T he Supreme Court, this morning, in Alexander v. South Carolina State Conference of the NAACP, restored a South Carolina congressional map that had been struck down as unconstitutionally race-based by a three-judge district court. The decision is a small step, but only a small one, in the direction of sanity in a frequently insane area of the Court’s jurisprudence.
Politically, the decision is a win for Republicans as it made Nancy Mace’s district safer for the remainder of this decade. South Carolina continues to have six districts that range from strongly to entirely Republican and one (James Clyburn’s sixth district) with a black plurality that is safely Democratic. Mace’s Charleston-based first district is the most contested; she ousted incumbent Democrat Joe Cunningham by just 1.3 points in 2020, after which the new map was drawn. She was reelected by a 14-point margin in 2022 under the contested map.
The new map was going to be used this year regardless of today’s decision because the Court took too long to resolve the case (which was argued in October). Sticking with the previous decade’s map (drawn in 2011) was never an option because the 2020 census showed that the populations of Mace’s and Clyburn’s districts had shifted so much (with about 85,000 more voters in Mace’s district and a similar decline in Clyburn’s) that the 2011 map would have violated the one-man-one-vote principle. The challengers never offered a map of their own.
Legally, the justices mostly skirmished over the burden of proof and the standard of review of the factual record — a classic “who decides?” question. The six-justice majority, in an opinion by Justice Samuel Alito, ruled that the district court had not given sufficient respect to the “presumption of good faith” applied to the decisions of the state legislature; the three-justice dissent, written by Justice Elena Kagan and joined by the other two liberals, argued that the Court itself should have deferred more to the factual findings of the district court.
Justice Clarence Thomas, who joined the majority, nonetheless wrote one of his familiar lone concurring opinions, arguing that the dispute between the two sides illustrates why courts are out of their depth in these cases:
In my view, the Court has no power to decide these types of claims. Drawing political districts is a task for politicians, not federal judges. There are no judicially manageable standards for resolving claims about districting, and, regardless, the Constitution commits those issues exclusively to the political branches. . . . Divining legislative purpose is a dubious undertaking in the best of circumstances, but the task is all but impossible in gerrymandering cases.
As the Court’s opinion noted, partisan gerrymandering is constitutionally permissible; racial gerrymandering is not. Thus, “a party challenging a map’s constitutionality must disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship.” But, Thomas rejoined, this is often an impossible task where race and partisanship are closely correlated (as they are in South Carolina and much of modern America), and it puts states in an impossible bind because the Court’s precedents have told them, on the one hand, that it’s unconstitutional to consider race and, on the other, that it’s compulsory under the Voting Rights Act to consider race. Less than a year ago, the Court forced Alabama to consider race and create a new majority-black district in order to comply with the Voting Rights Act.
The Circumstantial Case
Alexander was not a Voting Rights Act case, and that meant that the Court was not deciding whether South Carolina did enough to be race-conscious but rather whether it did too much. But it did so with no actual evidence that the legislature actually considered race in drawing the map.
As Alito noted, the Court’s precedents have struck down legislative maps only when race “predominated” in the legislature’s decision-making. If it does in the South Carolina case, the district can be defended under “strict scrutiny” only by showing that it was necessary to consider race in order to comply with the VRA.
There are two ways to determine whether race “predominated”: direct evidence of intent to consider race — which typically comes out of discussions of VRA compliance — and circumstantial inferences. Alito observed that the latter is, and should be, extremely hard to prove because it involves mind-reading a legislature in order to strip it of its traditional powers:
Although we have never invalidated an electoral map in a case in which the plaintiff failed to adduce any direct evidence, we have, at least in theory, kept the door open for those rare instances in which a district’s shape is so bizarre on its face that it discloses a racial design absent any alternative explanation.
A circumstantial-evidence-only case is especially difficult when the State raises a partisan-gerrymandering defense. . . . When partisanship and race correlate, it naturally follows that a map that has been gerrymandered to achieve a partisan end can look very similar to a racially gerrymandered map. . . . If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar. [Quotations and citations omitted]
That is Thomas’s point in his concurring opinion: Once you’re trying to disentangle partisanship from race, you’re so far into counting angels on the heads of pins that a court ends up just making it up.
Keeping the courthouse doors open, but only under rigorous rules of proof that are unfavorable to activist plaintiffs and their friends on the lower-court benches, is exactly what Alito’s prior majority opinion did for claims of discriminatory voting rules under Section 2 of the Voting Rights Act in Brnovich v. Democratic National Committee (2021). It’s the opposite of what the dissent argued, which was to direct lower-court judges to view the work of legislatures with skepticism, then couch their rulings as “findings of fact” that no appeals court could effectively review.
The Court added another safeguard against endless litigation of redistricting by ruling that, if plaintiffs intend to show that race, not partisanship, must have been the only explanation for a map, they have to offer their own map that would achieve the legislature’s partisan ends without reference to race. That, of course, is a requirement that the (almost invariably Democratic) plaintiffs in these cases hate, because the whole point of their motivation in bringing suit is to obtain a map more favorable to their party. Requiring a Democratic plaintiff to submit a map that is just as good for Republicans is a massive disincentive to bring these cases in the first place — at least for the people currently bringing them.
That is quite a different approach to alternative maps from the one the Court took in Allen v. Milligan (2023), the Alabama Voting Rights Act case. There, Alito’s dissent argued that if an alternative map creating a second majority-black district could only be drawn by reference to race, that proved that it was an unconstitutionally race-based map. But the Allen majority rejected that view, allowing the plaintiffs to propose an alternative map that was explicitly race-conscious.
The evidence of something invidious happening in Alexander was slim. As Alito’s opinion observed, the new map preserved the partisan balance of the state that had obtained under the 2011 map (which was precleared by the Justice Department under the pre–Shelby County v. Holder regime), and Mace’s new district actually unified two counties that had been divided before and included a larger black population than the one included in a map that Clyburn proposed.
The Constitutional Case
The majority and the dissent both conducted their battles over the factual record within the parameters of precedent. Thomas, however, stood once again alone in calling upon the Court to consider the Constitution: “The racial predominance standard does not even purport to be consistent with the colorblind Constitution.” In his view, not only is redistricting litigation unworkable, it’s also unconstitutional because “it was Congress, not the courts, that the Founders contemplated would provide recourse against state intrusions on voting rights through the districting process,” and the elections clause of Article I “commits supervisory authority over congressional districting to Congress alone.” Moreover, resolving these cases inevitably involves exercising remedial powers the courts do not possess: “The power to redraw . . . electoral districts . . . exceeds the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act” (quotation and citation omitted).
Ideally, we would simply stop requiring racial gerrymanders, have Congress impose some outer limits on the worst abuses in line-drawing, expand the size of the House to allow a wider and more diverse range of districts, and then just get courts out of the business of flyspecking maps. In the meantime, at least, today’s decision reduces the footprint of these kinds of lawsuits — and therefore does less harm to our constitutional order.