan,
599 U.S. 1, 17 (2023). Both Gingles and Milligan were
initiated by private plaintiffs. Milligan, 599 U.S. at
16; Gingles, 478 U.S. at 33-34. Since 1982, this Court
has heard at least seven additional Section 2 votedilution cases brought exclusively by private
plaintiffs.1 And in 1996, a majority of the Court held
1 See
e.g., Abbott v. Perez, 585 U.S. 579 (2018); Bartlett v.
Strickland, 556 U.S. 1 (2009); League of United Latin Am.
Citizens v. Perry, 548 U.S. 399 (2006); Holder v. Hall, 512 U.S.
874 (1994); Growe v. Emison, 507 U.S. 25 (1993); Voinovich v.
Quilter, 507 U.S. 146 (1993); Houston Lawyers’ Ass’n v. Att’y
Gen. of Tex., 501 U.S. 419 (1991).
9
that Section 10 of the VRA is privately enforceable by
extension of the long-recognized private right of action
under Sections 2 and 5. See Morse v. Republican Party
of Va., 517 U.S. 186, 232, 233-34 (1996) (Stevens, J.)
(joined by Ginsburg, J.) (plurality opinion); id. at 240
(Breyer, J., concurring, with O’Connor & Souter, JJ.).
In the four decades since Gingles, private
plaintiffs have litigated most of the 460-plus Section 2
cases filed in federal court.2 The Attorney General has
brought 46.3 Of the at-least 199 successful Section 2
cases during that forty-year period—many involving
local redistricting—only 14 were brought solely by the
Attorney General.4
That pattern holds true in Mississippi, where (as
in this case) individual Black voters have consistently
litigated Section 2 vote-dilution claims. See, e.g.,
Thomas v. Bryant, 938 F.3d 134, 139 (5th Cir. 2019),
on reh’g en banc sub nom., Thomas v. Reeves, 961 F.3d
800 (5th Cir. 2020); NAACP v. Fordice, 252 F.3d 361,
364 (5th Cir. 2001); Jordan v. Winter, 604 F. Supp.
807, 808 (N.D. Miss. 1984), aff’d, 469 U.S. 1002 (1984);
see also, e.g., Gunn v. Chickasaw Cnty., 166 F.3d 341
(5th Cir. 1998); Teague v. Attala Cnty., 92 F.3d 283,
284 (5th Cir. 1996); Clark v. Calhoun Cnty., 88 F.3d
1393, 1394 (5th Cir. 1996); Jamison v. City of Tupelo,
2 See Ellen D. Katz et al., Section 2 Cases Database, Univ. of
Mich.
L.
Sch.
Voting
Rights
Initiative
(2022),
https://perma.cc/GUM9-LVP9 (hereinafter “Katz Study”) (VRIDatabase-August-2025 listing 466 cases).
3 U.S. DOJ, Cases Raising Claims Under Section 2 of the Voting
Rights Act, https://perma.cc/2VUE-SXNE.
4 See
Katz
Study,
supra
n.2,
“Codebook”,
https://perma.cc/4TTM-CE96.
10
471 F. Supp. 2d 706, 708 (N.D. Miss. 2007); Ewing v.
Monroe Cnty., 740 F. Supp. 417, 417 (N.D. Miss. 1990).
Congress most recently re-authorized the VRA in
2006, with overwhelming bipartisan support.5 At no
point in the legislative process did Congress suggest
that the courts had erred hundreds of times over by
allowing private litigants to enforce Section 2. Rather,
it stated that litigation by “private citizens . . . has
been critical to” enforcing the VRA, and identified a
voter-initiated case as being “illustrative” of Section
2’s importance. H.R.Rep. 109-478, at 42, 52-53 (2006),
as reprinted in 2006 U.S.C.C.A.N. 618, 646-47, 652-54
(citing Citizens for a Better Gretna v. City of Gretna,
636 F. Supp. 1113, 1118 (E.D. La. 1986)). The 2006
legislation included, in its text, a formal finding that
“the section 2 litigation filed to prevent dilutive
techniques from adversely affecting minority voters”
constitutes “evidence” of the “[p]resent day
discrimination experienced by racial . . . minority
voters.” 120 Stat. 577, § 2(b)(8) (2006); see also id.
§ 2(b)(4)(C).
In 2013, this Court invalidated Section 4 of the
VRA, which set out the formula for identifying states
covered under Section 5’s preclearance regime. Shelby
Cnty., 570 U.S. at 537. The decision released the
former “covered” jurisdictions, including Mississippi,
from the requirement to submit proposed voting laws
to a federal court or the U.S. Department of Justice for
approval. Id. But the Court stated that the voting
protections of Section 2, which had long been enforced
5 E.g., U.S. Senate, Roll Call Vote 109th Congress - 2nd Session
(July 20, 2006), https://perma.cc/DD7W-5RUM.
11
by “individuals,” remained “permanent”
“nationwide.” Id. at 537, 540, 557.
and
II. FACTUAL BACKGROUND
A. Mississippi Voters Challenge the 2022
State Senate and House Plans.
In the redistricting cycle following the 2020
Census, the first full cycle without the Section 5
preclearance process in place, JS.App.95a, Mississippi
enacted new State Senate and State House districting
plans with lightning speed. Maps were first made
public during the last week of the legislative session;
just four days later, they were passed into law.
JS.App.6a-8a.
Plaintiffs—fourteen Black Mississippians from
across the State and the State Conference of the
NAACP, acting on its members’ behalf—challenged
some of these new districts on Section 2 vote-dilution
and constitutional grounds. JS.App.2a-3a, 7a. On a
percentage basis, Mississippi has the largest Black
population in the United States, and the 2020 Census
showed that the State’s Black population had grown
relative to its White population in both percentage
and absolute terms over the past decade. JS.App.7a,
39a. Plaintiffs’ challenges focused on areas where the
2022-enacted lines cracked large, cohesive Black
populations.
They challenged five state senate
districts and five state house districts, advancing
Section 2 claims as to four senate districts and three
house districts. JS.App.36a-38a.
Plaintiffs invoked both 42 U.S.C. § 1983 and an
implied right of action under Section 2 as the bases for
their right to enforce the statute. JS.App.24a (citing
12
Am.Compl. ¶ 11). Defendants did not move to dismiss
or for summary judgment and proceeded to trial.
B. A Panel of Mississippi Federal Judges
Unanimously Concludes that the Plans
Violate Section 2.
A panel of three Mississippi federal judges—a
Fifth Circuit judge (Southwick, J.), the current chief
judge of the Southern District of Mississippi (Ozerden,
J.), and a former chief judge of the Southern District
(Jordan, J.)—presided over an eight-day trial
featuring seventeen witnesses and hundreds of
documentary exhibits. JS.App.10a-11a. In a 133page decision, the panel unanimously concluded that
the challenged plans violated Section 2 of the VRA.
JS.App.2a, 132a-133a.6
As to the Section 2 claims, the district court
concluded that in three areas of the State (two in the
state senate and one in the state house) Plaintiffs had
met the first Gingles prong by proffering reasonably
configured illustrative Black-majority districts. The
district court held, however, that Plaintiffs had not
met this precondition in the other four
areas. JS.App.132a-33a.
In
evaluating
the
remaining
Gingles
preconditions (relating to racial polarization in the
areas at issue) and the totality of the circumstances,
the panel closely examined Mississippi’s current
political reality and the role and salience of race in its
6 The court rejected Plaintiffs’ constitutional claims, which are
not at issue here, as insufficient under Alexander v. S.C. State
Conf. of the NAACP, 602 U.S. 1 (2024). JS.App.20a-21a.
13
politics.
The district court found that “racial
polarization among voters in Mississippi is quite
high,” with “nearly non-existent” White support for
candidates supported by Black voters. JS.App.82a,
104a. Black-preferred candidates in Mississippi “are
consistently unable to win elections unless running in
a majority-minority district” and no Black candidate
has won statewide office since Reconstruction.
JS.App.82a-83a, JS.App.127a.
Notably, the panel found that racial voting
patterns in Mississippi persist today even controlling
for partisanship, with White Democrats earning
significantly greater White crossover support than
Black Democrats. J.S.App.80a. “[N]one” of the usual
facts potentially suggesting that voter polarization is
partisan, as opposed to racial, “exist in this record.”
JS.App.103a-04a. Rather, the panel agreed that “the
split between the political parties rests on a racial
division.” JS.App.109a; see also JS.App.110a-11a.
The panel also found that ongoing racial division
and inequality in Mississippi stem from a “long and
dubious history” of racial discrimination and that,
today, “black Mississippians’ ability to participate
effectively in Mississippi politics is hindered by racial
gaps in education access, financial status, and health.”
JS.App.89a-91a, 124a. It noted racial appeals in
contemporary Mississippi politics. J.S.App.124a-27a.
And it credited extensive testimony from individual
voters describing racial division in real-world terms.
For example: a Hattiesburg plaintiff’s testimony that
his State Senator never attended community
14
meetings hosted by Black civic groups, and a DeSoto
County plaintiff’s testimony that residents in a
predominantly White neighborhood called police on
her campaign volunteers when she ran for office. E.g.,
JS.App.126a, 129a.
The panel concluded that, in assessing political
opportunity in Mississippi today: “Race matters.”
JS.App.80a. Notably, a fourth Mississippi federal
judge, following a Section 2 trial involving many of the
same facts and data, recently “agree[d].” White v.
State Bd. of Election Comm’rs, No. 22-cv-62, 2025 WL
2406437, at *35 (N.D. Miss. Aug. 19, 2025).
The district court allowed the Mississippi
Legislature an opportunity to remedy the violation
and
ordered
special
elections
in
certain
districts. JS.App.147a. After further proceedings, the
panel finalized a remedial map. JS.App.169a, 186a87a. Appellants never sought a stay, and special
elections under the new map are now set for
November 2025. JS.App.187a.
C. This Appeal
Appellants do not identify any error in the panel’s
merits analysis, based on the trial record, that
Mississippi’s 2022 districting plan illegally diluted the
voting strength of Black citizens in places like
Hattiesburg and DeSoto County. See J.S.i. Nor do
they cite any error in the remedial process.
Rather, Appellants seek review on one question:
Whether Plaintiffs here (and generations of plaintiffs
before them) never had any ability to enforce the
15
rights guaranteed them under Section 2 of the VRA.
See J.S.i.
REASONS TO SUMMARILY AFFIRM
I.
THIS COURT DECIDED THE QUESTION
PRESENTED IN MORSE.
In Morse v. Republican Party of Virginia, five
Justices agreed there is a private right of action under
Section 2. Justice Stevens, in a plurality opinion for
two Justices, concluded that “the existence of the
private right of action under Section 2 . . . has been
clearly intended by Congress since 1965,” and
explained that Congress’s amendments to the VRA
after the Court’s 1969 decision in Allen v. State Board
of Elections had “ratified” Allen’s broad view of private
enforcement of the VRA. 517 U.S. at 232 (Stevens, J.)
(plurality opinion) (citation omitted). And Justice
Breyer, writing for three Justices, agreed, concluding
that “the rationale of Allen” regarding the
enforceability of the VRA “applies . . . to § 2.” Id. at
240 (Breyer, J., concurring). Morse directly addresses
the question presented and controls this appeal.
Appellants claim that the conclusions of five
Justices in Morse on the question presented here were
“dicta” and not a “holding.” J.S.26-27. But the
Justices’ conclusions were integral to their opinions,
“necessary to th[e] result” that they reached.
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66-67
(1996); see also Marks v. United States, 430 U.S. 188,
193 (1977).
Morse was about whether Section 10 of the VRA,
which prohibits poll taxes and authorizes Attorney
General enforcement actions, see 52 U.S.C. § 10306,
16
was privately enforceable. Morse, 517 U.S. at 232-34.
The Morse majority concluded that it was, in large
part because treating Section 10 differently from
Sections 2 and 5 would have been an “anomal[y]” as
they “all lack the same express authorizing language.”
See 517 U.S. at 232; accord id. at 240 (Breyer, J.,
concurring). In other words, both Justice Stevens’s
and Justice Breyer’s opinions relied on the conclusion
that Section 2 confers a private right of action as a
necessary premise to conclude that Section 10 does the
same. Section 2’s enforceability is accordingly part of
Morse’s holding.
The Court should not disturb Morse’s holding.
Voter enforcement of Section 2 was already wellsettled reality by the time the Court decided Morse.
See supra 7-12 & nn.1-4; see also Gingles, 478 U.S. at
50-52 (describing modern Section 2 vote-dilution test
in terms of what “the minority group must be able to
demonstrate”). True, the Court refined the impliedprivate-right-of-action analysis a few years later in
Alexander v. Sandoval, but it made clear that rights
of action found to exist under its earlier approach
“must be taken as given.” 532 U.S. at 279. Per Morse,
that includes Section 2.
Then, following Morse and decades of private
litigation under Gingles, Congress amended the VRA
in 2006, making no changes to Section 2 and favorably
referring to “[S]ection 2 litigation filed to prevent
dilutive techniques” in its legislative findings, 120
Stat. 577, § 2(b)(8) (2006). See generally, e.g., Forest
Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009)
(“Congress is presumed to be aware of an
administrative or judicial interpretation of a statute
17
and to adopt that interpretation when it re-enacts a
statute without change.” (citation omitted)); Bragdon
v. Abbott, 524 U.S. 624, 645 (1998); see also Shelby
Cnty., 570 U.S. at 537.7
At this point, Congress is “undoubtedly aware” of
Morse and the pervasive reality of private
enforcement of Section 2 under Gingles, and “[i]t can
change that if it likes. But until and unless it does,
statutory stare decisis counsels staying the course.”
Milligan, 599 U.S. at 39; id. at 42 (Kavanaugh, J.,
concurring). Cf. Ramos v. Louisiana, 590 U.S. 83, 118
(2020) (Kavanaugh, J., concurring) (“In statutory
cases, stare decisis is comparatively strict . . . .”).
This Court can and should summarily affirm
based on Morse.
II. PLAINTIFFS HAVE A RIGHT OF ACTION
TO ENFORCE SECTION 2 UNDER 42 U.S.C.
§ 1983.
Section 1983 provides an independent and
complete basis to summarily affirm. Section 1983
empowers individuals to sue for violations of “the
Constitution and laws of the United States.” 42
U.S.C. § 1983. In Gonzaga University v. Doe, this
Court announced a two-part test for determining
whether statutes create rights enforceable via Section
1983. 536 U.S. 273, 283-84 (2002). The first question
is “whether Congress intended to create a federal
right.” Id. at 283; see Medina, 145 S. Ct. at 2234;
7 In contrast, Congress has not been shy about amending
Section 2 when it views the courts as misapplying the statute,
as it did in 1982. See Gingles, 478 U.S. at 35.
18
Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599
U.S. 166, 172 (2023). Where a federal right is created,
it is presumptively enforceable via Section 1983, and
the presumption is difficult to rebut, requiring express
statutory preclusion or implicit preclusion by a
competing, incompatible private remedy scheme.
E.g., Talevski, 599 U.S. at 186-89.
The Gonzaga framework is purpose-built for
Spending Power legislation, where the creation of
individual federal rights is “atypical.” Medina, 145 S.
Ct. at 2239 & n.9 (quoting Talevski, 599 U.S. at 183).
This Court has never employed it for a civil rights
statute like Section 2, where rights creation is the
norm. But assuming (as Appellants do) that the
Gonzaga test applies here, the result is crystal clear:
Plaintiffs can enforce Section 2 of the VRA via Section
1983.
A. Section 2 Unambiguously Confers an
Individual Right.
To answer the question “whether Congress
intended to create a federal right,” this Court looks to
a statute’s text to see whether it uses “explicit rightscreating terms” and is “phrased in terms of the
persons benefited.” See, e.g., Gonzaga, 536 U.S. at
283-84 (citation modified); accord Medina, 145 S. Ct.
at 2229; Talevski, 599 U.S. at 183.
Different inferences necessarily flow from
differences in text. The provisions of the Federal
Nursing Home Reform Act (“FNHRA”) at issue in
Talevski, for example, were rights-creating because
they specified particular “rights” of nursing home
residents, called them “rights,” and placed them in a
19
subsection entitled, “[r]equirements relating to
residents’ rights,” 42 U.S.C. § 1396r(c). 599 U.S. at
184-85 (alteration and emphasis in original) (quoting
West Virginia v. EPA, 597 U.S. 697, 721 (2022)); see
Medina, 145 S. Ct. at 2234-35 (discussing usage of
“rights” in the FNHRA).
Conversely, the anyqualified-provider Medicaid provision at issue in
Medina did not use the term “right” or “rights” to
describe “what a State must do to participate in
Medicaid.” 145 S. Ct. at 2234-36. And the provision
of the Family Educational Rights and Privacy Act at
issue in Gonzaga, which did not create an individual
right, similarly spoke “only in terms of institutional
policy and practice.” 536 U.S. at 288; accord Suter v.
Artist M., 503 U.S. 347, 358 (1992).
Section 2 easily passes the text-based Gonzaga
test. It prohibits voting rules that “result[] in a denial
or abridgement of the right of any citizen of the United
States to vote on account of race or color.” 52 U.S.C.
§ 10301(a) (emphasis added).
It thus “grants
[individuals] a right to be free from” racial
discrimination in voting. Chisom v. Roemer, 501 U.S.
380, 392 (1991); accord H.R.Rep. No. 89-439, at 23
(1965), as reprinted in 1965 U.S.C.C.A.N. 2437, 2454
(“[Section 2] grants to all citizens of the United States
a right to be free from [voting rules] which deny or
abridge the right to vote on account of race or color.”).
In Section 2, Congress explicitly identified a
“right” to vote free from race discrimination—and
even called it a “right,” a dead giveaway. E.g.,
Medina, 145 S. Ct. at 2234-36. Driving the point
home, Congress also used the term “right” in Section
2’s title, which reads, in relevant part, “Denial or
20
abridgement of right to vote on account of race or color
through voting qualifications or prerequisites,” 52
U.S.C. § 10301—a “framing” that, as with the
statutory titles in Talevski, confirms the statute’s
rights-creating text. 599 U.S. at 184; accord Medina,
145 S. Ct. at 2234, 2237. Congress then placed that
code section in a chapter (Chapter 103) entitled
“Enforcement of Voting Rights.” (emphasis added).
And, of course, it called the overall piece of legislation
the “Voting Rights Act.”
Other sections of the VRA are similarly replete
with references to “rights” conferred by Section 2. For
example, Section 3, entitled “[p]roceeding to enforce
the right to vote,” repeatedly describes enforcement
proceedings “instituted by . . . an aggrieved person”
against voting procedures that have “the effect of
denying or abridging the right to vote on account of
race or color,” i.e., the precise protection in Section 2.
52 U.S.C. § 10302(b), (c) (emphasis added). And
Section 12 also refers to “rights” “secured by” or
“under” Section 2. 52 U.S.C. § 10308(a), (c), (f).
Section 2’s explicit guarantee of voting rights also
describes the persons benefited: “any citizen of the
United States” whose right to vote is “deni[ed] or
abridge[d]” “on account of race or color.” 52 U.S.C.
§ 10301(a); see also Milligan, 599 U.S. at 25. This
“right of any citizen” language identifies affected
voters as rights holders, focusing on the “individuals
protected,” and demonstrating “an intent to confer
rights on a particular class of persons,” Sandoval, 532
U.S. at 289 (citation omitted), namely voters who
experience discrimination from state voting rules, like
the Black voter-plaintiffs in this case.
21
That Congress used all this individual-rightsfocused terminology is unsurprising. Section 2 is not
some edge-case sub-provision in a piece of Spending
Power legislation that outlines “scores of things a
state [must do] to qualify for federal funding.”
Medina, 145 S. Ct. at 2236. It is a core voting-rights
statute passed to enforce the rights-centric
Reconstruction Amendments. See infra 27-30. And
even setting aside that critical context, Section 2’s text
is at least as explicitly rights-creating as the “rights”focused statutory language in Talevski. See 599 U.S.
at 184 (evaluating 42 U.S.C. § 1396r(c)(1)(A)(ii), which
provides that a nursing facility must “protect and
promote . . . [t]he right to be free from . . . any physical
or chemical restraints imposed for purposes of
discipline or convenience and not required to treat the
resident’s medical symptoms.”
(emphases
in
original)); see also Gonzaga, 536 U.S. at 283 (“[I]t is
rights, not the broader or vaguer ‘benefits’ or
‘interests,’ that may be enforced under the authority
of [Section 1983].”) (emphasis in original). Applying
Gonzaga’s familiar standard, Section 2 recognizes an
individual right.
Appellants cannot make the text say otherwise.
They mainly argue (at J.S.1-2, 19-20) that because
Section 2 “leads with” language saying no prohibited
voting rule “shall be imposed . . . by any State or
political subdivision,” the statute is focused on “what
is barred . . . and by whom,” not individual rights.
Appellants admit that the statute “later” (that is, right
there in the very same sentence) also “identifies the
‘persons benefited’ and refers to their ‘rights.’” J.S.19-
22
20.8 But they suggest the Court can ignore that
explicit rights-creating language because the statute
is phrased as a command to the parties who must
respect the rights Congress conferred.
This Court squarely rejected the same argument
in Talevski, where the rights-creating provisions at
issue began with the prescription, “nursing
facilities . . . ‘must.’” 599 U.S. at 185. The Court
concluded “it would be strange to hold that a statutory
provision fails to secure rights simply because it
considers, alongside the rights bearers, the actors that
might threaten those rights.” Id.
A glance at the Bill of Rights confirms that
Appellants’ approach to text is indefensible. By their
logic, the Framers never conveyed individual rights in
the First Amendment, because its text “leads with”
the phrase “Congress shall make no law.” U.S. Const.
amend. I. Nor did they create individual rights with
the Second Amendment, because it “leads with” a
clause about well-regulated militias. U.S. Const.
amend. II; see also District of Columbia v. Heller, 554
U.S. 570, 577-78 (2008) (holding the opposite). Nor,
by Appellants’ logic, must the Fourteenth
Amendment’s framers have meant to convey
individual rights with the Due Process Clause or
Equal Protection Clause, because those provisions
“lead with” with “[N]or shall any State.” U.S. Const.
amend. XIV, § 1. Of course this is wrong, as this Court
8 Unsurprisingly,
Appellants omit any mention of the other
references to Section 2 “rights” throughout the statute,
including in the section and chapter titles, which all
“underscore” the actual, substantive focus of the text here,
Medina, 145 S. Ct. at 2237. See supra 21.
23
recognized. Talevski, 599 U.S. at 185 n.12 (“The
Fourteenth Amendment hardly fails to secure § 1983enforceable rights because it directs state actors not to
deny equal protection.”).
Appellants also misuse Section 2’s other
subsection, 52 U.S.C. § 10301(b), which was added by
Congress in the 1982 VRA amendments creating the
results test for vote dilution.
J.S.20-21.
The
subsection sets out the test for how “[a] violation of
subsection (a) is established.” 52 U.S.C. § 10301(b).
Appellants wrongly suggest that aspects of subsection
(b)’s
totality-of-the-circumstances
test,
and
particularly its reference to “members of a class of
citizens protected by subsection (a),” indicate an
emphasis on “aggregate” rather than individual
rights, J.S.21. But subsection (b) just confirms that
Section 2 identifies a particular “class of
beneficiaries,” a hallmark of rights-creating language.
E.g., Talevski, 599 U.S. at 183. Indeed, Congress’s
addition of a legal standard by which any litigant—
even an individual one—may “establish[]” a
“violation” of Section 2’s “right . . . to vote” in court is
another “clue[]” that it sought to confer individually
actionable rights. Cf. Medina, 145 S. Ct. at 2235. See
also supra 8-9. And Appellants’ suggestion that
Section 2 involves only “aggregate” rights also
contravenes the settled principle that Section 2
“right[s]” “do[] not belong to the ‘minority as a group,’
but rather to ‘its individual members.’” E.g., LULAC
v. Perry, 548 U.S. 399, 437 (2006).
Lastly, Appellants point (at J.S.2, 22) to Section
601 of Title VI of the Civil Rights Act—a different
statute—which they say shows Congress could have
24
spoken even more clearly in creating an individual
right in Section 2. That is debatable: Section 601
certainly creates a private right, see Sandoval, 532
U.S. at 279-80, but it doesn’t use explicit rights-giving
terminology like “the right . . . to vote” in either its
text or its title. Section 2 does. 52 U.S.C. § 10301(a).
In the end, whether other civil rights laws that
provide different protections are also sufficiently clear
and unambiguous to pass muster under Gonzaga
makes no difference. There is no one set of “magic
words” to pass the Gonzaga test—the FNHRA
language at issue in Talevski, for example, did not use
the same formula as Section 601, either. Applying the
test here, the focus is on Section 2, wherein Congress
clearly evinced its intentions to create an individual
right. E.g., Medina, 145 S. Ct. at 2232; see supra 1922.
B. Appellants
Cannot
Rebut
Presumption of Enforceability.
the
Demonstrating Congress’s intention to create an
individual right is generally the hard part of the
Gonzaga analysis. Once that intent is shown (as
here), the right is “presumptively enforceable” via
Section 1983. Talevski, 599 U.S. at 184 (quoting
Gonzaga, 536 U.S. at 284).
Appellants may “defeat t[he] presumption by
demonstrating that Congress did not intend that
§ 1983 be available to enforce those rights.” E.g.,
Talevski, 599 U.S. at 186 (alteration in original)
(quotation marks omitted). Here, because the VRA
contains no express bar on Section 1983 enforcement,
Appellants’ only possible argument is that Section
25
1983 enforcement is implicitly precluded. See, e.g.,
Talevski, 599 U.S. at 186-89; see also id. at 194-95
(Barrett, J., concurring). This is an exacting standard,
satisfied only in “exceptional cases.” Livadas v.
Bradshaw, 512 U.S. 107, 133 (1994). Appellants
cannot meet it.
Each of the three instances where this Court has
found that Section 1983 enforcement of statutory
rights was implicitly precluded has involved “a more
restrictive private remedy.” Talevski, 599 U.S. at 18889 (emphasis added); accord Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246, 256 (2009). There must be
a conflict between the statute’s bespoke remedy
scheme and Section 1983’s broader private remedies,
rendering the two “incompatible.” Talevski, 599 U.S.
at 187 (“the sine qua non . . . is incompatibility”);
accord Fitzgerald, 555 U.S. at 252-54.
But Appellants never identify any incompatible
private remedy scheme in the VRA or even address the
distinction between public and private remedies.
They point to the VRA’s public remedy provisions—
i.e., its express authorization of Attorney General
enforcement—but never argue, and cannot argue, that
those provisions are incompatible with concurrent
private enforcement by voters via Section 1983.
J.S.24-25. See Talevski, 599 U.S. at 187; accord
Fitzgerald, 555 U.S. at 252.
This Court has never held that the existence of a
public remedy scheme foreclosed private rights
enforcement under Section 1983. Appellants cannot
demonstrate that Section 2—one of the most
significant and well-known civil rights laws, which
has been enforced by both private parties and the
26
Attorney General for 60 years—is one of the rare
rights-creating statutes where Section 1983
enforcement is precluded. See Talevski, 599 U.S. at
186-89. Cf. Fitzgerald, 555 U.S. at 256 (rejecting
argument that presumption was overcome as to Title
IX and explaining “we should ‘not lightly conclude
that Congress intended to preclude reliance on § 1983
as a remedy for a substantial equal protection claim’”
(citation omitted).
Meanwhile, the broader statutory “structure” and
“context” (J.S.24-25) only confirm that Congress
understood and intended that private parties would
enforce (and, by 1975, 1982, and 2006, had been
enforcing) Section 2. See supra 6-11. Indeed, evidence
of this intent is so strong that it would also satisfy the
more demanding standard that applies in the impliedprivate-right-of-action analysis. See infra 30-34.
C. Summary Affirmance Would Avoid the
Need to Take Up Appellants’ Mistaken
Interpretation of Gonzaga.
Summarily
affirming
via
straightforward
application of the Gonzaga framework would avoid
having to unnecessarily consider whether that
framework even applies here, as Appellants wrongly
presume (J.S.17-24).
The Gonzaga framework is designed to suss out
whether “spending legislation give[s] rise to
enforceable rights.” 536 U.S. at 280 (emphasis added);
see also, e.g., Medina, 145 S. Ct. at 2228, 2234;
Talevski, 599 U.S. at 183 (framework applies “[f]or
Spending Clause legislation in particular”); id. at 193
(Barrett, J., concurring) (“Gonzaga [] sets the
27
standard for determining when a Spending Clause
statute confers individual rights[.]”). Indeed, the
Spending Power’s particular attributes and
limitations are what create the need for Congress to
speak clearly and unambiguously when it uses that
power to create enforceable rights. E.g., Medina, 145
S. Ct. at 2230-34.
Under the Spending Power, Congress can only
“offer funds to States” in exchange for compliance,
creating a contract-like arrangement “between two
sovereignties.” Medina, 145 S. Ct. at 2228, 2231. In
the context of these Federal-State transactions,
private “citizens” are “generally” beneficiaries, rather
than direct rights-holders. Id. When the terms of
such Federal-State arrangements are breached, “‘the
typical remedy’ is not a private enforcement suit ‘but
rather action by the Federal Government to terminate
funds to the State.’” Id. at 2228 (quoting Gonzaga, 536
U.S. at 280). But the Gonzaga framework is designed
to identify those “atypical case[s]” where a “federal
spending-power statute[]” goes further and also
confers a private right. Id. at 2239 & n.9 (quoting
Talevski, 599 U.S. at 183). But see J.S.1 (quoting
“atypical cases” language without acknowledgement
that it refers to Spending-Power statutes).
The VRA is very different. It was enacted under
the authority of the Reconstruction Amendments, and
thus “rests on a different footing.” Cf. Medina, 145 S.
Ct. at 2230; see also id. at 2241 (Thomas, J.,
concurring) (explaining Section 1983’s original
purpose to enforce civil rights). Unlike the Spending
Power, the Reconstruction Amendments expressly
regulate state conduct, including voting. U.S. Const.
28
amends. XIV, XV; Katzenbach, 383 U.S. at 308.
Unlike with Spending Power legislation, the civil
rights laws enacted pursuant to the Reconstruction
Amendments are “commands,” not “contracts.” See
Medina, 145 S. Ct. at 2231; accord Talevski, 599 U.S.
at 176; Katzenbach, 383 U.S. at 309. Unlike with
Spending Power legislation, the “typical remedy” for
civil rights violations is federal lawsuits, which have
always been litigated by aggrieved individuals. See
supra 5-11. Cf. N.Y. State Rifle & Pistol Ass’n, Inc. v.
City of New York, 590 U.S. 336, 361 (2020) (Alito, J.,
dissenting) (civil rights attorney fees statute, 42
U.S.C. § 1988, “ensures that ‘private attorneys
general’ can enforce the civil rights laws through civil
litigation”).
And unlike with Spending Power
legislation, the civil rights laws are all about
“protect[ing] . . . individual rights against state
infringement[],” Talevski, 599 U.S. at 176, including
the right to vote, which is “individual and personal in
nature,” Reynolds v. Sims, 377 U.S. 533, 561 (1964).
Whatever the outer limit of Section 1983’s
application to Spending Power legislation, even the
narrowest
interpretation
of
Section
1983
enforceability must include civil rights provisions like
Section 2. See Medina, 145 S. Ct. at 2241 (Thomas, J.,
concurring) (discussing constructions of Section 1983
to “refer to civil rights only” (citation omitted)).
Indeed, this Court has never applied Gonzaga’s
“demanding bar,” Talevski, 599 U.S. at 180, to
scrutinize whether civil rights laws contain
sufficiently “clear and unambiguous” rights-creating
language. Rather, it has applied a less stringent
analysis to non-Spending-Power legislation.
See
Livadas, 512 U.S. at 132-33 (rights under National
29
Labor Relations Act enforceable via Section 1983
where statute “impose[d] a ‘binding obligatio[n]’” and
rights-creating language was not “so ‘vague and
amorphous’ that determining whether a “deprivation”
might have occurred would strain judicial
competence” (citations omitted)).
Again, the Court can simply apply the Gonzaga
framework and summarily affirm on that basis. See
supra 19-27. But on plenary review, the Court would
need to grapple with Appellants’ misapplication of
that framework and, potentially, to fashion and apply
a standard fit for civil rights statutes as opposed to
Spending Power legislation. The ultimate result—
affirmance—would be the same.
III. ALTERNATIVELY, PLAINTIFFS HAVE AN
IMPLIED RIGHT OF ACTION TO ENFORCE
SECTION 2.
Even if the Court were to ignore Morse (which it
should not) and even if Plaintiffs had not sued under
Section 1983 (which they did), summary affirmance
would still be proper because Section 2 also supports
an implied private right of action.
The implied-right-of-action analysis has two
parts. First comes the “critical” determination that
Section 2 contains clear “‘rights-creating’ language”
demonstrating Congress’s “‘intent to confer rights on
a particular class of persons.’” Sandoval, 532 U.S. at
289. This is the same analysis as the first step of the
Gonzaga framework discussed already. 536 U.S. at
283-84.
Again, Section 2’s clear, rights-focused
language fits the bill. See supra 19-25.
30
The second part is whether Congress intended “a
private remedy” for the right. Sandoval, 532 U.S. at
286-88. Such intentions can be gleaned from the
statute’s text and structure, and, to the extent the
question is unclear, from legislative history, too. E.g.,
Curran, 456 U.S. at 382-87. Here, all sources point to
the same conclusion:
Congress understood and
intended that voters would be able to vindicate their
Section 2 rights in federal court.
The
VRA
repeatedly
references
private
enforcement. Most obvious are two of the provisions
added in 1975, in Section 3 and Section 14. The
original 1965 Act provided for certain special remedies
like federal election observers that could be ordered
whenever “the Attorney General institutes a
proceeding
under
any
statute
to
enforce
the voting guarantees of the fourteenth or fifteenth
amendment.” Pub. L. No. 89-110, § 3, 79 Stat. 437
(1965). The 1975 VRA amendments added, for each of
Section 3’s special remedies, the words “the Attorney
General or an aggrieved person,” thus providing that
the special remedies could be invoked in private
lawsuits as well. 52 U.S.C. § 10302(a), (b), (c)
(emphasis added); see, e.g., Morse, 517 U.S. at 233-34;
see also Dir., Off. of Workers’ Comp. Programs, Dep’t
of Lab. v. Newport News Shipbuilding & Dry Dock Co.,
514 U.S. 122, 126 (1995) (“aggrieved person” is a “term
of art” for private litigant). This addition could only
make sense if Congress intended for private litigants
to initiate lawsuits to enforce rights under the VRA.9
9 Section
2
is
plainly
“[a]
statute
to
enforce
the voting guarantees of the fourteenth or fifteenth
amendment.” 52 U.S.C. § 10302; see Morse, 517 U.S. at 233-34;
31
And again, if there were any ambiguity on the point,
the legislative history confirms that was exactly
Congress’s intention. See, e.g., S.Rep. No. 94-295, at
9-10, 40 (Section 3 amended so “private persons are
authorized to request the application of the Act’s
special remedies in voting rights litigation,” creating
“dual enforcement mechanism” for VRA special
remedies).
Congress also demonstrated its intentions with its
changes to Section 14 of the Act, which it amended to
provide for attorneys’ fees to “prevailing parties, other
than the United States.” 52 U.S.C. § 10310(e). Again,
it would make no sense to add that provision unless
rights under the VRA were enforceable in court by
private parties, i.e., parties “other than the United
States.” And again, if there were any confusion on
what Congress meant when it expressly referred to
parties “other than the United States” who would
“prevail[]” in VRA enforcement litigation, the
legislative history dispels it. S.Rep. 94-295, at 40.
Appellants repeatedly point (at J.S.21-22, 23, 28)
to the inclusion of an express right of action for the
Attorney General in Section 12 of the VRA, 52 U.S.C.
§ 10308, as supposedly countervailing evidence. But
Section
12
is
consistent
with
Congress’s
understanding and intention that rights under the
VRA would be privately enforced.
In 1965, voting rights were generally considered
“‘private’ rights,” so much so that defendants in some
of the initial public enforcement suits under the 1957
see also, e.g., Flores, 521 U.S. at 518; Katzenbach, 383 U.S. at
308.
32
Civil Rights Act challenged those suits as
impermissible on the grounds that voting rights were
exclusively enforceable by private parties. See Allen,
393 U.S. at 555 n.18 (quoting United States v.
Raines, 362 U.S. 17, 27 (1960), which involved such a
challenge). That is why, in 1965, Congress felt it
necessary to make the Attorney General’s new
authority to enforce the VRA explicit, but felt no
similar need with respect to private parties. See, e.g.,
Medina, 145 S. Ct. at 2245 (2025) (Thomas, J.,
concurring) (“[W]e interpret statutes at the time of
their enactment.” (citing Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 400 (2024))).
Yet even in Section 12, Congress indicated its
understanding that private litigants would also sue to
enforce Section 2 and the VRA. In particular, Section
12(f) provides federal courts with jurisdiction over
actions brought by the Attorney General regardless of
“whether a person asserting rights under the
provisions of chapters 103 to 107 of this title [e.g.,
under Section 2] shall have exhausted any
administrative or other remedies that may be
provided by law.” 52 U.S.C. § 10308(f). Section 12(f)
thus acknowledges that “a person” (i.e., a voter) may
“assert[] rights under” Section 2, and that they may
seek “remedies that may be provided by law” for such
rights, which remedies then as now included those
available via Section 1983. Id. Including this
language ensured that, while individuals could
continue to enforce their civil rights through private
actions as they had for decades, the Attorney General
would not be required to wait for the resolution of such
individual voter actions before proceeding with public
enforcement. This Court confirmed the “force” of that
33
understanding only a few years later. See Allen, 393
U.S. at 555 n.18.
And if Congress’s intentions were still ambiguous
after considering all these textual and structural
references to private litigation, the legislative history
from the 1982 amendments to Section 2 directly
confirms that Congress meant for Section 2 be
privately enforced. The 1982 Senate Report, which
has been repeatedly cited by this Court as the
“authoritative source for legislative intent” behind
Section 2, e.g., Gingles, 478 U.S. at 43 & n.7, expressly
pointed to “the existence of the private right of action
under Section 2, as has been clearly intended by
Congress since 1965.” S.Rep. No. 97-417, at 30. The
corresponding House Report is similarly pellucid: “It
is intended that citizens have a private cause of action
to enforce their rights under Section 2.” H.R.Rep. No.
97-227, at 32.
Text, context, extremely explicit legislative
history, and Congress’s repeated acts of ratification
(including reauthorization of the VRA in 2006, a
decade after Morse and hundreds of Section 2 cases
brought by private litigants) all support a private
remedy for Section 2 rights. The Court need not even
reach this analysis, but it can summarily affirm on
that ground as well.
IV. THE QUESTION PRESENTED DOES NOT
REQUIRE PLENARY REVIEW.
The district court got the question presented right
for all the reasons stated above.
Appellants’
arguments
about
the
question’s
ostensible
34
significance do not independently justify plenary
review.
Appellants point to a circuit split on the question
presented (at J.S.29-31), but any existing split is both
lopsided and not at all entrenched. Outside of the
Eighth Circuit, every federal judge to have directly
passed upon the question presented—including at
least three circuit courts, and four three-judge district
courts—has rejected Appellants’ arguments. See, e.g.,
Robinson v. Ardoin, 86 F.4th 574, 587-88 (5th Cir.
2023); Ala. State Conf. of NAACP v. Alabama, 949
F.3d 647, 652 (11th Cir. 2020), vacated as moot, 141 S.
Ct. 2618 (2021); Mixon v. Ohio, 193 F.3d 389, 406 (6th
Cir. 1999); Singleton v. Allen, No. 21-cv-1291, 2025
WL 1342947 (N.D. Ala. May 8, 2025); Ga. State Conf.
of NAACP v. Georgia, No. 21-cv-5338, 2022 WL
18780945, at *7 (N.D. Ga. Sep. 26, 2022); League of
United Latin Am. Citizens v. Abbott, No. 21-cv-529,
2021 WL 5762035, at *1 (W.D. Tex. Dec. 3, 2021); see
also J.S.App.21a-27a. And the ink is barely dry on the
Eighth Circuit’s outlier decisions to the contrary.
Summary affirmance would be binding precedent
for the courts of appeals on the precise question
presented, namely private parties’ ability to enforce
Section 2. See, e.g., Mandel v. Bradley, 432 U.S. 173,
176 (1977). It would abrogate the Eighth Circuit’s
aberrant decisions and resolve the split that court
opened. Plenary review is unnecessary to harmonize
the law where the right answer is clear. Indeed,
summary affirmance here is the most straightforward
way to provide “finality” on the question presented in
advance of the 2026 elections, as some have requested.
See Br. in Opp’n at 2, Turtle Mountain Band of
35
Chippewa Indians v. Howe, No. 25-253 (S. Ct. Sep. 19,
2025).10
Nor can Appellants substantiate their claim (at
J.S.31-32) that the question presented is of great
“constitutional importance.” For instance, they claim
private rights of action involve “delicate” questions of
federalism and separation of powers, but cite only
Spending Power cases that are inapposite (while
omitting the Spending Power part). See supra 27-28.
In any case, the Court can avoid these claimed
“delicate” questions by summarily affirming and
declining Appellants’ request to overturn long-settled
law. Appellants suggest that decades of history and
precedent “never should have proceeded,” J.S.33,
implying that, in almost every successful Section 2
case ever, private voter-plaintiffs who met the difficult
standard of proving unlawful vote dilution should
nevertheless have been left without a remedy. The
inconsistency of Appellants’ argument with sixty
years of precedent and practice (not to mention
statutory text and the broad sweep of this Court’s
decisions) makes their theory less deserving of plenary
consideration, not more.
10 After
affirming here, the Court could grant the pending
petition in Turtle Mountain, vacate, and remand for good
measure.
36
CONCLUSION
The Court should summarily affirm the judgment.
Respectfully submitted,
Cecillia D. Wang
Evelyn Danforth-Scott
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
425 California Street
Suite 700
San Francisco, CA 94104
Joshua Tom
AMERICAN CIVIL LIBERTIES
UNION OF MISSISSIPPI
101 South Congress Street
Jackson, MS 39201
Damon Hewitt
Robert Weiner
Jennifer Nwachukwu
M. David Rollins-Boyd
Javon Davis
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER
LAW
1500 K Street NW
Suite 900
Washington, DC 20005
Ari Savitzky
Counsel of Record
Ming Cheung
Sophia Lin Lakin
Ethan Herenstein
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
18th Floor
New York, NY 10004
(212) 549-2500
asavitzky@aclu.org
Adriel I. Cepeda Derieux
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street NW
Washington, DC 20005
Scott Michelman
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
THE DISTRICT OF
COLUMBIA
529 14th Street NW
Suite 722
John P. Lavelle, Jr.
MORGAN, LEWIS & BOCKIUS Washington, DC 20045
LLP
2222 Market Street
Philadelphia, PA 19103
Additional counsel listed on next page
37
Robert B. McDuff
MISSISSIPPI CENTER FOR
JUSTICE
767 North Congress Street
Jackson, MS 39202
Carroll Rhodes
LAW OFFICES OF CARROLL
RHODES
P.O. Box 588
Hazlehurst, MS 39083
Counsel for Plaintiffs-Appellees the Mississippi State
Conference of the National Association for the
Advancement of Colored People, Dr. Andrea Wesley,
Dr. Joseph Wesley, Robert Evans, Gary Fredericks,
Pamela Hamner, Barbara Finn, Otho Barnes,
Shirlinda Robertson, Sandra Smith, Deborah Hulitt,
Rodesta Tumblin, Dr. Kia Jones,
Marcelean Arrington, and Victoria Robertson
Dated: October 3, 2025
38
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