{"id":152,"date":"2026-06-04T21:39:35","date_gmt":"2026-06-04T21:39:35","guid":{"rendered":"https:\/\/homemovechronicle.com\/?p=152"},"modified":"2026-06-04T21:39:35","modified_gmt":"2026-06-04T21:39:35","slug":"one-weird-trick-sam-alito-used-to-kill-the-voting-rights-act","status":"publish","type":"post","link":"https:\/\/homemovechronicle.com\/?p=152","title":{"rendered":"One Weird Trick Sam Alito Used to Kill the Voting Rights Act"},"content":{"rendered":"
\n

The authors of the Reconstruction Amendments did not trust the Supreme Court to ensure that Black Americans would be able to participate fully in the political life of the nation. That is why the amendments expressly gave Congress the power to enforce their provisions through additional legislation.<\/p>\n

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It took nearly a century, but as part of the , Congress fulfilled that responsibility. It enacted a Voting Rights Act that goes beyond merely restating the constitutional prohibitions contained in the first sections of the 14th<\/sup> and 15th<\/sup> amendments. The single most important contribution the court ever made to minority citizens\u2019 voting rights was to uphold and apply those congressionally expanded prohibitions.<\/p>\n

The current Supreme Court thinks differently. Section 2, as amended by Congress in 1982, was designed, and had been read for decades, to bar not only intentional discrimination but also practices and procedures that resulted in minority voters having less opportunity to elect representatives of their choice. (That \u201cresults\u201d language, after all, is what the text explicitly provided.) In , the court returned the amended Section 2 of the VRA to a mere restatement of the constitutional prohibition on purposeful vote dilution. We are only just beginning to see how Justice Samuel Alito\u2019s disingenuous opinion for the court threatens to dismantle a fundamental pillar of the Second Reconstruction.<\/p>\n

Callais<\/em> involved the complex interaction of three strands of the court\u2019s districting jurisprudence: racial vote-dilution claims under Section 2 that the way district lines were drawn unfairly minimizes a minority group\u2019s ability to elect; now-nonjusticiable claims that the lines are an unconstitutional political gerrymander; and so-called Shaw<\/em> claims that race played an excessive role in the construction of district lines. Alito wrote for the six-justice majority; Justice Elena Kagan wrote a dissent, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.<\/p>\n

Initially, Louisiana (whose population is roughly one-third Black) redrew its six congressional districts after the 2020 census in a way that created one majority-Black district and five majority-white ones. (The majority-Black district is the successor to a district the state was forced to draw in the mid-1980s, following one of the first lawsuits successfully litigated under the amended Section 2.) A group of Black plaintiffs sued, claiming that the refusal to draw a second majority-Black district constituted unlawful racial vote dilution under Section 2. After a that they were likely to prevail, Louisiana redrew its map to create a second majority-Black district. The configuration of the revised map was driven by political considerations\u2014in particular, the desire to protect three powerful Republican incumbents. A different group of plaintiffs\u2014the Callais<\/em> plaintiffs\u2014then sued, asserting that the state\u2019s new map was an impermissible racial gerrymander. (This Shaw<\/em> claim did not require them to allege or prove any dilution of their votes.) On reargument before the court, Louisiana did not defend its map. Rather, it sought to return to its 5\u20131 plan. The court ultimately agreed that \u201cthe State\u2019s underlying goal was racial\u201d\u2014to create a second majority-Black district. The court held that the map could not survive strict scrutiny under the 14th<\/sup> Amendment, given that Section 2 of the VRA, properly construed, did not require the creation of a second majority-Black district.<\/p>\n

So let\u2019s look at how the court construed the amended Section 2.<\/p>\n

Alito conceded, as he must, that amended Section\u00a02 was a congressional response to (and rejection of) the court\u2019s decision in City of Mobile v. Bolden<\/em>, which had held that Section\u00a02 of the act in its initial form prohibited only purposeful racial vote dilution. Congress amended Section\u00a02 to impose a \u201cresults\u201d standard: Under Section\u00a02(b), a voting practice or procedure violates that standard \u201cif, based on the totality of circumstances,\u201d members of a racial minority group \u201chave less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.\u201d<\/p>\n

The justice stated that this language \u201csets a baseline against which to assess the opportunity of minority voters\u201d and that \u201cthe baseline is the chance enjoyed by nonminority voters to secure the election of their preferred candidates.\u201d<\/p>\n

But it doesn\u2019t make sense to frame the baseline that way. By definition, in any jurisdiction where minority plaintiffs bring a Section\u00a02 claim, there are some<\/em> nonminority \u201cother members of the electorate,\u201d to use Section\u00a02(b)\u2019s language, who have the chance to elect their preferred candidate. (Otherwise the elected positions would be vacant.) And there are also of course some nonminority voters whose chance of electing their preferred candidate is nonexistent. To which group ought minority voters be compared?<\/p>\n

The more sensible place to begin is with one of the key \u201ccircumstances,\u201d to deploy another word from the statutory text, when it comes to vote-dilution cases: American elections are conducted from geographically defined constituencies. We should therefore begin by asking whether the minority\u2019s reduced voting power is in some way attributable to the current configuration of those constituencies. Thus, in Thornburg v. Gingles<\/em>, the foundational Section\u00a02 vote-dilution decision, the Supreme Court offered a three-part framework whose first prong asks whether there is an alternative to the challenged scheme that would give minority voters an opportunity to elect: Is the minority group sufficiently numerous and geographically concentrated that it could form a majority of the electorate in a fairly drawn single-member district? If the plaintiffs establish this first element, then the Section\u00a02 inquiry can proceed through the other two prongs of the Gingles<\/em> test to determine whether racially polarized voting is preventing minority voters from succeeding within the existing scheme, before turning to whether, under the totality of the circumstances, the political process is not equally open to minority citizens. In short, the initial comparator is the current configuration of districts vs. an illustrative district.<\/p>\n

Callais<\/em> replaces that straightforward inquiry with one that focuses from the outset on the chances white voters enjoy. It then cunningly defines that chance as being \u201cwhatever opportunity results from the application of the State\u2019s combination of permissible criteria.\u201d<\/p>\n

That allows the court to hold, under a purported \u201cupdate\u201d and \u201crealign[ment]\u201d of the Gingles<\/em> framework, that a defendant jurisdiction can deny minority voters an opportunity to elect representatives of their choice as long as it also denies that opportunity to some group of white voters who share a salient characteristic with the minority voters. To be more specific, states can deny minority voters any chance to elect candidates of their choice whenever minority voters prefer candidates who are Democrats as long as the state creates no majority-white Democratic districts. Indeed, the implications are more radical still: Protection of incumbents is apparently also a permissible basis for drawing district lines. Thus, in any jurisdiction where minority voters have not already succeeded in electing a representative of their choice, they can be locked into electoral impotence. They cannot effectively challenge the existing system because they will be unable to show that they can create an opportunity district without removing an incumbent. And when it comes to local offices, the court\u2019s analysis creates a roadblock to challenging at-large elections, since by definition any Section\u00a02 suit seeks a change to the jurisdiction\u2019s current election criteria.<\/p>\n

More fundamentally, to call rank partisanship a permissible criterion marks a sea change in the court\u2019s approach. Less than two years before Alito joined the court, all nine justices then sitting agreed that severe partisan gerrymandering is incompatible with constitutional values and likely unlawful; they disagreed only over whether this constitutional violation was justiciable.\u00a0In Rucho v. Common Cause<\/em>, the court again reiterated the incompatibility of partisan gerrymandering with democratic principles, even as it held such challenges nonjusticiable. But in Alexander v. South Carolina State Conference of the NAACP<\/em>, Alito treated South Carolina\u2019s partisan desire to disadvantage a group of voters not as regrettable but as evidence of legislative \u201cgood faith.\u201d And in Callais<\/em>, he declared that partisanship is \u201ca constitutionally permissible criterion that States may rely on as desired.\u201d<\/p>\n

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The court\u2019s insistence that partisan motivations defeat a Section\u00a02 results claim makes it unlikely that plaintiffs can ever prevail in challenging a districting plan involving partisan elections, since partisanship (or, at the very least, incumbent protection) will nearly always be one consideration. Or, as Kagan phrased it in her powerful dissent, \u201cBang, bang, bang. It is like shooting fish in a barrel.\u201d That presumably leaves available the possibility that plaintiffs can establish liability under Section\u00a02 solely by proving a racially discriminatory purpose. (And perhaps they will have to show, in mixed-motive cases when both racial and political purposes are at play, that the jurisdiction would have adopted the plan even absent any political considerations\u2014a near-impossible task.) Alito comes close to saying just that when he writes that a court can find a Section\u00a02 violation \u201conly when the circumstances give rise to a strong inference that intentional discrimination occurred.\u201d The court\u2019s statement that this \u201cdoes not demand a finding of intentional discrimination\u201d seems to mean merely that a district court can make an \u201cinference of racial motivation\u201d without using magic words to announce \u201cwhether the state legislature as an institution\u201d was motivated by racial concerns. How a reviewing court is then supposed to decide whether to affirm a finding of liability that stops short of that final step is nowhere explained.<\/p>\n

This too marks a doctrinal sea change. Alito cited City of Boerne v. Flores<\/em> for the proposition that \u201ca law that seeks to enforce the Fifteenth Amendment by prohibiting mere disparate impact would fail to enforce a right that the Amendment secures.\u201d But that is not what Boerne<\/em> says. To the contrary, the court there expressly stated that legislation \u201ccan fall within the sweep of Congress\u2019 enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.\u201d And an example it gave was Congress\u2019 decision in the Voting Rights Act to ban literacy tests nationwide despite the fact that the court had previously upheld North Carolina\u2019s test on the grounds that such tests were constitutional unless it was shown that they had been adopted for the purpose of excluding Black citizens. And in earlier decisions, the court had recognized that prohibiting disparate impact can be an appropriate way to capture purposeful discrimination given the difficulty in proving a discriminatory motivation.<\/p>\n

It was entirely foreseeable that the court\u2019s decision in Callais<\/em> would set off a series of attempts by states under Republican control to eliminate majority-Black and -Latino districts even before SCOTUS took the extraordinary step of issuing its mandate immediately, so as to enable Louisiana to eliminate its second majority-Black district as the primary election was already underway, with mail ballots having been sent out and returned. So Callais<\/em> marked not only the gutting of Section\u00a02 but also a rollback of the Purcell<\/em> principle, which directs federal courts to hesitate before altering the legal landscape close to an election.<\/p>\n

In short order, Louisiana adopted a plan that eliminated the second majority-Black district. Alabama and Tennessee also adopted new plans for this fall\u2019s election. Georgia, Mississippi, and South Carolina may follow suit for the next election cycle. And Texas and Florida may be emboldened to tweak their maps even more.<\/p>\n

In a Tuesday , with a 6\u20133 vote breaking down on the same lines as Callais<\/em>, the court applied Callais<\/em> to uphold the Alabama Legislature\u2019s 2023 map, which (unlike the remedial version the federal court adopted after finding that the state\u2019s 2021 map violated Section\u00a02) failed to draw a second majority-Black district. The court\u2019s analysis shows that its \u201cupdate\u201d of Gingles<\/em> goes far beyond its treatment of the three-part framework. In Gingles<\/em>, the court had reaffirmed that a finding of a racially discriminatory purpose in a vote-dilution case is a finding of fact that \u201cmust not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court\u2019s opportunity to judge the witnesses\u2019 credibility.\u201d The three-judge court in Alabama found that the 2023 plan the state proposes to use for the 2026 election was intentionally discriminatory. \u201cTry as we might,\u201d that court wrote, \u201cwe cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians\u2019 voting strength.\u201d<\/p>\n

The court pointed to a series of subsidiary facts supporting this determination. One telling example: As part of the 2023 plan, the Legislature enacted a series of \u201cfindings\u201d that reflected a commitment to providing a majority-white Gulf Coast community, described in terms of its \u201cFrench and Spanish colonial heritage,\u201d with a district, while not discussing at all \u201cthe majority-Black community of interest in the Black Belt, which shares a heritage of enslavement.\u201d Moreover, the Alabama court squarely rejected any argument that \u201cpartisan goals rather than racial animus motivated the 2023 Plan.\u201d<\/p>\n

After the Supreme Court to reconsider that holding in light of Callais<\/em>, the Alabama court : \u201cThe purpose of the 2023 Plan was to distribute Black voters across districts to dilute their votes, at least in part because they are Black. \u2026 We reach this conclusion with great reluctance and dismay and even greater restraint\u2014only after another exhaustive analysis of an extensive record, as the Supreme Court\u2019s remand order and its precedent instructs us. We reject in the strongest possible terms the State\u2019s attempt to finish its intentional decision to dilute minority votes with a veneer of legislative regularity.\u201d<\/p>\n

Under any principled application of the clearly erroneous standard, the Supreme Court would not have overturned this finding, which involved precisely the kind of \u201cintensely local appraisal of the design and impact\u201d of the challenged plan by a court having \u201cparticular familiarity with the indigenous political reality\u201d of Alabama that used to produce an affirmance. Instead, late at night and again by a 6\u20133 vote, the court allowed Alabama to put into effect the new plan for the already-underway 2026 election.<\/p>\n

And those congressional maps are only the beginning. We should expect to see the dismantling of state legislative districts as well. To the extent that the VRA served as an at least minimal constraint on political gerrymandering, that constraint is gone. In tandem with Rucho<\/em>\u2019s elimination of the deterrent effect on the most egregious gerrymanders that the possibility of Supreme Court intervention used to provide, the post-2030 round of redistricting is likely to be exceptionally bloodthirsty.<\/p>\n

Half a century ago, the Supreme Court declared: \u201cThe very essence of districting is to produce a different\u2014a more \u2018politically fair\u2019\u2014result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats.\u201d That essence was the impetus behind Congress\u2019 decision in 1842 to require states to use single-member districts to elect their representatives. Before that, many states elected their House delegations through statewide elections. This produced many one-party delegations. For example, in the 11th<\/sup> Congress, Connecticut elected seven Federalists and no Democratic-Republicans, while New Jersey elected six Democratic-Republicans and no Federalists.\u00a0In the 26th<\/sup> Congress (the last one before the 1842 act), Georgia elected nine Whigs and no Democrats, while New Hampshire elected five Democrats and no Whigs. The current court seems completely comfortable that we might return to the days in which states create winner-take-all congressional delegations. That situation could only exacerbate the pathologies of our current politics. And if it results in monoracial as well as single-party delegations from Southern states, it threatens to end the Second Reconstruction as well.<\/span><\/p>\n

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