Technically, Justice Sam Alito’s 6-3 majority opinion doesn’t kill the Voting Rights Act, as he allowed that Section 2, prohibiting the dilution of minority voting rights by gerrymandering to still be unlawful if it could be proven that the map was drawn with the intention of denying minority citizens opportunity on the basis of race.

To successfully challenge district maps under the Voting Rights Act now, Justice Alito wrote, challengers would need to show evidence supporting “a strong inference” that a state “intentionally drew its districts to afford minority voters less opportunity because of their race.” A legal challenge that “cannot disentangle race from the state’s race-neutral considerations, including politics,” will fail.

But Alito, following Kavanaugh’s concurrence in Allen v. Milligan, found that times have changed, that distinctions based on race can’t go on forever, and that drawing district lines on the basis of race “collided” with the Constitution.

Justice Alito added that the new framework “reflects important developments” since the court laid out factors for evaluating the use of race in voting maps in 1986, writing that in the decades since, “the racial gap in voter registration and turnout” had “largely disappeared.”

It’s almost as if Alito is a fan of the living Constitution, evolving to address the current state of national affairs. Except his rationalization is neither inherently accurate nor, more importantly, the problem at hand. The majority is not wrong in its holding that the Constitution prohibits racial inequality, and that favoring one race over another is unconstitutional regardless of which race is the winner or loser.

But the genesis of the VRA, signed into law by President Lyndon Baines Johnson, was to counter Jim Crow laws designed to preclude registration and voting on the basis of race. It was racially remedial, bringing black voters to the neutral status of white voters rather than elevating their rights above any other race.

Chief Justice Roberts made the point in 2007 that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Pithy, yet true, provided that everyone was in a neutral position, free from current discrimination and the consequences of historic discrimination. Otherwise, it serves to freeze discrimination in place and perpetuate it in perpetuity.

But if so, can’t the crack left behind by Alito do the job? After all, if minority representation is deliberately compromised by gerrymandering to deny black voters representation, isn’t that the very racial discrimination that Alito says remains illegal?

Consider the story of a hypothetical congressional district in a hypothetical State, subjected to a redistricting scheme. The example is admittedly stylized, but in its essence simulates the dispute before us, and clarifies the immense issues at stake. The district, let’s say, is a single county, in the shape of a near-perfect circle, sitting in the middle of a rectangular State. The State is one with a long history of virulent racial discrimination, and its many effects, including in residential segregation and political division, remain significant even today. The population of the circle district is 90% Black; the rest of the State, divided into five surrounding districts, is 90% White. And voting throughout all those districts is racially polarized: Black residents vote heavily for Democratic candidates, while White residents vote heavily for Republicans. The circle district thus enables the State’s Black community to elect a representative of its choice, whom no neighboring community would put in office. But that arrangement, in this not-so-hypothetical, is not to last. The state legislature decides to eliminate the circle district, slicing it into six pie pieces and allocating one each to six new, still solidly White congressional districts. The State’s Black voters are now widely dispersed, and (unlike the State’s White voters) lack any ability to elect a representative of their choice. Election after election, Black citizens’ votes are, by every practical measure, wasted.

Did the state’s gerrymander violate the remaining Section 2 prohibition? Not if the express purpose of slicing up the minority district was not for the purpose of discriminating against black people, but for the purpose of improving the likelihood of Republicans winning elections. And given the current state of affairs, making the president happy, whether it means that Trump doesn’t lose Congress or not (which itself means the election was, from the Trumpian perspective, rigged).

Not only is this explanation easy to give, but quite likely true, at least to some extent. The purpose of gerrymandering isn’t to deprive black citizens of their ability to elect representative of their choosing, but to do everything possible to assure a MAGA victory. And sadly, there is nothing illegal about gerrymandering congressional districts for the purpose of making sure that one team wins no matter how many people in a state vote for the other team. There should be. There could be. But there isn’t.

There is, of course, a fix for all this. One assumption underlying the VRA is that black voters will want to elect someone different than white voters. That isn’t necessarily true, and there is no reason why voters of all races can’t agree on the best candidate and vote for, and elect, him or her. But what are the chances that will happen?