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Paul Blumenthal at HuffPost:

Whatever meager shred of legitimacy the U.S. Supreme Court had went up in flames with its shadow docket decision on Tuesday allowing Alabama to move forward with a racially discriminatory congressional map with no time for election administrators to prepare. The brief, unsigned decision to allow Alabama to implement a never-before-used congressional map repeatedly found to be racially discriminatory by a district court panel and a previous Supreme Court ruling is so shoddy and partisan that it is hard to take the court’s conservative supermajority seriously anymore. In April, the Supreme Court ruled in Louisiana v. Callais that to challenge racial vote dilution under the Voting Rights Act, plaintiffs must prove intentional racial discrimination, rather than merely discriminatory effects. At the same time, it allowed legislators to immunize themselves by claiming partisanship as a pretext for eliminating majority-minority districts — an easy task in Southern states with high levels of racial polarization. Alabama Republicans seized on this not to further bury the Voting Rights Act, but to defang the Reconstruction Amendments that gave the law its constitutional life. The resulting decision is as monumental as it is brief, and it reveals a court untethered from a semblance of duty to explain itself. The case, Allen v. Milligan, originated in 2021, when Alabama drew congressional district lines with just one Black-opportunity district — as it has since the 1990s. In a lawsuit, Black Alabamians alleged that the Voting Rights Act required the state to draw an additional Black-opportunity district and that the redistricting process was tainted by intentional racial discrimination. And they won, before a district court panel in 2022 and the Supreme Court in 2023.

A curious thing happened next: Alabama refused to abide by the Supreme Court’s decision and draw district lines with a second Black-opportunity district. The same district court panel found this map to be the product of intentional racial discrimination because of both the manner in which the legislature drew the map, including discussing creating communities for those with European heritage and the placement of Black voters, and because Alabama refused to draw a second Black-opportunity district after being explicitly ordered to do so. This led the district court panel to impose its own map for the 2024 election. But then came Callais. While Callais claims not to undo the Voting Rights Act, it does just that by making it all but impossible to win a Voting Rights Act case regarding redistricting. In a state like Alabama, where Black voters are overwhelmingly Democrats and white voters are overwhelmingly Republicans, all Republicans need to do is claim they are diluting Black voters because they are Democrats. The result has been a mad dash reminiscent of the onset of Jim Crow by Southern states controlled by white Republicans to eliminate congressional and state legislative seats held by Black Democrats.

But the decision in Callais also stated that it said nothing about challenges of racial discrimination brought under the 14th Amendment, as the Black Alabamians had done and the district court panel had ruled had happened in Allen v. Milligan. It also explicitly stated that Callais did not overturn the decision in Allen. “We have not overruled Allen,” Justice Samuel Alito wrote for the majority. Alabama Republicans responded by asking the Supreme Court to lift the district court panel’s injunction imposing the map with two Black-opportunity districts, and in the meantime passed a law to postpone its congressional primaries to impose the racially discriminatory map in case this happened. The Supreme Court approved Alabama’s request and ordered the panel to lift the injunction and reconsider the case in light of Callais — which the panel did, finding that the map was still racially discriminatory, even under Callais. Alabama then petitioned the Supreme Court to overrule the panel. And the court did. Despite the district court panel finding that Alabama had met the high bar proscribed by Callais and engaged in intentional racial discrimination, and basing its ruling on the 14th Amendment as well as the Voting Rights Act, the Supreme Court’s conservatives expanded on Callais.

It took Callais’ requirement that partisanship trump race from Voting Rights Act racial vote dilution cases and broadened it to 14th Amendment racial discrimination cases. And it raised the bar for proving intentional discrimination even further, requiring courts to presume “legislative good faith” whenever judging the legislature’s actions.

And so, Callais did overturn Allen, even though Alito and the five Republican-appointed justices who joined his opinion claimed it did not.

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