Today the Supreme Court GVR’d two cases in light of Callais. State Board of Election Commissioners v. Mississippi NAACP and Turtle Mountain Band of Chippewa Indians v. North Dakota presented the same issue: whether there is a private cause of action under Section 2. And, in both cases, Justice Jackson dissented. She wrote:
This case presents only the question of Section 2’s private enforceability, which our decision in Louisiana v. Callais, 608 U. S. ___ (2026), did not address. Thus I see no basis for vacating the lower court’s judgment.
Last week, the Court GVR’d a case from Alabama, Allen v. Caster, in light of Callais. Justice Sotomayor dissented, joined by Justices Kagan and Jackson. They contended that in addition to a Section 2 claim, the District Court also found a vote dilution claim, so there was no reason to GVR.
Today, the Court vacates a District Court order enjoining Alabama’s 2023 Redistricting Plan and remands for reconsideration in light of the Court’s new interpretation of §2 of the Voting Rights Act in Louisiana v. Callais, 608 U. S. ___ (2026). There is no reason to do so. In addition to holdingthat Alabama’s 2023 Redistricting Plan violates §2, the District Court held, in one of the three cases before this Court, that Alabama violated the Fourteenth Amendment by intentionally diluting the votes of Black voters in Alabama. That constitutional finding of intentional discrimination is independent of, and unaffected by, any of the legal issues discussed in Callais. Vacatur is thus inappropriate and will cause only confusion as Alabamians begin to vote in the elections scheduled for next week. I respectfully dissent.
What is going on here?
I think much of the criticism of the “shadow” docket is overblown. When the Court grants or denies a stay, you can usually figure out why they did so. But the GVRs are often more cryptic. Often the Court is telling the parties to look at one issue, but in reality know another issue will resolve it.
For example, the cases from Mississippi and North Dakota are Section 2 cases. The question of whether there is an enforceable private cause of action only matters if in fact there is a Section 2 violation. You usually think of the existence of a cause of action as a non-merits threshold issue, but in reality, if there is no discrimination, the Supreme Court won’t have to decide the threshold issue.
In light of Callais, I think it very, very unlikely that the Plaintiffs can prove an intentional racial gerrymander. And they may not want to. Remember, the Court vacated the entire judgment of the lower court. The parties have to start from square one. They would have to hold a new trial based on new evidence. And, as all know, Mississippi will likely redistrict in the near future, so the case would be mooted out. The NAACP may simply decide this particular case is not worth fighting. Why litigate over old maps that will not affect anyone? Thus the case goes away I am less familiar with the facts in North Dakota, but I suspect similar dynamic are at play. The Justices may never have to actually decide the private cause of action case under Section 2 because Section 2 will have very little vitality post-Callais. (Derek Muller has a new paper on private rights of action for election litigation.)
The Alabama GVR is a bit trickier to figure out. It isn’t clear to me that the vote dilution case is controlled by Callais. But perhaps the Justices are hoping the District Court extends the Callais rule to the Fourteenth Amendment context. Then, the Court can summarily affirm, or something to that extent.
The Court’s general practice, it seems, is to issue a landmark ruling then hide for a while. They took this path with affirmative action, abortion, guns, and now will do it with voting rights.
