The following is a guest post from Travis Crum:

The wait for Alexander v. South Carolina Conference of the NAACP is finally over. Nearly five months after the parties asked for the case to be resolved, the Court has issued a decision in its first-ever Shaw case challenging a majority-white district, and as others chronicled on this blog, Justice Alito’s majority opinion will make it harder for civil rights plaintiffs to bring Shaw challenges. But we also have an inkling of why the case took so long.

Surprisingly, Justice Thomas has renounced Shaw’s racial gerrymandering cause of action, deeming it a non-justiciable political question. Justice Thomas’s separate opinion in Alexander might be his most provocative voting rights opinion since his concurrence in Holder v. Hall.

When it was decided in 1993, Shaw was the colorblind constitution come to voting rights. Relying on the Equal Protection Clause, the Court treated racial gerrymanders as racial classifications that trigger strict scrutiny. In defending the doctrine, the conservative Justices have claimed that Shaw prevents race-based redistricting that “balkanizes” us into competing racial factions and avoids stereotypes about racial bloc voting. For decades, Thomas has been one of Shaw’s biggest cheerleaders, relying heavily on its logic in his dissent in last Term’s Allen v. Milligan.

But now, Justice Thomas has changed his mind. In many ways, Thomas’s Alexander concurrence transplants his skepticism of vote dilution doctrine to racial gerrymandering: the absence of a neutral benchmark, the entanglement of the Court in the political thicket, and frustration with strategic lawyering. Intriguingly, Thomas also implicitly responds to originalist critiques of his jurisprudence.

Justice Thomas concedes that the Equal Protection Clause is an odd font for regulating race-based redistricting given that the Fourteenth Amendment was originally understood to not mandate the enfranchisement of African Americans—a point that scholars (myself included) have highlighted for its incongruity with Thomas’s originalism. Thomas then turns his attention to the Fifteenth Amendment, narrowing its scope to vote-denial claims in a short paragraph. As I explain in a forthcoming paper in the Columbia Law Review entitled The Riddle of Race-Based Redistricting, Thomas is right to be skeptical of the Equal Protection Clause, and he is also on the right track when it comes to racial gerrymandering claims—but not vote dilution ones—when it comes to the original understanding of the Fifteenth Amendment. (This paper is not on SSRN yet because I’ve been waiting to incorporate Alexander, and the Court’s delay went from days to weeks to months. I’ll post the paper in June, and I am happy to share a current draft with voting rights academics/lawyers).

The upshot of Justice Thomas’s concurrence is that he is no longer willing to police race-based redistricting. What dose this mean going forward? Thomas will vote against any Shaw challenge to redistricting plans. This will shake up the Court’s line-up. Of course, we should expect fewer Shaw suits brought by civil rights groups after this decision and because Milligan reinvigorated Section 2 claims. On the flip side, the white plaintiffs in the ongoing Louisiana Shaw challenge no longer have Thomas’s vote in their corner. Thus, there’s no vote from Justice Thomas on the merits in thatcase—which is likely to be heard next Term—to invalidate Section 2 of the VRA. Counting to five to invalidate Section 2 just got slightly more difficult.

One last point. If you had asked a Court watcher in the 1990s whether Justice Thomas would ever reject Shaw or whether liberal Justices would be enthusiastically defending it, you would gotten a resounding “no.” And yet here we are. I predict that Justice Thomas’s Alexander concurrence will become a staple of election law classes, and we’ll have to wait and see whether he convinces any other conservative Justices, as he has so often done in the past.

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.

What’s happening here?