Voting rights experts find old ideas in new racial gerrymandering standard

WASHINGTON (CN) — Seven years ago, Justice Samuel Alito lamented his colleagues' refusal to create higher bars for racial gerrymandering claims.

With the high court now skewed to the right, what were once the grievances of a conservative justice have now become the law. 

Writing the recent majority opinion in Alexander v. South Carolina Conference of the NAACP, observers say the George W. Bush appointee took the court where it would not go in 2017. 

“Alito essentially converts what was his dissent in the 2017 Cooper case to the majority,” said David Gans, director of the human rights, civil rights & citizenship program at the Constitutional Accountability Center.

Alexander reversed a lower court ruling, which found that race played the predominant role in drawing South Carolina’s congressional map. Alito said the evidence of race-based discrimination could not overcome the presumption that state lawmakers were acting with partisan aims. 

Back in 2017, Cooper v. Harris was similar to Alexander. It also involved claims that a state legislature had used race to draw new district lines.

The two cases diverge, though, in how the Supreme Court ultimately handled them. Racial discrimination claims against North Carolina’s maps were upheld in 2017. In South Carolina this week, they were rejected. 

Alito said civil rights groups failed to provide direct evidence or significant circumstantial evidence that race was the prevailing motivator in South Carolina’s maps.

Those two new requirements were rejected by the majority in Cooper. 

In both cases, Alito likewise argued that those contesting the maps should be required to produce alternatives. In Alexander but not in Cooper, that argument found its way into the Supreme Court's majority opinion.

“The plaintiffs failed to meet the high bar for a racial-gerrymandering claim by failing to produce, among other things, an alternative map showing that a rational legislature sincerely driven by its professed partisan goals would have drawn a different map with greater racial balance,” Alito wrote this week.

In Cooper, though, the majority rejected this assertion, calling it a “super-charged, pro-state presumption."

Before voting rights experts could critique Alito for the commonalities between his Cooper dissent and Alexander majority opinion, his colleagues took a swing. Justice Elena Kagan, a Barack Obama appointee, said Alito had succeeded in overturning the essence of Cooper’s map ruling. 

Alito pushed back, characterizing Kagan’s dissent in Alexander as an “imaginary version” of Cooper. In fact, Kagan wrote the majority opinion in Cooper. 

Alexander shifts the court’s jurisprudence on the entanglement of race and politics in gerrymandering cases. Rucho v. Common Cause prevented courts from remediating partisan gerrymandering claims. Voting rights experts now say Alexander allows lawmakers to use that loophole to avoid claims of race-based discrimination. 

“This opinion makes it much harder to bring racial gerrymandering claims that are based on circumstantial evidence," Gans said. "Particularly so when the state says, 'We drew the lines for partisan reasons.'"

Unlike Cooper, the decision in Alexander creates a high burden for racial gerrymandering cases going forward.

To succeed, claims would need direct evidence like an email from one of the mapmakers stating that he drew districts based on race. Civil rights groups said this kind of evidence is rare and not present in either Cooper or Alexander. 

Without a smoking gun, Alexander requires that claims have extraordinary circumstantial evidence to prove the maps were drawn using race. The example Alito provides here comes from the court’s 1960 ruling in Gomillion v. Lightfoot, where Alabama drew a 28-sided district. 

This requirement flummoxed civil rights groups, who felt their evidence met this bar. 

“What do we have to prove when we showed you proof that is unrebutted and that is strong?" Leah Aden, senior counsel at Legal Defense Fund who argued in Alexander, said in a press briefing following the ruling. 

Since the volumes of evidence accepted by the lower court were rejected by the Supreme Court, Aden said it was hard to determine what would have been enough to prevail in this case. 

“I do not want to say that these claims cannot be established under different facts and under different circumstances," she said. "But I do think we need to read this decision closely, because the bar keeps getting moved, and it keeps getting harder and harder for plaintiffs to uproot racial discrimination."

There is some disagreement on how broadly the court’s ruling will stretch. Richard Pildes, a constitutional law professor at New York University, said that by opening the door for partisan gerrymandering, the Rucho decision has made racial gerrymandering less pertinent. 

“​​The [Supreme Court] decision will, to be sure, make it harder to win racial gerrymandering claims,” Pildes wrote in a post on X. “But for these other reasons, I think it was already the case that the racial gerrymandering doctrine at issue in Alexander was playing and would play less of a role on behalf of voting-rights plaintiffs this decade than it did during the transitional decade from 2010-2020.” 

Pildes said the impact will more likely come in attacks against districts drawn to comply with the Voting Rights Act. 

“​​That’s exactly what’s going on in the pending [Louisiana] case, in which the legislature created a VRA district to remedy a VRA violation, but which the federal court then struck down as an unconstitutional racial gerrymander,” Pildes wrote. 

Follow @KelseyReichmann

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