Expert says SCOTUS ruling subjects Black voters to "abuse." Clarence Thomas wants to go even further

This week, the Supreme Court made it harder for plaintiffs to win racial gerrymandering claims in a 6-3 decision that legal experts say is the latest sign of the court’s shift away from policing gerrymandering cases.

The NAACP’s South Carolina State Conference had sued over South Carolina’s GOP-led legislature’s new congressional map for shifting tens of thousands of Black voters to a different district. Lawmakers appealed to the Supreme Court when a three-judge panel found the district was an unconstitutional racial gerrymander.

Thursday’s decision, authored by Justice Samuel Alito, said that plaintiffs have to show that the state had “the purpose and effect” of diluting the minority vote – not just that “race played a predominant role” in redistricting.

“The legislature’s partisan goal can easily explain this decision,” Alito wrote of the decision to move “predominantly black Charleston precincts from District 1 to District 6.”

Bertrall Ross, a University of Virginia School of Law professor, said he found the decision “unsurprising” in the context of the Supreme Court’s recent history of rulings on gerrymandering.

“What that acknowledgement does is it cements the status of partisan gerrymandering as a non-justiciable question that the courts will not police – which given the partisan dimensions of our democracy, is a troubling position for us to be in,” Ross told Salon.

Ross said the court’s stance makes it tricky to police racial gerrymandering because “there historically has been and still continues to be a high correlation between racial voting and partisan voting.”

“And so how do you disentangle whether a particular dispute involves racial or partisan gerrymandering?” Ross questioned. “What I think the court has done is set up these cases in a way that's easier for the state to make the argument that all we were doing was taking partisanship into account. We weren't thinking about race. And to the extent that it's easier for the state to do that, it makes it harder for the court to police real instances of racial gerrymandering.”

Nicholas Stephanopoulos, a Harvard Law School professor, said now, when a state defends a map as partisan and not racial, plaintiffs suing over the map have to “include an alternative map that equally accomplishes the state’s partisan goal but results in a substantially different racial makeup for the district.”

“The trouble is that, to the extent the plaintiffs have the goal of also causing some partisan change through their racial claim, being forced to offer that alternative map is going to basically squash any hope of fighting the partisan gerrymander, indirectly through a racial gerrymandering claim,” Stephanopoulos said.

Overall, Ross called the Supreme Court’s decision an expected, but “backwards step.”

“And for those who stand to lose from the federal court removing itself – which includes either racial minorities or minority political parties in a particular state or context – it's going to just kind of reify those losses,” Ross said. “It's going to really deny those groups the opportunity to protect their opportunities for representation in legislative bodies. And that's a troubling portent for our future and given where we are as a country, that deeply polarized, deeply racialized place, such that if you deny those minorities power, this subjects them to abuse from legislatures and laws that they enact.”

He said the latest opinion reinforces the court’s decision in Rucho. v. Common Cause in 2019, when the court held that “partisan gerrymandering claims present political questions beyond the reach of the federal courts."

“The court’s not going to police partisan gerrymandering,” Ross said. “And what was a bit troubling from my perspective, because I do think that there's an important role for the court to police price gerrymandering, was the dissenters, Kagan, Sotomayor and Jackson conceding that point – in it's not the courts role to intervene in these partisan gerrymandering disputes to the extent that it's about partisanship.”

Stephanopoulos said the court’s decision doesn’t apply when line drawers are considering race to comply with the Voting Rights Act.

“It still might be relatively easier for plaintiffs to win those claims – but those are the claims that Republican plaintiffs are more likely to bring,” he said. “So there's kind of an asymmetry where now there's extra protection when the defense is partisan gerrymandering, but there's not the same extra protection when the defense is compliance with the Voting Rights Act.”

Meanwhile, Ross said he found South Carolina’s case was a “pretty weak case for racial gerrymandering.”

“Most instances with racial gerrymandering, you have the claim that a particular minority group has either been packed or cracked in the sense that they have been placed in a district in overwhelming numbers that's not necessary for them to be able to elect candidates of their choice,” Ross said. “Or other instances, in which their power has been so diffused among many districts for them so that it denies them the opportunity to exercise that power.”

Ross said in the South Carolina case, the district had just a “slight variation in the voting age population of the district.”

According to the opinion, the new map increased the Black voting-age population of District 1 from 16.56% to 16.72%.

“For me, that doesn't strike me as an instance in which the racial gerrymandering doctrine has been traditionally applied,” Ross said.

“If it were to be applied in this particular way, I think the court would have been worried that you had to have intervened in a lot more districting disputes in which it has clearly signaled in past cases that it doesn't have the appetite to intervene that deeply," Ross said. “And so given the limited harm here, I think the court saw this as a way to draw some lines around racial gerrymandering.”

Ross pointed to stronger instances of racial gerrymandering in cases brought in the 2010s in Virginia, Alabama and North Carolina, where the “effort was to pack as many African-Americans into the fewest number of districts as possible to deny them the power in surrounding districts.”

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Stephanopoulos also said that the South Carolina case wasn’t a “glaring case” of racial gerrymandering.

“There wasn't the same explicit admission that race was being used that we've seen in some other recent cases,” he said. “The district didn't look quite as bizarre as some other districts. And it's also the first case of this kind in the Supreme Court, where the claim was that a district had its minority population intentionally reduced as opposed to intentionally expanded.”

No other justice joined in Justice Clarence Thomas’ dissent, in which he argued federal courts should get out of the business of deciding redistricting lawsuits altogether.

Stephanopoulos pointed out that Thomas joined in the 1992 decision in Shaw v. Reno.

In that opinion, the Supreme Court held that North Carolina’s redistricting scheme was “so irrational on its face that it can be understood only as an effort to segregate voters into separate districts on the basis of race.”

“It's just kind of bizarre that 30 years into this, he suddenly decides that he has been wrong all along,” Stephanopoulos said. "He was wrong when he originally supported the creation of this claim.”

Thomas also used his dissent to again attack the court’s ruling in Brown v. Board of Education, which held that separate but equal schools for racial minorities violated the 14th Amendment’s Equal Protection Clause.

Thomas said the court approved “‘extraordinary remedial measures’” to “‘overcome the widespread resistance to the districts of the Constitution’ at the time.”

“Federal courts have the power to grant only equitable relief ‘traditionally accorded by courts of equity,’ not the flexible power to invest whatever new remedies may seem useful at the time,” Thomas wrote.

Ross said Thomas’ dissent is the latest in an “ongoing effort by the conservative members of the Court to utilize Brown for purposes of advancing a colorblind vision of the Constitution.”

“What was always striking about that is that it's entirely divorced from context,” Ross said. “The way that race was being used at that time, was in a way to support African Americans, African American children in the context of Brown v Board of Education.”

Ross said Thomas is fighting to “get the government to stop using race” based on his argument that the government has used race to subordinate.

“But we have seen efforts by predominantly white legislatures to use race to ameliorate the harms from the past,” Ross said.

Stephanopoulos said Thomas’ idea that federal courts should stay out of redistricting disputes “is an unbelievably undemocratic, anti-democratic idea.”

“It's basically saying that courts will do nothing to police one of the most distortive anti-democratic practices that exists in American politics,” he said. “Thomas would return us to the world before 1963 when the courts got involved in this area, and it's just kind of staggering that he would openly take such an anti-democratic position.”