Opinion | The Supreme Court on Racial Gerrymandering

opinion | the supreme court on racial gerrymandering

The Supreme Court, in a 6-3 ruling last week, upheld a U.S. House map in South Carolina that lower judges had rejected as an illegal racial gerrymander. On the facts of the case, it’s a good call. Even better is that the majority opinion by Justice Samuel Alito explains principles that set a high bar before judges intervene in the inherently political process of redrawing district lines.

After the last census, Republicans in South Carolina wanted to shore up their advantage in the First District, which they lost to a Democrat in 2018 before GOP Rep. Nancy Mace won it in 2020. The Legislature’s map raised the district’s Republican vote share to 54% from 53%. As the Supreme Court held in Rucho v. Common Cause (2019), partisan gerrymandering is nonjusticiable, meaning federal courts can’t police it. But the state NAACP argued that South Carolina’s map was a racial gerrymander, which the High Court has said judges can adjudicate.

The trick is telling the difference, given racially polarized voting patterns. Was the First District drawn to exclude more Democrats, who happen to be black? Or was it drawn to exclude more black voters, who happen to be Democrats? The map’s creator testified that he relied “one hundred percent” on partisan data. But a three-judge panel in district court, based on circumstantial evidence, said it believed “race was the predominant factor.”

Justice Alito, joined by the rest of the Court’s conservatives, has a rebuke in Alexander v. S.C. Conf. of NAACP. The plaintiffs had “no direct evidence of a racial gerrymander, and their circumstantial evidence is very weak,” he writes. “None of the facts on which the District Court relied to infer a racial motive is sufficient to support an inference that can overcome the presumption of legislative good faith.”

It’s a strong directive for future disputes. “If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar,” Justice Alito says. If it were otherwise, litigants could circumvent Rucho. Anyone who opposes a politically unfavorable map could “reverse-engineer the partisan data into racial data,” and then file a racial lawsuit instead.

Justice Elena Kagan, writing in dissent for the three liberals, complains that the trial court is owed more deference, and its finding of a racial gerrymander was “reasonable.” She says Justice Alito’s standards are meant to derail these lawsuits. “This Court has prohibited race-based gerrymanders for a reason,” she argues. “They divide citizens on racial lines to engineer the results of elections.”

Yet isn’t that what federal courts are doing now? Justice Clarence Thomas, in a solo concurrence, cites a case from Washington state. “A District Court recently concluded that Hispanic voters in a majority-Hispanic district lacked an opportunity to elect the candidate of their choice, even though the district elected a Hispanic Republican,” he writes. “The court later purported to correct the lack of Hispanic opportunity by imposing a remedial map that made the district ‘substantially more Democratic,’ but slightly less Hispanic.”

Justice Thomas would extend Rucho’s logic and find racial gerrymandering nonjusticiable as well, since it turns “on questions that cannot be answered through the kind of reasoning that constitutes an exercise of the ‘judicial Power.’” Redistricting involves trade-offs: Cohesive communities can sprawl into odd shapes, and uniting one might mean splitting another. Whether map makers “packed” voters or simply aimed for compact districts, Justice Thomas says, is “too often in the eye of the beholder.”

Gerrymandering complaints are as old as the Republic, they may never end, and there’s no panacea. But the majority is right: Judges being asked to override elected lawmakers should require stronger evidence of racial motivation than was present in South Carolina, or in most such lawsuits.

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