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The Supreme Court made its attack on the Voting Rights Act even worse on Monday through a shadow docket order that significantly expands the invitation to gerrymander racial minorities out of power that the court extended just 12 days earlier in Louisiana v. Callais. By a 6–3 vote, the Republican-appointed supermajority effectively overturned the court’s 2023 decision against Alabama’s illegal congressional map, allowing the state Legislature to oust both Black members of its congressional delegation by splintering Black communities into electoral irrelevance. This unreasoned decision betrays Callais’ assurances that the court would preserve legal safeguards against openly racist redistricting; it took the supermajority less than two weeks to break its word. The resulting calamity for Black representation will mark a new low in this court’s revival of Jim Crow–style disenfranchisement.
SCOTUS rushed out Monday’s decision on an expedited basis, presumably so Alabama would have enough time to enact its new gerrymander before this year’s midterm elections. (The state’s primaries were already well underway.) The order upends a long-running dispute between the state Legislature and its Black voters. In 2022, a three-judge district court found that the Legislature violated Section 2 of the Voting Rights Act by diluting racial minorities’ political power. Republican lawmakers had packed most of these voters into a single district, then spread the rest through majority-white districts to diminish their influence. The court, which included two Donald Trump appointees, ordered Alabama to create a second district in which Black voters could elect their preferred candidate. Against all odds, the Supreme Court affirmed this decision in 2023’s Allen v. Milligan, agreeing that the VRA required fairer representation for Alabama’s racial minorities.
Alabama, however, refused to comply with that order. So the lower court imposed its own map featuring two districts where Black voters had a real shot at choosing their representative. The court also found that, in defying its previous mandate, the Alabama Legislature had engaged in intentional racial discrimination, violating the 14th Amendment’s equal protection clause in addition to the VRA. Up until Monday, this decision had prevented the Legislature from joining the former Confederate states now racing to eliminate Black representation from their congressional delegations. Alabama Republicans pressed the district court to lift its bar, but it refused. So they filed an emergency request at the Supreme Court asking permission to re-gerrymander Black communities in light of Callais.
SCOTUS should not have granted this request, if only because it had more or less promised in Callais that it wouldn’t take such a radical step. Justice Samuel Alito’s majority opinion took pains to clarify that the court was not reversing Allen v. Milligan, stating flatly: “We have not overruled Allen.” But as Justice Sonia Sotomayor noted in her dissent on Monday, this very case is Allen. So “if Allen is good law anywhere, then it must be good law here.” Why, then, did the supermajority throw away the district court’s straightforward implementation of Allen if Callais didn’t overrule it? There is no plausible reason. The real answer is that Callais did overturn Allen, but Alito lied about it to conceal his opinion’s sweeping assault on precedent, including one from just three years ago. That lie held for all of 12 days. Then, perhaps when the supermajority thought fewer people were paying attention, it essentially admitted the lie by canning Allen over the shadow docket.
But it gets worse. In Callais, Alito also promised that he was not diminishing the constitutional guarantee against “present-day intentional racial discrimination regarding voting.” These safeguards, he wrote, were untouched by the decision, and would continue to protect racial minorities against attacks on their political representation. Well, so much for that: Here, the district court found that Alabama had engaged in this exact kind of unconstitutional discrimination. It reached this conclusion in a 268-page opinion after holding an 11-day trial, considering testimony from 51 witnesses, and evaluating 790 exhibits. The record from this trial, as Sotomayor pointed out, is quite damning. For instance, legislators “exalted” the state’s “white community,” asserting that this population shared deep “cultural and economic ties” that required giving them control over congressional districts. Yet these same legislators dismissed the notion that nonwhite residents of the Black Belt had any deep ties that counseled against gerrymandering these communities into oblivion.
This finding of intentional racism was an integral part of the district court’s decision to strike down Alabama’s plan and replace it with a fair map. And Alito avowed that Callais did not unsettle the constitutional prohibition against maps that “set out to prevent the election of candidates preferred by minority voters.” If that were true, SCOTUS should not—and could not—have any grounds to toss out the district court’s decision. But it did so anyway. Why?
We get no explanation from the unsigned shadow docket order. Again, the best answer we can postulate is the most cynical one: Alito was lying in Callais. The Supreme Court will simply ignore ample evidence that Republican gerrymanders “set out” to discriminate against Black voters. It will maintain an unrebuttable presumption of white racial innocence whenever white legislators willfully annihilate Black representation. The only kind of racism that the supermajority is willing to acknowledge is the kind that it claimed was afoot in Callais: discrimination against white voters by giving racial minorities too much political power.
All of which leads to the court’s final lie: its highly selective embrace of the Purcell principle to stop courts from altering voting laws on the eve of an election. In December, the Republican-appointed justices invoked this rule to preserve Texas’ racial gerrymander, declaring that it was too close to the election to change the map. At that point, the primary was still three months away; the candidate filing deadline hadn’t even passed. When these same justices freed Alabama to draw a new map on Monday, the state’s primary was eight days away. Alabamians had already been voting by mail for five weeks. Still, SCOTUS rushed in at the eleventh hour to unsettle the status quo, an entirely gratuitous judicial intervention that’s bound to provoke mass voter confusion as legislators scramble to redraw the congressional map. This chaos is exactly what the Republican-appointed justices say Purcell is meant to guard against. The so-called principle magically appears when Republicans seek to lock in wins, then vanishes when Democrats need its protection.
In dissent, Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, faulted the supermajority for disregarding these rules “to unleash chaos and to confuse voters.” But her opinion sounds as exhausted as it is exasperated. How difficult it must be, day in and day out, to ring this alarm for the public: to call out the supermajority’s malicious, hyperpartisan tinkering with election laws to help the GOP; its shameless rejection of Congress’ constitutional authority; its inability to stand by its own word for more than a few days. This trio thought it had scored an enduring victory in Allen three years ago. Now it can only watch as Allen burns and the Alabama Legislature eliminates one or both congressional districts currently held by Black representatives.
The crowning irony is that this blitz on Black voting rights is being done in the name of preventing voter suppression on the basis of race. In Callais, Alito wrote that his tortured and parsimonious reading of the Voting Rights Act was required by the Reconstruction Amendments; requiring fair representation for racial minorities, he averred, would be a constitutional outrage, as it would compel “racial considerations” forbidden by the Constitution. In other words, enforcing the 14th and 15th amendments’ guarantee of Black voting rights would impermissibly infringe on white voting rights. That Jim Crow logic sits at the heart of Callais. And it is no surprise that the decision has already broken free of the half-hearted restraints that Alito inserted to downplay its devastating impact on multiracial democracy.
