[author: Lian Ascher¹]

Every ten years, states conduct a redistricting process to redraw state and congressional boundary lines for the selection of elected representatives. Due to its politically thorny nature, this process unsurprisingly results in several legal challenges, including those related to gerrymandering.

As a general rule, the Fourteenth Amendment’s Equal Protection Clause prohibits a state from drawing legislative maps on racial grounds — also known as racial gerrymandering.² But because the same is not true with respect to political gerrymandering,³ a party asserting a racial gerrymandering claim must typically show that race, rather than politics, was the legislature’s “predominant” motivating factor in crafting a particular district.⁴ 

At the end of May 2024, the U.S. Supreme Court issued its opinion in Alexander v. South Carolina State Conference of the NAACP, clarifying the kind of evidence needed to distinguish between maps that contain a racial gerrymander versus those that contain a political gerrymander.

The Facts. After the 2020 Census, South Carolina was required to redraw its congressional districts because of population changes in District 1 and District 6.⁵ According to the State’s Senate subcommittee, the primary goals in drawing these districts were twofold: (1) ensuring that changes were guided by traditional districting principles, and (2) increasing the proportion of Republicans in the district to expand the slim Republican margin won by former President Trump in 2020.⁶ The final map accomplished these goals by moving Democratic majority precincts out of District 1,⁷ thereby expanding the District’s Republican vote by 1.36%⁸ and narrowly increasing the Black voting-age population (BVAP) from 16.56% to 16.72%.⁹ 

After the maps were adopted, the NAACP initiated a legal challenge arguing that several districts were racially gerrymandered and drawn in a way that diluted the State’s Black vote.¹⁰ The district court rejected these claims with respect to two districts.¹¹ However, after evaluating the evidence related to District 1, the district court found that the state unconstitutionally used race in drawing that district because it used a 17% BVAP “target,” which unlawfully diluted Black voting power.¹²  

The Supreme Court’s Analysis. In a 6-3 decision, the Supreme Court majority, led by Justice Alito, disagreed and held that no direct evidence supported the district court’s conclusion related to District 1, and that the circumstantial evidence presented was insufficient.¹³ Based on this determination, the Supreme Court was unable to rule out the possibility that race-neutral districting principles such as politics, rather than race, motivated the drawing of District 1.¹⁴ The Supreme Court reasoned that instead of presuming that the legislature had acted in good faith (as required by the Supreme Court’s precedent),¹⁵ the district court instead inferred a racial motive from a variety of “weak inferences.”¹⁶ Importantly, the Court explained that those inferences could readily be explained by partisan goals — such as the 17% BVAP and the decision to move certain Democratic-majority precincts into other districts.¹⁷  

Because the district court’s reasoning could have opened the door to litigants “re-packag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim by exploiting the tight link between race and political preference,”¹⁸ and because the challengers had produced no other direct evidence that race drove the decision-making process, the Supreme Court concluded that such evidence was insufficient to establish a constitutional violation.¹⁹ 

Compounding the issue, the Supreme Court criticized the district court’s failure to draw an adverse inference against the challengers for not presenting an adequate substitute map that could achieve State objectives with “significantly greater racial balance.”²⁰ Although the district court had relied on several thousands of alternative maps with a higher BVAP to infer a racial motive,²¹ these maps either failed to satisfy the political goal of increasing the Republican tilt in District 1,²² or failed to comport with traditional districting standards.²³ For these reasons, the Supreme Court held that the district court should have interpreted the NAACP’s failure to produce an adequate alternative map as an “implicit concession” that the maps were drawn based on a permissible factor.²⁴ 

Concurrence and Dissent. The majority’s opinion was accompanied by a partial concurrence from Justice Thomas, who disagreed with the majority’s approach to reviewing and interpreting the factual findings of the district court.²⁵ However, his primary intent in writing separately was to question whether racial gerrymandering, like political gerrymandering, falls outside the jurisdictional power of the courts.²⁶ In Thomas’ view, drawing political districts should be left to politicians, not judges,²⁷ and this result is compelled by the text and history of the Elections Clause of the United States Constitution.²⁸ 

On the other hand, Justices Kagan, Sotomayor, and Jackson dissented from the majority’s analysis on the basis that the majority had not properly deferred to the district court’s factual findings, which the dissent found were reasonably supported by the record.²⁹ According to the dissent, the majority’s reliance on the presumption of good faith and adverse inferences against the challengers placed “novel roadblocks” in front of those seeking to bring these types of challenges,³⁰ thereby “stack[ing] the deck against” challengers in a manner that would defeat even valid cases of racial gerrymandering.³¹ 

Final Thoughts. As illustrated by the Supreme Court’s Alexander opinion, “disentangl[ing]” the correlation between race and politics³² is a difficult task. This case serves as a reminder of the significant evidentiary hurdles needed to succeed on a racial gerrymandering claim. Government officials responsible for redistricting and those other stakeholders should ensure to consider whether the evidence (a) is direct rather than circumstantial, (b) rules out the possibility that politics could have motivated the decision, and (c) includes an alternative map that both preserves the legislature’s political aim and accounts for other legal considerations. And because of the Supreme Court’s recent interest in this politically charged area of law, individuals, and government entities with a stake in the redistricting process should pay close attention to further developments on the interplay between racial and political gerrymandering. As 2030 and the next redistricting efforts will soon arrive, understanding the evolution of redistricting laws will be a necessary task for the government agencies and stakeholders involved in the process.

Footnotes

1. Lian Ascher is a 2024 summer associate at Snell & Wilmer and a 2025 J.D. candidate at the University of Arizona.
2. U.S. Const. amend. XIV, §1. 
3. Rucho v. Common Cause, 588 U.S. 684, 718 (2019). 
4. Alexander v. South Carolina State Conference of the NAACP, 144 S.Ct. 1221, 1234 (2024) (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)).  https://www.supremecourt.gov/opinions/23pdf/22-807_3e04.pdf
5. Id. at 1236–1237.
6. Id. at 1237. 
7. Id. at 1238.
8. Id. 
9. Id. 
10. Id. 
11. Id. 
12. Id. 
13. Id. at 1249. 
14. Id. at 1240. 
15. Id. at 1241–42. 
16. Id. at 1243. 
17. Id. at 1241–43. 
18. Id. at 1242. 
19. Id. at 1243, 1249. 
20. Id. at 1249. 
21. Id. at 1240. 
22. Id. at 1244. 
23. Id. at 1245. Traditional districting standards include both partisan preferences and geographical constraints, such as contiguity and compactness. Allen v. Milligan, 599 U.S. 1, 34 (2023). 
24. Alexander, 144 S.Ct. at 1250. 
25. Id. at 1252 (Thomas, J. concurring in part).
26. Id. at 1253 (Thomas, J. concurring in part). 
27. Id. at 1256–57 (Thomas, J. concurring in part).
28. Id. at 1258–59 (Thomas, J. concurring in part). 
29. Id. at 1276–77 (Kagan, J. dissenting).
30. Id. at 1270 (Kagan, J. dissenting).
31. Id. at 1273, 1285 (Kagan, J. dissenting).
32. Id. at 1235; see also Cooper v. Harris, 581 U.S. 285, 308 (2017).