The following is a guest post from Brandon Johnson:
The Supreme Court has made a habit of applying general rules of law in exceptional ways when deciding election law cases. The Court has, for example, elevated the holding in Purcell to a quasi-abstention-level “principle” to limit federal courts’ abilities to review election regulations; it has changed the rules for reviewing state court interpretations of state law if the law at issue governs federal elections; and it has significantly expanded the reach of the political question doctrine to prevent judicial review of redistricting. I will be addressing this trend in full-length article treatment in the coming year, but it is worth noting the continuation of this practice with the Court’s decision in Alexander v. South Carolina State Conference of the NAACP in which it has introduced exceptional rules for reviewing a lower court’s factual finding in racial gerrymandering cases.
Before walking through the exceptional nature of this opinion, a brief sketch of the case will provide some necessary context. In 2018, South Carolina congressional district 1—a previously reliably Republican district—elected a democratic candidate to Congress. After the 2020 census, District 1 and District 6—the state’s only reliably Democratic district—needed to be adjusted due to population disparities.
The resulting new map was subject to a lawsuit alleging that the new District 1 was an unconstitutional gerrymander. South Carolina categorically denied considering racial data at all in crafting the new district maps. At trial, South Carolina asserted, for the first time, that the new District 1 was drawn to serve partisan goals of ensuring that the district would once again be a safe Republican seat. After a lengthy litigation process, a three-judge district court found in favor of the plaintiffs and held that District 1 was, in fact, created in violation of the Fourteenth Amendment. The district court made several factual findings supporting this conclusion including crediting the plaintiff’s expert testimony and discrediting the State defendant’s denials that they used racial data in crafting the new maps.
The State sought and received review in the Supreme Court. In a 6-3 opinion authored by Justice Alito, the Court reversed the district court’s decision, allowing the new map to go into effect.
Because the district court’s decision rested in large part on factual findings, it would in the ordinary course be subject to clear error review on appeal. It is at this point that the exceptional nature of the Supreme Court’s majority opinion, authored by Justice Alito, starts to emerge.
From the opinion’s first discussion of the clear error standard, it is apparent that this will not be “clear error” as usual. Less than two pages after explicitly stating that the Court will “dispose of the case on clear error grounds,” the opinion backs away from the traditional formulation of the clear error standard, asserting that the three-judge court’s “mistaken impression of legal principles” means that the Court here “is not bound by the clearly erroneous standard.”’
Justice Alito wades into each of these factual findings, from expert reports to inferences drawn from the racial makeup of the new districts to similar inferences drawn from the racial makeup of the precincts moved around during the redistricting, and determines that because another “reasonable” explanation was available for each in isolation, it was somehow “clearly erroneous” for the district court to reach a different conclusion. But nowhere does the majority demonstrate that this alternative conclusion was unreasonable. This is exactly the type of discretion lower courts are typically given. As the Court stated in, Anderson v. Bessemer City,which has become a canonical case on clear error review (and in fact, was cited for the clear error standard by Justice Alito), “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” But by crediting one “reasonable” interpretation over another, the majority opinion makes this exact choice.
Nor does the majority point to overwhelming evidence in support of the State’s position to justify its determination that the lower court clearly erred in its findings. Instead, the opinion walks through the substantial amount of evidence that the NAACP presented in support of their position (and which the three-judge panel relied on) and points out perceived weaknesses in each of these pieces of evidence. The opinion spends nearly ten of its thirty-five pages, for example, poking holes in the methodology used by the plaintiff’s experts.
As Justice Kagan makes clear in dissent, the majority had to take this approach to reach its desired result because the State never produced conflicting expert testimony of its own. Instead, at trial, the only expert testimony offered in defense was a similar attempt to discredit the plaintiff’s methodology. So, despite what the dissent calls the majority’s declaration that “it knows better than the District Court what happened in a South Carolina map-drawing room to produce District 1,” Justice Alito’s opinion does not identify record evidence that the three-judge court overlooked.
The majority even goes so far as to reverse a credibility finding of the lower court, typically a no fly zone on appellate review. The three-judge court found that testimony by Will Roberts—the “nonpartisan staffer” who created the maps at issue—that racial data was taken into account only after the initial maps were drawn in order to ensure compliance with the Voting Rights Act was not credible. But again, the dissent fleshes out the narrative painted by the majority, making clear there was ample reason for the district court to question the veracity of this statement, especially given Roberts’ testimony that this was the first occasion in his 20-year career of redistricting that he did not look at racial data. Adding more fuel to the skepticism fire, the dissent also pointed out that “Roberts configured maproom computers to show how every line-drawing decision would affect the new District 1’s racial make-up.” (Id.)
In support of the unusual step of undermining this credibility determination, by contrast, Justice Alito merely posed the following hypothetical: “Why would Roberts have used racial data—with the associated legal risks—as a proxy for partisan data when he had access to refined, sub-precinct-level political data that accounted for voter turnout and electoral preferences?” But this again simply faults the district court to coming to the opposite conclusion. Justice Alito’s question could easily be flipped on its head and we could ask why someone wanting to account for racial data when redistricting would need to do so explicitly—“with the associated legal risks”—when partisan data is a sufficient proxy for the relevant racial demographics. Interpreting testimony, especially the credibility of a live witness before the court, based on a disagreement with a competing interpretation is well outside the traditional bounds of clear error review.
The opinion also moves the goalposts for what is required of plaintiffs bringing racial gerrymandering claims. As others have already observed, one impact of the opinion here is that plaintiffs will now be essentially required to produce a model map that would have the same partisan effect with a different racial makeup in order to succeed on their claim. The wisdom of such a requirement aside (I will leave that to better minds), the way in which Justice Alito imposes this requirement demonstrates another departure from run-of-the-mill clear error review. The opinion not only transforms a permissive way of proving a racial gerrymandering case into a required way, but it also asserts that the failure to proffer the preferred form of proof requires an adverse inference from the court. Even more, a district court’s failure to make a previously unrequired adverse inference amounts to clear error. This is a far more demanding standard than we expect from the highly deferential clear error standard.
The point here is not just to identify the unusual way in which the Alexander majority applied the clear error standard—the dissent does an excellent job of identifying each of these departures—instead the goal here is to point out how usual it is for the Court to do something unusual when deciding election law cases.
Nor is the argument here that the Court is doing something unprecedented in reversing a redistricting decision under the clear error standard. Indeed, the Court did just that in 2001 with a reversal of the ideological makeup of the majority and dissent. In Easley v. Cromartie, (Cromartie II) Justice Breyer authored a 5-justice majority reversing a “three-judge District Court’s determination that North Carolina’s Legislature used race as the ‘predominant factor’ in drawing its 12th Congressional District’s 1997 boundaries.” The majority did so under the clear error standard by wading through the evidence presented at trial. And it did so in the face of Justice Thomas’s dissent (joined by three other conservative justices), that accused the majority of engaging in “extensive review” of the facts, which was not appropriate under the clear error standard. But this shows only that this exceptional application of clear error has been part of election law jurisprudence for some time. It actually reinforces the idea that relatively “neutral” or trans-substantive aspects of the law have been, and continue to be, applied in exceptional ways in the specific context of election law.
Of course election law is not unique in receiving exceptional treatment from the courts (other prominent—if contested—examples include immigration law, tax law, and criminal law). But there is something especially troubling about how the Court has consistently applied supposedly uniform legal principles in decidedly non-uniform ways. Given the unelected nature of the Court and the perception (if not the reality) of political ends driving judicial opinions in this sphere, deviations from standard application of well-settled law adds well-deserved credence to charges that the Court is an anti-democratic force in American government. This is a problem entirely of the Court’s own making, and it will continue to gain steam the more frequently we see the prevalence of election law exceptionalism.