By admin 
Sign up for Executive Dysfunction, a newsletter that highlights one under-the-radar story each week about how Trump is changing the law—or how the law is pushing back. You’ll also receive updates on the latest from Slate’s Jurisprudence team.
Read more A MAGA Judge’s Shocking Power Grab Crosses Over Into an Impeachable Offense
In more fallout from the Supreme Court’s decision last month to essentially kill the Voting Rights Act, the court issued two orders on Monday that follow a disturbing new trend. With no explanation, the court threw out two lower-court opinions from Mississippi and North Dakota, respectively, where voters had brought claims of illegal racial discrimination in map drawing. In the courts below, both states pushed an outrageous theory that private voters can never bring gerrymandering cases in federal court. In the unexplained orders, the Supreme Court sent the cases back to the lower courts to reconsider in light of the high court’s Callais ruling. Justice Ketanji Brown Jackson dissented, explaining that the states’ fringe theory that private citizens cannot bring VRA cases goes against SCOTUS precedent. But the court’s silence on this issue, along with the past opinions of some conservative justices, makes these seemingly procedural orders take on an ominous hue that foreshadows the next fight for voting rights in a post-Callais America.
At the end of April, the court issued a disastrous decision for voting rights in Louisiana v. Callais, which reinterpreted Section 2 of the Voting Rights Act to make it essentially impossible for voters to successfully argue that state legislators have discriminated on the basis of race in gerrymandering. The court took the long-standing test for finding that a gerrymander is unlawfully being used to dilute the votes of color and, in the guise of “updating” that standard, created insurmountable barriers to success. The flaws of Callais are too numerous to describe in one article. As professor Richard Hasen puts it, Justice Samuel Alito’s opinion turns its back on everything the court has ever said about Section 2 of the VRA. We’re seeing the effects play out on an almost daily basis, including in Monday’s orders.
Part of what makes Callais so devastating is the way it builds on previous horrendous misinterpretations. But like all Supreme Court cases, Callais, at least in theory, covers only the mapmaking legal issues before it.
Except that now, in the weeks after this decision, the court has started to treat Callais as a stand-in for principles that the justices either did not discuss in that case or flat-out claimed to reject. Consider the case of the Alabama congressional maps, which SCOTUS, in 2023’s , ruled was an unlawful racial gerrymander. Despite Alito’s swearing in Callais that his ruling was not reconsidering that precedent, just 12 days after Callais, the court set aside a district court opinion in the follow-up to that very same Alabama case, for which the lower court had found heaps of intentional racial discrimination.
And with that 12-day bait and switch, the court’s conservative supermajority showed Callais’true colors. Callais is not to be used just to tweak the analysis of gerrymandering cases to require the mathematical disentanglement of race and politics, as the court promised in Alito’s technical, understated opinion. Instead, it appears to mean that no charges of racism are ever to be taken seriously in court, unless it’s racism against white legislators who are given insufficient leeway to manipulate districts to their advantage.
That manipulative trend continued Monday with the Mississippi and North Dakota orders. Let’s start with Mississippi, where a panel of three Bush-appointed judges found that the state’s maps violated Section 2 of the Voting Rights Act. Now, this case may on its face sound similar to Callais, but the state of Mississippi raised and appealed on an entirely different issue that Callais never touched: who can bring VRA cases in the first place.
For half a century, private parties have been able to bring VRA lawsuits on behalf of voters. In addition to groups like the NAACP, the Department of Justice can also file those same claims. The ability for private parties to combine litigation efforts with the federal government is called private enforceability, and it’s incredibly common across the law. Consider, for example, enforcement of the Americans With Disabilities Act. Although the DOJ can take on some of the largest violations of accessibility in public accommodations, the government’s resources limit just how many claims it can bring. Because of this, Congress allows for private individuals to sue to enforce the rights protected by the ADA. If the federal government were the only entity who could file these claims, then every small hotel chain with a broken ramp might go unfixed.
The same is true of enforcing voting rights. In a given year, any number of the 50 states could be engaging in some form of unlawful voting practices. And there could be multiple potential violations per state, going beyond racial gerrymandering to other areas the VRA targets, like establishing logistical or financial barriers to the ballot box. This is why it’s crucial for not just the DOJ but also private citizens to be able to hold states accountable. And Americans have done just that, bringing over 400 cases since the VRA’s amendments in 1982.
Read more She Was Ripped From Her Car and Detained, but She’s Not Done With ICE
But when Mississippi lost its case before the Bush-era panel last year, it decided to go to the Supreme Court, not because of the mapmaking issues that had defined Callais, but on the grounds that the lower court was wrong solely because the case had been brought by the NAACP, not the DOJ. In other words, Mississippi signed on to the fringe theory that no private party is ever allowed to file a VRA claim of this kind. Those 400 privately brought cases I mentioned earlier? In Mississippi’s view, every single one of them should have been thrown out on Day 1, because the VRA permits only DOJ enforcement. The district court disagreed with Mississippi, holding that private citizens could bring these suits, and it found a VRA violation. It was this ruling that the Supreme Court threw out on Monday.
But on what basis did the justices disagree with the Bush-era panel? They never explained. To make matters more confusing, we can only guess at their meaning by looking at the second case considered Monday, which challenged a North Dakota map with strong claims of discrimination against Indigenous Americans. As in the Mississippi case, the state argued—and here the 8th U.S. Circuit Court of Appeals held—that these privately brought cases are never allowed.
What the 8th Circuit did here was seek to undermine existing precedent from below. The high court had considered the issue in a 1995 case, Morse v. Republican Party of Virginia, holding that private enforcement is allowed under Sections 5 and 10 of the VRA. That decision struck down a poll tax that the Republican Party had tried to require to participate in its primary. As Jackson explained, because Morse addresses this issue, the court could have reversed the 8th Circuit’s decision even without argument. Instead, the justices again sent the case back to the circuit court to reconsider in light of Callais.
To sum up, one lower court allows private enforcement of the VRA, and the Supreme Court throws out the opinion. A second court tries to ban private enforcement of the VRA, and the Supreme Court throws out that opinion too. There are at least two ways to try to reconcile these seemingly contradictory orders.
The pessimistic reading of these two decisions is that the court is reconsidering the VRA’s private enforceability after 30 years, moving away from Morse. For the Morse opinion Jackson cites, Justice Clarence Thomas was already on the court. He dissented and argued that no private party should ever be able to bring a private redistricting claim. It’s worth emphasizing how drastic of a ruling that would be, as it would effectively eliminate all gerrymandering challenges when a Republican president controls the DOJ.
The optimistic reading of Monday’s order is that the majority of the court agrees that the VRA provides private enforceability, and that it overturned the Mississippi opinion because of that court’s simultaneous consideration of the mapmaking issues Callais does discuss. After all, the plaintiffs in Callais were themselves private enforcers of the VRA, and the court didn’t breathe a word about their claims being foreclosed on that ground. But if this were the reasoning, then the court could have said so. That it didn’t suggests that a significant coalition on the court actually wants to strip voters of their rights to bring VRA suits.
It’s also possible that the conservative justices are simply trying to avoid further discussion of its disastrous decision. After the public fallout from Callais, the justices went on press tours to bolster the court’s legitimacy. Meanwhile, Alito angrily lashed out when Jackson critiqued these shadow-docket decisions, like the one earlier this month in which the court exempted its typical procedural rule to make sure Callais went into effect immediately.
But regardless of the private enforceability issue, the court clearly wants everyone to shut up and pretend that Callais is business as usual. We should all take Jackson’s cue and recognize that this couldn’t be further from the truth.