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Friday, May 22, 2026

US May Day Actions Lay Foundations for Mass Militant Labor Action

Thursday 21 May 2026, by Kay Mann, Randy Furst



May Day actions in the US called by May Day Strong (MDS), a coalition of left led union such as the Chicago teacher’s union (CTU) and union locals in Minneapolis, California and elsewhere, took place throughout the country under the slogan, “No Work, No School, No Shopping” to protest Trump’s domestic and international policies. Two articles - on the nationawide picture and a focus on Minneapolis.

Approximately 5,000 separate actions tool place throughout the country (for report of May Day actions around the country, see the Solidarity webzine “May Day Strong 2026: A Brief Roundup”).Although the size of the actions in terms of participants fell short of the expectations of many, the dynamics surrounding the May Day demonstrations involve encouraging signs for the development of the US labor left and an independent mass working class-led anti-Trump movement.

Over the past year, three centers of resistance to Trump’s war have emerged. These are the No Kings! demonstrations of which there have been three massive demonstrations, the most recent being last March 28. No Kings! is a top-down organization led by NGO leaders with deep ties to the Democratic party. The second center of resistance was the heroic anti-ICE mobilizations most notably in Minneapolis [see below for a specifc report], Minnesota, and finally the union-led May Day Strong coalition.

There was considerable enthusiasm in radical circles in the months and weeks before May 1. MDS video planning meetings attracted as many as three thousand participants including high ranking union officials from large teachers’ unions not known for militancy like Randi Weingarten of the American Federation of Teachers (AFT), a teachers’ union of 1.8 million members. The other large teachers’ union, the nearly three-million-member National Education Association (NEA) is also part of MDS. High school students from the Sunrise movement reported on their organizing for May Day school walkouts as did organizers planning boycotts of businesses like Enterprise car rental and Hilton hotels that have rented vehicles to and housed ICE agents.

The size of the actions fell short of the hopes of the organizers. The street demonstrations were far smaller than the No Kings! demonstrations, but as big or perhaps a bit larger than most May Day demonstrations over the last few years. 10,000 marched in New York city on May Day as opposed to 50,000 at the No Kings! demonstration on March 28. Around 2,000 rallied in Milwaukee on May Day, while several tens of thousands of attended the No Kings! march.

Encouraging Trends

The modest size of the actions and the fact that many unions endorsed the actions, but few mobilized their members into large union contingents or called on their members to strike, could be interpreted as the failure of the working class and its organizations to take the lead in the anti-Trump movement represented by the No Kings! and Anti-ICE movements. But a closer look at the overall dynamics of May Day, MDS and the history of labor political action in the US, suggests encouraging trends for the development of a mass militant labor response to Trump’s ultra-reactionary assault on immigrants, LGBGQT+ people, the environment, democratic rights, and ever-increasing imperialist military assaults.

The coalition issued three demands: “1) Tax the Rich: Our families, not their fortunes, come first. 2) No ICE. No war. No private army serving authoritarian power. 3) Expand democracy, not corporate power. Hands off our vote.” These were class-struggle-based demands putting opposition to ICE and therefore defense of immigrants and defense of democratic rights at the fore at a time when both are under serious attack.

The May Day street demonstrations, though much smaller than the No Kings! demonstrations, reflected the same broad front of organizations and issues. Anti-ICE banners, pro-Palestinian signs, anti-fascist banners, defense of, democratic rights, and some union contingents such as the Service Employees International Union (SEIU), many teachers’ unions and even a traditionally conservative construction workers union was at the head of New York city march. Socialist groups like DSA, the Party of Socialism and Liberation (PSL), the Freedom Road Socialist organization (FRSO), Solidarity, Socialist Alternative, and others had visible presences with banners and contingents.

Significantly, the May Day demonstration in Minneapolis, a city of 370,000 (500,00-600,00 including its “twin city” St. Paul) became the center of ICE resistance last winter, drew 10,000 marchers – similar in size to the demonstration in the New York city, a city of eight million. This suggests that the anti-ICE movement has created a general dynamic of mobilization that is meshing with the general opposition movement to Trump. Furthermore, the anti-ICE mobilization in Minneapolis on March 23, saw an estimated full quarter of the population take the day off, an impressive de facto strike that MDS certainly found inspiring and suggests great potential for future mass political strike action.

Teacher Strikes and Student Walkouts

Although there were not mass labor strikes, at least twenty school districts cancelled classes in New York city following their teachers’ announcement that they weren’t available for work because they would be attending the May Day “Kids Over Corporations” march.

In Wisconsin, after seventy percent of the teachers in Madison and Milwaukee declared their intention to take the day off, the school administration canceled classes. Even in the conservative anti-union state of North Carolina the Board of Education, in its biggest city, Charlotte, voted to call off school on May 1 due to the number of staff absences expected that day. The North Carolina teachers’ union mobilized teachers from around the state to march on the legislature, demanding higher taxes on corporations for more school funding.

Chicago teachers and their union, the Chicago Teaches Union (CTU), convinced the school district to make May 1 an official day of civic education, arranging field trips for students to learn about civil rights, resulting in a de facto student, teacher, and staff walk out with great educational value for Chicago’s largely working class and people of color population. This became especially relevant in the face of the Supreme Court’s decision to eviscerate the 1965 Voting Rights Act which was designed to ensure Black political representation.

May Day and Labor Day

Until the last few years May Day demonstrations were mostly organized and usually attended by far-left socialist groups with little if any union endorsement. Though May Day as an international working-class holiday has its roots in the Chicago Haymarket affair of 1886 and the struggle for eight hour day, US unions have traditionally celebrated Labor Day, which occurs at the end of the summer, an official holiday that serves to depoliticize the working-class holiday. In fact, in the 1950s President Dwight Eisenhower issued an order that May Day be officially declared as “loyalty day” which Trump reissued during his first term. So, May Day as a union-sponsored day of political protest is a relatively recent development and many unions and sectors of the working class have yet to embrace it as a working-class holiday of social and political protest.

Propaganda for Mass Strikes

The slogans of the demonstration- “No Work, No School, No Shopping” were novel, intending to send a broad and powerful message of mobilization and resistance. Mass participation in the no work part-essentially a call for mass strikes or as some saw it, a general strike- was unlikely given this stage of the US class struggle and structural barriers such as union contracts that prohibit strikes during the duration of contracts, and reactionary legislation like the 1947 Taft Hartley act that outlaws secondary or solidarity strikes. But raising the slogan for this year’s May Day action introduces the idea to a much broader layer of the unionized and ununionized working class. It will serve to help revive and amplify the call issued by Sean Fain, president of the United Auto Workers (UAW) for a general strike in 2028 to demand a national health care system, though Fain has done nothing to advance the strike. Nevertheless, many workers in some areas called in sick, or otherwise did not work, but these were not coordinated by the unions. The “No School” portion saw student walkouts throughout the country. The preparations, publicity and the mobilization themselves amplify the labor left.

The MDS coalition overlaps with other centers of radical labor organization such as the networks connected to the Labor Notes newsletter and biannual conferences. The leading role played by teachers’ union and the Chicago Teachers Union in particular, reflects both its militant leadership and membership and its nexus between militant unionism and defense of immigrant students and families threatened by ICE terror and puts it in the vanguard of the militant wing of the US labor movement and the general anti-Trump movement.

The US May Day actions may be the last mass nationwide demonstrations for the next few months. The high stakes November “midterm” elections will certainly see much militant organizing energy diverted towards electoral campaigning for Democratic party candidates. But the groundwork laid in the last months of organizing and propaganda and the development of new networks and organizations augurs well for the development of a radical working class led anti-Trump movement and the growth of a militant labor left in the US.

20 May 2026


“No Kings” In Twin Cities

ST. PAUL, MINNESOTA — Millions of Americans took to the streets Saturday, March 28 to protest the Trump administration and its assault on democracy, in likely the most massive turnout of demonstrations on a single day in U.S. history.

Organizers of the No Kings protests estimated that 8,000,000 people demonstrated. Protests took place in 3300 cities and towns across the nation, according to organizers from Indivisible, one of the groups sponsoring the action. They also reported 38 international protests.

Twin Cities was seen as the flagship demonstration because of the horror inflicted on the state by U.S. Immigration and Customs Enforcement (ICE) agents, whose thuggish behavior, abduction of thousands of immigrants in Minnesota, and murder of two ICE observers, Renee Nicole Good and Alex Pretti, outraged the nation.

Their killings and a massive grassroots resistance that included courageous efforts by ordinary Minnesota citizens to defend immigrants, captivated Americans across the United States and forced the Trump Administration to withdraw a large portion of the 3000 ICE agents it had sent into the state. (Hundreds of agents remain, however, less visible but still conducting abductions.)

The Minnesota State Patrol estimated Saturday’s crowd that filled the vast lawns in front of the State Capitol in St. Paul at 100,000, while protest organizers put the figure at 200,000. Either way, it was huge. Speakers at the rally included U.S. Sen. Bernie Sanders of Vermont, Minnesota Gov. Tim Walz and actress Jane Fonda, and musicians Joan Baez and Bruce Springsteen, who sang “Streets of Minneapolis,” a song that he wrote, honoring the memories of Good and Pretti.

“This past winter, federal troops brought death and terror to the streets of Minneapolis,” Springsteen said in his introduction to the song. “Well, they picked the wrong city. The power and the solidarity of Minneapolis, of Minnesota, was an inspiration to the entire country. Your strength and commitment told us this is still America and this reactionary nightmare, these invasions of American cities will not stand.”

Across the Country

No Kings actions on Saturday stretched from Kotzebue, Alaska in the Arctic Circle (there were about 25 protests in Alaska) to Bangor, Maine (there were 50 demonstrations in Maine). In Minnesota, 90 separate demonstrations were scheduled, according to the No Kings website.

“This sign is too small to list all the reasons I’m here,” read one Minnesota protest placard, carried by Corinne Bedford, 40, of Minneapolis, who works as a financial advisor. “I’m here for my daughter,” she said. “We need to do better on so many fronts.”

Meghan O’Connor, 18, a freshman at the University of Minnesota, held a sign that read, “Only you can prevent fascists.”

Why had she come to the demonstration? “I’m sick of this administration trampling on my rights,” she said. Her friend Eva Stavrou, also 18 and a student at the University, carried her own sign that read. “This isn’t about politics, it’s about humanity.”

Opposition to President Trump’s war on Iran played a major role in increasing the size of the protests.

“I’m here because my city is under attack,” said Wayne Nealis, 73, a retired toolmaker and writer, who held up a sign at the St. Paul rally that read “Prosecute the killers of Renee and Alex.”

He added, “I’m here because I’m opposed to the war on Iran and here to support the Palestinian people.”

Murders with Impunity

Rally speakers repeatedly referred to the shooting deaths of the two Minneapolis residents, Good, 37, a poet and mother of three, and Pretti, also 37, an intensive care nurse for the U.S. Department of Veterans Affairs.

Both were acting as nonviolent observers of ICE and were killed by ICE and border patrol agents in separate incidents in January.

No agents have been charged, and the U.S. Justice Department has refused to turn over evidentiary materials to the Minnesota Bureau of Criminal Apprehension and the Hennepin County Attorney’s office, which are investigating the shootings to determine whether to prosecute the agents.

Minnesota Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty announced earlier in the week that he has filed suit to force the federal government to turn over the materials.

Ellison also addressed the rally. “Justice is not optional,” he said. “Accountability is coming.”

Nekima Levy-Armstrong, an attorney and past president of the Minneapolis NAACP, celebrated how Minnesotans refused to capitulate to the ICE assault. “They underestimated us,” she told the St. Paul rally. “We told them, ‘Hell no, we won’t go.’”

Levy-Armstrong is among 39 protesters facing federal charges for disrupting a St. Paul church service where one of the pastors also leads a local ICE field office. U.S. Attorney General Pam Bondi ordered the arrests.

Also charged were two independent journalists, Don Lemon and Georgia Forte, who were covering the January demonstration. It’s part of the federal government’s attempt to muzzle journalists.

Labor Turns Out

Labor unions are playing a big role in organizing the No Kings protests, having seen many of their own immigrant members abducted by ICE.

Speakers at the St. Paul rally included Liz Shuler, president of the AFL-CIO, Randi Weingarten, president of the American Federation of Teachers, and April Verrett, president of the Service Employees International Union.

“Over and over this year we’ve seen this administration try to divide us, as working people,” said Shuler. “Whether we were born here, whether we were blue collar, white collar, gay, straight, trans, Black, white, Latino.”

Senator Sanders saved his strongest words and drew a vociferous, positive response for his comments, criticizing the war on Iran. The war, said Sanders, was begun by Trump and “his partner, Benjamin Netanyahu,” and is unconstitutional and a violation of international law

He ticked off the war’s consequences so far: 13 U.S. soldiers dead, hundreds wounded, nearly 2000 Iranian civilians killed and wounded, 498 schools bombed by American and Israeli missiles, more than 1000 Lebanese killed and one million displaced, which is 15 percent of Lebanon’s population.

In Israel, Sanders said 20 people had been killed and 5000 wounded, and on the West Bank, “Israeli vigilantes are burning down homes and killing Palestinians.”

“At a time when gas prices are soaring,” said Sanders, “when many Americans cannot afford the basic necessities of life, it is estimated that this war has already cost a trillion dollars. At a time when the American people are politically divided, there is one issue that is bringing us together. Conservatives, moderates and progressives are speaking out in unison, ‘End this war.’”

Repeated chants of “End this war,” echoed across the crowd.

“It’s a good feeling being here among like-minded people” said Rodney Massey, 59, an IT worker from Minneapolis, who is Black. He wore a sign on his back that said, “Staying silent in times of injustice is privilege.”

His daughter Kassia Massey, 33, a host at a Minneapolis nightclub, was beside him. She came, she said, to oppose “the racism, the fascism” and felt good to be at an event where, “Everybody, together, is trying to make change.”

Source: Against the Current.

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Wednesday, May 20, 2026






What Jefferson and Madison would have thought about ‘rededicating’ the US to God

A man participates in a worship service on the day of Rededicate 250: A National Jubilee of Prayer, Praise & Thanksgiving at the National Mall in Washington, D.C., U.S., May 17, 2026. REUTERS/Seth Herald

May 20, 2026

Thousands of Americans prayed on the National Mall on May 17, 2026, during “Rededicate 250”: a day-long rally to “come together in prayer and worship ahead of the nation’s 250th birthday,” as organizers described it. U.S. House Speaker Mike Johnson, one of many Republican politicians and conservative Christian leaders to speak, led a prayer to “rededicate the United States of America as one nation under God.”

Planned by Freedom 250, a public-private partnership, the rally prompted criticism that it blurred the lines separating church and state. According to the Pew Research Center, 73% of adults agree that religion should be kept separate from government policies, and only 19% of Americans say the United States should stop enforcing that principle.

But figures allied with the Trump administration have challenged the premise that the U.S. government should be – or was meant to be – separate from religion. In 2023, Johnson remarked that “The separation of church and state is a misnomer … it comes from a phrase that was in a letter that Jefferson wrote. It’s not in the Constitution. And what he was explaining is they did not want the government to encroach upon the church – not that they didn’t want principles of faith to have influence on our public life.”

As a scholar of American legal and religious history, I have written extensively about the development of religious freedom in the U.S., and the origins of the separation of church and state.

Two of the Founding Fathers shaped American views on these topics more than any other: Thomas Jefferson and James Madison. Yet their views have also become lightning rods for controversy as the “wall” between church and state comes under scrutiny.

My 2024 book, “The Grand Collaboration,” seeks to answer several questions: What was Jefferson’s and Madison’s understanding of religious freedom? And why were they so deeply committed to that principle?
Bedrock of law – in Virgina and beyond

Jefferson wrote the Virginia Bill for Religious Freedom in 1777, the most comprehensive declaration of religious freedom at the time. The bill guaranteed freedom of conscience, protected religious assemblies from government oversight, prohibited government funding of religious institutions and boldly declared that religious opinions were outside the authority of civil officials.

Several years later, Madison guided these ideals into law. His “Memorial and Remonstrance Against Religious Assessments,” a protest against a proposal to support Christian teachers with tax money, affirmed the values of church-state separation and religious equality. He helped defeat the proposal – and set the stage for Virginia to adopt Jefferson’s bill.

As president, Jefferson went on to pen a letter to a Baptist association in Connecticut where he immortalized the phrase “a wall of separation between church and state.”

The Bill of Rights contains two clauses about religion, both in the First Amendment: that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

What qualifies as “establishment of religion,” however, is open to debate.

In 1947, the U.S. Supreme Court embraced church-state separation as the guiding principle for interpreting the religion clauses, relying extensively on the two Virginians’ writings and actions. As Justice Hugo Black wrote, “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”

The duo’s documents served as the authority for the legal principle of church-state separation, and for more than five decades, their bona fides remained unquestioned in the law.
Shift at SCOTUS

Criticism of church-state separation intensified in the 1980s. As the religious right grew into a political force, commentators argued that the concept was anti-religious and did not represent the prevailing views about church and state during the founders’ time.

In recent decades, such arguments have attracted politicians and jurists, including members of the Supreme Court. Justice Clarence Thomas has written that the court’s earlier separationist interpretations of the Constitution “sometimes bordered on religious hostility.” Legal scholar Philip Hamburger has declared that “the constitutional authority for separation is without historical foundation” and “should at best be viewed with suspicion.”

Several recent Supreme Court decisions have rejected a separationist approach to church-state matters. For example, the conservative majority has allowed taxpayer dollars to be used at religious schools, the display of religious symbols on government property, and religious expression by public school employees.

In a 2022 dissent, Justice Sonia Sotomayor bemoaned that the court has turned the separation of church and state from a “constitutional commitment” to a “constitutional violation.”

The justices’ earlier reliance on Jefferson and Madison has borne the brunt of criticism that their views on church-state matters did not represent their peers, or that neither man was in favor of separation as he has been portrayed.
Exchange of ideas

To better understand Jefferson’s and Madison’s beliefs, I examined many of the 2,300 letters between the two on “Founders Online,” a National Archives website. I also looked at correspondence with other acquaintances.

Both founders had deistic leanings, meaning they believed in a supreme being, but thought science and reason were the best paths to understanding religion. They were only nominally observant Christians, but more protected from religious intolerance than other “dissenters” due to their high social standing and affiliation with the Anglican Church.

All the more striking, then, that they worked throughout their lives to advance religious freedom.

Religious matters were never far from their minds. For instance, in Madison and Jefferson’s exchanges discussing the need for a bill of rights, freedom of conscience was invariably at the top of the list. Both were convinced that government should avoid supporting religion, even if no particular religion was given preference. They also insisted that people should have broad religious freedoms.

These views were clearly on the vanguard, but other religious rationalists and religious dissenters also advocated a comprehensive understanding of religious freedom.

Both men were committed to advancing religious freedom because they saw it as deeply entwined with freedom of inquiry and conscience. “Reason and free enquiry are the only effectual agents against error,” Jefferson wrote in 1784. Allowing people to investigate ideas freely “will support the true religion,” because “Truth can stand by itself.”

Similarly, Madison declared “the freedom of conscience to be a natural and absolute right.”

In their view, free inquiry was the fount of other rights. Religious freedom, for example, was a subset of freedom of conscience. And a healthy separation of church and state was key to ensuring those freedoms.
‘A pillar of support’

The letters reveal the extent to which Jefferson and Madison complemented and reinforced each other’s attitudes toward church and state. They also reveal the close intellectual and emotional affection that each man held for the other, and how much each man valued the other’s support.

In their final exchanges before Jefferson’s death on July 4, 1826, he implored Madison, “To myself, you have been a pillar of support thro’ life. Take care of me when dead, and be assured that I shall leave with you my last affections.”

Madison responded with similar affection: “You cannot look back to the long period of our private friendship & political harmony, with more affecting recollections than I do.”

Jefferson’s and Madison’s half-century of collaboration on behalf of religious freedom and equality is an important chapter in the nation’s founding history. I believe its legacy should be remembered and celebrated, not discarded.

This is an updated version of an article originally published on June 25, 2024.

Steven K. Green, Professor of Law, Director of the Center for Religion, Law & Democracy, Willamette University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

On the Untimely Death of the Voting Rights Act

 May 19, 2026

United States President Lyndon B. Johnson, Martin Luther King Jr., Clarence Mitchell Jr., Patricia Roberts Harris, and other guests at the signing of the Voting Rights Act on August 6, 1965 – Public Domain

The Supreme Court’s recent decision in Louisiana v. Callais, invalidating a congressional map that included a second majority-Black district in the state, severely weakened a key provision of the Voting Rights Act of 1965. The case introduces a legal Catch-22 that will make it much more difficult to protect the constitutional rights of minority voters, Black Americans in particular.

The story of this case begins after the 2020 census. Louisiana, where about a third of the people are Black, drew a congressional map with just one majority-Black district out of six. When a previous lawsuit resulted, a federal district court, later affirmed on appeal, held that another majority-Black congressional district should be created under the Supreme Court’s Thornburg v. Gingles test. Faced with the prospect of a court-imposed remedial map, the Louisiana legislature passed Senate Bill 8 (SB8), a map with a second majority-Black district. A group of voters then sued, arguing that this map was an unconstitutional racial gerrymander violating the 14th Amendment’s Equal Protection Clause.

In the way it has decided Callais, the Supreme Court has effectively made the Black community’s political loyalties a weapon against their own political representation. In many parts of the country, Black voters are the most cohesive and unified of all voting groups, supporting Democrats strongly and reliably. And because this cohesion is so strong, the Supreme Court has targeted it as a path to the evisceration of the Voting Rights Act. The Court said that because of the relationship between race and political party, particularly in the South, it would be difficult to prove that the people who created a given map intended to discriminate on the basis of race rather than simply seeking a political leg up. Drawing districts based on political party is quite legal. While drawing them based on race isn’t formally legal, the current standards permit states to drown out and divide Black communities and say it’s just politics. This is the nature of the legal trap that voting rights lawyers have to grapple with now.

The historical Section 2 inquiry asked whether there was a lack of opportunity for minority voters as a matter of fact. The question was whether a given districting scheme denied minority voters equal opportunity in practice, rather than requiring proof of discriminatory motive. Decided in 1986, Thornburg v. Gingles stood for the idea that if a white voter bloc consistently defeated the minority-preferred candidate, then the system was effectively diluted, quite regardless of whether the white voting bloc was subjectively driven by racial prejudice or partisan preference. Lack of opportunity in fact was the focus of the legal inquiry. The major conceptual shift from Callais is to introduce a stringent causal requirement around racially polarized voting, where it must be shown to be driven by race alone. If such polarization can be explained in terms of political party, the Court can virtually ignore the race factor. Then the burden is on the challengers to show that race was the predominant motivating factor.

Asking the challenger to extricate race from party membership in this way has effectively taken away racially polarized voting as an object of analysis in Voting Rights Act litigation.

Constitutional law treats racial distinctions as subject to a strict scrutiny test. Under the Supreme Court’s ruling, Louisiana must show that it had a strong basis in evidence for concluding that a race-based map was necessary for compliance with the Voting Rights Act. The Court states that “simply pointing to inter-party racial polarization proves nothing, because ‘a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.’” The Court comes up with a definition of racially polarized voting that excludes party-aligned voting, to conclude that there was actually no racially polarized voting going on in Louisiana—and thus no violation of the Voting Rights Act. And no violation means no compelling interest in the use of a racial distinction.

Such a rigging of the legal standards means that the very behavior that once made a community a cognizable “opportunity group” under the Supreme Court’s old Thornburg v. Gingles test will now be the state’s best legal excuse for diluting their political power. Under that standard, a minority group had to show that they vote as a bloc to argue that they deserve an “opportunity district,” in which it is possible for them to elect their preferred candidate. The Court explained the test:

The Court’s definition of the elements of a vote dilution claim is simple and invariable: a court should calculate minority voting strength by assuming that the minority group is concentrated in a single-member district in which it constitutes a voting majority. Where the minority group is not large enough, geographically concentrated enough, or politically cohesive enough for this to be possible, the minority group’s claim fails. Where the minority group meets these requirements, the representatives that it could elect in the hypothetical district or districts in which it constitutes a majority will serve as the measure of its undiluted voting strength.

The current Supreme Court treats such findings of fact very differently, to the point where Justice Elena Kagan, in her dissent in Alexander v. South Carolina State Conference of the NAACP, argued that the majority had created a free pass for state legislatures to discriminate against Black voters. By requiring plaintiffs to produce a hypothetical “alternative map” that would satisfy the state’s partisan goals, the Court is asking challengers to do the impossible and prove a negative. If a discriminating Southern state argues, “We switched the districts of these Black voters because they’re Democrats,” and a court accepts that at face value, then the Voting Rights Act becomes well-nigh impossible to enforce in the South. As Justice Kagan pointed out, in the system created by the law today, there is an incentive for mapmakers to find the most racially polarized data available, using it not to protect those minority voters, but as a weapon for diluting their influence. Justice Kagan argued that this allows states to effect racial discrimination under the guise of purely political advantage.

The current ultra-conservative Supreme Court has been developing this line of thought toward the result in Callais. In a prior case, 2019’s Rucho v. Common Cause, the Supreme Court held that the federal courts have no inherent constitutional power to stop partisan gerrymandering, treating it as a political question that should stay with the political branches. The Court held that plaintiffs must show more than a plausible racial motivation for the map; they have to be able to show that the political party explanation is not the predominant one, but that race is. The Supreme Court allows that a legislature may act for both partisan and racial reasons simultaneously, and thus that even if the partisan explanation is real, plaintiffs can nevertheless prevail in a challenge if race was the predominant factor. Where race and party are so thoroughly intertwined, as in the South, a state legislature could now “crack” or “pack” a Black community and, when challenged, claim that the goal was to target the Democratic vote for dilution, not the Black vote. The practical effect of the Callais decision is to import an intent-like evidentiary standard into a statutory framework that explicitly rejected such standards. Justice Kagan’s dissenting opinion in Callais explains this well:

Its supposed “updating” of Gingles overthrows Congress’s decision to make Section 2 liability hinge on an electoral practice’s effects—on how it actually works. The new Callais requirements will effectively insulate any practice, including any districting scheme, said by a State to have any race-neutral justification. That justification can sound in traditional districting criteria, or else can sound in politics and partisanship. As to the latter, the State need do nothing more than announce a partisan gerrymander. Assuming the State has left behind no smoking-gun evidence of a race-based motive (an almost fanciful prospect), Section 2 will play no role. “Whatever”—whatever—results from the State’s asserted justification is all its minority citizens are entitled to.

As Justice Kagan points out, the Court’s majority ignores the legislative history of the 1982 amendments to the Voting Rights Act, which placed the “emphasis on results, not motives.” From an factual, empirical standpoint, this deep entanglement between race and partisan affiliation in many regions means that the achievement of a legally permissible political advantage for Republicans will almost always result in racially disparate impact. The preposterous requirement to produce a map that achieves the exact partisan advantage without also producing a different racial outcome will prove an insurmountable evidentiary bar in many of the most important voting rights cases. The current evidentiary standard is utterly arbitrary. As many legal scholars have observed, following Justice Kagan’s dissent, the hypothetical map requirement shifts the focus from the actual, observable results associated with a given map, reflecting the intent behind the 1982 amendments to the Voting Rights Act, to a new effective intent standard that is almost impossible to meet in practice.

When you consider the hurdles together, the future of Black political representation in the U.S. starts to look rather bleak: race has to predominate as a reason for the map, and the challenger has to show it wasn’t just politics, yet the empirical collinearity between race and party is such that producing the kind of evidence the law now demands is almost impossible. In statistical terms, if almost all Democratic voters in a given region are Black, then any map that achieves the state’s partisan goal of cracking or packing the Democratic vote will, just by definition, crack or pack the Black vote. Demanding a map that yields the former without the latter is to demand a statistical anomaly.

The post-Callais structure is thus almost perfectly designed to keep politics maximally white: as a simple statistical matter, when two independent variables, here race and party affiliation, are nearly perfectly correlated, it is mathematically difficult, and indeed often logically incoherent, to isolate which variable predominated as a driver for a specific districting boundary. In many states, the mapmaking legislator could achieve the desired partisan objective using either proxy. Under the current predominance standard, if the mapmaker can claim the objective function was party, the map is a partisan gerrymander, non-justiciable under Rucho v. Common Cause. But if a map is drawn specifically to ensure that the voting rights of a minority group are protected, then the map falls under strict scrutiny, the path to invalidation, because it very explicitly considers race.

By assuming that legislative bodies act in accordance with the Constitution, the Court effectively assigns the residual of the statistical correlation to the lawful category, party politics, unless the plaintiff can produce some smoking gun or an alternative map that isolates the variables, both unlikely. Under the law after Callais, if politics can explain a map, then politics does explain it. In high-collinearity environments, this judicial benefit of the doubt will cover almost the entire evidentiary field, leaving the Voting Rights Act with almost no functional area of operation.

David S. D’Amato is an attorney, businessman, and independent researcher. He is a Policy Advisor to the Future of Freedom Foundation and a regular opinion contributor to The Hill. His writing has appeared in Forbes, Newsweek, Investor’s Business Daily, RealClearPolitics, The Washington Examiner, and many other publications, both popular and scholarly. His work has been cited by the ACLU and Human Rights Watch, among others.