Why the Stakes in the SC Redistricting Case are Lower Than Some Might Think

Putting to the side the merits of the Court’s decision itself, I think the stakes going forward are lower than might be realized. After the 2010 round of redistricting, racial gerrymandering cases became important during a transitional phase of redistricting law.

At the time, legislatures were concerned that partisan gerrymanders might be unconstitutional. So southern legislatures, in particular, tried to hide partisan gerrymandering behind claims that the Voting Rights Act required them to do what they did. They invoked race rather than saying they were engaged in partisan gerrymandering. The racial gerrymandering doctrine then become highly relevant to block this move. That led the Court to strike down racial gerrymanders from Alabama (disclosure: a case I argued), North Carolina, and Virginia in the 2010 round of redistricting.

But once the Supreme Court decided Common Cause v. Rucho in 2019 (disclosure again, I represented Common Cause), the 2020 round of redistricting worked differently. Legislatures now were free to proclaim loudly and baldly that they were engaged in partisan gerrymandering. Unless they get bad legal advice or screw up (which might have been the case in SC), they no longer need to use race as a proxy or a means to pursue or to defend partisan gerrymanders. They can simply use voting patterns directly to create districts projected to perform as they would like in partisan terms.

Thus, even before today’s SC decision, the 2020 round has generated fewer significant cases in which minority voting-rights plaintiffs are challenging plans as racial gerrymanders (I should note, this is distinct from vote dilution claims under VRA Sec. 2 or the constitution, for which the Court’s Allen v. Milligan decision has indeed been significant).

The SC decision will, to be sure, make it harder to win racial gerrymandering claims. But for these other reasons, I think it was already the case that the racial gerrymandering doctrine at issue in Alexander was playing and would play less of a role on behalf of voting-rights plaintiffs this decade than it did during the transitional decade from 2010-2020.

Indeed, the major way the doctrine is likely to play a role this decade is against minority voting-rights plaintiffs. It’s going to be deployed to attack districts drawn to comply with the VRA. That’s exactly what’s going on in the pending LA case, in which the legislature created a VRA district to remedy a VRA violation, but which the federal court then struck down as an unconstitutional racial gerrymander. Currently, the Supreme Court has a stay in place in that litigation.

I expect the Court to agree to hear the LA case.

Update: Back in October, I posted am explanation here at ELB on why SC might indeed have turned to using race (unconstitutionally) as a proxy for political voting preferences, rather than relying directly on purely political data on voting patterns.

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