The Supreme Court handed down a bombshell order on Tuesday night that made racial gerrymandering effectively impossible to challenge in court, expanding upon last month’s decision in Louisiana v. Callais to eliminate the last vestiges of the Voting Rights Act of 1965—and with it, the primary mechanism for protecting multiracial democracy in the American South.
Tuesday’s 6-3 order in Allen v. Milligan, which was technically unsigned, allows Alabama—and, in the future, other states—to enact legislative maps even if a federal court rules that they were enacted with racially discriminatory intent. This decision goes well beyond the court’s ruling in Callais, which focused on VRA claims under Section 2 about gerrymandered maps with a racially discriminatory effect.
The decision gives carte blanche to Southern state lawmakers to eliminate majority-Black districts as soon as they feasibly can—or, in Alabama’s case, even if it is not actually feasible or practical. (More on that later.) In 1957, the Supreme Court unanimously ordered Southern states to desegregate their schools “with all available speed.” In 2026, the court’s conservative majority is demanding the elimination of Black electoral power in the South on the same time scale.
“In addition to being wrong on the merits, the Court’s decision inflicts two grave harms on the public,” Justice Sonia Sotomayor wrote in her dissent. “It debases the democratic process by upending Alabama’s entire election in the name of permitting Alabama to discriminate against Black Alabamians. It also corrodes the rule of law by rewarding Alabama’s gamesmanship and outright defiance of court orders.”
Allen v. Milligan may sound familiar because we have been here before. The Supreme Court already heard the case as a Section 2 challenge to Alabama’s post-2020 congressional districts in 2023. Chief Justice John Roberts and Justice Brett Kavanaugh joined with the court’s three liberals to uphold a district court ruling that required Alabama to draw a second majority-Black congressional district.
Though the decision was a surprise victory for voting-rights groups, given the Roberts Court’s hostility to the VRA, there were also warning signs lurking beneath the surface. The majority opinion by Roberts merely stated that the district court had “faithfully applied the court’s precedents” while going out of its way to endorse those precedents.
“The concern that §2 may impermissibly elevate race in the allocation of political power within the States is, of course, not new,” Roberts concluded. “Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.” In hindsight, the ruling reads more like a stay of execution than a grant of clemency.
Let us take stock of how we got here. Conservatives have long sought to limit the VRA’s power. In the 1980 case Mobile v. Borden, the Supreme Court held that a “facially neutral” voting practice only violates Section 2 if it is enacted with discriminatory intent. While that may have been relatively easy to prove in the Jim Crow era, Congress also intended to root out more subtle and insidious forms of racially discriminatory voting practices.
To that end, Congress amended the VRA in 1982 to reverse the Supreme Court’s ruling and specifically prohibit laws that had a discriminatory effect, regardless of intent, under Section 2. The high court accepted Congress’s vote-dilution framework in the 1986 case Thornburg v. Gingles and laid out a multi-part test to determine when and how racial-gerrymandering claims could succeed. (Borden and Gingles did not involve racial-gerrymandering claims per se, but the impact on them is identical.)
Since Roberts and Justice Samuel Alito joined the high court in 2005, the Supreme Court has grown steadily more hostile to the Voting Rights Act. In 2013, the court’s conservative majority struck down the VRA’s preclearance formula in Shelby County v. Holder because the justices thought it was outdated and violated the “equal sovereignty of the states,” a bespoke principle to which the court has never returned. That ruling freed many jurisdictions, mostly in the South, from seeking preapproval from federal courts or officials before changing their voting laws. A wave of voting restrictions soon followed.
In the 2021 case Brnovich v. Democratic National Committee, the court took aim at Section 2 as applied to state voting laws. Alito, writing for the court, threw up a wave of new constraints on Section 2 claims to state election laws. Transmuting Fox News talking points into the law of the land, he even claimed that states could overcome Section 2 challenges to voting laws by invoking the phantasmal threat of voter fraud. “The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s,” Justice Elena Kagan wrote in her dissent. “No matter what Congress wanted, the majority has other ideas.”
After the court’s 2023 ruling in Allen v. Milligan required Alabama to draw a second majority-Black congressional districts, voting-rights litigants in Louisiana sought the same remedy for that state. After they prevailed, a different group of litigants who cryptically described themselves as “non-African American voters” argued that the court’s remedy had unconstitutionally diluted their votes. Bert Callais, the lead plaintiff in the second case, reportedly later turned out to be a participant in the January 6 attack on the Capitol in 2021.
In Callais, the Supreme Court applied the same framework as Brnovich—keep the law intact, but rewrite it to be unworkable and unrecognizable—in order to defeat Section 2’s ability to curb racial gerrymandering. Under Section 2, voters could challenge their legislative maps by claiming that they are designed to dilute a particular racial group’s electoral power. Now, Alito said, they must “disentangle politics from race” by proving that the state wasn’t engaging in constitutionally permissible racial gerrymandering, which is practically impossible in states where race and party affiliation are nearly identical.
Alito also required that Section 2 plaintiffs draw a remedial map that could achieve a state’s other legitimate gerrymandering purposes, which can be pretextual in nature. In other words, if you want to succeed at a racial-gerrymandering claim, you must provide the court with a map that generally does the same thing as the one you are trying to challenge. This is the same Justice Samuel Alito who describes himself as a textualist when it comes to interpreting statutes.
It is important to state this clearly: To the Supreme Court’s conservative majority, the Fourteenth Amendment’s Equal Protection Clause is not violated when a state legislature gerrymanders Black voters in the South out of political power, but rather when Congress uses the Fourteenth and Fifteenth Amendments to compel the states to redraw their racist maps. The Voting Rights Act, in other words, is the real racism in the high court’s eyes.
Even with all these bad-faith constraints to nullify Section 2’s effects test, there still remained one safety valve: Plaintiffs could mount a direct challenge to a racially gerrymandered map on equal-protection grounds by arguing that it was enacted with discriminatory intent. This will be less effective than Section 2 as it was, of course: Kagan noted in her Callais dissent that states can readily concoct race-neutral pretexts for discriminatory maps, and Alito’s majority opinion reads like a how-to guide for concocting them. But I suppose it’s better than nothing.
Now even that door is closed. Rick Hasen, a UCLA law professor who specializes in election law, noted on Tuesday night that the court’s new order effectively created an “unrebuttable presumption that a legislature is acting in good faith” so long as the state “can assert some pretextual non-racial reason for enacting its plan.” It’s worth noting that three-judge panel on the district court included two Trump appointees.
“Even if plaintiffs get past this new discriminatory intent barrier, the Court has now imported the Callais discriminatory effects test into a constitutional vote dilution analysis,” Hasen explained. “So in these cases, plaintiffs will need to meet an impossible standard to prove effect, just as in a post-Callais Section 2 case, a standard which simply ignores the fact that when (white) Republicans discriminate against Democrats in the south, they are discriminating against Black voters.”
Hasen speculates that Alito also wrote the four-page order in Milligan. To me, it reads more like Roberts taking a second pass at Alito’s clunky and obtuse writing in Callais. The order’s author dropped the partisan-gerrymandering nonsense that shaped Alito’s decision last month and distilled the case down to its essential elements: making it impossible to stop states from racially gerrymandering racial minorities out of power.
Tuesday’s order also opens with a curious turn of phrase. The majority said it had taken up Callais “to resolve the tension between vote-dilution claims under [Section 2] and our colorblind Constitution.” First, no such tension existed. To the contrary, the tension is between states that want to gerrymander Black voters out of electoral influence and the Reconstruction Amendments that empower Congress to protect voting rights from state-level violations.
The “colorblind” term is particularly pernicious. This appears to be the first time that the court’s conservatives have articulated its vision of the Constitution in those terms in a majority opinion. While a society that does not consider race is a powerful ideal, the Constitution’s anti-discrimination protections cannot function by pretending that racism does not exist—or, worse, by pretending that those who challenge it are the real racists. The Roberts Court has achieved a colorblind Constitution by gouging out the eyes of the Fourteenth and Fifteenth Amendments.
Equally troubling is how the court balanced the equities here—in other words, how they decided whether or not to stay the lower court’s decision as a preliminary matter. When Alabama was ordered to redraw its legislative maps by the district court after the 2023 ruling, state lawmakers declined to draw a second majority-Black district—what Sotomayor calls an “opportunity district”—and adopted a new map without one. By effectively defying their original ruling, the district court then concluded that Alabama had met the threshold for an intentional-discrimination claim—which is normally an extraordinary bar to clear—and imposed its own map for the 2024 election.
In Tuesday’s ruling, the Supreme Court effectively rewarded Alabama’s defiance by letting it use the 2023 map—the revised one that ignored the lower court’s order—for the upcoming election (and, presumably, for the rest of the decade). What’s more, the court’s sudden post-Callais reversal could throw Alabama’s ongoing primary elections into chaos. “The State has no legitimate interest in enforcing an unconstitutional map, while vast harms will likely arise from upending the status quo, sowing chaos in Alabama, and rewarding Alabama’s gamesmanship,” Sotomayor said.
Not so, says the majority. It chided the district court for ruling against Alabama because the judges “did not heed the presumption of legislative good faith because it interpreted the State’s legal disagreement with the court’s earlier remedial order as proof of discriminatory animus.” In the 20th century, the Supreme Court rose to the occasion by standing up to Southern states that defied court rulings and the Reconstruction Amendments. Now it is a co-conspirator in their demolition.
