The Roberts Court conservatives erode voting rights protections. Again.

Alito's opinion severely restricts racial gerrymandering claims. Thomas would end redistricting litigation altogether. Kagan fights back.

On Thursday, the Republican appointees to the U.S. Supreme Court continued a long-running effort to undermine and block redistricting challenges in federal court in a decision reversing a three-judge panel that found South Carolina’s congressional map contained an unconstitutional racial gerrymander.

The move could have a disastrous effect on one of the few remaining ways that people can challenge redistricting efforts. As Justice Elena Kagan wrote in dissent, “Perhaps most dispiriting is what lies behind the Court’s new approach — its special rules to specially disadvantage suits to remedy race-based redistricting.”

Justice Sam Alito — fresh off the latest report of his apparent support for insurrectionists — wrote the court’s majority opinion in Alexander v. South Carolina State Conference of the NAACP, severely limiting the power of the Civil War Amendments to protect voters from lawmakers’ racial gerrymanders.

In the South Carolina case, a unanimous three-judge district court found after trial that one of the state’s congressional districts was an unconstitutional racial gerrymander. The state appealed, and Alito spent the oral arguments pretending he was a trial judge — something that continued through to Thursday’s decision (and went so far as to lose Justice Clarence Thomas’s vote in one part of his decision¹).

In his opinion for the court on Thursday, Alito effectively reversed the Supreme Court’s 2017 decision in Cooper v. Harris, a case in which the justices upheld a lower court’s decision that North Carolina had engaged in racial gerrymandering in its redistricting.

Kagan, who wrote the court’s majority opinion then, wrote Thursday’s dissent in the South Carolina case. And while Alito sought to portray his opinion as a narrow one applying precedent, Kagan did not hold back in declaring that he had done the opposite — and had done so poorly.

“On page after page, the majority’s opinion betrays its distance from, and lack of familiarity with, the events and evidence central to this case,” she wrote. “Yet there is worse: The majority cannot begin to justify its ruling on the facts without in two ways reworking the law — each to impede racial-gerrymandering cases generally.”

It is on these two points that, without admitting it, the Roberts court on Thursday gutted racial gerrymandering claims nearly as strongly as it gutted the preclearance provisions of Section 5 of the Voting Rights Act in 2013’s Shelby County v. Holder by striking down the preclearance coverage formula in Section 4.

This bears even more importance now than it might have five years ago, when seen in the context of the long-term project of the Roberts court to diminish the role of the federal courts in protecting voting rights.

Similar to how Section 2 of the Voting Rights Act — specifically, vote-dilution claims brought under that provision — found increased use after Shelby County, the centrality of racial gerrymandering claims increased in the wake of the Supreme Court’s 2019 decision in Rucho v. Common Cause holding that partisan gerrymandering claims are not justiciable in federal court. Both Shelby County and Rucho were 5-4 decisions authored by Chief Justice John Roberts.

On Thursday, in an opinion assigned to Alito by Roberts, the court significantly limited those racial gerrymandering claims.

“In every way, the majority today stacks the deck against the Challengers,” Kagan wrote.

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What happened?

Under basic appellate rules, the factual findings of the district court are to be reviewed for “clear error.” The “clear error” standard is important for all appellate review of factual findings because it ensures that those closest to the facts of any case are able to have their assessment of those facts credited — unless they are clearly erroneous.

Because the test the court was applying “has a very substantial legal component,” however, Alito — joined by Roberts, all three Trump appointees, and Thomas in substantial part — quickly insisted that the court “must exercise special care in reviewing the relevant findings of fact” in racial gerrymandering cases.

That, though, was just the minor hedge. The major changes were stronger — and more fundamental alterations to all similar litigation.

First, Alito added “a presumption that the legislature acted in good faith” into the review to effectively eviscerate the “clear error” standard.

As Kagan explained, this puts the clear error standard on its head — but only whenever those challenging a legislative map win below.

“In the majority’s version, all the deference that should go to the court’s factual findings for the plaintiffs instead goes to the losing defendant, because it is presumed to act in good faith,” Kagan wrote. “In effect, the majority’s demand for deference to the State overrides clear-error review’s call for deference to the trial court. If the District Court wants deference, it had better just rule for the State.”

Building upon that, Alito also wrote for the court that if the challengers fail to present an alternative map that avoids the claimed racial gerrymander and under which the state would still be able to meet its partisan goals, “it is difficult for plaintiffs to defeat our starting presumption that the legislature acted in good faith.” Going further still, Alito stated for the court that the district court failed to “draw an adverse inference against the Challengers” because they did not present such a map.

To this, Kagan first highlighted with forward-looking specificity what Alito and the majority hemmed around:

As of today, courts must draw an adverse inference against those plaintiffs when they do not submit a so-called alternative map—no matter how much proof of a constitutional violation they otherwise present.

More importantly, though, Kagan explain why this matters: “The majority’s new evidentiary rule is meant to scuttle gerrymandering cases.“

Under this rule, the court easily found “clear error” in the district court’s South Carolina decision, reversing its racial gerrymandering finding. A constitutional vote-dilution claim was sent back to the district court, in part because the district court had based its ruling on that second claim on the gerrymandering ruling.

And, though it was not written as such by Alito, Kagan also noted, “Today, for all practical purposes, the Cooper dissent becomes the law.”

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Then there is Thomas

Despite all of that, if Alito’s rule is aimed at scuttling such cases, a partial concurring opinion by Thomas would render the entire legal landscape unrecognizable.

“I write separately to address whether our voting-rights precedents are faithful to the Constitution,” Thomas began — never a good sign.

It is only written for himself, and it is not clear what support it would get from other justices, but it is, nonetheless, a 29-page document seeking to end redistricting litigation — and, potentially, most constitutional-based voting rights litigation altogether.

Similar to the basis for Roberts’s decision in the partisan gerrymandering case, Thomas wrote that “the racial gerrymandering and vote dilution claims in this case lack ‘judicially discoverable and manageable standards’ for their resolution.”

Then, Thomas’s dramatic conclusion:

As a result, racial gerrymandering and vote dilution claims brought under the Fourteenth and Fifteenth Amendments are nonjusticiable.

His opinion includes a section that is the “independent state legislature” scheme — rejected by the court last term — on steroids. Citing from his own dissent in that case, Thomas writes as much in discussing how the Elections Clause in the U.S. Constitution directs his conclusion here:

In Thomas’s world, in other words, a person should not be able to challenge a state legislature’s redistricting decisions in either state or federal court.

That’s not all in his opinion, which should not be ignored by those targeted by his views — because it will not be ignored by those looking for the next lawsuit to bring or defense to raise.

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In conclusion

On Thursday, though, the Supreme Court did not go where Thomas would go.

Where it do go, though, should not be seen as a half-step. It was a continued erosion of the ability of federal courts to protect voting rights — another full step in a long-term project of the Roberts court.

The court made racial gerrymandering claims — already tough litigation for challengers — both more difficult to bring and less beneficial to win.

1. Thomas refused to go along with all of Alito’s trial-court-like opinion, issuing a partial concurrence in the case and writing, “The Court’s searching review of the expert reports exceeds the proper scope of clear-error review.” He did not join that part of Alito’s opinion.