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?

Many (most?) racial gerrymandering cases have partisan as well as race-related objectives. Why did the plaintiffs sue in Alexander, the South Carolina case decided by the Court today? At least in part to try to get a second Democratic congressional district in the state. Similarly, what explains the Louisiana racial gerrymandering case whose ruling the Court stayed just last week? Again, at least partly, the (Republican) plaintiffs’ desire to stop the state from using a map with two Democratic districts.

In today’s decision in Alexander, the Court made it much more difficult for racial gerrymandering plaintiffs to achieve any partisan goals they might have. This is because the Court came close to requiring plaintiffs to submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering. The Court discounted the thousands of maps created by the plaintiffs’ experts because none of them “achieved the legislature’s partisan goal”—a Republican District 1—“while including a higher [Black voting-age population] in District 1.” The Court also held that, in the future, “trial courts should draw an adverse inference from a plaintiff’s failure to submit” an alternative map. “A plaintiff’s failure to submit an alternative map should be interpreted . . . as an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense that the districting lines were” drawn for partisan, not racial, reasons.

After today’s decision, potential litigants with partisan aims will have much less reason to bring racial gerrymandering claims. The alternative map they’re now (essentially) required to produce is an instruction manual for the state explaining how it can remedy the violation alleged by the plaintiffs without disturbing its plan’s partisan performance. Why should partisan litigants bother suing when, to avoid a likely fatal “adverse inference” against them, they have to demonstrate to the state how to avoid any partisan consequences as a result of the suit?

Importantly, today’s decision similarly constrains Democratic and Republican litigants. I mentioned above that Alexander may have been brought, in part, to obtain another Democratic district, while Republican gain was a likely motive for the ongoing Louisiana case. A look at the whole universe of racial gerrymandering cases confirms that both parties see them, at least partly, as vehicles for pursuing partisan advantage. In the 1990s, the original cases of this kind were almost uniformly brought by white Republican plaintiffs angry about plans that simultaneously benefited Democrats and increased minority representation. In the 2010s, minority Democratic plaintiffs challenged aggressive Republican gerrymanders that used race in ham-handed, legally indefensible, ways to comply with the Voting Rights Act. This cycle, beyond the South Carolina and Louisiana cases, there have been prominent racial gerrymandering suits seeking (in part) more Democratic districts in Alabama and Texas and (also in part) more Republican districts in Michigan and Wisconsin.

What’s the problem, then, with a decision that focuses racial gerrymandering cases on racial, not partisan, grievances? The problem, in a word, is Rucho. While the Court held that partisan gerrymandering is nonjusticiable in Rucho, severe partisan gerrymandering remains unconstitutional—even according to Rucho—and staggeringly undemocratic. So it’s understandable that parties victimized by partisan gerrymandering want to go to court to correct this profound constitutional and democratic injury. However, Rucho prevents parties from directly asserting this harm, at least in federal court. And today’s decision more or less stops parties from trying to attack partisan gerrymanders indirectly through racial gerrymandering claims. After Alexander, parties increasingly have nowhere to turn when they’re targeted by conduct that almost everyone agrees is unlawful and undemocratic.

To be clear, the pre-Alexander situation of racial gerrymandering claims sometimes being repurposed to fight partisan gerrymandering was far from ideal. The right answer would be for courts to recognize racial and partisan gerrymandering claims, thereby allowing racial gerrymandering claims to root out race-related abuses. But Alexander moves us from a second-best to a third-best world: one where partisan gerrymandering can’t be tackled directly or indirectly, and simply becomes invisible as a matter of federal constitutional law.