Breaking and Analysis: Justice Alito for Republican Justices, over the Dissent of Democratic Justices, Rewrites Racial Gerrymandering Standards to Help White Republican States

[This post has been edited and updated.]

In a 6-3 decision authored by Justice Alito, the Supreme Court has reversed a lower court ruling holding that South Carolina’s congressional map was a racial gerrymandering. Justice Thomas concurred, and Justice Kagan, for the three liberal justices dissented. The majority did something rare: it rejected the factual findings of the lower court, something the Court only is supposed to do when those lower court findings are clearly erroneous.

This area of the law is unduly complex, so let me begin with a bottom line practical assessment of today’s case before wading into the weeds: Justice Alito for a court majority has once again come up with a legal framework that makes it easier for Republican states to engage in redistricting to help white Republicans maximize their political power. He did so by reversing the burden of proof that should apply in these cases in two ways to favor these states: pushing a “presumption of good faith” and raising the evidentiary burdens for those challenging the maps.

Once upon a time racial gerrymandering claims were brought by white Republicans in the South to stop the creation of more districts in which minority voters could elect candidates of their choice. The US Department of Justice was essentially forcing the states to draw these districts under DOJ’s interpretation of the Voting Rights Act. The new racial gerrrymandering cause of action, first recognized in Shaw v. Reno, made this harder to do. As the cause of action under the Equal Protection Clause of the 14th Amendment emerged, it required proof that race was the predominant factor in drawing district lines, and that there was no compelling reason, such as complying with the Voting Rights Act to do so. I was (and remain) very critical of this cause of action, because the harm is not a real one about vote dilution, but an “expressive” one that the state purportedly sends by dividing voters on the basis of race without adequate justification.

Once DOJ stopped forcing Southern states to draw more of these districts, these racial gerrymandering cases sort of disappeared. They reemerged about a decade ago when a bunch of southern states sought to pack and crack black voters in districts to maximize white Republican voting power in the South. Sometimes these states did so in a way that violated the anti-vote dilution provisions of the Voting Rights Act. But the standards (Section 2/Gingles) are hard for plaintiffs to prove, and so when there was some vote dilution but not enough to make a VRA claim, black and Latino voters started bringing racial gerrymandering cases. And they won a bunch, including in Alabama, Virginia, and North Carolina.

By this decade, the racial gerrymandering cause of action had been repackaged as what Paul Clement once called “junior varsity” vote dilution claims. That is, they were not claims in which plaintiffs could prove VRA liability, but instead ones where it was enough to show lots of race consciousness in drawing district lines, in ways that hurt minority interests.

So it is not surprising that Justice Alito, one of the Justices most hostile to minority voting rights and voting rights claims more generally, pushed back. He dissented in Cooper v. Harris, a racial gerrymandering case written for the Court by Justice Kagan, and today, he’s turned his Cooper dissent standard into a majority opinion.

The specific question in both cases is how do you deal with a situation where race and party are highly correlated and where partisan gerrymandering is allowed and racial gerrymandering is not. I’ve written about this issue extensively in the Harvard Law Review Forum and William and Mary Law Review and Alabama Law Review and ACS Supreme Court Review. Trial courts must decide if race or party predominates, and that decision is subject to clear error review. (I believe that such an exercise is essentially impossible, but this is what courts have done for decades.)

As Justice Kagan explains in her dissent, J. Alito has turned things upside down when it comes to clear error review. Rather than defer heavily to the factual findings of the court, Justice Alito doubles down on the “presumption of good faith” that he gives the states when it comes to redistricting. It’s a huge thumb on the scale, especially when coupled with the blessing he gives to partisan gerrymandering, which goes MUCH farther than the Court did in Rucho (which was more agnostic about the practice). Second, he says that without smoking gun evidence where legislators are talking about racial quotas or targets, plaintiffs need to produce “alternative maps” where there is the same partisan benefits of the map but “greater racial balance.” This of course is hard to do when race and party are so correlated.

Bottom line: now that these racial gerrymandering cases have been used to help minority plaintiffs, Justice Alito is ready to shut them down.

(There’s much to say about Justice Thomas’s concurrence too, which would hold that both racial gerrymandering and vote dilution claims are nonjusticiable. But that will have to await future posts.)

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