The Supreme Court handed down a 6-3 decision along party lines on Thursday, which represented its fullest endorsement of partisan gerrymandering to date.
In the past, legal restrictions on racial gerrymandering — maps drawn to minimize the voting power of a particular racial group, rather than the power of a political party — had the side effect of also limiting attempts to draw maps that benefitted one party or another. While the Court largely tolerated gerrymanders that were designed to lock one party into power, those maps sometimes failed because they also targeted racial minorities.
Justice Samuel Alito’s opinion in Alexander v. South Carolina State Conference of the NAACP, however, is written explicitly to permit political parties to draw rigged maps, even when those maps maximize the power of white voters and minimize the power of voters of color. Indeed, Alito says that one of the purposes of his opinion is to prevent litigants from “repackag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim by exploiting the tight link between race and political preference.”
Along the way, Alito’s opinion gives the Court’s explicit blessing to maps that are drawn for the very purpose of maximizing one political party’s power. In the very first paragraph of his Alexander opinion, Alito states that “as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.”
This is a significant statement, as it endorses a practice — partisan gerrymandering — that the Court has previously treated as unseemly. The Court’s most significant previous opinion on partisan gerrymandering, Rucho v. Common Cause (2019), held that federal courts lack jurisdiction to hear cases challenging partisan maps, but it stopped short of saying that such maps are actually permissible under the Constitution.
Rucho even declared that partisan gerrymandering “leads to results that reasonably seem unjust” and called it “incompatible with democratic principles.” The Court just concluded that the solution to this anti-democratic practice is “beyond the reach of the federal courts.”
Alexander, by contrast, contains none of these caveats. Rigged maps now enjoy the Supreme Court’s unambiguous support.
On top of all of this, Alexander achieves another one of Alito’s longtime goals. Alito frequently disdains any allegation that a white lawmaker might have been motivated by racism, and he’s long sought to write a presumption of white racial innocence into the law. His dismissive attitude toward any allegation that racism might exist in American government is on full display in his opinion. “When a federal court finds that race drove a legislature’s districting decisions, it is declaring that the legislature engaged in ‘offensive and demeaning conduct,’” Alito writes, before proclaiming that “we should not be quick to hurl such accusations at the political branches.”
So Alexander is a very significant decision, and a very significant loss for proponents of fair legislative maps. The case is likely to cause partisan gerrymandering to proliferate in the United States even more than it already has.
The big question in Alexander: What happens when a legislature engages in both racial and partisan gerrymandering?
For many years prior to Rucho, the Supreme Court at least held open the possibility that it might strike down maps drawn to benefit one political party or the other. Rucho, which, like Alexander, was decided along party lines with the Court’s Republicans in the majority, cut off any possibility that a partisan gerrymandering case could move forward in federal court.
Yet while the Court no longer allows challenges to partisan gerrymanders, it has long allowed civil rights plaintiffs to challenge racial gerrymanders: maps drawn to increase the power of voters of one race, or to diminish the power of voters of a different race.
The South Carolina map at issue in Alexander, however, was both a partisan gerrymander and a racial gerrymander.
In 2018, former Rep. Joe Cunningham, a Democrat, won a narrow victory in South Carolina’s First Congressional District. In 2020, he got over 49 percent of the vote but lost that seat to Republican Rep. Nancy Mace.
Everyone, including Alito, acknowledges that South Carolina’s Republican legislature redrew its congressional maps after the 2020 census to shore up Republican control of the First District. The lower court that heard this case determined, however, that the legislature did so by using race as a proxy to identify voters who were likely to vote for Democrats.
In 2020, 90 percent of Black voters in South Carolina voted for President Joe Biden, so mapmakers knew that if they moved large numbers of Black voters out of the First District, that would make the district more Republican. And so the lower court found that South Carolina’s mapmakers chopped up Charleston County, including many white voters from that county in the First District, while excluding nearly 80 percent of Charleston’s Black population.
Before Alexander, using race in this way was illegal. The Supreme Court held in Cooper v. Harris (2017) that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.”
Though Alito’s Alexander opinion does not explicitly overrule this holding from Cooper, it effectively achieves that goal. As Justice Elena Kagan writes in dissent, Alito’s latest opinion closely tracks his dissent in Cooper. “Today, for all practical purposes,” Kagan writes, “the Cooper dissent becomes the law.”
Alito writes a strong presumption of white racial innocence into the law
Much of the case turns on a factual dispute about whether South Carolina Republicans actually did use race to identify which voters to move out of the First District. Alito’s opinion argues that the lower court reached the wrong factual conclusion when it determined that they did; Kagan’s opinion takes the opposite position.
Ordinarily, appellate courts are not supposed to second-guess a trial court’s factual findings. Trial judges hear witness testimony and develop the intimate familiarity with a case that comes from hearing both parties’ full presentation of their factual arguments; the Supreme Court does not.
As the Supreme Court held in Cooper, a lower court’s “findings of fact — most notably, as to whether racial considerations predominated in drawing district lines — are subject to review only for clear error.”
Alito’s Alexander opinion pays lip service to this clear error standard, but it effectively eliminates it in redistricting cases. The new rule is that state lawmakers enjoy a “presumption of legislative good faith” when they are accused of racial gerrymandering.
Alito writes that “nothing rules out the possibility” that movement of Black voters out of the First District “was simply a side effect of the legislature’s partisan goal.” And given the presumption that legislatures can do what they want, “that possibility is dispositive.”
Later in his opinion, Alito goes even further. The lower court, he claims, “critically erred by failing to draw an adverse inference against the Challengers for not providing a substitute map that shows how the State ‘could have achieved its legitimate political objectives’ in District 1 while producing ‘significantly greater racial balance.’”
What Alito is saying here is that, when a state draws a partisan gerrymander, anyone who wants to challenge it as an illegal racial gerrymander should show that there is some way to draw more racially equitable maps that still achieve the same partisan goals. And if the challengers can’t do that, courts generally must rule against those challengers.
So Alexander is a significant victory for gerrymandering, for lawmakers who wish to use race to draw legislative districts, and for Alito’s Republican Party.
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