How do you separate race and political preference when establishing new congressional districts?

The federal Constitution generally allows states to adopt so-called “partisan gerrymanders”—that is, legislative districts with odd district boundaries to try to obtain a desired partisan outcome or distribution.

The Fourteenth Amendment generally prohibits states from adopting so-called “racial gerrymanders”—where race predominates in the redistricting process and odd district boundaries are adopted to try to obtain a preferred racial balance or distribution between legislative districts.

But what happens when there is a strong correlation between race and partisan preference? How do you know the difference?

These are the fundamental questions that the Supreme Court recently grappled with in Alexander v. South Carolina State Conference of the NAACP, ultimately concluding that state claims of partisan motives are entitled to a heavy presumption of regularity, making it more difficult to use allegations of racial gerrymandering to unwind legislative redistricting decisions.

 I. Background

Due to population changes reflected in the 2020 census, South Carolina needed to make some changes to its seven congressional districts. The two districts at the center of this case, District 1 and District 6, had some of the biggest changes, with District 1 being “overpopulated” by 87,689 people and District 6 being “underpopulated” by 84,741. District 6 is and has been a solidly Democratic district. District 1 had been a swing district. Prior to 2018, it was held by Republicans. In 2018, it was narrowly won by a Democrat. And in 2020, it swung back to a Republican who won with 50.6% of the vote.

The map eventually adopted by the South Carolina legislature made three big changes to the district lines between Districts 1 and 6: it unified Beaufort and Berkeley Counties within District 1, where the moved-in portions of the counties leaned Republican; it put more of Dorchester County—which leans Republican—into District 1; and it moved parts of Charleston that leaned Democrat from District 1 to District 6. These transfers were not one-for-one exchanges between District 1 and District 6. The first two changes added voters to District 1, which was already considered “overpopulated.”

This change was balanced by shifting more voters in the Charleston area. The areas of Charleston that were moved into District 6 were heavily black neighborhoods, such that over 60% of the black Charleston County residents previously in District 1 were moved into District 6. In the 2020 presidential election, exit polls indicated that 90% of black voters supported the Democratic nominee, suggesting a strong correlation between race and partisan political preferences.

The state claimed that it made these changes for political reasons: specifically, to shore up the Republican lean of District 1. The plaintiffs claimed that these changes were a racial gerrymander.

A three-judge district court sided with the plaintiffs, concluding that the state drew District 1 intentionally to have a black voting-age population of 17%, and that this violated the Equal Protection Clause. It further found that by doing so, the state had unlawfully diluted the black vote.

 II. The Court Gives States a Wide Birth to Redistrict Based on Politics

The Supreme Court, in an opinion written by Justice Alito, reversed. For the Court, what to some might look like a racial gerrymander could be plausibly (and indeed, better) explained by partisan political considerations. In other words, what to some looked like an effort to “pack” black voters in District 6 was really an effort to concentrate Democrats, which states are free to do.

The top-line contours, as described above, are now well established: the federal Constitution generally does not limit a state’s ability to draw districts based on partisan considerations. Indeed, following Rucho v. Common Cause, such efforts are considered nonjusticiable political questions. But, as the Court found in Shaw v. Reno, there is some use of racial considerations in redistricting that rises to the level of an impermissible racial gerrymander. The devil, however, is in the details of how you tell the difference. And that is what Alexander is all about.

The majority begins from the premises that redistricting falls within the traditional domain of state legislative authority, and that the federal courts should proceed with caution in second-guessing legislative actions. Instead, the Court begins with a presumption of good faith on the part of the legislature.

For the majority, this presumption of good faith has real teeth. Plaintiffs seeking to invalidate a map must “rule out the possibility that politics drove the districting process.” Underlying this strong presumption is a concern that plaintiffs turn to the courts to leverage racial gerrymandering arguments to obtain preferred political outcomes they were unable to get in the legislature.

While strong, this presumption is not insurmountable. It can be overcome by direct evidence—such as statements or emails evincing an intent to engage in a racial gerrymandering effort—or through circumstantial evidence.

Given the weight the majority places on the presumption of legislative good faith, the bar for circumstantial evidence is quite high. For example, the majority also concludes that “the District Court . . . 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.’”

The majority went on to find that the district court did not properly account for the differences between a vote-dilution claim and a racial-gerrymandering claim and remanded the vote-dilution claim to the district court.

The dissent, written by Justice Kagan and joined by Justices Sotomayor and Jackson, focuses largely on a disagreement over how to apply the standard of review. Both the majority and the dissent agree that the proper standard of review is a “clear error” standard. The dissent argues that this means the majority should have given more weight to the findings of the district court, including its evaluation of expert testimony. In effect, the dissent argues that the majority erred by focusing on the presumption of good faith by the legislature rather than the presumption that the district court correctly evaluated the relevant facts.

Justice Thomas also filed a lengthy opinion concurring in part, expressing his disagreement with the majority’s decision to analyze the expert opinions and reiterating his view that redistricting is an inherently political act that lacks judicially manageable standards and therefore should be considered a political question.

 III. What Comes Next

The dispute between the majority and the dissent is couched in terms of the standard of review. But in practice, it is really a dispute over the burden of proof and what that means in a racial gerrymandering case.

The majority gives the presumption of good faith in the legislature real teeth, particularly in cases where a racial gerrymandering claim under the Fourteenth Amendment is based on circumstantial evidence. In such cases, plaintiffs must show that the legislature could not have drawn the map that it did based on traditional redistricting criteria, including partisan political considerations. To do so, plaintiffs are effectively required to provide a substitute map that shows how the legislature could have achieved its preferred political outcome while producing “significantly greater racial balance” lest they contend with an adverse inference that is likely to be outcome determinative.

Thus, in practice, Alexander will make it much harder for plaintiffs to successfully bring an equal protection challenge to a redistricting map based on circumstantial evidence.

However, the practical effect of this limitation is likely to be smaller than it might appear at first blush. Alexander only addresses equal protection claims. It does not address challenges to legislative districts under section 2 of the Voting Rights Act, which also concerns the impact of redistricting on minority voters. For example, just last year, the Court found that Alabama’s legislative map violated section 2 of the VRA in Allen v. Milligan.

There is a continuing tension between the Court’s equal protection jurisprudence and its section 2 jurisprudence that is reflected in the Court’s breakdown in Allen versus Alexander. For example, while Justice Alito wrote the majority opinion in Alexander, he, along with Justices Thomas, Gorsuch, and Barrett dissented in Allen, while the Alexander dissenters—Justices Kagan, Sotomayor, and Jackson—were in the majority in Allen. The result is that, when it comes to redistricting challenges, it’s effectively the Chief Justice and Justice Kavanaugh’s world—we’re just living in it.

Thus, while Alexander appears poised to limit the use of the Equal Protection Clause to challenge federal legislative districts in the absence of direct evidence, redistricting litigation is likely to continue at a fast and furious pace under section 2 of the Voting Rights Act.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].