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I have written this piece for MSNBC Opinion. It begins:

A sudden war over redistricting has broken out in Texas and looks to spread across the country, with California, New York and elsewhere considering tit-for-tat Democratic partisan gerrymanders to negate the Republican hardball in Texas. Congress, rather than the courts, is in the best position to stop the upcoming race to the bottom. But even though it’s in everyone’s interest that Congress act, don’t hold your breath….

It is possible the courts will block some of these gerrymanders if it can be shown, for example, that they violate the Voting Rights Act. But the Supreme Court just signaled that it may further weaken or kill Voting Rights Act claims in redistricting cases. With that red flag, and with the court’s decision to allow unlimited partisan gerrymandering, the courts are not likely to get the country out of this vicious cycle.

Congress can stop the madness at any point. The Constitution gives Congress the power in Article I to “make” or “alter” state rules for running congressional elections, including redistricting. Congress could outlaw mid-decade redistricting, require the use of commissions, or set a standard barring the most egregious partisan gerrymanders.

In the current polarized atmosphere in Congress, and with Trump (who would have to sign such legislation) looking to impose “maximum warfare, everywhere, all the time” to preserve Republican power, a bipartisan deal to avoid a redistricting war seems most unlikely. But as the Cold War taught us, détente is better than mutually assured destruction for all the parties. Those who suffer the most are the voters, who should not be packed in or cracked out of districts simply because their party is in the minority.

I have written this piece for Slate. It begins:

Reading the tea leaves from cryptic Supreme Court orders can be perilous business because the justices are not bound by the questions they ask at oral argument, the offhand comments they make at a judicial conference, or even their monumental “shadow docket” rulings on emergency petitions that have become all too common. But a technical briefing order in a long pending case out of Louisiana, posted on the Supreme Court’s website after 5 p.m. on a Friday in August, was ominous. The order was likely intended to obscure that the court is ready to consider striking down the last remaining pillar of the Voting Rights Act, known as Section 2. Such a monumental ruling, likely not coming until June 2026, would change the nature of congressional, state, and local elections, all across the country, and likely stir major civil rights protests as the midterm election season heats up….

We waited weeks for the court to issue its rescheduling order and when it came this past Friday it was a doozy. The court pointed specifically to a set of pages in plaintiffs’ brief which argue that Section 2 is unconstitutional, at least as applied in this case, and that the Voting Rights Act cannot serve as a compelling interest to defeat a racial gerrymandering claim when race predominates. “The parties are directed to file supplemental briefs addressing the following question raised [in that brief]: Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.”

Although the court’s order did not explicitly mention Section 2 or even the Voting Rights Act more generally—unquestionably to obscure things further—there is no doubting what’s going on here. The court is asking the parties to consider whether Louisiana’s compliance with Section 2 of the Voting Rights Act by drawing a second majority-minority district—as the earlier Ardoin case seemed to require—was unconstitutional under a view of the Constitution as requiring colorblindness.

If the Supreme Court moves forward with this interpretation it would be a sea change to voting rights law. A reading of the Constitution as forbidding race-conscious districting as mandated by Congress to deal with centuries of race discrimination in voting is at odds with the text of the Constitution, with the powers granted directly to Congress to enforce the Fourteenth and Fifteenth Amendments, and with numerous precedents of the Supreme Court itself. It would end what has been the most successful way that Black and other minority voters have gotten fair representation in Congress, state legislatures and in local bodies. It would be an earthquake in politics and make our legislative bodies whiter and our protection for minority voters greatly diminished. Even if the court less drastically says that Section 2 could not be used to require the second congressional district in this case, such a superficially more minimal ruling would mean the quick unraveling of most Section 2 districts because if the facts in Louisiana don’t justify drawing a second district, most other Section 2 claims would fail too….

Court conservatives likely thought teeing up the issue of overruling Section 2 on a hot summer weekend would avoid public notice. But that’s a short term strategy. Come next June, any decision to strike down what’s left of the Voting Rights Act could kick off the start of a new civil rights movement and more serious talk of Supreme Court reform in the midst of crucially important midterm elections. A court fundamentally hostile to the rights of voters places the court increasingly at odds with democracy itself.

Earlier today, Rick Pildes flagged the Court’s inexplicable month-long delay in issuing a re-argument order in Louisiana v. Callais, last Term’s—and now next Term’s—major Shaw case. I agree with Pildes’s concerns and want to add a few points.

First, to further speculate, it is possible the Court wants to pair Callais with a Section 2 case. Indeed, the Alabama redistricting case—known to blog readers as Allen v. Milligan—is heading back to the Court soon. Recall that in May the three-judge district court found that Alabama’s 2023 redistricting plan was enacted with discriminatory intent. Coincidentally(?), Alabama filed its notice of appeal from that injunction on June 6, 2025. That notice of appeal is available on the district court docket, but I have been unable to locate a jurisdictional statement on the Supreme Court’s electronic docket. There’s also a bail-in hearing in Milligan scheduled for this Tuesday—about which I will have a preview post on Monday. This would further raise the stakes in Milligan. And if we add the Eighth Circuit implied cause of action/Section 1983 case to the docket, the October 2025 Term could be a monumental one for voting rights.

Second, assuming that the Court will order supplemental briefing, this case could be delayed well into the fall. Of course, supplemental briefs might be on a shorter timetable than normal merits briefs. But it seems counter-productive to push a case that proved impossible for the Court to decide in one Term even deeper into the next.

Third, I want to highlight something odd about Justice Thomas’s dissent from the Court postponing the case to next Term. Characteristically, he calls for a complete re-assessment of the Court’s voting rights jurisprudence and lambasts Section 2 of the VRA. What is striking is the complete absence of his change-of-face in his Alexander concurrence from 2024. Indeed, he doesn’t even cite it. If, as Thomas claimed in Alexander, racial gerrymandering claims are non-justiciable political questions, then Callais seem like an odd vehicle to invalidate Section 2 of the VRA. Moreover, Thomas’s questions at the Callais oral argument memory-holed the Alexander concurrence. I’ve previously written about how Thomas failed to reconcile his new position on Shaw claims with the VRA’s constitutionality, and his Callais dissent only raises more questions.