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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........

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