US Supreme Court rules that race, if not a predominant factor, can be used in political district mapping

The U.S. Supreme Court on May 23, 2024, ruled in a 6-3 decision, with Justice Alito writing for the majority, that race may be used in drawing up the map for a political district as long as it is not the “predominating motivating factor.” [Page 1.] Alexander v. South Carolina N.A.A.C.P., 602 U.S.____ (2024).

Redistricting

The Court ruled that claims that a map [of a political district] is unconstitutional because it was drawn to achieve a partisan end are not justiciable in Federal Court. However, “if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected to strict scrutiny and may be held unconstitutional.” [Page 1.]

Presumption of good faith

The Court ruled further that it presumes that the legislature drawing the map acted in “good faith.” It wrote that the U.S. District Court’s findings of fact in this case gave only “lip service” to this proposition and this infected the District Court’s findings of fact which were clearly erroneous. As a result, the Supreme Court reversed the District Court’s findings. [Page 2.]

Predominant factor

The Court further ruled that the challenges to a re-districting map must establish that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” The challengers, the Plaintiffs, must show that the State Legislature subordinated race-neutral re-districting criteria such as compactness, contiguity, and core preservation to racial considerations. Miller v. Johnson, 515 U.S. 900, 915-916 (1995). [Page 2.]

The Court also noted that the Fourteenth Amendment prohibits a state from engaging in racial gerrymandering unless it satisfies strict scrutiny. [Page 2.]

The Court wrote further that its decision had made clear that a jurisdiction may engage in “constitutional political gerrymandering” even if it so happens that “most loyal Democrats happen to be Black Democrats and even if the State was conscious of that fact.” Hunt v. Cromartie, 526 U.S. 541, 551 (1999). [Page 4.] To prevail a plaintiff must disentangle race from politics by proving that that the former drove a district’s lines. Cooper v. Harris, 581 U.S. 285, 308 (2017). [Page 5.]

Presumption of good faith

Without an alternative map, which the Plaintiffs in this case did not offer, it is difficult for them to defeat our starting presumption that the State legislature acted in “good faith.” [Page 5.]

If a plaintiff proves race drove the mapping, the Court must ask if the State’s decision to sort voters on the basis of race is necessary to achieve that interest. [Page 6.] This standard is extraordinarily onerous as the Fourteenth Amendment eradicates race-based state action. Students for Fair Admissions v. Harvard and U.S.C., 600 U.S. 181, 206 (2023). [Pages 6-7.]

Trial evidence

The Court ruled that the Plaintiffs provided no direct evidence of racial gerrymandering and that their circumstantial evidence was very weak. Their experts did not offer a single map that achieved the Legislature’s partisan goal while including a higher Black Voting Age Population (BVAP) in the voting district. [Page 13.] The non-partisan expert who drew the map in this case testified that he only used political data in drawing the map. The Court ruled that none of the facts on which the District Court relied for a racial motive can “overcome the presumption of legislative good faith.” [Page 15.] In cases such as this the District Court “must rule out the possibility that politics drove the districting process.” [Page 19.] Politics pervaded the highly visible map-making process from start to finish. [Page 21.]

No adverse inference

The Court found that the District Court erred by failing to draw an “adverse inference against the Challengers for not providing a substitute map” showing the State could have achieved its “legitimate political objectives” while producing “significantly greater racial balance.” [Page 30.]

The Court added that there is “nothing nefarious about [the State’s expert’s] awareness of the State’s racial demographics.” [Page 33.]

Plaintiff’s burden

The Court ruled further that a plaintiff pressing a vote dilution claim must show that the State “enacted a particular voting scheme…to minimize or cancel out the voting potential of racial or ethnic minorities.” [Page 34.]

Concurrence

Justice Thomas wrote a lengthy concurrence. He noted that the Plaintiffs did not rely on the Voting Rights Act of 1965. They relied only on the Constitution. Justice Thomas then wrote that the U.S. Supreme Court has no power to decide these types of claims. [Concurrence Page 2.]

Dissent

Justice Kagan, joined by Justices Sotomayor and Jackson, wrote a vigorous Dissent. Justice Kagan wrote that the Plaintiffs have a “good constitutional claim because the Equal Protection Clause [of the Fourteenth Amendment] forbids basing election districts on race in order to achieve partisan aims.” Cooper on page 291 and note 7. [Dissent Page 2.] The key question is “did the mapmakers consider voting data alone, or did they also closely attend and respond to which residents were Black and which were White.” [Dissent Page 2.]

Trial

There was a nine-day trial with two dozen witnesses and hundreds of exhibits. The State’s mapmakers configured their mapmaking software to show how any change made to the district affected its racial composition, and the racial makeup they mapped was precisely what they needed “to the decimal point” to achieve their partisan goals. [Dissent Page 2.]

The District Court found the Plaintiffs’ evidence more credible and did not believe the State’s witnesses. The District Court found that the gerrymandering was “by race.” [Page 2.]

Cooper

The Dissent pointed out that the Supreme Court had seen these arguments before. They were in Justice Alito’s Dissent in Cooper. The Dissent in this case wrote that the Cooper Dissent had now become the law. [Dissent Page 4.]

Under the “clear error” standard in Cooper, the District Court’s findings “warrant significant deference.” The Supreme Court should affirm them as long as they are “plausible” based on the record. [Dissent Page 2.] The Supreme Court can reverse only when left with the distinct conviction that a “mistake has been committed.” [Dissent Page 5.] By using the presumption of good faith by the legislature the majority “puts its thumb on the scale” against the District Court. [Dissent Page 7.] But good faith is presumed only “until a claimant makes a showing of race-based decision making.” Miller at page 915. [Dissent Page 8.]

Race-based gerrymandering

Justice Kagan wrote that this Court has found that race-based gerrymandering “divide[s] citizens on racial lines to engineer the results of elections without the justification of protecting minority voters’ rights.” [Dissent Pages 9-10.]

The majority in Cooper rejected a demand that the plaintiffs submit an alternative map. Here, the District Court faced a factual question, whether the State had relied significantly on racial data in drawing its map. Based on the mountains of evidence, the Court decided the State had done so. That finding was reasonable and should be affirmed. [Dissent Page 15.]

More than 60% of Black Charleston County residents, previously in District 1, were relocated to District 6. Of the 11 precincts with the largest Black population, 10 were gone. The State’s mapmaker testified that the new map created a tremendous racial disparity in comparison to the old map. A state may not divide voters by race to achieve political ends. Miller at page 914. [Dissent Page 16.]

The State’s mapmaker testified that in 20 years of redistricting, this was the only time that he did not look at race. But, another witness testified that the Black demographics, the BVAP, was always visible on the computer screens of the mapmakers. [Dissent Page 19.] The District Court found that the mapmakers used their racial data to meet the BVAP level needed to make their partisan goal. [Dissent Page 22.]

The three-judge District Court did not believe the State’s mapmakers. The Plaintiffs presented four experts to support their case for racial gerrymandering. Two of them had studies, one based on 2018 and one on 2022 data showing racial gerrymandering. [Dissent Page 32.] It was hardly clear error for the District Court to credit the Plaintiffs’ statistical evidence of race’s predominant role when the State presented no similar evidence to support its partisanship theory. [Dissent Page 33.]

Justice Kagan concluded, “Where ugly patterns of pervasive racial discrimination have so long governed, we should demand better of ourselves, of our political representatives, and most of all of this Court.” [Dissent Page 34.]

Comment

Under Students for Fair Admissions, on page 39, race must not be considered in college admissions. But, under Alexander it certainly may be considered in gerrymandering as long as it does not predominate in mapping political districts. Voting, the bedrock of our republic, seems less protected from racial discrimination than getting into Harvard and U.S.C.