Michael Pardo has posted this fascinating paper (forthcoming, University of Illinois L. Rev) on SSRN. Here is the abstract:

In Alexander v. South Carolina State Conference of the NAACP, the United States Supreme Court reversed a district court ruling that a South Carolina congressional district was an unconstitutional racial gerrymander. From the perspectives of constitutional law, election law, and politics, the decision was notable for several important reasons and the decision will no doubt prompt scholarly discussion in these areas.

Alexander, however, was also a case about evidence, evidence law, and legal proof. The case turned on whether the district court’s factual finding that the plaintiffs had met their burden of proof was “clearly erroneous.”  When viewed from the perspective of evidence law and legal proof, the decision is both surprising and problematic. It is surprising because the majority opinion mistakes the substantive legal standard for the evidentiary standard of proof (a mistake not called out by an otherwise detailed dissent). It is problematic because, in doing so, the majority opinion also appears to raise the standard of proof from “preponderance of the evidence” to something like “clear and convincing evidence,” without explicitly justifying that policy choice.

If this reading of Alexander is correct, several implications follow. First, the analysis clarifies aspects of the doctrine that are otherwise confusing or obscure—most importantly, the presumption of good faith by the legislature and the evidentiary significance of alternative legislative maps. As will be illustrated, the standard of proof gives content to these aspects. Second, the analysis best explains the disagreements between the majority and the dissent about the evidence in the case and the application of the “clear error” standard. Third, and most importantly, the analysis makes explicit an issue on which future cases will depend. As a matter of procedural due process, heightened standards of proof require explicit justification—something missing in Alexander. Going forward, this justification must either be provided or Alexander’s mistake corrected. The viability of future racial-gerrymandering cases may turn on this choice.