The Supreme Court appears determined to make it easy to draw gerrymanders

The Supreme Court’s Republican-appointed majority spent Wednesday morning seemingly hunting for a reason to uphold a South Carolina congressional map that everyone agrees was gerrymandered to benefit the Republican Party.

The case is Alexander v. South Carolina State Conference of the NAACP.

Under the Supreme Court’s precedents, federal courts are not allowed to hear lawsuits challenging partisan gerrymanders — that is, maps drawn to benefit one political party or the other. But federal courts may hear challenges to racial gerrymanders — maps drawn to minimize the political power of voters of a particular race. A lower court struck down the South Carolina map because it determined that while the state’s GOP-controlled legislature’s goal was to shore up Republican control over the state’s First Congressional District, the legislature did so by excluding Black voters from this district.

In South Carolina, about 90 percent of Black voters prefer Democrats to Republicans. So mapmakers could be quite sure that they were making the First District more Republican every time they removed a Black voter from it.

So, given the Court’s previous rulings, what happens when a legislative map is both a racial gerrymander and a partisan gerrymander, as the lower court found is the case in Alexander? The answer is supposed to be that the map is illegal. As the Supreme Court held in Cooper v. Harris (2017), “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.”

The plaintiffs in Alexander should also benefit from another well-established legal rule. When a trial court determines that a legislative map is an impermissible racial gerrymander, the Court said in Cooper, the 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.”

Appellate courts, including the Supreme Court, may correct a lower court that applies the wrong legal rule in a racial gerrymandering case. But the Supreme Court is supposed to defer to the trial court’s factual determinations regarding how and why a legislative map was drawn the way it was drawn.

Most of the justices, including several of the Court’s Republican appointees, acknowledged during Wednesday’s oral argument that the Supreme Court’s obligation to defer to a trial court’s factual findings places South Carolina in a bind. Justice Clarence Thomas, for example, asked the very first question of John Gore, the former Trump administration lawyer defending South Carolina’s maps, and that question focused on the fact that the Court is supposed to “review this for clear error.”

But after Gore stepped away from the podium, all six of the Court’s Republican appointees appeared determined to find some way to uphold South Carolina’s gerrymander.

For years, the Court’s GOP-appointed majority was uniquely hostile toward voting rights plaintiffs — often fabricating new legal rules from nothing in order to weaken laws protecting the right to vote.

In Shelby County v. Holder (2013), for example, the Court’s Republican appointees declared a key provision of the Voting Rights Act unconstitutional based on something called the “‘fundamental principle of equal sovereignty’ among the States” that cannot be found anywhere in the text of the Constitution. The GOP-appointed justices’ decision in Brnovich v. DNC (2021) simply made up a bunch of new limits on the Voting Rights Act, such as a presumption that voting restrictions that were commonplace in 1982 are valid, which also have no basis in any legal text.

Last June, however, the Supreme Court surprised pretty much everyone who follows voting rights litigation when it voted 5-4 to strike down a racially gerrymandered map in Alabama. The Court’s opinion in Allen v. Milligan, the Alabama case, was authored by Chief Justice John Roberts, and joined by Justice Brett Kavanaugh, along with the Court’s three Democratic appointees.

But while Milligan suggested that the Court may be turning away from its hostility to voting rights claims, Wednesday’s argument in Alexander suggests that Milligan could be a one-off.

Many of the GOP-appointed justices spent that argument probing for flaws in the evidence the Alexander plaintiffs raised in the lower court — evidence which shows that race, and not just partisanship, shaped South Carolina’s gerrymandered maps.

While Leah Aden, the lawyer representing those plaintiffs, was at the podium, Justice Samuel Alito behaved like a lawyer for the Republican Party who was cross-examining a hostile witness. He peppered her with questions about whether her side’s expert witnesses used an airtight methodology, and whether the Court should impose new legal requirements on lawyers challenging racial gerrymanders.

Though no justice was as aggressive an advocate for the Republican gerrymander as Alito, he was joined in his questions by Kavanaugh, who repeatedly brought up a white Democratic area that was excluded from the First District, seemingly to suggest that race was not the driving force behind this gerrymander.

There are strong rebuttals to these attacks on the lower court’s factual findings. As Justice Elena Kagan pointed out, the evidence shows that Black Democrats were excluded from the First District at a higher rate than white Democrats. There was also evidence that South Carolina’s mapmakers had to rely on racial data to draw a Republican gerrymander, because it did not have sufficiently reliable data on voters’ partisan preferences to gerrymander the First District without using race as a proxy to identify Democrats.

And, under the clear error rule, it shouldn’t matter whether Alito or Kavanaugh can find flaws in the plaintiffs’ evidence. All that matters is whether the trial court, after looking at all of the evidence in the case, could “plausibly” conclude that the evidence on the plaintiffs’ side was stronger than the state’s evidence.

Meanwhile, some other GOP-appointed justices suggested ways to change the law so that South Carolina will win. Alito and Justice Neil Gorsuch, for example, both suggested that the voting rights plaintiffs should have to produce “alternative maps” that achieve the state legislature’s partisan goal without engaging in racial gerrymandering — effectively requiring the plaintiffs to draw a partisan gerrymander. That would mean that, even if these plaintiffs prevail, Alito and Gorsuch’s Republican Party will retain control of the First District’s US House seat.

Roberts, meanwhile, complained that the lower court relied on “circumstantial evidence,” such as the fact that so many Black voters were moved out of the First District, and the fact that the state did not have reliable partisan voter data, rather than “direct evidence” such as a lawmaker’s admission that the maps were drawn with racist intent. Roberts even suggested that allowing someone to challenge a gerrymander without direct evidence “would be breaking new ground in our voting rights jurisprudence.”

So it sure looks bad for the Alexander plaintiffs, and for voting rights advocates more broadly. It is still possible that the Court will surprise observers in the same way it surprised us in the Milligan case. But, for the GOP-appointed justices, the biggest question in Alexander appears to be whether they should toss out the lower court’s factual findings, or whether they should announce a new legal rule that will permanently hobble all future plaintiffs’ ability to challenge racial gerrymanders.

It also appears that the brief ray of hope the Court gave voting rights advocates in Milligan could soon be extinguished.