My last post noted the latest baseless attack on Justice Clarence Thomas, which misrepresented his opinion concurring in part in Alexander v. South Carolina State Conference of the NAACP, decided on May 23. The Supreme Court’s opinion in that case upholding South Carolina’s congressional district map, written by Justice Samuel Alito for a 6–3 Court, has also been vilified with demagoguery that has become all too familiar. Typical is the view of Rep. James Clyburn “that this Court has chosen to disenfranchise Black voters and rob us of our fundamental access to the ballot box.” Laurence Tribe ranted, “The way South Carolina redrew its map was racist. . . . Alito says no problem because the motive was partly political!” Besides mischaracterizing the legislature’s motive, Tribe, one of the most prominent living constitutional scholars, knows well that partisan gerrymandering is nonjusticiable according to Supreme Court precedent. Alito did not invent that idea, but Tribe is shameless.
The map’s District 1 was alleged by the plaintiffs, the NAACP and a voter in that district, to be the product of intentional race discrimination by the state legislature. A three-judge district court panel agreed and struck down the map as a racial gerrymander. On appeal by state legislators, the Supreme Court found the lower court opinion to be so groundless as to constitute clear error.
The legislators argued that the district was drawn to achieve political and race-neutral goals, which is permissible. As Alito wrote for the Court, the U.S. Constitution allows a legislature to “pursue partisan ends when it engages in redistricting. By contrast, if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected to strict scrutiny and may be held unconstitutional.” That key distinction can be difficult to make: “These doctrinal lines collide when race and partisan preference are highly correlated.” So the Court begins with a presumption of the legislature’s good faith and imposes a burden on the challengers to disentangle racial from permissible criteria and show that race played the predominant role. That would mean that race-neutral criteria like compactness and contiguity must be shown to be subordinate to race in the drawing of districts.
In this case, the plaintiffs had no direct evidence to support their claim. In fact the direct evidence went the other way as the state employee who drew the map “testified that he used only political data, and his colleagues likewise steadfastly denied using race in drawing” it. Contrary to the innuendo behind Tribe’s description of the process as “partly political,” the state employee had testified that he relied “one hundred percent” on partisan data. The employee did consider racial data at some point in the process, but by his uncontradicted testimony, it was “only after he had drawn the Enacted Map and” he had done so “solely for a lawful purpose, namely, to check that the maps he produced complied with our Voting Rights Act precedent.”
The dissent by Justice Elena Kagan impugned the motives of this “veteran consumer of racial data,” for whom “racial data . . . was easily accessible—in fact, was usually visible—on his computer while the line-drawing was going on.” But the majority opinion called it “unfair for the dissent to question his credibility simply because he, like every other expert who has ever worked on a Voting Rights Act case, has had to ‘consum[e] . . . racial data’ to comply with our precedents.” By Kagan’s reasoning, which also focused on the need to defer to the district court, there would be little the Supreme Court could do to reverse a lower court that incorrectly inferred the bad faith of an election official who has constant access to racial data for the non-nefarious purpose of complying with the Voting Rights Act. In this case, the plaintiffs interestingly did not challenge the state under the Voting Rights Act, but under the Fourteenth Amendment.
The plaintiffs relied on circumstantial evidence that the Court described as “very weak”—among “tens of thousands of maps” produced by their experts, the challengers “did not offer a single map that achieved the legislature’s partisan goal while including a higher” black voting-age population in District 1. In the absence of such an alternative map, Alito noted, “it is difficult for plaintiffs to defeat our starting presumption that the legislature acted in good faith.” And the failure to produce such a map, which could be made inexpensively, “should be interpreted by district courts as an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense” as to the permissible grounds of their line-drawing. The expert reports submitted relied on weak inferences based on questionable methodology and failure to account for the various nonracial criteria for drawing the map such as party preference, core retention, contiguity, and compactness.
That analysis followed the Court’s decision—written by Justice Stephen Breyer—in Easley v. Cromartie (2001), which held that in similar cases
where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.
That decision factors far more into Alito’s majority opinion than into Kagan’s dissent, which relegated it to a dismissive footnote. Alito recognized that a different outcome would have provided a back door for litigants unhappy with partisan gerrymandering—which, again, is not justiciable in federal court—to “repackage a partisan-gerrymandering claim as a racial-gerrymandering claim by exploiting the tight link between race and political preference.” The demagogues who misrepresent this case would have been fine with that outcome. But the majority knew better than to open a Pandora’s box of judicial overreach.