Blue Brief 2025-2026

reach reconciled it with the true scope of the constitutional promise it sought to enforce. He noted that “[a]s the Court has long held, the Fifteenth Amendment bars only state action ‘motivated by a discriminatory purpose.’” Though the right reading of the Voting Rights Act “does not demand a finding of intentional discrimination,” he continued, “it imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” Digging into the details of the Act’s words, Justice Alito addressed what the law meant by racial minorities having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In his view, the Act’s required “‘opportunity’ of these ‘members of the electorate’ to contribute their votes to a winning cause is whatever opportunity results from the application of the State’s combination of permissible criteria.” What criteria for districting by state governments are permissible? Justice Alito elaborated: “We have held that they may use traditional districting factors such as ‘compactness, contiguity,’ ‘maintaining the integrity of political subdivisions, preserving the core of existing districts,’ and protecting incumbents.” That observation might not raise an eyebrow, except for his reference to “protecting incumbents.” But what Justice Alito said next has raised many eyebrows: “The same is true with respect to the drawing of districts to achieve partisan advantage. Disapproval of partisan gerrymandering dates back to the founding. ... But partisan gerrymandering claims are not justiciable in federal court. ... Thus, in considering the constitutionality of a

districting scheme, courts must treat partisan advantage like any other race-neutral aim: a constitutionally permissible criterion that States may rely on as desired.”

But the Supreme Court has never said that all partisan districting is “constitutionally permissible.” The Court has said only that federal courts will not decide that question. In Rucho v. Common Cause , the Court concluded not that partisan districting is constitutional, but that its constitutionality is a nonjusticiable political question, to be answered outside the federal courts. To quote from Chief Justice Roberts’ majority opinion in that case: “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’ ... does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” By letting gerrymanderers shelter their handiwork behind bad reasons, the Callais Court has made the Constitution’s promise of equal voting rights much harder to keep.

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 9