Over the past several decades, private litigation has played a major role in enforcement of the Voting Rights Act (VRA). In recent years, however, some courts have questioned whether private plaintiffs may enforce various VRA provisions, either through implied rights of action or pursuant to 42 U.S.C. § 1983.
A private plaintiff may enforce a federal statute through these avenues only if, among other things, the statute “unambiguously” creates an individual right. The text of each VRA provision is important evidence as to which of them establish individual rights. But the VRA also contains a separate, largely overlooked guide—Section 12—which expressly lists the provisions Congress recognized as creating such rights.
Section 12 offers three important insights which can help guide private VRA litigation. First, Sections 2 through 5, as well as Section 10, of the VRA each likely create individual rights. Second, because Section 12 is internally inconsistent with regard to whether Section 11(a)—the VRA’s Vote Refusal Provision—creates an individual right, private plaintiffs probably cannot enforce that provision. Third, Section 11(b), the VRA’s Anti-Intimidation Provision, does not create individually enforceable rights. The Civil Rights Act of 1968’s amendment to Section 12 underscores that conclusion. For VRA provisions that establish individual rights, plaintiffs are more likely to succeed by pursuing claims under § 1983 than implied private rights of action under the VRA itself.
Author
Sheila M. McDevitt Professor of Law, Florida State University College of Law, and Faculty Director of the FSU Center for Election Law. Special thanks to Derek Muller for his helpful feedback, Jack O’Neill for his invaluable research assistance, and the staff of the Northwestern University Law Review Online for their excellent editorial work.
Copyright 2026 by Michael T. Morley
Cite as: Michael T. Morley, Section 12 as a Guide to Private Rights of Action and § 1983 Claims Under the Voting Rights Act, 116 Nw. U. L. Rev. Online 164 (2026), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1363&context=nulr_online.