(Slip Opinion) OCTOBER TERM, 2023 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ALEXANDER, PRESIDENT OF THE SOUTH
CAROLINA SENATE, ET AL. v. SOUTH CAROLINA
STATE CONFERENCE OF THE NAACP ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF SOUTH CAROLINA
No. 22–807. Argued October 11, 2023—Decided May 23, 2024
The Constitution entrusts state legislatures with the primary responsibility for drawing congressional districts, and legislative redistricting
is an inescapably political enterprise. Claims that a map is unconstitutional because it was drawn to achieve a partisan end are not justiciable in federal court. By contrast, if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected
to strict scrutiny and may be held unconstitutional. These doctrinal
lines collide when race and partisan preference are highly correlated.
This Court has endorsed two related propositions when navigating this
tension. First, a party challenging a map’s constitutionality must disentangle race and politics to show that race was the legislature’s “predominant” motivating factor. Miller v. Johnson, 515 U. S. 900, 916.
Second, the Court starts with a presumption that the legislature acted
in good faith. To disentangle race from other permissible considerations, plaintiffs may employ some combination of direct and circumstantial evidence. Cooper v. Harris,
581 U. S. 285, 291. Where race
and politics are highly correlated, a map that has been gerrymandered
to achieve a partisan end can look very similar to a racially gerrymandered map. Thus, in Easley v. Cromartie,
532 U. S. 234, the Court held
that the plaintiffs failed to meet the high bar for a racial-gerrymandering claim when they failed to produce 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. Id., at
258. Without an alternative map, the Court also found it difficult for
plaintiffs to defeat the starting presumption that the legislature acted
in good faith.
2 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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Following the 2020 Census, South Carolina was tasked with redrawing its congressional district maps because of population shifts in two
of its seven districts—Districts 1 and 6. The State Senate subcommittee responsible for drawing the new map issued a statement explaining
that the process would be guided by traditional districting principles
along with the goal of creating a stronger Republican tilt in District 1.
To draw the new maps, the Senate turned to Will Roberts, a nonpartisan staffer with experience in drawing reapportionment plans. Roberts’ plan (the Enacted Plan) achieved the legislature’s political goal
by increasing District 1’s projected Republican vote share by 1.36% to
54.39%. The plan also raised the black voting-age population (BVAP)
from 16.56% to 16.72%. The legislature adopted the plan, and the Governor signed it into law.
The National Association for the Advancement of Colored People
and District 1 voter Taiwan Scott (Challengers), challenged the plan,
alleging that it resulted in racial gerrymanders in certain districts and
in the dilution of the electoral power of the State’s black voters. The
three-judge District Court held that the State drew District 1 with a
17% BVAP target in mind in violation of the Equal Protection Clause
and that this putative use of race to draw District 1 unlawfully diluted
the black vote.
Held:
1. The District Court’s finding that race predominated in the design
of District I in the Enacted Plan was clearly erroneous. Pp. 12–35.
(a) Because the State’s principal legal argument—that the District Court did not properly disentangle race from politics—is an attack
on the factual basis of the District Court’s findings, this case can be
disposed on clear-error grounds. The District Court clearly erred because the Challengers did not satisfy the demanding burden of showing that the “legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Miller, 515 U. S., at 916.
The Challengers provided no direct evidence of a racial gerrymander,
and their circumstantial evidence is very weak. Instead the Challengers relied on deeply flawed expert reports. And the Challengers did
not offer a single alternative map to show that the legislature’s partisan goal could be achieved while raising the BVAP in District 1.
Pp. 12–13.
(b) The District Court’s factual findings in this case are reviewed
for clear error. Because the racial predominance test has a very substantial legal component that must take account of the Court’s prior
relevant decisions, special care must be exercised in reviewing the relevant findings of fact. Pp. 13–14.
(c) The District Court’s heavy reliance on four pieces of evidence
was seriously misguided in light of the appropriate legal standard and
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repeated instructions that a court in a case such as this must rule out
the possibility that politics drove the districting process. None of the
facts on which the District Court relied to infer a racial motive is sufficient to support an inference that can overcome the presumption of
legislative good faith. First, the District Court concluded that the legislature deliberately sought to maintain a particular BVAP because
the maps that produced the sought-after partisan goal all had roughly
the same BVAP. But the mere fact that District 1’s BVAP remained
around 17%, despite all the changes made during the redistricting process, proves very little. The tight correlation between the legislature’s
partisan aim and District 1’s BVAP is substantiated by the District
Court’s own findings. The Challengers could not point to a single map
in the record that would satisfy the legislature’s political aim with a
BVAP above 17%. The District Court disregarded the presumption of
legislative good faith by drawing an inference that the State acted in
bad faith based on the racial consequences of a political gerrymander
in a jurisdiction in which race and partisan preference are very closely
related. Second, the District Court inferred a racial motive from the
fact that the Enacted Plan moved more voters out of District 1 than
were needed to comply with the one person, one vote rule, and that the
Enacted Plan split a few counties. But the high priority that the legislature gave to its partisan aim can explain these decisions. Third,
the District Court clearly erred when it concluded that the legislature’s
real aim was racial based on the movement of certain predominantly
black Charleston precincts from District 1 to District 6. Again, the
legislature’s partisan goal can easily explain this decision. Fourth, the
District Court placed excessive weight on the fact that several legislative staffers admitted to viewing racial data at some point during the
redistricting process. The District Court cited no evidence that could
not also support the inference that politics drove the mapmaking process and provided no explanation why a mapmaker who wanted to produce a version of District 1 that would be safely Republican would use
data about voters’ race rather than their political preferences. Pp. 14–
19.
(d) The four expert reports relied upon by the Challengers are
flawed because they ignored traditional districting criteria such as geographical constraints and the legislature’s partisan interests. Allen
v. Milligan, 599 U. S. 1, 34. The report of Dr. Kosuke Imai made no
effort to disentangle race from politics. It also failed to consider “core
district retention,” a term referring to “the proportion of districts that
remain when a State transitions from one districting plan to another.”
Id., at 21. The report of Dr. Jordan Ragusa did attempt to disentangle
race from politics, but its analysis has two serious defects. First, each
4 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
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of his three models failed to control for contiguity or compactness. Second, he used an inferior method of measuring a precinct’s partisan
leanings by counting absolute votes rather than a party’s relative
share of the vote. The report of Dr. Baodong Liu purported to show
that race rather than politics explains District 1’s design, but Dr. Liu’s
methodology was plainly flawed. Like Dr. Ragusa, Dr. Liu failed to
account for contiguity and compactness. And while this defect alone is
sufficient to preclude reliance, Dr. Liu also used inferior data to measure a district’s partisan tilt—i.e., data from the 2018 off-cycle gubernatorial primaries. Finally, the report of Dr. Moon Duchin, like that
of Dr. Imai, did not account for partisanship or core retention and was
based on an assessment of the map as a whole rather than District 1
in particular. Thus, her report has no probative force with respect to
the Challengers’ racial-gerrymandering claim regarding District 1’s
boundaries. Pp. 19–29.
(e) The District Court also critically erred by failing to draw an
adverse inference against the Challengers for not providing an adequate alternate map. By showing that a rational legislature, driven
only by its professed mapmaking criteria, could have produced a different map with “greater racial balance,” Cromartie, 532 U. S., at 258,
an alternative map can perform the critical task of distinguishing between racial and political motivations when race and partisanship are
closely entwined. Moreover, an alternative map is easy to produce.
The District Court mistakenly held that an alternative map is relevant
only for the purpose of showing that a remedy is plausible. A plaintiff’s
failure to submit an alternative map should be interpreted by courts
as an implicit concession that the plaintiff cannot draw a map that
undermines the legislature’s defense. Pp. 30–31.
2. Because the same findings of fact and reasoning that guided the
court’s racial-gerrymandering analysis also guided the analysis of the
Challengers’ independent vote-dilution claim, that conclusion also cannot stand. The District Court also erred in conflating the two claims.
A plaintiff pressing a vote-dilution claim cannot prevail simply by
showing that race played a predominant role in the districting process,
but rather must show that the State “enacted a particular voting
scheme as a purposeful device to minimize or cancel out the voting potential of racial or ethnic minorities.” Miller, 515 U. S., at 911. In
other words, the plaintiff must show that the State’s districting plan
“has the purpose and effect” of diluting the minority vote. Shaw v.
Reno, 509 U. S. 630, 649. In light of these two errors in the District
Court’s analysis, a remand is appropriate. Pp. 34–35.
Reversed in part and remanded in part.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
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and GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and in which
THOMAS, J., joined as to all but Part III–C. THOMAS, J., filed an opinion
concurring in part. KAGAN, J., filed a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined.
Cite as: 602 U. S. ____ (2024) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
[email protected], of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–807
_________________
THOMAS C. ALEXANDER, IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE SOUTH CAROLINA SENATE,
ET AL., APPELLANTS v. THE SOUTH CAROLINA
STATE CONFERENCE OF THE NAACP, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF SOUTH CAROLINA
[May 23, 2024]
JUSTICE ALITO delivered the opinion of the Court.
I
The Constitution entrusts state legislatures with the primary responsibility for drawing congressional districts, and
redistricting is an inescapably political enterprise. Legislators are almost always aware of the political ramifications
of the maps they adopt, and claims that a map is unconstitutional because it was drawn to achieve a partisan end are
not justiciable in federal court. Thus, as far as the Federal
Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting. By contrast, if a
legislature gives race a predominant role in redistricting
decisions, the resulting map is subjected to strict scrutiny
and may be held unconstitutional.
These doctrinal lines collide when race and partisan preference are highly correlated. We have navigated this tension by endorsing two related propositions. First, a party
challenging a map’s constitutionality must disentangle race
and politics if it wishes to prove that the legislature was
motivated by race as opposed to partisanship. Second, in
2 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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Opinion of the Court
assessing a legislature’s work, we start with a presumption
that the legislature acted in good faith.
In this case, which features a challenge to South Carolina’s redistricting efforts in the wake of the 2020 census,
the three-judge District Court paid only lip service to these
propositions. That misguided approach infected the District Court’s findings of fact, which were clearly erroneous
under the appropriate legal standard. We therefore reverse
the trial court in part and remand for further proceedings.
II
A
Redistricting constitutes a traditional domain of state
legislative authority. See Moore v. Harper, 600 U. S. 1
(2023); see also U. S. Const., Art. I, §4, cl. 1. The Fourteenth
Amendment introduces one constraint by prohibiting a
State from engaging in a racial gerrymander unless it can
satisfy strict scrutiny. But given “the complex interplay of
forces that enter a legislature’s redistricting calculus,” we
have repeatedly emphasized that federal courts must “exercise extraordinary caution in adjudicating claims that a
State has drawn district lines on the basis of race.” Miller
v. Johnson,
515 U. S. 900, 915–916 (1995). Such caution is
necessary because “[f]ederal-court review of districting legislation represents a serious intrusion on the most vital of
local functions.”
Id., at 915. To untangle race from other
permissible considerations, we require the plaintiff to show
that race was the “predominant factor motivating the legislature’s decision to place a significant number of voters
within or without a particular district.”
Id., at 916.
To make that showing, a plaintiff must prove that the
State “subordinated” race-neutral districting criteria such
as compactness, contiguity, and core preservation to “racial
considerations.”
Ibid. Racial considerations predominate
when “[r]ace was the criterion that, in the State’s view,
Cite as: 602 U. S. ____ (2024) 3
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could not be compromised” in the drawing of district lines. 1
Shaw v. Hunt, 517 U. S. 899, 907 (1996). We have recognized that, “[a]s a practical matter,” challengers will often
need to show that the State’s chosen map conflicts with traditional redistricting criteria. Bethune-Hill v. Virginia
State Bd. of Elections,
580 U. S. 178, 190 (2017). That is
because it may otherwise “be difficult for challengers to find
other evidence sufficient to show that race was the overriding factor causing neutral considerations to be cast aside.”
Ibid.
This showing can be made through some combination of
direct and circumstantial evidence. See Cooper v. Harris,
581 U. S. 285, 291 (2017). Direct evidence often comes in
the form of a relevant state actor’s express acknowledgment
that race played a role in the drawing of district lines. Such
concessions are not uncommon because States often admit
to considering race for the purpose of satisfying our precedent interpreting the Voting Rights Act of 1965. See, e.g.,
Alabama Legislative Black Caucus v. Alabama,
575 U. S.
254, 259–260 (2015). Direct evidence can also be smoked
out over the course of litigation. In Cooper, for instance, we
offered the hypothetical example of a plaintiff finding
“scores of leaked e-mails from state officials instructing
their mapmaker to pack as many black voters as possible
into a district.”
581 U. S., at 318. In such instances, if the
State cannot satisfy strict scrutiny, direct evidence of this
sort amounts to a confession of error.
Proving racial predominance with circumstantial evidence alone is much more difficult. Although we have never
invalidated an electoral map in a case in which the plaintiff
——————
1 A plaintiff can also establish racial predominance by showing that the
legislature used “race as a proxy” for “political interest[s].” Miller,
515
U. S., at 914; see also Cooper v. Harris,
581 U. S. 285, 291, n. 1 (2017)
(noting that strict scrutiny is warranted when “a legislature elevated
race to the predominant criterion in order to advance other goals, including political ones”).
4 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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failed to adduce any direct evidence, we have, at least in
theory, kept the door open for those rare instances in which
a district’s shape is “so bizarre on its face that it discloses a
racial design” absent any alternative explanation. Miller,
515 U. S., at 914; see also Shaw v. Reno,
509 U. S. 630, 643–
645 (1993) (Shaw I ).
A circumstantial-evidence-only case is especially difficult
when the State raises a partisan-gerrymandering defense.
That is because partisan and racial gerrymanders “are capable of yielding similar oddities in a district’s boundaries”
when there is a high correlation between race and partisan
preference. Cooper,
581 U. S., at 308. And that is the situation in this case, as the 2020 Presidential election illustrated. Exit polls found that at least 90% of black voters
voted for the Democratic candidate in South Carolina and
throughout the Nation. 2 When partisanship and race correlate, it naturally follows that a map that has been gerrymandered to achieve a partisan end can look very similar
to a racially gerrymandered map. For that reason, “[o]ur
prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so
happens that the most loyal Democrats happen to be black
Democrats and even if the State were conscious of that
fact.” Hunt v. Cromartie,
526 U. S. 541, 551 (1999)
(Cromartie I); see also Rucho v. Common Cause,
588 U. S.
684, 721 (2019) (concluding that federal judges lack the license to evaluate partisan-gerrymandering claims). We
have noted that a State’s partisan-gerrymandering defense
——————
2 See, e.g., Pew Research Center, Behind Biden’s 2020 Victory
(June 30, 2021), https://www.pewresearch.org/politics/2021/06/30/
behind-bidens-2020-victory/; NBC News, South Carolina Presidential
Election Results 2020 (Nov. 3, 2020), https://www.nbcnews.com/
politics/2020-elections/south-carolina-president-results/; N. Y. Times,
South Carolina Exit Polls: How Different Groups Voted (Nov. 3, 2020),
https://www.nytimes.com/interactive/2020/11/03/us/elections/exit-pollssouth-carolina.html.
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therefore raises “special challenges” for plaintiffs. Cooper,
581 U. S., at 308. To prevail, a plaintiff must “disentangle
race from politics” by proving “that the former drove a district’s lines.”
Ibid. (emphasis added). That means, among
other things, ruling out the competing explanation that political considerations dominated the legislature’s redistricting efforts. If either politics or race could explain a district’s
contours, the plaintiff has not cleared its bar.
Our decision in Easley v. Cromartie,
532 U. S. 234 (2001)
(Cromartie II ), illustrates the difficulties that plaintiffs
must overcome in this context. There, the plaintiffs’ case
hinged on circumstantial evidence of a racial gerrymander
such as expert testimony and discrepancies between the relevant district lines and traditional districting criteria. Id.,
at 240–241; see also Cooper,
581 U. S., at 321 (describing
the direct evidence in Cromartie II as “extremely weak”).
After the State asserted a partisan-gerrymandering defense, we faulted the plaintiffs for failing to show “that the
legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent
with traditional districting principles.” Cromartie II, 532
U. S., at 258. In other words, 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. Since our decision in Cromartie II,
any plaintiff with a strong case has had every incentive to
produce such an alternative map.
Without an alternative map, it is difficult for plaintiffs to
defeat our starting presumption that the legislature acted
in good faith. This presumption of legislative good faith directs district courts to draw the inference that cuts in the
legislature’s favor when confronted with evidence that
could plausibly support multiple conclusions. See, e.g., Abbott v. Perez,
585 U. S. 579, 610–612 (2018). This approach
6 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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ensures that “race for its own sake, and not other districting
principles, was the legislature’s dominant and controlling
rationale in drawing its district lines.” Miller, 515 U. S., at
913; see also Cromartie I,
526 U. S., at 546 (noting that
strict scrutiny is warranted when a map is “unexplainable
on grounds other than race” (internal quotation marks
omitted)).
Three additional reasons justify this presumption. First,
this presumption reflects the Federal Judiciary’s due respect for the judgment of state legislators, who are similarly
bound by an oath to follow the Constitution. Second, when
a federal court finds that race drove a legislature’s districting decisions, it is declaring that the legislature engaged in
“offensive and demeaning” conduct, Miller,
515 U. S., at
912, that “bears an uncomfortable resemblance to political
apartheid,” Shaw I,
509 U. S., at 647. We should not be
quick to hurl such accusations at the political branches.
Third, we must be wary of plaintiffs who seek to transform
federal courts into “weapons of political warfare” that will
deliver victories that eluded them “in the political arena.”
Cooper,
581 U. S., at 335 (ALITO, J., concurring in judgment
in part and dissenting in part). The presumption of good
faith furthers each of these constitutional interests. It also
explains why we have held that the plaintiff ’s evidentiary
burden in these cases is especially stringent. See Cromartie
II, 532 U. S., at 241.
If a plaintiff can demonstrate that race drove the mapping of district lines, then the burden shifts to the State to
prove that the map can overcome the daunting requirements of strict scrutiny. Under this standard, we begin by
asking whether the State’s decision to sort voters on the basis of race furthers a compelling governmental interest.
Cooper,
581 U. S., at 292. We then determine whether the
State’s use of race is “narrowly tailored”—i.e., “necessary”—
to achieve that interest. This standard is extraordinarily
onerous because the Fourteenth Amendment was designed
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to eradicate race-based state action. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,
600 U. S. 181, 206 (2023).
B
South Carolina has seven congressional districts, and
this case concerns two of them, Districts 1 and 6. District 1
covers the State’s southeast region, while District 6 covers
its southwest and central regions. South Carolina’s prior
map, which was enacted in 2011, split several counties between Districts 1 and 6, including Beaufort, Berkeley,
Charleston, Colleton, and Dorchester Counties. See Figure
1, infra, at 11. The Department of Justice precleared the
2011 map, and a three-judge District Court upheld it
against racial-gerrymandering and intentional vote-dilution claims after finding that the legislature “demonstrate[d] that [it] adhered to traditional race-neutral principles.” Backus v. South Carolina, 857 F. Supp. 2d 553, 560
(SC), summarily aff ’d,
568 U. S. 801 (2012). The relevant
part of that map is shown in Figure 1, infra, at 11.
Over the next decade, the 2011 map consistently yielded
a 6-to-1 Republican-Democratic delegation—with one exception. In 2018, the Democratic candidate, with 50.7% of
the votes, narrowly won District 1, which had previously
elected Republican candidates. 3 But in 2020, when the Republican Presidential candidate handily won the State, the
Republican congressional candidate retook District 1 by a
slender margin, winning 50.6% of the votes. 4
South Carolina had to redraw its map after the 2020 census because two of the State’s seven districts saw major
——————
3 N. Y. Times, South Carolina Election Results: First House Dis-
trict (Jan. 28, 2019), https://www.nytimes.com/elections/results/south-carolina-house-district-1.
4 N. Y. Times, South Carolina Election Results: First Congressional
District (Nov. 3, 2020), https://www.nytimes.com/interactive/2020/11/03/
us/elections/results-south-carolina-house-district-1.html.
8 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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population shifts. District 1 was overpopulated by 87,689
residents while District 6 was underpopulated by 84,741
residents. South Carolina therefore had to add voters to
District 6 while subtracting voters from District 1 in order
to comply with the principle of one person, one vote. The
remaining districts also had to be modified in order to bring
the whole map into compliance with that requirement.
In September 2021, the Senate subcommittee tasked
with drawing the new map issued guidance explaining that
traditional districting principles, such as respect for contiguity and incumbent protection, would guide the mapmaking process along with the strict equal-population requirement. At the same time, the Republican-controlled
legislature also made it clear that it would aim to create a
stronger Republican tilt in District 1. Senate Majority
Leader Shane Massey, for instance, testified at trial that
partisanship was “one of the most important factors” in the
process and that the Republican Party was “not going to
pass a plan that sacrificed [District 1].” J. S. A. 265a. As
he put it, the legislature’s adoption of any map that improved the Democrats’ chance of reclaiming District 1
would constitute “political malpractice.” Id., at 276a. Contemporaneous evidence confirms that leaders in the legislature sought to “create a stronger Republican tilt” in District 1 while “honoring” other race-neutral, traditional
districting criteria. 649 F. Supp. 3d 177, 187 (SC 2023);
J. S. A. 333a–334a.
To draw its maps, the Senate turned to Will Roberts, a
nonpartisan staffer with 20 years of experience in state government. Roberts had “worked with the three-judge panel
in Backus” and had routinely prepared “reapportionment
plans for counties, cities[,] and school boards across the
state.” 649 F. Supp. 3d, at 188. During the trial of this case,
one of the judges praised Roberts’ expertise and honesty on
Cite as: 602 U. S. ____ (2024) 9
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the record. 5 Under the Senate’s open-door policy, Roberts
drew maps upon request for Republican and Democratic
Senators alike. In making these maps, Roberts relied on
political data from the 2020 Presidential election along with
traditional districting criteria and input from various lawmakers, including Representative Jim Clyburn, whose recommendations would have preserved the strong Democratic tilt in his district (District 6) and included a version
of District 1 with a black voting-age population (BVAP) of
15.48%. J. S. A. 127a.
The eventual map (Enacted Plan), see Figure 2, infra, at
12, differed from the 2011 map in three important respects
that reflected the legislature’s priorities. First, the Enacted
Plan unified Beaufort and Berkeley Counties within District 1. This move enhanced the Republican advantage in
District 1 because the moved-in portions of those counties
leaned Republican. Second, to further increase the Republican lead in District 1, Roberts also put more of Dorchester
County in District 1. These changes exacerbated the population imbalance between District 1 and District 6. Third,
to cure this problem, Roberts moved a series of precincts in
Charleston from District 1 to District 6. In keeping with
the legislature’s partisan objectives, the precincts moved
out of District 1 had a 58.8% Democratic vote share.
By design, the legislature divided Charleston between
Districts 1 and 6. This split was seen as in Charleston’s
best interests because it meant that the county would have
two Representatives in the House—one Democrat, Representative Clyburn, who has represented District 6 since
1993 and has held important House leadership positions,
——————
5 During the proceedings, one of the judges described Roberts as “a very
precise guy” and a “good man.” J. S. A. 74a, 421a. That judge also remarked that he “always liked asking [Roberts] questions,” that “the legislature’s blessed to have Mr. Roberts,” and that if Roberts says a report
is not accurate, “that’s good enough for [him].” Id., at 74a–75a, 254a,
263a.
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and one Republican representing District 1. Republican
Senator Chip Campsen, who spearheaded the mapmaking
process, testified that Charleston benefits from bipartisan
congressional representation on “bread-and-butter things”
like port maintenance and “influence with the incumbent
administration.” Id., at 338a. As he explained, “I am tickled to death that Jim Clyburn represents Charleston
County,” id., at 371a, because “Clyburn has more influence
with the Biden Administration perhaps than anyone in the
nation,” id., at 338a. To achieve all these objectives, Roberts moved roughly 193,000 residents between the districts
with a net migration of 87,690 people into District 6. Id., at
439a, 443a.
The Enacted Map achieved the legislature’s political goal
by increasing District 1’s projected Republican vote share
by 1.36% to 54.39%. The version of District 1 in the Enacted
Plan also had a slightly higher BVAP, rising from 16.56%
to 16.72%. The legislature voted to adopt the Enacted Plan,
and the Governor signed it into law in January 2022.
While the Enacted Map was still in the making, the plaintiff-appellees in this case—the National Association for the
Advancement of Colored People (NAACP) and Taiwan
Scott, a voter in District 1 (collectively, the Challengers)—
sued to contest the 2011 map on the ground that, in light of
the 2020 census, it violated the one person, one vote requirement. After South Carolina passed the Enacted Plan,
the Challengers amended their complaint to attack that
map instead. The Challengers alleged that Districts 1, 2,
and 5 were racially gerrymandered and that these districts
diluted the electoral power of the State’s black voters. A
three-judge District Court rejected these claims with respect to Districts 2 and 5. But the court held that South
Carolina drew District 1 with a 17% BVAP “target” in mind
and that this violated the Equal Protection Clause. For
similar reasons, the court also found that the State’s putative use of race to draw District 1 unlawfully diluted the
Cite as: 602 U. S. ____ (2024) 11
Opinion of the Court
black vote. The court permanently enjoined South Carolina
from conducting elections in District 1 until it approved a
new map. The State appealed to this Court, and we noted
probable jurisdiction. 598 U. S. ___ (2023).
Figure 1. 2011 Map—Districts 1 and 6 (Exh. 1 to State’s Motion for
Summary Judgment in South Carolina State Conference of the NAACP
v. McMaster, No. 3:21–cv–3302 (D SC, Aug. 19, 2022), ECF Doc. 323–1,
p. 2)
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Figure 2. Enacted Plan—Districts 1 and 6 (South Carolina House of
Representatives, S. 865 Passed—As Signed by the Governor, https://
redistricting.schouse.gov/docs/plans/cpg/conpassed%20map.pdf )
III
The State contends that the District Court committed
both legal error and clear factual error in concluding that
race played a predominant role in the legislature’s design
of District 1. The State’s principal legal argument is that
the District Court did not properly disentangle race from
politics. Because this argument, at bottom, attacks the factual basis of the District Court’s findings, we dispose of this
case on clear-error grounds.
Under our case law, the Challengers bore the burden of
showing that the “legislature subordinated traditional race-neutral districting principles . . . to racial considerations.”
Cite as: 602 U. S. ____ (2024) 13
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Miller, 515 U. S., at 916. In this case, the District Court
clearly erred because the Challengers did not meet this “demanding” standard.
Id., at 928 (O’CONNOR, J., concurring).
They provided no direct evidence of a racial gerrymander,
and their circumstantial evidence is very weak. Instead,
the Challengers relied on deeply flawed expert reports. And
while these experts produced tens of thousands of maps
with differently configured districts, they did not offer a single map that achieved the legislature’s partisan goal while
including a higher BVAP in District 1. Faced with this record, we must reverse the District Court on the racial-gerrymandering claim.
We divide our analysis into four parts. First, we set out
the appropriate legal standard for reviewing a district
court’s factual findings in racial-gerrymandering cases.
Second, we explain why the District Court’s factual findings
are clearly flawed with respect to the Challengers’ circumstantial evidence. Third, we examine the four expert reports that the Challengers presented below. And finally,
we explain that the District Court erred by not drawing an
adverse inference from the Challengers’ failure to submit
an alternative map that would have allowed the State to
achieve its districting goals while maintaining a higher
BVAP in District 1.
A
We review the District Court’s factual findings for clear
error. That means we may not set those findings aside unless, after examining the entire record, we are “left with the
definite and firm conviction that a mistake has been committed.” Cooper, 581 U. S., at 309 (internal quotation
marks omitted). This is a demanding test, but it is not a
rubber stamp.
Moreover, in a case like this, there is a special danger
that a misunderstanding of what the law requires may in-
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fect what is labeled a finding of fact. “[I]f [a] trial court bases its findings upon a mistaken impression of applicable
legal principles, the reviewing court is not bound by the
clearly erroneous standard.” Inwood Laboratories, Inc. v.
Ives Laboratories, Inc., 456 U. S. 844, 855, n. 15 (1982); see
also Abbott,
585 U. S., at 607. Here, the standard of proof
that the three-judge court was required to apply, i.e., the
racial-predominance test, has a very substantial legal component that must take account of our prior relevant decisions. 6 And the application of this test calls for particular
care when the defense contends that the driving force in its
critical districting decisions (namely, partisanship) was a
factor that is closely correlated with race. Thus, in a case
like this, we must exercise special care in reviewing the relevant findings of fact.
B
The District Court found that South Carolina drew District 1 with a racial “target,” namely, the maintenance of a
17% BVAP, and it concluded that this deliberate use of race
rendered District 1’s lines unlawful. See Bethune-Hill, 580
U. S., at 183–185. But the Challengers did not offer any
direct evidence to support that conclusion, and indeed, the
direct evidence that is in the record is to the contrary. Rob-
——————
6 The dissent is correct to note that it is not enough for a plaintiff to
show that race was a mere factor in the State’s redistricting calculus.
Rather, the plaintiff must show that race played a “ ‘predominant’ ” role
in shaping a district’s lines. Post, at 17, n. 4 (opinion of KAGAN, J.) (quoting Miller, 515 U. S., at 916). But the dissent then retreats from this
standard because the State denied relying at all on racial data. Post, at
17, n. 4. That is a puzzling argument. Parties can stipulate to issues of
fact, but they cannot by stipulation amend the law. See, e.g., United
States Natl. Bank of Ore. v. Independent Ins. Agents of America,
508 U. S.
439, 447 (1993). And it would be uniquely perverse to deprive the State
of a more generous constitutional standard simply because it made the
laudable effort to disregard race altogether in the redistricting process.
Cite as: 602 U. S. ____ (2024) 15
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erts, the non-partisan career employee who drew the Enacted Map, testified that he used only political data, and his
colleagues likewise steadfastly denied using race in drawing the Enacted Map. None of the facts on which the District Court relied to infer a racial motive is sufficient to support an inference that can overcome the presumption of
legislative good faith.
First, the District Court inferred a racial motive from the
fact that District 1’s BVAP stayed around 17% “[d]espite all
of th[e] changes” that South Carolina made during the redistricting process. 649 F. Supp. 3d, at 191. But where race
and partisan preferences are very closely tied, as they are
here, the mere fact that District 1’s BVAP stayed more or
less constant proves very little. If 100% of black voters
voted for Democratic candidates, it is obvious that any map
with the partisan breakdown that the legislature sought in
District 1—something in the range of 54% Republican to
46% Democratic—would inevitably involve the removal of a
disproportionate number of black voters. And since roughly
90% of black voters cast their ballots for Democratic candidates, the same phenomenon is very likely.
The District Court’s own findings substantiate the tight
correlation between the legislature’s partisan aim and District 1’s BVAP. During the redistricting process, the State
considered a variety of maps, including those submitted by
the Challengers. Maps with a Democratic-leaning District
1 had BVAP percentages that generally ranged between
21% to 24%. See App. 83; J. S. A. Supp. 142a. The District
Court itself concluded that a 17% BVAP “produced a Republican tilt,” a 20% BVAP “produced a ‘toss up district,’ ” and
a 21% to 24% BVAP “produced a Democratic tilt.” 649
F. Supp. 3d, at 188. And the Challengers cannot point to
even one map in the record that would have satisfied the
legislature’s political aim and had a BVAP above 17%.
Thus, there is strong evidence that the district’s BVAP of
17% was simply a side effect of the legislature’s partisan
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goal. And certainly nothing rules out that possibility. In
light of the presumption of legislative good faith, that possibility is dispositive.
The District Court’s reasoning, however, is flatly inconsistent with that presumption. And what the court did—
inferring bad faith based on the racial effects of a political
gerrymander in a jurisdiction in which race and partisan
preference are very closely correlated—would, if accepted,
provide a convenient way for future litigants and lower
courts to sidestep our holding in Rucho that partisan-gerrymandering claims are not justiciable in federal court.
Under the District Court’s reasoning, a litigant could repackage a partisan-gerrymandering claim as a racial-gerrymandering claim by exploiting the tight link between
race and political preference. Instead of claiming that a
State impermissibly set a target Republican-Democratic
breakdown, a plaintiff could simply reverse-engineer the
partisan data into racial data and argue that the State impermissibly set a particular BVAP target. Our decisions
cannot be evaded with such ease. For that reason, the District Court clearly erred in finding that the legislature deliberately sought to maintain a particular BVAP just because the maps that produced the sought-after partisan
goal all had roughly the same BVAP.
Second, the District Court inferred a racial motive from
certain changes that the State made in redrawing District
1, namely, the Enacted Plan moved more voters out of District 1 (approximately 140,000) than were needed to comply
with the one person, one vote rule (about 88,000), and the
Enacted Plan split Charleston and a few other counties
even though the avoidance of such splits is a traditional redistricting objective. But here, again, the State’s avowed
partisan objective easily explains these facts. The State
claims it sought to ensure that District 1 had a reliable Republican majority, and simply removing 88,000 voters with-
Cite as: 602 U. S. ____ (2024) 17
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out regard to their party preferences would not have satisfied that objective. Similarly, the high priority that the legislature gave to its partisan goal provides an entirely reasonable explanation for the subordination of other
objectives such as the avoidance of county splits. See
Cooper, 581 U. S., at 308 (“[P]olitical and racial [gerrymanders] are capable of yielding similar oddities in a district’s
boundaries”).
Third, the District Court found it telling that many predominantly black Charleston precincts were moved out of
District 1 and into District 6. But because of the tight correlation between race and partisan preferences, this fact
does little to show that race, not politics, drove the legislature’s choice. The Charleston County precincts that were
removed are 58.8% Democratic. Thus, the legislature’s
stated partisan goal can easily explain this decision, and
the District Court therefore erred in crediting the less charitable conclusion that the legislature’s real aim was racial.
Fourth, the District Court placed too much weight on the
fact that several legislative staffers, including Roberts,
viewed racial data at some point during the redistricting
process. This acknowledgment means little on its own because we expect that “[r]edistricting legislatures will . . . almost always be aware of racial demographics.” Miller,
515
U. S., at 916. Here, Roberts testified without contradiction
that he considered the relevant racial data only after he had
drawn the Enacted Map and that he generated that data
solely for a lawful purpose, namely, to check that the maps
he produced complied with our Voting Rights Act precedent. J. S. A. 92a, 205a, 379a.
The District Court discredited this testimony, but it cited
no evidence that could not also support the inference that
politics drove the mapmaking process. And the court provided no explanation why a mapmaker who wanted to produce a version of District 1 that would be safely Republican
would use data about voters’ race rather than their political
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preferences. Why would Roberts have used racial data—
with the associated legal risks—as a proxy for partisan data
when he had access to refined, sub-precinct-level political
data that accounted for voter turnout and electoral preferences? The District Court provided no answer to this obvious question. 7
The Challengers look to plug this gap by arguing that
Roberts must have used racial data because the political
data he claimed to have used was blatantly unsatisfactory.
For support, they cite the testimony of Dale Oldham, a political consultant who did not participate in drawing the
Enacted Plan. Oldham testified that he believed the standard data South Carolina used for measuring partisanship
is unreliable because it does not accurately reflect the partisan preferences of absentee voters. Oldham opined that a
new type of composite data that first became available in
2020 does a better job in that regard. J. S. A. Supp. 417a–
418a, 420a.
This criticism is entitled to little weight. One consultant’s opinion about the quality of South Carolina’s political
data obviously does not settle the question whether the
State’s political data was inferior. And in any event, the
relevant question is not whether the State used the best
available data but whether it is reasonable to infer that the
mapmakers’ political data was so obviously flawed that
they must have surreptitiously used racial data. Oldham’s
testimony falls far short of establishing that the State cannot plausibly have believed that its own political data was
——————
7 The dissent argues that racial data is superior because black Demo-
crats are more loyal to the party than white Democrats. Post, at 21–22.
But whether or not this is true (and the dissent relies solely on the sayso of one witness), studies show that non-white voters turn out at a much
lower rate than white voters. See Brennan Center for Justice, K. Morris
& C. Grange, Large Racial Turnout Gap Persisted in 2020 Election
(Aug. 6, 2021), https://www.brennancenter.org/our-work/analysis-opinion/
large-racial-turnout-gap-persisted-2020-election.
Cite as: 602 U. S. ____ (2024) 19
Opinion of the Court
sufficient. Nothing in our case law requires the State to
adopt novel methodologies in analyzing election data. Indeed, the State plausibly argues that its data was more
than good enough for its purposes because it showed partisan preferences at the sub-precinct level and also accounted
for variations in voter turnout. Reply Brief 9, 11; J. S. A.
93a.
In sum, the District Court’s heavy reliance on these four
pieces of evidence was seriously misguided in light of the
appropriate legal standard and our repeated instructions
that a court in a case such as this must rule out the possibility that politics drove the districting process.
C
Once these weak inferences are set aside, all that the
Challengers have left are four expert reports. But these reports are flawed because they “ignored certain traditional
districting criteria” such as geographical constraints and
the legislature’s partisan interests. Allen v. Milligan, 599
U. S. 1, 34 (2023). Because these reports do not replicate
the “myriad considerations” that a legislature must balance
as part of its redistricting efforts, they cannot sustain a
finding that race played a predominant role in the drawing
of District 1’s lines.
Id., at 35. We will discuss each of the
Challengers’ four experts in turn.
Dr. Kosuke Imai. The report of the Challengers’ first expert, Dr. Kosuke Imai, provides no support for the decision
below because Dr. Imai made no effort to disentangle race
from politics. Dr. Imai developed a computer algorithm
that generated 20,000 maps of the State’s congressional districts that complied with the one person, one vote rule. This
algorithm did not take race into account, and it sought to
respect traditional redistricting objectives such as contiguity and compactness. The Challengers assert that these
maps prove that race drove the State’s redistricting process
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Opinion of the Court
because the average District 1 in these simulations contained a higher BVAP than the District 1 in the Enacted
Plan.
The Challengers’ inference is flawed because Dr. Imai’s
models failed to consider partisanship. See J. S. A. Supp.
30a (acknowledging that “no race or partisan information
was used” (emphasis added)). That is a fatal omission in
this case. As noted, race and politics strongly correlate in
South Carolina, and Dr. Imai’s algorithm produced maps
without requiring that District 1 comply with the legislature’s asserted aim of ensuring that District 1 remain a relatively safe Republican seat. The effect of Dr. Imai’s omission can be seen by looking at the Democratic vote share
(measured by the results in the 2020 Presidential election)
in the versions of District 1 that his simulations produced.
President Biden’s vote share in the average District 1 in Dr.
Imai’s maps was significantly higher than his vote share in
the version of District 1 in the Enacted Plan. Rebuttal Report of Sean Trende in South Carolina State Conference of
the NAACP v. McMaster, No. 3:21–cv–3302 (D SC, Aug. 19,
2022), ECF Doc. 323–33, pp. 5–6. Indeed, Dr. Sean Trende,
the State’s expert, showed that District 1 would have voted
for the Democratic nominee in 2020 in 91% of Dr. Imai’s
simulations. Ibid. Because Dr. Imai’s model fails to track
the considerations that governed the legislature’s redistricting decision, it is irrelevant that the racial makeup of
District 1 in his maps differs from that in the version of the
district in the Enacted Plan.
It is also noteworthy that Dr. Imai could have easily controlled for partisan preferences just as he controlled for
other redistricting factors such as compactness and county
splits. He could have generated maps conditioned on District 1’s vote share matching or exceeding the Benchmark
Plan’s Republican tilt. But he did not take that obvious
step.
Cite as: 602 U. S. ____ (2024) 21
Opinion of the Court
The Challengers seek to excuse their failures to disentangle race and politics by arguing that South Carolina raised
a partisan-gerrymandering defense for the first time during
the trial, but this argument rests on the implausible premise that the Challengers were unaware of the legislature’s
partisan concerns during the mapmaking process. The fact
of the matter is that politics pervaded the highly visible
mapmaking process from start to finish. The Republican
and Democratic caucuses submitted competing maps, and
the Enacted Plan passed the legislature by a margin of 26
to 15 in the Senate and 72 to 33 in the House, with only
Democrats voting in opposition. The public hearings and
legislative debates are of a piece. For example, Senator
Margie Bright Matthews, a black Democrat, said in a floor
debate with Senator Campsen that “ ‘we’re not going to get
into the racial gerrymandering thing because you and I
both know in Charleston it matters not about your race. It
is just that you went by how those folks voted.’ ” App. 296.
For evidence, she recognized that the Enacted Plan also
moved into District 6 predominantly white parts of Charleston that skewed Democratic, such as West Ashley. She
added, “ ‘Senator [Campsen], . . . I really appreciate you
agreeing with me that our opposition . . . is not about racial
[gerrymandering].’ ” Ibid. Instead, she said, it was about
“ ‘packing’ ” the Democratic-voting area of Charleston into
District 6 “ ‘to make [District 1] more electable.’ ” Ibid. Former Congressman Cunningham, the Democrat who represented District 1 from 2018 to 2020, also criticized the Enacted Plan’s District 1 lines as “ ‘mak[ing] no sense unless,
of course, the sole purpose . . . is to make it harder for a Republican to lose.’ ” Id., at 295. He added that “the folks in
Washington, D.C.,” did not want a repeat of the 2018 election or even the 2020 election where he lost against the Republican nominee by “a single point in one of the closest
elections in the entire country.” Ibid. Under these circumstances, it is safe to say that the Challengers were on notice
22 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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Opinion of the Court
that the State would raise a partisan-gerrymandering defense at trial.
Dr. Imai’s conspicuous failure to control for party preference is alone sufficient to discredit any reliance on his report, but his report exhibited another serious flaw: it failed
to consider “core district retention,” a term that “refers to
the proportion of districts that remain when a State transitions from one districting plan to another.” Allen, 599 U. S.,
at 21. The Enacted Plan retains 83% of District 1’s core,
but the average map produced by Dr. Imai’s model scored
69% on the core-district-retention metric—three standard
deviations lower. ECF Doc. 323–33, at 5.
Dr. Imai’s failure to consider core retention betrays a
blinkered view of the redistricting process. Lawmakers do
not typically start with a blank slate; rather, they usually
begin with the existing map and make alterations to fit various districting goals. Core retention recognizes this reality. Dr. Imai could have controlled for this metric by restricting the core retention in his simulations to at least
83%. His failure to do so here means we cannot rule out
core retention as another plausible explanation for the difference between the Enacted Plan and the average Imai
simulation.
Dr. Jordan Ragusa. As evidence that race predominated
in District 1’s design, the District Court also credited a report by Dr. Jordan Ragusa, another expert for the Challengers. Unlike Dr. Imai, Dr. Ragusa attempted to disentangle
race from politics, but as we will explain, his analysis has
at least two serious defects. First, he failed to account for
two key mapmaking factors: contiguity and compactness.
Second, he used an inferior method of measuring a precinct’s partisan leanings.
We begin with the matter of contiguity and compactness.
Dr. Ragusa used three separate models, but none of them
controlled for these critical districting factors. Two of his
models employed the so-called county envelope approach.
Cite as: 602 U. S. ____ (2024) 23
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Using this approach, he first identified the five counties
that have at least one precinct that fell within District 1 in
the Benchmark Plan. These counties in their entirety constituted the “county envelope.”
Dr. Ragusa employed a method that we will discuss below
to control for the partisan preferences of voters in these precincts, and he also controlled for precinct size. He then
asked whether a precinct of a given size with a given partisan breakdown was more or less likely to be included in District 1 depending on its racial demographics, and he reported that districts with a high percentage of black voters
were more likely to be excluded.
His remaining model looked only at the precincts that
were in District 1 in the Benchmark Plan, and controlling
in the same way for size and partisan leaning, he reported
that a precinct was more likely to be moved out if it had a
high percentage of black voters.
All three of these models exhibit the same flaw. Because
they did not control for contiguity or compactness, they all
assume that a precinct could be moved into or out of District
1 regardless of its distance from the line between that district and District 6. That is highly unrealistic. A simple
example illustrates this point in relation to the county envelope approach, as can be seen with a quick look at Figure
1, which we again reproduce below.
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Under Dr. Ragusa’s methodology, any precinct in Colleton County could have been moved into District 1, but many
precincts in that county are nowhere near District 1’s outer
boundaries. For example, precincts near the county’s
northern border with Bamberg County could not have been
moved into District 1 without egregiously flouting the
State’s important interests in contiguity or compactness.
And the same problem arises with respect to the question
whether a precinct in District 1 in the Benchmark Plan
could have been moved into District 6. Precincts in District
1 that are not close to the district line could not have been
moved without making District 6 less contiguous or compact. 8
——————
8 The dissent excuses Dr. Ragusa’s failure to control for contiguity on
the ground that a vast majority of the precincts in old District 1 could
have been moved into District 6 without violating contiguity. Post, at 29.
However, a quick look at the precincts in the counties that fall within
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Opinion of the Court
We have already rejected a plaintiff ’s expert report for
failing to account for this feature of mapmaking. In
Cromartie II, we faulted the plaintiff ’s expert for failing to
consider whether the excluded precincts “were located near
enough to [the district’s] boundaries or each other for the
legislature as a practical matter to have drawn [the district’s] boundaries to have included them, without sacrificing other important political goals.” 532 U. S., at 247. The
District Court clearly erred in crediting Dr. Ragusa’s models because his approach made that same mistake.
Dr. Ragusa’s report also carries less weight because of
how he measured a precinct’s partisan leanings. Using the
results of the 2020 Presidential election, Dr. Ragusa measured partisan tilt by looking at the total votes cast for President Biden, not the net votes for President Biden. This
method fails to account for the fact that voter turnout may
vary significantly from precinct to precinct, and therefore a
precinct in which a candidate gets a large number of votes
may also be a precinct in which the candidate fails to win a
majority. To illustrate this point, consider this simplified
example:
——————
District 1 shows that this is plainly untrue. (Links to some of the relevant precinct maps are provided below.) Many precincts would have had
to jump over quite a few others in order to join District 6. In addition,
the dissent ignores the other objectives that the new map sought to
achieve, namely, the unification of Beaufort and Berkeley Counties and
the division of Charleston between Districts 1 and 6 so that the city
would predictably have one Democratic House Member and one Republican House Member.
For the voting precincts in Beaufort County, see https://rfa.sc.gov/
sites/default/files/2024-01/Beaufort%20Precincts%202024.pdf. For Berkeley County, see https://rfa.sc.gov/sites/default/files/2022-04/Berkeley%
20Precincts.pdf.
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Precinct 1 Precinct 2
Total Voting Age 1,250 1,250
Population
Biden Vote 400 500
Trump Vote 250 600
Net Biden Votes 150 -100
Biden Vote % 62% 45%
Black Voting Age 250 0
Population
Moved from Dis- Yes No
trict 1 to District 6
Dr. Ragusa’s model considers only the total number of
Biden votes in its partisanship analysis. J. S. A. 502a. But
legislators aiming to make District 1 a relatively safe Republican seat would be foolish to exclude Precinct 2 merely
because it has more Democratic votes than Precinct 1. Instead, they would look at the net Democratic votes and
would thus remove Precinct 1, not Precinct 2. Although the
use of total votes may be a statistically permissible measure
of partisan lean, it is undoubtedly preferable for an expert
report to rely on net votes when measuring a district’s partisan lean.
The Challengers seek to defend Dr. Ragusa’s report by
suggesting that he followed the same methodology as Professor Stephen Ansolabehere, whose report we blessed in
Cooper, 581 U. S., at 315, but that is wrong. There are important differences between Dr. Ragusa’s methodology and
Professor Ansolabehere’s, 9 and in all events, Professor Ansolabehere’s report played a minor role in Cooper, where the
——————
9 Two differences in particular stand out. First, while Dr. Ragusa
looked only at Democratic voters to control for partisanship, Professor
Ansolabehere looked at both Democratic and Republican voters. 1 App.
in Cooper v. Harris, O. T. 2016, No. 15–1262, pp. 334–337. Only after
calculating the percentage of black voters moved in each partisan group
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plaintiffs could also point to direct evidence. Here, by contrast, once the District Court’s other circumstantial findings are set aside, the Challengers must rest their entire
case on these expert reports. Dr. Ragusa’s report, on its
own, cannot prove that District 1’s lines are “unexplainable
on grounds other than race.” Shaw I, 509 U. S., at 644 (internal quotation marks omitted).
Dr. Baodong Liu. Dr. Baodong Liu, another of the Challengers’ experts, submitted a report that purported to show
that race rather than politics explains District 1’s design.
Although the District Court did not cite Dr. Liu’s report, the
Challengers contend that it bolsters the District Court’s
findings. Tr. of Oral Arg. 86–87. But Dr. Liu’s methodology
was plainly flawed.
First, his methodology, like Dr. Ragusa’s, failed to account for contiguity and compactness. Dr. Liu examined all
voters living within the county envelope for District 1 of the
Enacted Plan to see which voters were more likely to have
been excluded. His analysis suggested that black Democrats were more likely to have been excluded than white
Democrats.
This methodology was highly unrealistic because it
treated each voter as an independent unit that South Carolina could include or exclude from District 1. No mapmaker who respects contiguity and compactness could take
such an approach. For example, a mapmaker could not assign a black Republican to one district while moving a black
Democrat who lives in the same apartment building to another district. To accurately reflect the districting process,
an analysis would have to pay attention to whether a voter’s
——————
did Professor Ansolabehere conclude that “race, and not party, had a disproportionate effect on the configuration of ” the congressional districts.
Id., at 337. Second, Professor Ansolabehere’s analysis operated at the
voter level. Id., at 313–314. That enabled him to compare the demographics of the moved voters to the general population in a way that
Dr. Ragusa’s precinct-level analysis cannot.
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neighbors were moved too.
This defect alone is sufficient to preclude reliance on Dr.
Liu’s report, but that report exhibited another flaw: it used
inferior data to measure a district’s partisan tilt. While the
State used voting data from the 2020 Presidential election,
Dr. Liu relied on data from the 2018 gubernatorial primaries. Data from that gubernatorial primary is less informative because far fewer voters turn out for off-cycle gubernatorial primary elections. The numbers prove the point. In
the 2018 elections, a total of about 610,000 votes were cast
across both primaries; in the 2020 Presidential election, by
contrast, a total of 2.5 million votes were cast. 10 Because
Dr. Liu examined only a small, highly non-random sample
of the regular voting electorate, we cannot say that the
same results would hold true if he had applied his methodology to the State’s 2020 data.
Dr. Moon Duchin. Dr. Moon Duchin, the final expert put
forward by the Challengers, provided a report assessing
whether the Enacted Plan “cracks” black voters among multiple districts in a way that produced “discernible vote dilution.” J. S. A. Supp. 127a. After finding that the Enacted
Plan diluted the black vote, Dr. Duchin concluded that it is
“not plausible” that the dilution was a mere “side effect of
partisan concerns.” Id., at 175a.
Neither the District Court nor the Challengers cite Dr.
Duchin’s report to support the racial-predominance finding,
and that is for a good reason. Like Dr. Imai’s report, various parts of Dr. Duchin’s report did not account for partisanship or core retention. App. 102–103. Moreover, Dr.
——————
10 See N. Y. Times, South Carolina Governor Primary Election Results
(Nov. 3, 2020), https://www.nytimes.com/elections/results/south-carolinagovernor-primary-election; N. Y. Times, South Carolina Presidential
Election Results (Nov. 3, 2020), https://www.nytimes.com/interactive/
2020/11/03/us/elections/results-south-carolina-president.html; see also
App. 135 (testimony of Baodong Liu) (noting that Presidential election
years “usually ha[ve] a very high level of voter turnout”).
Cite as: 602 U. S. ____ (2024) 29
Opinion of the Court
Duchin’s conclusion was based on an assessment of the map
as a whole rather than District 1 in particular. A state-wide
analysis cannot show that District 1 was drawn based on
race. See Bethune-Hill, 580 U. S., at 191 (“[T]he basic unit
of analysis for racial gerrymandering claims . . . is the district”); Alabama Legislative Black Caucus, 575 U. S., at
262–263 (a racial-gerrymandering claim “does not apply to
a State considered as an undifferentiated ‘whole’ ”). Given
these serious problems, it is no wonder that the challengers
cite Dr. Duchin’s report only in support of their racial vote-dilution claim. It has no probative force with respect to
their racial-gerrymandering claim regarding District 1’s
boundaries.
To sum up our analysis so far, no direct evidence supports
the District Court’s finding that race predominated in the
design of District 1 in the Enacted Plan. The circumstantial
evidence falls far short of showing that race, not partisan
preferences, drove the districting process, and none of the
expert reports offered by the Challengers provides any significant support for their position. 11
——————
11 The dissent, by contrast, would make it virtually impossible to show
clear error in a case like this. The dissent agrees that a plaintiff raising
a racial-gerrymandering claim bears a “demanding burden.” Post, at 10
(opinion of KAGAN, J.). But according to the dissent’s view, clear-error
review means that this burden vanishes on appeal because a plaintiff ’s
“hardest job should be done” once it prevails before a three-judge district
court.
Ibid. That misses the point. In assessing whether a finding is
clearly erroneous, it is important to keep in mind the standard of proof
that the district court was required to apply. It is hornbook law, after
all, that we must ask on appeal whether the “factfinder in the first instance made a mistake in concluding that a fact had been proven under
the applicable standard of proof.” Concrete Pipe & Products of Cal., Inc.
v. Construction Laborers Pension Trust for Southern Cal.,
508 U. S. 602,
622–623 (1993) (emphasis added); see also H. Edwards & L. Elliott, Federal Standards of Review 26 (3d ed. 2018) (“[I]n applying the clearly erroneous standard, a reviewing court must take account of the standard
of proof informing the trial court’s factual finding”). Once our task is
framed properly, we can easily conclude for the reasons that follow that
30 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
Opinion of the Court
D
In addition to all this, the District Court also critically
erred by failing to draw an adverse inference against the
Challengers for not providing a substitute map that shows
how the State “could have achieved its legitimate political
objectives” in District 1 while producing “significantly
greater racial balance.” Cromartie II, 532 U. S., at 258. We
have repeatedly observed that an alternative map of this
sort can go a long way toward helping plaintiffs disentangle
race and politics. In Cooper, we expressed “no doubt that
an alternative districting plan . . . can serve as key evidence
in a race-versus-politics dispute.” 581 U. S., at 317. By
showing that a rational legislature, driven only by its professed mapmaking criteria, could have produced a different
map with “greater racial balance,” Cromartie II, 532 U. S.,
at 258, an alternative map can perform the critical task of
distinguishing between racial and political motivations
when race and partisanship are closely entwined. For that
reason, we have said that when all plaintiffs can muster is
“meager direct evidence of a racial gerrymander” “only [an
alternative] ma[p] of that kind” can “carry the day.” Cooper,
581 U. S., at 322.
Nor is an alternative map difficult to produce. Any expert
armed with a computer “can easily churn out redistricting
maps that control for any number of specified criteria, including prior voting patterns and political party registration.”
Id., at 337 (opinion of ALITO, J.). The Challengers
enlisted four experts who could have made these maps at
little marginal cost. Dr. Imai’s simulations generated
20,000 different maps—but none that actually controlled
for politics. The evidentiary force of an alternative map,
coupled with its easy availability, means that trial courts
should draw an adverse inference from a plaintiff ’s failure
——————
the District Court clearly erred when it found that the Challengers carried their “demanding burden.”
Cite as: 602 U. S. ____ (2024) 31
Opinion of the Court
to submit one. The adverse inference may be dispositive in
many, if not most, cases where the plaintiff lacks direct evidence or some extraordinarily powerful circumstantial evidence such as the “strangely irregular twenty-eight-sided”
district lines in Gomillion v. Lightfoot, 364 U. S. 339, 341
(1960), which betrayed the State’s aim of segregating voters
on the basis of race with “mathematical” precision,
ibid.
The District Court, however, misunderstood our case law
when it held that an alternative map is relevant only for
the purpose of showing that a remedy is plausible. 49
F. Supp 3d, at 198–199. Because “a constitutionally compliant plan for [District 1] can be designed without undue
difficulty,” the District Court concluded that it was “not necessary for Plaintiffs to present an acceptable alternative
map to prevail on their claims.” Id., at 199. That is wrong.
A plaintiff ’s failure to submit an alternative map—precisely because it can be designed with ease—should be interpreted by district courts as an implicit concession that
the plaintiff cannot draw a map that undermines the legislature’s defense that the districting lines were “based on a
permissible, rather than a prohibited, ground.” Cooper,
581
U. S., at 317. The District Court’s conclusions are clearly
erroneous because it did not follow this basic logic.
E
Despite its length, the dissent boils down to six main
points. None is valid.
First, the dissent suggests that clear-error review is a
perfunctory task, see post, at 10, but that is not so. While
district court findings of fact are generally correct, conscientious district courts sometimes err, and appellants are
entitled to meaningful appellate review. Does the dissent
really think that all district court findings on the question
of racial discrimination are virtually immune from reversal?
32 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
Opinion of the Court
Second, the dissent attacks the proposition that in redistricting cases the “good faith of [the] state legislature must
be presumed.” Miller, 515 U. S., at 915. But, as the citation
to Justice Kennedy’s opinion for the Court in Miller reveals,
that presumption is an established feature of our case law.
Third, the dissent claims that our decision is inconsistent
with Cooper, but the dissent’s argument is based on an imaginary version of that opinion. Nothing in Cooper is inconsistent with the venerable rule that a factfinder may draw
an adverse inference when a party fails to produce highly
probative evidence that it could readily obtain if in fact such
evidence exists. See Interstate Circuit, Inc. v. United States,
306 U. S. 208, 226 (1939); see also 2 J. Wigmore, Evidence
in Trials at Common Law §291, pp. 227–229 (Chadbourn
rev. 1979). “[T]his rule can be traced as far back as 1722”
and “has been utilized in scores of modern cases.” International Union, United Auto, Aerospace and Agricultural Implement Workers of Am. (UAW) v. NLRB,
459 F. 2d 1329,
1336 (CADC 1972). The dissent is correct that this inference “pack[s] a wallop” in such cases, post, at 10, but that is
only because an adequate alternative map is remarkably
easy to produce—as demonstrated by the fact that the Challengers introduced tens of thousands of other maps into the
record. Under such circumstances, if a sophisticated plaintiff bringing a racial-gerrymandering claim cannot provide
an alternative map, that is most likely because such a map
cannot be created. It would be clear error for the factfinder
to overlook this shortcoming.
Fourth, the dissent argues that the Challengers were
blindsided when the State argued at trial that its map was
drawn to achieve a political goal. Post, at 13–14. But there
is ample evidence that the State’s aim was well known before trial. See supra, at 21–22. And neither the Challengers nor the dissent can explain why the Challengers’ experts, who created thousands of maps that took into account
all sorts of variables, supposedly never even tried to create
Cite as: 602 U. S. ____ (2024) 33
Opinion of the Court
a District 1 that had a higher BVAP while achieving the
legislature’s political goals. Nor can they explain why, if
such a map can be created, the Challengers’ experts did not
produce one during the trial.
Fifth, the dissent makes much of the fact that Roberts
had taken racial demographics into account in drawing
maps in the past and was aware of the racial makeup of the
various districts he created in this case. But there is nothing nefarious about his awareness of the State’s racial demographics. Roberts has spent nearly 20 years drawing
maps for various state and local initiatives, and it is therefore entirely unsurprising that he exhibited a wealth of
knowledge about who lives in which part of the State. Cf.
Miller, 515 U. S., at 916 (state redistricting officials “will
. . . almost always be aware of racial demographics” during
the districting process). The dissent seeks to undercut Roberts’s credibility by labeling him “a veteran consumer of racial data.” Post, at 18. We think it is unfair for the dissent
to question his credibility simply because he, like every
other expert who has ever worked on a Voting Rights Act
case, has had to “consum[e] . . . racial data” to comply with
our precedents.
Finally, the dissent thinks that the State must have used
racial data because that data, in its view, is more accurate
than political data in predicting future votes. Refusing to
use the racial data, according to the dissent, would have required the “self-restraint of a monk.” Post, at 21. This jaded
view is inconsistent with our case law’s longstanding instruction that the “good faith of [the] state legislature must
be presumed” in redistricting cases. Miller, 515 U. S., at
915. And in any event, there is little reason to think that it
requires much restraint for a mapmaker with a political
aim to use data that bears directly on what he is trying to
achieve, namely, political data. That is especially so where,
as here, the political data, unlike the racial data that the
dissent prefers, took into account voter turnout. See supra,
34 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
Opinion of the Court
at 17–19, and n. 7.
In sum, there is no substance to the dissent’s attacks.
IV
The Challengers also raised an independent vote-dilution
claim. The District Court held that this claim was governed
by the “same findings of fact and reasoning” that guided its
racial-gerrymandering analysis, and it thus entered judgment for the Challengers on that ground as well. 649
F. Supp. 3d, at 198. But in light of our conclusion that those
findings were clearly erroneous, that conclusion cannot
stand. Moreover, the District Court’s analysis did not take
into account the differences between vote-dilution and
racial-gerrymandering claims.
A racial-gerrymandering claim asks whether race predominated in the drawing of a district “regardless of the
motivations” for the use of race. Shaw I, 509 U. S., at 645.
The racial classification itself is the relevant harm in that
context. A vote-dilution claim is “analytically distinct” from
a racial-gerrymandering claim and follows a “different
analysis.”
Id., at 650, 652. A plaintiff pressing a vote-dilution claim cannot prevail simply by showing that race
played a predominant role in the districting process. Rather, such a plaintiff must show that the State “enacted a
particular voting scheme as a purposeful device to minimize
or cancel out the voting potential of racial or ethnic minorities.” Miller,
515 U. S., at 911 (internal quotation marks
omitted). In other words, the plaintiff must show that the
State’s districting plan “has the purpose and effect” of diluting the minority vote. Shaw I,
509 U. S., at 649 (emphasis added).
In light of these two errors in the District Court’s analysis
of the Challengers’ vote-dilution claim, a remand is appropriate.
Cite as: 602 U. S. ____ (2024) 35
Opinion of the Court
…
We reverse the judgment of the District Court in part and
remand the case in part for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 602 U. S. ____ (2024) 1
THOMAS, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–807
_________________
THOMAS C. ALEXANDER, IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE SOUTH CAROLINA SENATE,
ET AL., APPELLANTS v. THE SOUTH CAROLINA
STATE CONFERENCE OF THE NAACP, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF SOUTH CAROLINA
[May 23, 2024]
JUSTICE THOMAS, concurring in part.
I join all but Part III–C of the Court’s opinion. The Court
correctly concludes that the judgment below must be reversed under our precedents. Although I find the analysis
in Part III–C persuasive, clear-error review is not an invitation for the Court to “sift through volumes of facts” and
“argue its interpretation of those facts.” Easley v.
Cromartie, 532 U. S. 234, 262 (2001) (THOMAS, J., dissenting). The Court’s searching review of the expert reports exceeds the proper scope of clear-error review. But, that analysis is not necessary to resolve the case. In Part III–B, the
Court explains that the District Court failed to evaluate evidence reflecting the correlation between race and politics
with the necessary presumption of legislative good faith.
Ante, at 14–18. And, in Part III–D, it explains that the District Court failed to properly account for the plaintiffs’ failure to produce an alternative map. Ante, at 28–29. Both of
those mistakes are reversible legal errors.
I write separately to address whether our voting-rights
precedents are faithful to the Constitution. This case is
unique because it presents solely constitutional questions.
The plaintiffs do not rely on the Voting Rights Act of 1965
for any of their claims. Nor do the South Carolina officials
2 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
THOMAS, J., concurring in part
invoke the Voting Rights Act as part of their defense. There
can be no more propitious occasion to consider the constitutional underpinnings of our voting-rights jurisprudence.
The plaintiffs press two distinct constitutional claims.
First, they bring a “racial gerrymandering” claim, alleging
that South Carolina drew its new Congressional District 1
to sort black voters based on their race. To prevail on that
claim under our precedents, the plaintiffs must show that
race was the “predominant factor” in the legislature’s approach to drawing the district. Miller v. Johnson, 515 U. S.
900, 916 (1995). Second, they bring a “vote dilution” claim,
alleging that South Carolina drew District 1 to intentionally reduce the voting strength of the district’s black residents. To prevail on that claim under our precedents, the
plaintiffs must show that District 1’s design reduces “minority voters’ ability, as a group, ‘to elect the candidate of
their choice.’ ” Shaw v. Reno,
509 U. S. 630, 641 (1993)
(quoting Allen v. State Bd. of Elections,
393 U. S. 544, 569
(1969)).
In my view, the Court has no power to decide these types
of claims. Drawing political districts is a task for politicians, not federal judges. There are no judicially manageable standards for resolving claims about districting, and, regardless, the Constitution commits those issues exclusively
to the political branches.
The Court’s insistence on adjudicating these claims has
led it to develop doctrines that indulge in race-based reasoning inimical to the Constitution. As we reiterated last
Term, “ ‘[o]ur Constitution is color-blind.’ ” Students for
Fair Admissions, Inc. v. President and Fellows of Harvard
College,
600 U. S. 181, 230 (2023) (quoting Plessy v. Ferguson,
163 U. S. 537, 559 (1896) (Harlan, J., dissenting)). A
colorblind Constitution does not require that racial considerations “predominate” before subjecting them to scrutiny.
Nor does it tolerate groupwide judgments about the preferences and beliefs of racial minorities. It behooves us to
Cite as: 602 U. S. ____ (2024) 3
THOMAS, J., concurring in part
abandon our misguided efforts and leave districting to politicians.
I
Determining the proper shape of a district is a political
question not suited to resolution by federal courts. The
questions presented by districting claims are “ ‘nonjusticiable,’ or ‘political questions.’ ” Vieth v. Jubelirer, 541 U. S.
267, 277 (2004) (plurality opinion). We have explained that
a question is nonjusticiable when there is “ ‘a lack of judicially discoverable and manageable standards for resolving’ ” the issue or “ ‘a textually demonstrable constitutional
commitment of the issue to a coordinate political department.’ ”
Id., at 277–278 (quoting Baker v. Carr,
369 U. S.
186, 217 (1962)).
In Rucho v. Common Cause,
588 U. S. 684 (2019), we applied those principles to conclude that partisan gerrymandering claims are nonjusticiable. Partisan gerrymandering
claims allege that a political map unduly favors one political party over another. We explained that partisan gerrymandering claims therefore present questions about how to
“apportion political power as a matter of fairness,” despite
the fact that “[t]here are no legal standards discernible in
the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and
politically neutral.”
Id., at 705, 707. We bolstered our conclusion by reference to “the Framers’ decision to entrust districting to political entities” in the Elections Clause, Art. I,
§4, cl. 1. Id., at 697, 701. Because courts “have no commission to allocate political power and influence in the absence
of a constitutional directive or legal standards to guide us
in the exercise of such authority,” we held that partisan gerrymandering claims are nonjusticiable. Id., at 721.
The same logic demonstrates that racial gerrymandering
and vote dilution claims are also nonjusticiable. As with
4 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
THOMAS, J., concurring in part
partisan gerrymandering claims, the racial gerrymandering and vote dilution claims in this case lack “judicially discoverable and manageable standards” for their resolution.
Vieth, 541 U. S., at 277–278 (internal quotation marks
omitted). And, they ask us to address an issue—congressional districting—that is textually committed to a coordinate political department, Congress. Id., at 277. As a result, racial gerrymandering and vote dilution claims
brought under the Fourteenth and Fifteenth Amendments
are nonjusticiable.
A
Racial gerrymandering and vote dilution claims lack “ ‘judicially discoverable and manageable standards’ ” for their
resolution. Id., at 277–278 (quoting Baker, 369 U. S., at
217). Both types of claims turn on questions that cannot be
answered through the kind of reasoning that constitutes an
exercise of the “judicial Power.” Art. III, §1, cl. 1. I address
in turn the reasons why each claim is unmanageable.
1
Racial gerrymandering claims ask courts to reverse-engineer the purposes behind a complex and often arbitrary
legislative process. The standard developed under our precedents “require[s] the plaintiff to show that race was the
‘predominant factor motivating the legislature’s decision to
place a significant number of voters within or without a particular district.’ ” Ante, at 2 (quoting Miller, 515 U. S., at
916). In other words, “a plaintiff must prove that the legislature subordinated traditional race-neutral districting
principles . . . to racial considerations.”
Id., at 916. The
Court’s focus on legislative purpose is unavoidable because
“the constitutional violation in racial gerrymandering cases
stems from the racial purpose of state action,” not the resulting map. Bethune-Hill v. Virginia State Bd. of Elections,
580 U. S. 178, 189 (2017) (internal quotation marks
Cite as: 602 U. S. ____ (2024) 5
THOMAS, J., concurring in part
omitted).
Divining legislative purpose is a dubious undertaking in
the best of circumstances, but the task is all but impossible
in gerrymandering cases. “Electoral districting is a most
difficult subject for legislatures,” a pure “exercise [of] the
political judgment necessary to balance competing interests.” Miller, 515 U. S., at 915. We have therefore cautioned courts to “be sensitive to the complex interplay of
forces that enter a legislature’s redistricting calculus.”
Id.,
at 915–916.
In cases without smoking-gun evidence, the only practical way to prove that a State considered race when drawing
districts is to “show that the State’s chosen map conflicts
with traditional redistricting criteria.” 1 Ante, at 3. The
Court’s racial gerrymandering precedents use the term
“ ‘traditional districting principles’ ” to refer to the “competing interests” and “complex . . . forces” involved in drawing
districts. Miller, 515 U. S., at 915–916, 919 (quoting Shaw,
509 U. S., at 647). Judging a map’s consistency or conflict
with traditional districting principles requires a court to ascertain what kinds of maps should result from the application of those principles.
Determining how a legislature would have drawn district
lines in a vacuum is a fool’s errand. Indeed, as we have
defined them, “traditional districting principles” are simply
anything relevant to drawing districts other than race.
They include “principles such as compactness, contiguity,
and respect for political subdivisions.” Id., at 647. They
also include “keeping communities of interest together, and
protecting incumbents,” Rucho, 588 U. S., at 706–707, as
well as “minimizing change,” Alabama Legislative Black
Caucus v. Alabama,
575 U. S. 254, 259 (2015). Today, the
——————
1 As the Court observes, the most common direct evidence that a State
considered race in drawing a districting plan is the State’s admission
that it considered race in order to comply with our Voting Rights Act
precedents. Ante, at 3.
6 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
THOMAS, J., concurring in part
Court identifies “the legislature’s partisan interests” as a
traditional criterion. Ante, at 19. Even considerations such
as a district’s “consistently urban character,” “common media sources,” and inclusion of “major transportation lines
. . . implicate traditional districting principles.” Bush v.
Vera, 517 U. S. 952, 966 (1996) (plurality opinion). We have
readily acknowledged that “[t]raditional redistricting principles . . . are numerous and malleable,” and that “some . . .
are surprisingly ethereal and admit of degrees.” Bethune-Hill,
580 U. S., at 190 (alteration and internal quotation
marks omitted).
To evaluate whether a map aligns with traditional districting principles, a court must “rank the relative importance of those . . . criteria.” Rucho, 588 U. S., at 708.
Without such a ranking, it is impossible to say what kinds
of maps the principles should yield. But, that analysis ensnarls courts in a political thicket. Traditional districting
principles often conflict with one another, and there is no
principled way for judges to resolve those conflicts. Consider the question whether the principles of contiguity and
compactness can justify a map that retains a relatively
small part of the old district’s core. See ante, at 19, 21. Or,
consider whether the principle of keeping communities of
interest together can justify uniting one community at the
cost of splitting another between several districts, or healing partially an existing split at the cost of introducing a
new one. See Allen v. Milligan,
599 U. S. 1, 57, 61 (2023)
(THOMAS, J., dissenting). These questions do not ask for
legal answers, only political compromises. Judicial resolution of racial gerrymandering claims thus requires precisely
the kind of “inconsistent, illogical, and ad hoc” decisionmaking that we have said is beyond the judicial power.
Vieth,
541 U. S., at 278.
Evaluating compliance with traditional districting principles is further complicated by the fact that many decisions
are equally consistent with both a good-faith application of
Cite as: 602 U. S. ____ (2024) 7
THOMAS, J., concurring in part
those principles and with common gerrymandering techniques. A legislature seeking to gerrymander a district will
often proceed by “packing” or “cracking” groups of minority
voters. “Packing” means concentrating minority voters in a
single district to reduce their influence in surrounding districts. “Cracking” means splitting a group of minority voters between multiple districts to avoid strong minority influence in any one district. But, in areas where “political
groups . . . tend to cluster (as is the case with Democratic
voters in cities),” apparent packing or cracking can simply
reflect “adherence to compactness and respect for political
subdivision lines” or “the traditional criterion of incumbency protection.” Id., at 290, 298. This case exemplifies
the problem—the majority observes that Dr. Moon Duchin’s
report failed to “account for” the traditional districting principles of “partisanship or core retention” in “assessing
whether the Enacted Plan ‘cracks’ black voters among multiple districts.” Ante, at 28–29. The difference between illegitimate packing and the legitimate pursuit of compactness is too often in the eye of the beholder.
Perhaps the most serious obstacle to evaluating whether
a map is consistent with traditional districting principles is
the fact that race and politics are, at present, highly correlated in American society. Racial gerrymandering is constitutionally suspect, but “a jurisdiction may engage in constitutional political gerrymandering.” Rucho, 588 U. S., at
701 (internal quotation marks omitted). So, even if a court
is able to navigate all the complications I have identified so
far, it must still contend with the reality that “political and
racial reasons are capable of yielding similar oddities in a
district’s boundaries.” Cooper v. Harris,
581 U. S. 285, 308
(2017). To that end, “when the State asserts partisanship
as a defense,” plaintiffs must meet the “formidable task” of
“disentangl[ing] race from politics and prov[ing] that the
former drove a district’s lines.”
Ibid. Courts are not well
8 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
THOMAS, J., concurring in part
equipped to evaluate whether plaintiffs succeed in disentangling race and politics.
As the Court observes, roughly 90% of black voters in
South Carolina supported the Democratic candidate in the
last Presidential election. Ante, at 4, and n. 2. When nearly
all black voters support Democrats, an effort to strategically sort Democratic voters can be indistinguishable from
an effort to strategically sort black voters. In this case, all
Democratic-leaning maps presented during the districting
process featured a black share of the voting-age population
of 21% or higher, and all Republican-leaning maps featured
a black voter share of 17% or lower. Ante, at 15. The dispute in this case therefore focuses on whether that correlation reflected a racial purpose, or merely reflected the result
of a political purpose.
The majority’s reasoning highlights the difficulties inherent in disentangling race and politics. Its explanation of
why the expert evidence was insufficient does not rest on
the application of legal principles, but on the likely errors it
finds in the experts’ statistical models after a “foray into the
minutiae of the record.” Cromartie, 532 U. S., at 262 (opinion of THOMAS, J.). The majority discounts four separate
expert reports based on methodological concerns. One report is insufficient because it fails to model partisanship.
Ante, at 19–21. Another “carries less weight” because it
measures partisanship through the wrong statistical
method. Ante, at 25. And, another cannot be relied upon
because it measures partisanship with the wrong election
data. Ante, at 26–27. The dissent accuses the Court of
“play[ing] armchair statistician.” Post, at 31 (opinion of
KAGAN, J.). But, the dissent’s defense of the expert reports
includes an exercise in armchair cartography. The dissent
justifies the experts’ assumption that the legislature could
move any precinct in District 1 to District 6 by explaining
that District 1 is thin, coastal, and shares a long border with
District 6. Post, at 28–30. It supports its hunch with two
Cite as: 602 U. S. ____ (2024) 9
THOMAS, J., concurring in part
zoomed-out maps that include no information about precinct size or location. Post, at 35, Appendix. This type of
back-and-forth is the inevitable result of our voting-rights
doctrine. One worries that the Court will soon begin drawing its own sample maps and performing in-house regression analyses.
A system in which only specialized experts can discern
the existence of a constitutional injury is intolerable, and
strongly suggests that the racial gerrymandering injury is
not amenable to judicial resolution. We should resist the
temptation to reduce the Fourteenth Amendment to a battle of expert witnesses. Our gerrymandering misadventures demonstrate that these claims lack judicially manageable standards.
2
As I have long maintained, vote dilution claims are also
“not readily subjected to any judicially manageable standards.” Holder v. Hall, 512 U. S. 874, 901–902 (1994)
(THOMAS, J., concurring in judgment). To prove vote dilution as a constitutional claim, our precedents require plaintiffs to show that the design of a district reduces “minority
voters’ ability, as a group, to elect the candidate of their
choice.” Shaw,
509 U. S., at 641 (internal quotation marks
omitted). The same consideration is used for vote dilution
claims brought under §2 of the Voting Rights Act. See Allen,
599 U. S., at 13 (explaining that §2 “borrow[s] language
from a Fourteenth Amendment [vote dilution] case”).
To assess whether a legislature has diluted a minority’s
vote, “the critical question . . . is: ‘Diluted relative to what
benchmark?’ ” Id., at 50 (opinion of THOMAS, J.) (quoting
Gonzalez v. Aurora,
535 F. 3d 594, 598 (CA7 2008) (Easterbrook, C. J.)). Despite repeated efforts in our Voting Rights
Act cases, the Court has “never succeeded” in formulating
“an objective and workable method of identifying the undiluted benchmark.”
599 U. S., at 69 (opinion of THOMAS, J.).
10 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
THOMAS, J., concurring in part
The Court’s failure is not surprising because the task is futile. The Constitution does not offer “a theory for defining
effective participation in representative government.”
Holder, 512 U. S., at 897 (opinion of THOMAS, J.).
Choosing among theories of effective representation depends on particular voters’ objectives and preferred political strategies, not principles of constitutional law. Are a
minority’s votes “more ‘effective’ when they provide influence over a greater number of seats, or control over a lesser
number of seats”?
Id., at 899. Are minority voters “ ‘represented’ only when they choose a delegate who will mirror
their views in the legislative halls,” or does the “practical
influence” of a small group of potential swing voters also
amount to effective representation?
Id., at 900. Only minority voters themselves can answer these questions. No
“theory of the ‘effective’ vote” is “inherent in the concept of
representative democracy itself.”
Id., at 899. So, when our
precedents ask a court to determine if a minority’s vote is
diluted, they are “actually ask[ing]” the court “ ‘to choose
among competing bases of representation—ultimately, really, among competing theories of political philosophy.’ ”
Id., at 897 (quoting Baker,
369 U. S., at 300 (Frankfurter,
J., dissenting)). The Constitution expresses no view on such
issues, and they are not amenable to judicial resolution.
In practice, this Court has endorsed a theory of representation that distributes legislative seats in direct proportion
to racial demographics. “[T]he ‘lack of any better alternative’ identified in our case law” and the “intuitive appeal” of
“direct proportionality” make a racial proportionality
standard irresistible. Allen,
599 U. S., at 72 (opinion of
THOMAS, J.) (quoting Holder,
512 U. S., at 937 (opinion of
THOMAS, J.)). As a result, there is a “near-perfect correlation between [courts’] proportionality findings and [vote dilution] liability results.”
599 U. S., at 72 (citing E. Katz, M.
Aisenbrey, A. Baldwin, E. Cheuse, & A. Weisbrodt, Documenting Discrimination in Voting: Judicial Findings Under
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THOMAS, J., concurring in part
Section 2 of the Voting Rights Act Since 1982, 39 U. Mich.
J. L. Reform 643, 730–732 (2006)). A proportionality approach is easy to apply, but it is “radically inconsistent with
the [Reconstruction] Amendments’ command that government treat citizens as individuals and their ‘goal of a political system in which race no longer matters.’ ” 599 U. S., at
82 (quoting Shaw,
509 U. S., at 657).
I continue to believe that “[t]he matters the Court has set
out to resolve in vote dilution cases are . . . not questions of
law,” and that “they are not readily subjected to any judicially manageable standards.” Holder, 512 U. S., at 901–
902 (opinion of THOMAS, J.). The Court’s determination to
nonetheless adjudicate these cases has yielded an unconstitutional practice of distributing of political power based on
race.
B
Racial gerrymandering and vote dilution claims—at a
minimum, those challenging congressional districts—are
nonjusticiable for an additional reason: The Elections
Clause makes a “textually demonstrable constitutional
commitment” of the power to oversee congressional districting to “a coordinate political department,” Congress. Vieth,
541 U. S., at 277 (internal quotation marks omitted). And,
no other constitutional provision overcomes that commitment to Congress. The Constitution contemplates no role
for the federal courts in the districting process.
1
Although States have the initial duty to draw district
lines, the Elections Clause commits exclusive supervisory
authority over the States’ drawing of congressional districts
to Congress—not federal courts. It provides: “The Times,
Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by
12 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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THOMAS, J., concurring in part
Law make or alter such Regulations, except as to the Places
of chusing Senators.” Art. I, §4, cl. 1. The first part of the
Clause “imposes a duty upon” state legislatures to “prescribe the details necessary to hold congressional elections.”
U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 862
(1995) (THOMAS, J., dissenting). The second part “grants
power exclusively to Congress” to police the state legislatures’ performance of their duty.
Id., at 864. Critically, the
Clause leaves the Judiciary out of the districting process
entirely.
The Clause’s assignment of roles is comprehensive. For
example, a state legislature’s responsibility over congressional elections “ ‘transcends any limitations sought to be
imposed by the people of a State’ ” through other state actors; the state legislature is the exclusive state authority.
Moore v. Harper,
600 U. S. 1, 58 (2023) (THOMAS, J., dissenting) (quoting Leser v. Garnett,
258 U. S. 130, 137
(1922)). In a similar vein, the Clause makes Congress the
exclusive federal authority over States’ efforts to draw congressional districts, to the exclusion of courts.
The historical record compels this interpretation of the
Elections Clause’s text. Gerrymandering and vote dilution
are not new phenomena. The founding generation was familiar with political districting problems from the American colonial experience. See Vieth,
541 U. S., at 274 (collecting examples). But, the Framers nowhere suggested the
federal courts as a potential solution to those problems. Instead, they relied on congressional oversight. The Framers’
considered choice of a nonjudicial remedy is highly relevant
context to the interpretation of the Elections Clause. See
New York State Rifle & Pistol Assn., Inc. v. Bruen,
597 U. S.
1, 26–27 (2022).
Because the Elections Clause attracted considerable criticism during the ratification debates, ample contemporaneous discussion sheds light on the original understanding of
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THOMAS, J., concurring in part
the Clause. As a delegate to the Virginia ratifying convention observed, Congress’s power to regulate the time, place,
and manner of elections drew objections that “echoed from
one end of the continent to the other.” 3 Debates on the
Constitution 9 (J. Elliot ed. 1836) (Elliot’s Debates). Opponents of ratification attacked the Clause as a radical expansion of national power and a grave danger to liberty. Patrick Henry argued: “What can be more defective than the
clause concerning the elections? The control given to Congress over the time, place, and manner of holding elections,
will totally destroy the end of suffrage.” Id., at 60.
Defenses of the Elections Clause demonstrate that it was
designed at least in part as a way to address abusive districting. To be sure, proponents of ratification primarily
justified the Clause as a “constitutional remedy for th[e]
evil” presented by the possibility that “the states [might]
neglect to appoint representatives” to the new Federal Government. 2 id., at 326 (statement of John Jay). But, other
defenses of the Elections Clause resonate with modern concerns about gerrymandering and vote dilution.
Some proponents of ratification championed the Clause
as necessary “for securing to the people their equal rights
of election.” Id., at 26. A delegate to the Massachusetts
ratifying convention cautioned that “a state legislature . . .
in times of popular commotion, and when faction and party
spirit run high, . . . might make an unequal and partial division of the states into districts for the election of representatives.” Id., at 27. In such a situation, he explained,
“the people can have no remedy” except for that created by
the Elections Clause: the “controlling power” by which Congress may “preserve and restore to the people their equal
and sacred rights of election.” Ibid. And, James Madison
raised similar arguments at the Constitutional Convention.
See 2 Records of the Federal Convention of 1787, pp. 240–
241 (M. Farrand ed. 1911).
14 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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THOMAS, J., concurring in part
It was Congress, not the courts, that the Founders contemplated would provide recourse against state intrusions
on voting rights through the districting process. Even when
listing all entities that could possibly regulate congressional elections, the founding generation did not consider
the federal courts. To support his assertion that “the discretionary power over elections ought to exist somewhere,”
Alexander Hamilton posited that “there were only three
ways in which this power could have been reasonably organized; that it must either have been lodged wholly in the
National Legislature, or wholly in the State Legislatures,
or primarily in the latter, and ultimately in the former.”
The Federalist No. 59, p. 326 (E. Scott ed. 1898) (emphasis
added). A delegate made the same observation at the Massachusetts ratifying convention: “The power . . . to regulate
the elections of our federal representatives must be lodged
somewhere. I know of but two bodies wherein it can be
lodged—the legislatures of the several states, and the general Congress.” 2 Elliot’s Debates 24.
The Elections Clause’s text and history therefore point to
the same conclusion: The Clause commits supervisory authority over congressional districting to Congress alone.
“At no point” during the drafting or ratification of the Constitution “was there a suggestion that the federal courts
had a role to play” in resolving “electoral districting problems.” Rucho, 588 U. S., at 699. Even when the debate
touched on how political districting could affect the voting
rights of individuals, it was understood that any remedy related to districting would come from Congress, not federal
courts. 2
——————
2 Congress has, at times, wielded its power under the Elections Clause
to impose compactness and contiguity requirements for congressional
districts. See, e.g., Apportionment Act of 1842, ch. 47,
5 Stat. 491; Apportionment Act of 1911, ch. 5,
37 Stat. 13. More recently, in the Uniform
Congressional District Act of 1967, Congress required the States to use
single-member congressional districts instead of at-large elections. See
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THOMAS, J., concurring in part
2
None of the Constitution’s other provisions undercuts or
countermands the Elections Clause’s clear mandate for
Congress to supervise the States’ districting efforts. The
Court has viewed the Fourteenth and Fifteenth Amendments as the source of its authority to entertain challenges
to districts. But, the Reconstruction Amendments are perfectly consistent with Congress’s exclusive authority to
oversee congressional districting.
Our decisions primarily identify the Equal Protection
Clause as the textual basis for judicial resolution of districting claims. See Shaw, 509 U. S., at 642; Davis v. Bandemer,
478 U. S. 109, 151 (1986) (O’Connor, J., concurring in judgment) (asserting that, in contrast to political gerrymandering, “the greater warrant the Equal Protection Clause gives
the federal courts to intervene for protection against racial
discrimination . . . render[s] racial gerrymandering claims
justiciable”). That conclusion does not comport with the
text of the Equal Protection Clause or the structure of the
Reconstruction Amendments.
The text of the Equal Protection Clause makes it an unlikely source for claims about political districting. The
Equal Protection Clause provides that “[n]o State shall . . .
deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. The Clause’s “focus on ‘protection’ ” suggests that it imposes only “ ‘a duty on each state
to protect all persons and property within its jurisdiction
from violence and to enforce their rights through the court
system,’ ” not a “prohibit[ion on] discriminatory legislative
classifications.” United States v. Vaello Madero, 596 U. S.
——————
Pub. L. 90–196,
81 Stat. 581, 2 U. S. C. §2c. And, Congress created a
system for addressing a State’s failure to properly redistrict following a
decennial census. See §2a(c). Some Elections Clause legislation may
give rise to justiciable controversies regarding the application of federal
statutes. Cf. Wood v. Broom,
287 U. S. 1, 8 (1932). But, constitutional
districting claims are not justiciable in and of themselves.
16 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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THOMAS, J., concurring in part
159, 178–179, n. 4 (2022) (THOMAS, J., concurring) (quoting
C. Green, The Original Sense of the (Equal) Protection
Clause: Pre-Enactment History, 19 Geo. Mason U. Civ.
Rights L. J. 1, 3 (2008)). So understood, the Equal Protection Clause has no obvious bearing on districting. 3
Reading the Equal Protection Clause—or anything else
in §1 of the Fourteenth Amendment—to invite judicial involvement in disputes over voting rights also ignores the
fact that another part of the Fourteenth Amendment deals
directly with those rights. Section 2 provides that “when
the right to vote . . . is denied” to a State’s voting-age male
citizens “or in any way abridged,” the State’s apportionment
of congressional representatives “shall be reduced in the
proportion” of the denial of the franchise. Congress alone
can provide that remedy through its power to apportion representatives among the States. See Art. I, §2, cl. 3. Federal
courts are therefore unable to enforce §2. See Saunders v.
Wilkins, 152 F. 2d 235 (CA4), cert. denied,
328 U. S. 870
(1945). The express provision of a nonjudicial remedy for
——————
3 Other Clauses in §1 of the Fourteenth Amendment fare no better.
The Privileges or Immunities Clause provides that “[n]o State shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States.” It “grants ‘United States citizens a certain
collection of rights—i.e., privileges or immunities—attributable to that
status.’ ” Ramos v. Louisiana,
590 U. S. 83, 138 (2020) (THOMAS, J., concurring in judgment) (quoting McDonald v. Chicago,
561 U. S. 742, 808
(2010) (THOMAS, J., concurring in part and concurring in judgment)).
And, the Citizenship Clause provides that “[a]ll persons born or naturalized in the United States . . . are citizens of the United States and of the
State wherein they reside.” It likely “guarantees citizens equal treatment . . . with respect to civil rights.” Vaello Madero, 596 U. S., at 179
(opinion of THOMAS, J.). It is questionable whether the terms “privileges
and immunities” and “civil rights” were understood by the generation
that ratified the Fourteenth Amendment “to extend to political rights,
such as voting.” J. Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1417 (1992).
The Due Process Clause, of course, is a nonstarter as a source for substantive rights. See Dobbs v. Jackson Women’s Health Organization,
597
U. S. 215, 330–336 (2022) (THOMAS, J., concurring).
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THOMAS, J., concurring in part
voting-rights violations in §2 counsels against reading §1 to
allow judicial remedies implicitly in those same voting-rights disputes. Cf. Reynolds v. Sims, 377 U. S. 533, 594
(1964) (Harlan, J., dissenting).
Reading the Equal Protection Clause to support claims
for racial gerrymandering or vote dilution also makes the
existence of the Fifteenth Amendment unexplainable. If §1
of the Fourteenth Amendment allows for such fulsome protection of the franchise by federal courts, it is hard to see
why “Congress and the States still found it necessary to
adopt the Fifteenth Amendment—which protects ‘[t]he
right of citizens of the United States to vote’—two years after the Fourteenth Amendment’s passage.” McDonald,
561
U. S., at 852 (opinion of THOMAS, J.).
Nor can the Fifteenth Amendment justify racial gerrymandering or vote dilution claims in its own right. The Fifteenth Amendment is the primary constitutional protection
for the voting rights of racial minorities. But, the Fifteenth
Amendment “address[es] only matters relating to access to
the ballot.” Holder,
512 U. S., at 930 (opinion of THOMAS,
J.). “[I]ts protections [are] satisfied as long as members of
racial minorities [can] ‘ “register and vote without hindrance.” ’ ”
Id., at 921 (quoting Mobile v. Bolden,
446 U. S.
55, 65 (1980) (plurality opinion)). The Court’s decision in
Gomillion v. Lightfoot,
364 U. S. 339 (1960)—a Fifteenth
Amendment case often cited as a touchstone of our racial
gerrymandering jurisprudence—is consistent with this understanding. Gomillion involved only a claim “that the
boundaries of a city had been drawn to prevent blacks from
voting in municipal elections altogether,” not a claim about
the way minority voters were distributed between two districts. Holder,
512 U. S., at 920, n. 20 (opinion of THOMAS,
J.).
At this juncture, I see no directive in the Reconstruction
Amendments for courts to police the lines between political
18 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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THOMAS, J., concurring in part
districts. Instead, the Elections Clause assigns the responsibility for supervising the States’ drawing of congressional
districts solely to Congress.
…
Racial gerrymandering and vote dilution claims lack judicially manageable standards for their resolution. And,
they conflict with the Constitution’s textual commitment of
congressional districting issues to the state legislatures and
Congress. They therefore present nonjusticiable political
questions. The Court should extricate itself from this business and return political districting to the political
branches, where it belongs.
II
When an institution strays from its competencies, one
does not expect good results. This Court’s efforts in the districting field are no exception. The underlying nonjusticiability of racial gerrymandering and vote dilution claims
leads us to distort our doctrines in numerous ways. The
standard that the Court uses to resolve racial gerrymandering claims betrays the colorblind promise of the Fourteenth
Amendment by endorsing the notion that some racial classifications are benign. The standard that the Court uses to
resolve vote dilution claims invariably falls back on racial
stereotypes. And, the remedy commonly ordered in redistricting cases—a judicially imposed map—ignores the normal limits on federal equity power. Taken together, the
Court’s misconceived doctrines leave the States in an unenviable position.
A
The racial predominance standard for racial gerrymandering claims is plainly inconsistent with the fact that
“ ‘[o]ur Constitution is color-blind.’ ” Harvard College, 600
U. S., at 230 (quoting Plessy,
163 U. S., at 559 (opinion of
Harlan, J.)). Ordinarily, any governmental consideration of
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THOMAS, J., concurring in part
race—even as a second-order consideration—triggers strict
scrutiny. For example, using race merely as a “tip” or a
“plus” factor in college admissions does not excuse a university from satisfying strict scrutiny. 600 U. S., at 195–196,
213 (internal quotation marks omitted).
Our voting-rights precedents diverge from this rule by
subjecting an alleged racial gerrymander to strict scrutiny
only if “race was the ‘predominant factor motivating the legislature’s decision to place a significant number of voters
within or without a particular district.’ ” Ante, at 2 (quoting
Miller, 515 U. S., at 916) (emphasis added). A “predominance” requirement conflicts with the classification-based
harm that racial gerrymandering claims purport to address. The constitutional injury underlying a racial gerrymandering claim is the legislature’s mere use of a racial
classification in drawing its map. See Bethune-Hill,
580
U. S., at 189. That injury exists whether race is a legislature’s first or last consideration in drawing districts. “Racial classifications of any sort pose the risk of lasting harm
to our society.” Shaw,
509 U. S., at 657 (emphasis added).
“They reinforce the belief . . . that individuals should be
judged by the color of their skin” and “balkanize us into
competing racial factions.”
Ibid. All racial classifications
are inherently suspect, whether predominant or not.
The Court developed the racial predominance standard
with concerns about the justiciability of gerrymandering
claims in mind. The Court initially formulated the predominance standard while observing that “[f]ederal-court review of districting legislation represents a serious intrusion
on the most vital of local functions,” and stressing the need
to allow States “discretion to exercise the political judgment
necessary to balance competing interests.” Miller,
515
U. S., at 915. And, after describing the predominance
standard, the Court cautioned that federal courts must consider the problem of racial gerrymandering in light of “the
20 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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THOMAS, J., concurring in part
intrusive potential of judicial intervention into the legislative realm.” Id., at 916. These concerns about intruding on
the political process should have been a clear sign to retreat. Instead, the Court forged ahead to adopt a constitutionally suspect compromise.
The racial predominance standard does not even purport
to be consistent with the colorblind Constitution. The Miller Court simply borrowed that standard from the District
Court’s flawed opinion below. The Court endorsed the District Court’s decision “to require strict scrutiny whenever
race is the ‘overriding, predominant force’ in the redistricting process.”
Id., at 909, 917 (quoting Johnson v. Miller,
864 F. Supp. 1354, 1372 (SD Ga. 1994)). But, the District
Court’s opinion could not have been a stronger rejection of
our colorblind Constitution. It acknowledged that the racial predominance standard allowed legislatures to “intentionally consider race in redistricting—and even alter the
occasional line in keeping with that consideration—without
incurring constitutional review.”
Id., at 1373. But, the District Court reasoned, “[b]oth the Supreme Court and Congress have already admitted that the Constitution is not
genuinely ‘color-blind.’ ”
Id., at 1374. This provenance underscores the inconsistency of the racial predominance
standard with our colorblind Constitution.
Any use of race in drawing political districts—no matter
how minor—must be justified by a compelling interest. The
Court’s insistence on hearing nonjusticiable districting
claims leads it to disregard that principle in favor of a distorted standard that legitimizes racial classifications. If the
Court is truly concerned about intruding on the political
process, it should acknowledge that districting is a political
question and vacate the field.
B
The Court’s standard for vote dilution claims is similarly
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THOMAS, J., concurring in part
flawed, because it requires judges to engage in racial stereotyping. As I have explained, the Constitution does not define a baseline of effective representation by which to evaluate the dilution of a vote. Supra, at 9–11. The Court has
purported to fill that gap by looking to “minority voters’
ability, as a group, ‘to elect the candidate of their choice.’ ”
Shaw, 509 U. S., at 641 (quoting Allen,
393 U. S., at 569).
Simply put, the lack of a manageable vote dilution standard
has led the Court to fall back on generalized expectations
about members of minority groups.
“Our constitutional history does not tolerate [the] choice”
to treat as “the touchstone of an individual’s identity . . . the
color of their skin.” Harvard College,
600 U. S., at 231. It
therefore does not permit courts to make judgments about
what candidate “minority voters as a group” would choose.
That assessment requires a court to assume that “members
of racial and ethnic groups must all think alike on important matters of public policy.” Holder,
512 U. S., at 903
(opinion of THOMAS, J.). And, it requires a court to construct a caricature of the racial group to determine—in the
abstract—the attributes that define “the candidate of its
choice.” The Constitution does not indulge the belief that
members of racial minorities “always (or even consistently)
express some characteristic minority viewpoint on any issue.” Harvard College,
600 U. S., at 219 (internal quotation
marks omitted).
The racial stereotyping encouraged by our vote dilution
precedents is pronounced here. To establish vote dilution,
the plaintiffs point to the District Court’s observation that
recent elections in the district “ ‘were close, with less than
one percent separating the candidates,’ so increasing the
district’s Black population to 20% ‘would produce a “toss
up” district’ ” instead of a Republican one. Brief for Appellees 64. But, that reasoning simply equates the ability of
black South Carolinians to elect the candidate of their
choice with their ability to elect a Democrat—an exercise in
22 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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THOMAS, J., concurring in part
racial stereotyping. The mere fact that “members of a racial
group tend to prefer the same candidates” is not license to
treat that correlation as an absolute truth. Holder, 512
U. S., at 904 (opinion of THOMAS, J.). Plaintiffs make no
effort to explore whether the affinity of the district’s black
population toward the Democratic Party “might be the
product of similar socioeconomic interests rather than some
other factor related to race.”
Ibid. They instead proceed on
the “working assumption that racial groups can be conceived of largely as political interest groups.”
Id., at 905.
The Constitution forbids such an assumption.
The plaintiffs’ stereotyping does not stop there. They contend that their vote dilution claim also finds support in an
expert report evaluating the ability of black South Carolinians to elect the candidate of their choice. That expert
based her conclusion on the results of “elections with Black
candidates on the ballot.” Brief for Appellees 64. The plaintiffs’ argument therefore assumes that the “candidate of
choice” for black voters is simply a black candidate. But,
the stereotyping is worse than that. In 2016, South Carolina reelected Republican Tim Scott to the United States
Senate; Scott is the first black senator from the South since
Reconstruction. The plaintiffs and their expert nonetheless
decided that this race was not “considered probative for
Black electoral opportunity.” Supp. App. to Juris. Statement 174a. Plaintiffs’ argument therefore combines two
stereotypes by assuming that black South Carolinians can
be properly represented only by a black Democrat.
Such stereotyping is, of course, not limited to this case or
black voters. For example, a District Court recently concluded that Hispanic voters in a majority-Hispanic district
lacked an opportunity to elect the candidate of their choice,
even though the district elected a Hispanic Republican.
Soto Palmer v. Hobbs, ___ F. Supp. 3d ___,
2023 WL
5125390, *5, *9, *12 (WD Wash., Aug. 10, 2023). The court
later purported to correct the lack of Hispanic opportunity
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THOMAS, J., concurring in part
by imposing a remedial map that made the district “substantially more Democratic,” but slightly less Hispanic.
Soto Palmer, 2024 WL 1138939, *2, *5 (Mar. 15, 2024). In
short, the court concluded that securing the rights of Hispanic voters required replacing some of those voters with
non-Hispanic Democrats. That dismissive attitude toward
non-Democratic members of minority groups exemplifies
the tendency of the Court’s race-obsessed jurisprudence to
“balkanize us into competing racial factions.” Shaw,
509
U. S., at 657. The Court should correct course now before it
inflicts further damage.
The vote dilution analysis in this case inevitably reduces
black Charlestonians to partisan pawns and racial tokens.
The analysis is demeaning to the courts asked to perform
it, to say nothing of the black voters that it stereotypes.
“The assumptions upon which our vote dilution decisions
have been based should be repugnant to any nation that
strives for the ideal of a color-blind Constitution.” Holder,
512 U. S., at 905–906 (opinion of THOMAS, J.).
C
The Court’s insistence on adjudicating racial gerrymandering and vote dilution claims has also tempted it to ignore
constitutional limits on its remedial powers. Ultimately,
the only remedy for the constitutional injuries caused by an
illegally drawn map is a new map. But, federal courts lack
“the power to create remedies previously unknown to equity
jurisprudence.” Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332 (1999). And,
there is no “indication that the Framers had ever heard of
courts” playing any role in resolving electoral districting
problems. Rucho,
588 U. S., at 699. The power to redraw a
States’ electoral districts therefore exceeds “the jurisdiction
in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the
enactment of the original Judiciary Act.” Grupo Mexicano,
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THOMAS, J., concurring in part
527 U. S., at 318 (internal quotation marks omitted).
The Court once recognized its limited equitable powers in
this area. We previously acknowledged that “[o]f course no
court can affirmatively re-map [a State’s] districts so as to
bring them more in conformity with the standards of fairness for a representative system. At best we could only declare the existing electoral system invalid.” Colegrove v.
Green,
328 U. S. 549, 553 (1946) (opinion of Frankfurter,
J.); see also Baker,
369 U. S., at 328 (Frankfurter, J., dissenting) (“Surely a Federal District Court could not itself
remap the State”).
The view of equity required to justify a judicial map-drawing power emerged only in the 1950s. The Court’s “impatience with the pace of desegregation” caused by resistance to Brown v. Board of Education,
347 U. S. 483
(1954), “led us to approve . . . extraordinary remedial
measures,” Missouri v. Jenkins,
515 U. S. 70, 125 (1995)
(THOMAS, J., concurring). In the follow-on case to Brown,
the Court considered “the manner in which relief [was] to
be accorded” for vindication of “the fundamental principle
that racial discrimination in public education is unconstitutional.” Brown v. Board of Education,
349 U. S. 294, 298
(1955) (Brown II). In doing so, the Court took a boundless
view of equitable remedies, describing equity as being
“characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public
and private needs.”
Id., at 300 (footnote omitted). That understanding may have justified temporary measures to
“overcome the widespread resistance to the dictates of the
Constitution” prevalent at that time, but, as a general matter, “[s]uch extravagant uses of judicial power are at odds
with the history and tradition of the equity power and the
Framers’ design.” Jenkins, 515 U. S., at 125–126 (opinion
of THOMAS, J.). Federal courts have the power to grant only
the equitable relief “traditionally accorded by courts of eq-
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THOMAS, J., concurring in part
uity,” not the flexible power to invent whatever new remedies may seem useful at the time. Grupo Mexicano, 527
U. S., at 319.
Redistricting remedies rest on the same questionable understanding of equitable power. No court has explained
where the power to draw a replacement map comes from,
but all now assume it may be exercised as a matter of
course. The most consideration this Court has given to the
question, if it can be called consideration, was in Reynolds
v. Sims,
377 U. S. 533. In that case, the Court foreswore
any attempt to “consider . . . the difficult question of the
proper remedial devices which federal courts should utilize
in state legislative reapportionment cases,” but nonetheless
upheld, as an act of “proper judicial restraint,” the District
Court “ordering its own temporary reapportionment plan.”
Id., at 585–586. The Court’s only support for that conclusion was the naked statement in Justice Douglas’s Baker
concurrence that “ ‘any relief accorded can be fashioned in
the light of well-known principles of equity.’ ” Reynolds,
377
U. S., at 585 (quoting
369 U. S., at 250). Douglas’s statement is an obvious fallback to the “practical flexibility” extolled as a “traditional attribut[e] of equity power” in Brown
II.
349 U. S., at 300. The explanation is wholly inadequate;
the Court has never attempted to ground the map-drawing
power in “the jurisdiction in equity exercised by the High
Court of Chancery in England” in 1789. Grupo Mexicano,
527 U. S., at 318 (internal quotation marks omitted).
The lack of a historically grounded map-drawing remedy
is an enormous problem for districting claims, because no
historically supportable remedy can correct an improperly
drawn district. The most promising option is “[t]he negative injunction remedy against state officials countenanced
in Ex parte Young,” a “standard tool of equity that federal
courts have authority to entertain under their traditional
equitable jurisdiction.” Whole Woman’s Health v. Jackson,
595 U. S. 30, 53 (2021) (THOMAS, J., concurring in part and
26 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
THOMAS, J., concurring in part
dissenting in part) (citation and internal quotation marks
omitted); see also Ex Parte Young, 209 U. S. 123 (1908).
The Court has “long held that federal courts may in some
circumstances grant injunctive relief against state officers
who are violating, or planning to violate, federal law.” Armstrong v. Exceptional Child Center, Inc.,
575 U. S. 320, 326
(2015).
But, a negative-injunction remedy does not actually redress racial gerrymandering or vote dilution, for two reasons. First, it is not apparent that an Ex parte Young injunction can prevent a state election official from
conducting an election under an unconstitutional map, or
force him to draw a new map. Such an injunction “permits
a party to assert in equity a defense that would otherwise
have been available in the State’s enforcement proceedings
at law,” and it “extends no further than permitting private
parties in some circumstances to prevent state officials
from bringing an action to enforce a state law that is contrary to federal law.” Whole Woman’s Health, 595 U. S., at
53 (opinion of THOMAS, J.) (alteration and internal quotation marks omitted). It is thus not clear that such an injunction could stop an election. Second, even if it is possible
to enjoin state officials from conducting an election, it is
questionable whether that remedy is ever “equitable.” Our
system of government depends on regular elections; putting
elections indefinitely on hold may do more harm than good.
Cf. Baker,
369 U. S., at 327 (opinion of Frankfurter, J.) (“An
injunction restraining a general election unless the legislature reapportions would paralyze the critical centers of a
State’s political system and threaten political dislocation
whose consequences are not foreseeable”). Ultimately, to
remedy racial gerrymandering or vote dilution, someone
must draw a new map. I can find no explanation why that
“someone” can be a federal court.
Cite as: 602 U. S. ____ (2024) 27
THOMAS, J., concurring in part
D
The Court’s attempts to adjudicate the impossible have
put the States in an untenable position. We have hesitated
to subject States to the “ ‘ “competing hazards of liability” ’ ”
that arise from the fact that the Constitution “restricts consideration of race and the [Voting Rights Act] demands consideration of race.” Abbott v. Perez, 585 U. S. 579, 587
(2018) (quoting Vera,
517 U. S., at 977 (plurality opinion)).
But, the lack of manageable standards for districting claims
and the unfortunate trajectory of the Court’s Voting Rights
Act precedents combine to make it impossible for States to
navigate these hazards.
Last Term, the Court held that the Voting Rights Act required Alabama to draw a map that would give black Alabamians a majority in two of the State’s seven congressional districts. Because black Alabamians make up less
than two-sevenths of the State’s population, such a map
could result only from an obsessive focus on race in the
map-drawing process. See Allen,
599 U. S., at 56 (opinion
of THOMAS, J.). For example, one of the plaintiffs’ experts
used a race-neutral algorithm to generate 2 million random
maps; not a single map yielded two majority-black districts.
Id., at 58–59. In this case, however, South Carolina faced
a real risk of constitutional liability based on allegations
that it considered race too heavily in drawing a district that
was 17% black instead of 20%.
In fact, the Court recently granted emergency relief after
a State failed to thread the impossible needle created by our
voting-rights precedents. Voters in Louisiana challenged
the State’s 2022 congressional map, arguing that “Louisiana was required under the Voting Rights Act to create a
second black-majority district.” Robinson v. Ardoin,
86
F. 4th 574, 585 (CA5 2023). The Fifth Circuit concluded
that the plaintiffs were likely to succeed on their Voting
Rights Act claim. Louisiana argued that, under the Voting
Rights Act, “the possibility of drawing a majority-minority
28 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
THOMAS, J., concurring in part
district does not require the drawing of the district,” but the
court pointed to our decision in Allen to reject that contention. 86 F. 4th, at 599. Louisiana then held a special legislative session and adopted a new map that “established a
second majority-Black congressional district to resolve the
[Voting Rights Act] litigation.” Callais, v. Landry, ___
F. Supp. 3d ___,
2024 WL 1903930, *1 (WD La., Apr. 30,
2024). The result? A different group of voters brought constitutional gerrymandering and vote-dilution claims
against the State. Id., at *6–*7. That suit was also successful. A District Court found that race predominated in Louisiana’s process of adding the second majority-minority district, and enjoined the use of the new map. Id., at *17, *24.
After the State argued that the proximity of the District
Court’s order to important election deadlines would cause
“election chaos,” Emergency Application in No. 23A1002,
p. 19, we stayed the order, Order in No. 23A1002,
601 U. S.
___ (2024) (citing Purcell v. Gonzalez,
549 U. S. 1 (2006) (per
curiam)).
As these cases make clear, this Court’s jurisprudence
puts States in a lose-lose situation. Taken together, our
precedents stand for the rule that States must consider race
just enough in drawing districts. And, what “just enough”
means depends on a federal court’s answers to judicially unanswerable questions about the proper way to apply the
State’s traditional districting principles, or about the
groupwide preferences of racial minorities in the State.
There is no density of minority voters that this Court’s jurisprudence cannot turn into a constitutional controversy.
We have extracted years of litigation from every districting
cycle, with little to show for it. The Court’s involvement in
congressional districting is unjustified and counterproductive.
…
“When, under our direction, federal courts are engaged in
Cite as: 602 U. S. ____ (2024) 29
THOMAS, J., concurring in part
methodologically carving the country into racially designated electoral districts, it is imperative that we stop to consider whether the course we have charted for the Nation is
the one” required by the Constitution. Holder, 512 U. S., at
945 (opinion of THOMAS, J.). The Constitution provides
courts no power to draw districts, let alone any standards
by which they can attempt to do so. And, it does not authorize courts to engage in the race-based reasoning that has
come to dominate our voting-rights precedents. It is well
past time for the Court to return these political issues
where they belong—the political branches.
Cite as: 602 U. S. ____ (2024) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–807
_________________
THOMAS C. ALEXANDER, IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE SOUTH CAROLINA SENATE,
ET AL., APPELLANTS v. THE SOUTH CAROLINA
STATE CONFERENCE OF THE NAACP, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF SOUTH CAROLINA
[May 23, 2024]
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and
JUSTICE JACKSON join, dissenting.
This voting case, as the Court acknowledges, turns on a
quintessential factual dispute: Did South Carolina rely on
racial data to reconfigure the State’s Congressional District
1? The parties here agree that the South Carolina Legislature wanted to make District 1 more Republican. They further agree that in pursuit of that aim, the legislature moved
nearly 200,000 people into or out of the district. What the
parties disagree about is how the people expelled from the
district were chosen. The State contends that its mapmakers looked exclusively at data from the last election and targeted people who had voted Democratic. If that is true, the
State’s actions (however unsavory and undemocratic) are
immune from federal constitutional challenge. The Challengers, though, offer a different account. They say that the
mapmakers, not content with what the election data revealed, also reviewed and heavily relied on racial data—
thus exploiting the well-known correlation between race
and voting behavior. And if that is true, the Challengers
have a good constitutional claim, because the Equal Protection Clause forbids basing election districts mainly on race
in order to achieve partisan aims. See Cooper v. Harris, 581
2 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
U. S. 285, 291, and n. 1, 308, n. 7 (2017); Miller v. Johnson,
515 U. S. 900, 914 (1995). So the key question again: In
drawing District 1, did the mapmakers consider voting data
alone, or did they also closely attend and respond to which
residents were Black and which were White?
A three-judge District Court undertook to resolve that
factual dispute. And the court, over nearly a year, did everything one could ask to carry out its charge. After overseeing broad discovery, the court held a 9-day trial, featuring
some two dozen witnesses and hundreds of exhibits. It evaluated evidence about South Carolina geography and politics. It heard first-hand testimony about the redistricting
process. And it considered the views of statistical experts
on how the State’s new district lines could—and could not—
have come about. In the end, the court had to decide between two starkly different stories, backed by opposing bodies of evidence. One side you know from having read the
majority opinion: The state officials repeatedly denied using race in choosing the people kicked out of District 1, insisting that they based their decisions on political data
alone. The other side you have not yet heard, except in the
sketchiest of terms. It is that the State’s mapmakers were
experienced and skilled in the use of racial data to draw
electoral maps; that they configured their mapmaking software to show how any change made to the district would
affect its racial composition; that the racial make-up they
landed on was precisely what they needed, to the decimal
point, to achieve their partisan goals; and that their politics-only story could not account, as a statistical matter, for
their large-scale exclusion of African-American citizens.
Faced with that proof, all three judges agreed: The Challengers’ version of events was the more credible. The court,
to put the matter bluntly, did not believe the state officials.
It thought they had gerrymandered District 1 by race.
In reviewing those conclusions, the majority goes seriously wrong. Factfinding about electoral districting, as
Cite as: 602 U. S. ____ (2024) 3
KAGAN, J., dissenting
about other matters, is reversible “only for clear error.”
Cooper, 591 U. S., at 293. This Court must give a district
court’s view of events “significant deference,” which means
we must uphold it so long as it is “plausible.” Ibid. Under
that standard, South Carolina should now have to redraw
District 1. As I’ll detail, the Challengers introduced more
than enough evidence of racial gerrymandering to support
the District Court’s judgment. The majority’s attempt to
explain its contrary result fails at every turn. The majority
picks and chooses evidence to its liking; ignores or minimizes less convenient proof; disdains the panel’s judgments
about witness credibility; and makes a series of mistakes
about expert opinions. The majority declares that it knows
better than the District Court what happened in a South
Carolina map-drawing room to produce District 1. But the
proof is in the pudding: 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.
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. First, the majority, though ostensibly using the clear-error standard, effectively inverts it whenever a trial court
rules against a redistricting State. 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. See ante,
at 5. So the wrong side gets the benefit of the doubt: Any
“possibility” that favors the State is treated as “dispositive.”
Ante, at 16. Second, the majority invents a new rule of evidence to burden plaintiffs in racial-gerrymandering cases.
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. See ante, at 30–31. Such
4 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
micro-management of a plaintiff ’s case is elsewhere unheard of in constitutional litigation. But as with its upside-down application of clear-error review, the majority is intent on changing the usual rules when it comes to addressing racial-gerrymandering claims.
To be fair, we have seen all this once before—except that
it was in a dissent. Just seven years ago, this Court decided
another racial-gerrymandering case, strikingly similar to
this one. In Cooper v. Harris, the Court rejected the State’s
request for an alternative-map requirement; the dissent vehemently objected. See 581 U. S., at 318;
id., at 334–337
(ALITO, J., dissenting). The Court applied normal clear-error review, deferring to all plausible trial court findings.
See
id., at 293. The dissent, invoking a presumption of good
faith, instead deferred to all plausible arguments of the losing State defendant. See
id., at 357 (ALITO, J., dissenting).
Today, for all practical purposes, the Cooper dissent becomes the law.
Perhaps most dispiriting is what lies behind the Court’s
new approach—its special rules to specially disadvantage
suits to remedy race-based redistricting. The Cooper dissent thought plaintiffs would use racial-gerrymandering actions as “weapons of political warfare.”
Id., at 335 (ALITO,
J., dissenting). And it lamented that courts finding gerrymanders were “accus[ing]” States of “offensive and demeaning conduct.”
Id., at 334 (internal quotation marks omitted). So the problem was more with challenging racial
gerrymanders than with putting them into place. Today,
that view becomes central to the majority opinion. See ante,
at 6. The suspicion, and indeed derision, of suits brought to
stop racial gerrymanders are self-evident; the intent to insulate States from those suits no less so. But consider what
this altered perspective misses. That a State may in fact
have engaged in such “offensive and demeaning” conduct.
That it may have sorted citizens by their race with respect
to the most fundamental of all their political rights. That
Cite as: 602 U. S. ____ (2024) 5
KAGAN, J., dissenting
it may have done so for no reason other than to achieve partisan gain. And here, that a three-judge court unanimously
found all this to have occurred.
The proper response to this case is not to throw up novel
roadblocks enabling South Carolina to continue dividing
citizens along racial lines. It is to respect the plausible—
no, the more than plausible—findings of the District Court
that the State engaged in race-based districting. And to tell
the State that it must redraw District 1, this time without
targeting African-American citizens.
I
Begin with the law, and more particularly the usual
standard of review. This Court all the time recites the
words: “only for clear error.” Cooper, 581 U. S., at 293, 309.
And those words always mean (or anyway, always meant)
the same thing. Under the clear-error standard, a lower
court’s factual findings “warrant[ ] significant deference.”
Id., at 293. We do not rubber stamp those findings, but we
affirm them so long as they are “plausible” in light of the
full record. Anderson v. Bessemer City,
470 U. S. 564, 574
(1985). And that is so even if, left to our own devices, we
“would have decided the [matter] differently.”
Id., at 573.
We can reverse only when “left with the definite and firm
conviction that a mistake has been committed.”
Ibid. And
nowhere is that high bar higher than when witness credibility is at issue. A trial court’s judgment about whether a
witness is telling the truth is entitled to “singular deference.” Cooper,
581 U. S., at 309.
The reasons for thus deferring to trial court factfinding
are equally well-settled. Trial courts are the judiciary’s
factfinding specialists. They live with a case for months or
years, supervising discovery, ruling on the admission of expert opinions, and watching how the evidence unfolds.
They preside over the trial and see the live witnesses (24 in
6 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
this case) up close. They can observe “the variations in demeanor and tone” that “bear so heavily” on credibility judgments. Anderson, 470 U. S., at 575. They know the ins and
outs of often massive records. (This case boasts, for example, a 2,122-page trial transcript, a 1,694-page compilation
of key deposition testimony, and (as one judge remarked)
too many exhibits to fit in the courtroom. No. 3:21–cv–3302
(D SC), ECF Doc. 503, p. 23.) Chances are, then, that a trial
court will do better factfinding than an appellate court parachuting in at the last moment. The clear-error standard
is a recognition of comparative competence. And it is a
forced dose of humility—a virtue which sometimes doesn’t
come naturally to appellate courts. Apply that last point to
this Court in particular. The clear-error standard tells us
that when we disagree with a trial court’s view of the facts,
we are the ones likely to be wrong. So we should make triple sure that we are correcting, not creating, an error before
we reverse.
Cooper illustrates how the ordinary clear-error standard
works in districting litigation. The question there, as here,
was whether a state legislature chose voters for a congressional district based on their race, or instead based on their
past political choices. The three-judge District Court found
that race accounted for the new district lines. On review,
we decided the evidence “adequately support[ed]” that conclusion.
581 U. S., at 309. As that phrasing suggests, we
nowhere claimed the court was actually right. To the contrary, we observed that in this “thoroughly two-sided case,”
both views of the evidence were “plausible” and “permissible,” and we declined to choose between them.
Id., at 299,
307, n. 6; see
id., at 316–317 (“Maybe we would have evaluated the testimony differently had we presided over the
trial; or then again, maybe we would not have”). Our decision followed from the deference we thought owed to the
District Court. Under clear-error review, we noted, “we will
not take it upon ourselves to weigh the trial evidence as if
Cite as: 602 U. S. ____ (2024) 7
KAGAN, J., dissenting
we were the first to hear it.” Id., at 316. Because the District Court’s view was “plausible in light of the full record,”
it “must govern”—even if another were “equally or more so.”
Id., at 293 (internal quotation marks omitted).
Today’s decision could not be more different. To be sure,
the majority recites the clear-error standard. See ante, at
13. But from then on, the majority ignores it—no, worse,
does the opposite of what the standard commands. It is not
just that the majority refuses to defer to the District Court’s
findings in favor of the Challengers. It is that the majority
defers to the assertions of the State defendants—the side
that lost below. Invoking a “presumption of legislative good
faith,” the majority insists that “when confronted with evidence that could plausibly support multiple conclusions,” a
court must “draw the inference that cuts” in the State’s favor. Ante, at 5. So over and over the majority puts its
thumb on the scale against the District Court. Each time it
takes up a piece of evidence, the majority declares that
there is a “possibility” of seeing it the State’s way. Ante, at
16, 19. And that possibility is “dispositive”; because of it,
the State’s version of the facts must control. Ante, at 16;
see also, e.g., ante, at 5, 17, 22 (similarly awarding points to
the State because its claims were “plausible,” even if the
Challengers’ were more so). 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.
That approach conflicts with this Court’s precedent. Indeed, it has only ever appeared in the Cooper . . . dissent.
There too, JUSTICE ALITO argued for reversing the trial
court’s view of evidence because it was not “the only plausible interpretation.” 581 U. S., at 357. There too, he called
for accepting the State’s contrary view because the evidence
could “as easily be understood” that way. Ibid.; see
id., at
345, 350, 352, 358–359. The Cooper Court noticed—and
8 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
disapproved. The dissent, it said, “repeatedly flips the appropriate standard of review,” to give the State rather than
the trial court deference. Id., at 309, n. 8. But that move
reflected “an elemental error”: There is no “super-charged,
pro-State presumption on appeal, trumping clear error review.”
Ibid. Of course clear-error review takes into account
the standard of proof in the trial court. See ante, at 29–30,
n. 11. But that standard is not transformed because of the
good-faith presumption. In our precedents, that presumption tells a court not to assume a districting plan is flawed
or to limit the State’s opportunities to defend it. See Abbott
v. Perez,
585 U. S. 579, 603 (2018) (the presumption requires a plan’s challengers to bear the burden of proof );
Hunt v. Cromartie,
526 U. S. 541, 553 (1999) (the presumption may suggest sending a case to trial, rather than rejecting a plan on summary judgment). And the presumption
reminds a court that it is a serious matter to find a State in
breach of the Constitution. See Miller,
515 U. S., at 915.
But that is all. Nothing in our decisions suggests that a
trial court must resolve every plausibly disputed factual issue for the State (as if we could hardly imagine officials violating the law). And still less do our decisions suggest that
the trial court’s factual findings are deprived of deference
on appeal. To the contrary, as Cooper stated, clear-error
review of those findings proceeds just as usual, unaffected
by the presumption. See
581 U. S., at 309, n. 8; see also
Miller,
515 U. S., at 915 (good faith is presumed “until a
claimant makes a showing” of “race-based decisionmaking”
(emphasis added)).
The majority’s deeper reasons for specially indulging the
State also clash with this Court’s decisions. In the majority’s view, claims of racial gerrymanders are often “weapons
of political warfare,” using courts for illegitimate ends.
Ante, at 6. And when courts vindicate those claims, they
“accus[e]” States of “offensive and demeaning conduct,”
Cite as: 602 U. S. ____ (2024) 9
KAGAN, J., dissenting
bearing “an uncomfortable resemblance to political apartheid,” ibid.—an apparently intolerable insult even when
justified. Those sentiments, again, come straight out of the
dissent in Cooper. See 581 U. S., at 334–335. The Court
there took a different view, more reflective of our precedents. See id., at 319, n. 15. Time and again, this Court
has noted the important role suits like this one play in stopping the unlawful race-based division of citizens into electoral districts. See, e.g., Bethune-Hill v. Virginia State Bd.
of Elections, 580 U. S. 178, 187 (2017). For sorting of that
kind does occur—sometimes (as here) to serve partisan
goals, occasionally just to suppress the political influence of
minority voters. See Cooper,
581 U. S., at 319, n. 15. And
when it does, the Court has held, it requires a judicial response. See, e.g., Shaw v. Reno,
509 U. S. 630, 649 (1993).
If calling out a racial gerrymander “accus[es]” a State of a
grave wrong, then so be it. This Court is not supposed to be
so fearful of telling discriminators, including States, to stop
discriminating. In other recent decisions, the Court has
prided itself on halting race-based decision-making wherever it arises—even though serving far more commendable
goals than partisan advantage. See, e.g., Students for Fair
Admissions, Inc. v. President and Fellows of Harvard College,
600 U. S. 181, 213–214 (2023). It is not the ordinary
thing to agonize so much about giving “offens[e]” to a discriminating State. Ante, at 6.
And it is not the right thing either. In adopting its novel
credit-the-losing-State approach, the majority thwarts efforts to undo a pernicious kind of race-based discrimination.
See Shaw,
509 U. S., at 643 (recognizing racial gerrymanders as “odious”). True enough, as the majority highlights,
that the judicial system fails when a State is wrongly found
to have gerrymandered a district. But the system fails as
badly or worse when a State that has gerrymandered a district gets away with it. This Court has prohibited race-based gerrymanders for a reason: They divide citizens on
10 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
racial lines to engineer the results of elections (without the
justification of protecting minority voters’ rights). And litigation to remedy that harm is already none too easy. Because of the complex political context, this Court has required challengers of electoral maps to show that race was
not just a single but the “predominant” factor in moving voters between districts. Bethune-Hill, 580 U. S., at 187. That
is, and is meant to be, a demanding burden. But once plaintiffs have met it to a three-judge district court’s satisfaction,
their hardest job should be done. They should not have to
face an upside-down form of clear-error review, in which
this Court reverses if it decides there is a “possibility” of
seeing the evidence the State’s way. Ante, at 16. The principal effect of that novel rule will be to defeat valid votingdiscrimination claims.
And the majority is not yet done putting uncommon burdens on gerrymandered plaintiffs. From now on, those
plaintiffs will also be subject to an “adverse inference” unless they present a specific form of evidence—an “alternative map” that would “achieve[ the State’s] legitimate political objectives” while “producing significantly greater racial
balance.” Ante, at 30–31 (internal quotation marks omitted). And that inference gives every sign of packing a wallop. The majority labels it “dispositive in many, if not most,
cases,” except when the plaintiff presents (1) direct evidence of a gerrymander (say, an email admitting to the targeting of Black voters) or (2) “some extraordinarily powerful
circumstantial evidence such as the strangely irregular
twenty-eight-sided district lines” in Gomillion v. Lightfoot,
364 U. S. 339 (1960). Ante, at 31 (internal quotation marks
omitted). Think about that last category, as the majority
frames it. The majority must go back 65 years, to the most
grotesque racial gerrymander in the U. S. Reports, to find a
case based on circumstantial evidence that could have survived its adverse inference. How better to make the point:
Cite as: 602 U. S. ____ (2024) 11
KAGAN, J., dissenting
The majority’s new evidentiary rule is meant to scuttle gerrymandering cases.
Odd that the majority fails to mention a seemingly pertinent fact: Cooper expressly rejected a similar demand that
a plaintiff alleging a gerrymander submit an alternative
map. In that case, North Carolina argued that “[w]hen race
and politics are competing explanations of a district’s lines,”
the challenger must introduce “an alternative map that
achieves the legislature’s political objectives while improving racial balance.” 581 U. S., at 317 (alterations omitted).
The Cooper dissent agreed. See
id., at 332–337. The Cooper
Court did not. See
id., at 317–322. The Court freely
acknowledged that such a map could be good evidence of a
racial gerrymander. See
id., at 317. So too, it recognized
“as a practical matter” that a plaintiff with an otherwise
weak case would not prevail without a map.
Id., at 319. 1
But we could not have been more adamant in rebuffing the
State’s proposed requirement. “[I]n no area of our equal
protection law,” we reasoned, “have we forced plaintiffs to
submit one particular form of proof.”
Ibid. And we were
not about to start. A “plaintiff ’s task” in a gerrymander
case, we stated, “is simply to persuade the trial court—
without any special evidentiary prerequisite”—that race
was the predominant factor in redistricting voters.
Id., at
318. Like all other submissions in a gerrymandering case—
——————
1 The example Cooper gave was Easley v. Cromartie,
532 U. S. 234
(2001). The plaintiffs’ direct evidence there, Cooper noted, was “meager”
and “weak.” 581 U. S., at 321–322. Cromartie described it as saying
“little or nothing” about the role race had played in drawing district lines.
532 U. S., at 253. And the additional, circumstantial evidence did not fill
the gap, because it too “offer[ed] little insight” into the basis of the legislature’s mapmaking. Id., at 248. In that evidentiary vacuum, Cooper
explained, an alternative map was needed to “carry the day.”
581 U. S.,
at 322. Not because, as today’s majority decides, there is something special about that form of evidence. Just because in Cromartie there was
basically nothing else. As I’ll soon show, that is far from true in this case.
See infra, at 15–33.
12 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
the “testimony of government officials,” proof about the
data available to mapmakers, and “expert analysis”—“[a]n
alternative map is merely an evidentiary tool.” Id., at 318–
319. So “neither [a map’s] presence nor its absence can itself resolve a racial gerrymandering claim.”
Id., at 319.
The majority cannot evade Cooper’s force by casting today’s holding as an “adverse inference” rule rather than a
simple requirement. First, there is precious little difference
between the two. Given the apparent strength of the majority’s adverse inference, few litigants will feel free to proceed without commissioning alternative maps. The majority’s inference is effectively a requirement, whether or not
it goes by that label. And anyway, Cooper’s reasoning easily
encompasses—which is to say forbids—the majority’s new
inference rule. The point in Cooper was to treat maps
equivalently to—rather than “elevate” them above—other
forms of evidence.
Id., at 318. So if the plaintiff ’s non-map
evidence supports a claim, the Court stated, the absence of
a map “does not matter.”
Ibid. The Cooper dissent well
understood the point. No less than three times, the dissent
quoted the Court’s “does not matter” line, arguing vociferously that a map’s absence should matter, if not in all cases,
at least in all but “exceptional ones.”
Id., at 336; see
id., at
329, 359. The dissent lost that battle, but now succeeds in
overturning the essence of Cooper’s map ruling.
The majority-née-dissent’s reasons for elevating maps
above other evidence have not improved since Cooper held
to the contrary. The majority states that maps can serve as
a good way to undermine a State’s “it was all politics” defense. See ante, at 30–31. No argument there: The Cooper
Court also said as much.
581 U. S., at 317. But it went on
to say that maps “are hardly the only means” of attacking
such a defense—as this case well shows.
Id., at 318; see
infra, at 15–33. The majority also insists that plaintiffs can
“easily churn out” alternative maps at “little marginal cost.”
Ante, at 30 (quoting, of course, the Cooper dissent). Maybe
Cite as: 602 U. S. ____ (2024) 13
KAGAN, J., dissenting
or maybe not; either way, the Cooper Court said, the matter
is irrelevant: We have no “warrant to demand” that plaintiffs jump through “evidentiary hoops” of our creation,
“whether the exercise would cost a hundred dollars or a million, a week’s more time or a year’s,” if they can otherwise
prove that race predominated in drawing district lines. 581
U. S., at 319, n. 15. 2 Finally, the majority suggests that all
plaintiffs with serious gerrymandering cases should have
known to produce an alternative map. See ante, at 5. But
that assertion requires airbrushing Cooper out of our
caselaw. What plaintiffs should have known after Cooper
was that they could but need not submit an alternative
map. The majority today punishes the Challengers for
thinking that this Court would be good to its word.
In any event, the Challengers had an understandable
reason for not offering the kind of map the majority demands. The point of such a map, as the majority explains,
is to help figure out whether race or politics accounts for
districting lines. See ante, at 30–31. That function becomes
important—so a map makes sense—only if a State in fact
defends its plan as arising from political considerations. At
trial, South Carolina indeed adopted that defense. But it
was not clear beforehand, when the plaintiffs were developing their evidence for trial, that the State would do so. The
plain fact is, politicians don’t like admitting to partisan gerrymanders: They often deny them as aggressively as they
draw them. That is because “[e]xcessive partisanship in
——————
2 And that view is in no way an outlier. Note that the majority must
go back almost a century to find a decision in which this Court drew an
adverse inference against a civil litigant for failure to offer a certain form
of evidence. See ante, at 32 (citing Interstate Circuit, Inc. v. United
States,
306 U. S. 208, 226 (1939)). And even that decision merely applied
an inference in a particular case; it did not create a rule to cover a whole
category of suits, as the majority does today. Nor did that old decision
relate to a constitutional claim. As far as I know, today’s decision is the
first to impose a rule defeating claims of that type merely because plaintiffs chose not to offer one form of evidence, and instead relied on others.
14 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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KAGAN, J., dissenting
districting” is–and is thought by voters to be—“incompatible with democratic principles.” Rucho v. Common Cause,
588 U. S. 684, 718 (2019). So it is scarcely surprising that,
during legislative debate, the districting plan’s sponsor responded to charges of a partisan gerrymander by asserting
“that’s really not the case.” J. S. A. Supp. 286a. 3 Or that
during pretrial proceedings key State witnesses continued
to deny partisan motives. Luke Rankin, the Republican
chair of the Senate Judiciary Committee, testified in discovery that it was not “a goal of [his] to make” District 1 “more
reliably republican.”
Id., at 425a. Likewise, a Republican
member of the House Redistricting Committee testified
that he “never considered partisan gain as a goal” of redistricting, and “never” heard “anyone else” admit that goal
either.
Id., at 409a–410a. And the Senate Redistricting
Subcommittee’s counsel swore that there was “no effort” to
make District 1 “more Republican leaning.”
Id., at 392a.
So the Challengers, prior to trial, were not on notice of a
partisanship defense. The State, to be sure, changed tack
in the end: A strong case made by plaintiffs can powerfully
concentrate a defendant’s mind. But by that time, the Challengers’ mapmaker (Dr. Kosuke Imai) had completed his
work, and the trial had begun.
Even before looking at the trial evidence, the majority
thus places the Challengers in a deep hole. Although this
Court recently disclaimed any need for an alternative map,
the majority today draws an adverse inference from such a
map’s absence. And contrary to settled practice, the majority decrees that, even on clear-error review of a ruling for
——————
3 The majority does not help its cause by noting that two Democratic
members of the legislature described the districting plan as a partisan
gerrymander. See ante, at 21–22. Even as a districting plan’s proponents deny partisan gerrymandering, a plan’s opponents often allege it.
(And both for the same reason—because voters don’t like excessive partisan manipulation of district lines.) That Democrats were attacking the
plan as a partisan gerrymander hardly shows that Republicans were
likely to defend it in that way.
Cite as: 602 U. S. ____ (2024) 15
KAGAN, J., dissenting
the Challengers, the State will emerge victorious if its version of events is so much as possible. Combine those two
facets of the majority’s approach, and the trial evidence
fades into insignificance. A legal twist here and a legal
bend there ensure that the majority need show no respect
for the three-judge District Court’s well-considered factual
findings.
II
Normal clear-error review would lead to a different outcome. The District Court faced a factual question: Did the
State rely significantly on racial data in drawing its new
District 1? Based on the mountains of evidence presented,
the court decided that the State had done so. That finding
was reasonable, and deserves to be affirmed.
As the majority explains, this case concerns changes that
South Carolina made in its most recent redistricting to Congressional District 1. See ante, at 7–12. Under the preexisting map, District 1 was a thin strip of land stretching
along the Atlantic Coast. See Appendix, infra, at 35, Figure
1 (2011 Congressional Map). It was bordered to the northwest by District 6, the State’s only majority-Black district.
See ibid.; J. S. A. 429a. After the 2020 census, South Carolina had to redraw both those districts to comply with the
Constitution’s one-person, one-vote requirement. District 1
was overpopulated by about 88,000 people, and District 6
was underpopulated by about 85,000. The State chose,
though, not to make a one-way transfer of residents from
the overpopulated to the underpopulated district. To unite
two counties, the State first moved around 53,000 residents
from (the underpopulated) District 6 into (the overpopulated) District 1. That shift, of course, exacerbated the
problem: The State now needed to transfer some 140,000
residents in the opposite direction. It did so mainly by moving a large chunk of Charleston County from District 1 to
District 6.
16 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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And here is the rub—the thing that created this case.
The part of the county that the legislature moved out of District 1 was disproportionately Black, and by a lot. The mapmakers targeted several heavily Black neighborhoods in
North Charleston, while leaving many heavily White neighborhoods alone. See id., at 261a–262a. And no matter how
you slice the numbers, the effects were stark. More than
60% of Black Charleston County residents previously in
District 1 were relocated to District 6. 649 F. Supp. 3d 177,
189 (SC 2023). Of the 11 precincts with the largest Black
populations, 10 were gone. Ibid. Overall, the proportion of
African Americans in the excised part of the county (23.8%)
was more than twice as high as in the remaining part
(10.3%). See id., at 190; Supp. App. 153a. The upshot was
that 79% of Charleston County’s Black population now
found itself in District 6, whereas only 53% had been there
before. See 649 F. Supp. 3d, at 190, and n. 9. As the State’s
main mapmaker—and star witness—acknowledged, the
new lines created a “tremendous [racial] disparity” in comparison to the old districting plan. J. S. A. 262a; 649
F. Supp. 3d, at 189.
The question at trial was how that disparity had come
about. By that time, the State had adopted its politics-only
defense. It argued, as the majority says, that the point of
redrawing District 1 was to “enhance[ ] the Republican advantage” there—i.e., to make sure a Democratic candidate
could not win. Ante, at 9. But that claim, even if true,
would not be enough for the State to prevail. As this Court
has held, a State cannot divide voters by race to achieve political ends. See Miller,
515 U. S., at 914. “[T]he sorting of
voters on the grounds of their race” is a constitutional problem “even if race is meant to function as a proxy” for political affiliation. Cooper,
581 U. S., at 309, n. 7; see
id., at 291,
and n. 1. So the critical issue was not whether the State’s
ultimate aim was political or racial (though the majority often phrases it that way, see, e.g., ante, at 1, 5, 17). Instead,
Cite as: 602 U. S. ____ (2024) 17
KAGAN, J., dissenting
the issue was whether the State had advanced its partisan
objective primarily by racial means. The Challengers maintained that it had. They said the State’s mapmakers had
consciously removed Black citizens from District 1 on the
(justified) assumption that doing so would turn the district
redder. The State, by contrast, denied in any way using
race to draw District 1’s lines. According to its account, the
disproportionate removal of African Americans from District 1 was just an accidental byproduct of political sorting—more specifically, of ejecting precincts that had
strongly supported then-candidate Biden in the 2020 election. 4 Faced with those competing stories, the District
Court had to decide which to credit.
The court’s decision to credit the Challengers, as I’ll next
show, was not clear error—indeed, far from it. There was
of course evidence pointing in each direction; like Cooper,
this was a “two-sided case.” 581 U. S., at 307, n. 6. But the
Challengers made a weighty showing that the mapmakers
relied substantially on racial data in moving voters around.
The mapmakers had the incentive to do so, given the limits
of the political information in their possession. They had
the ability to do so—both access to data and experience using it. And direct testimony showed that the mapmakers
had in fact continually examined racial data during the
line-drawing process. The map yielded by that process hit
on the dot the Black voting percentage that state officials
——————
4 A notable feature of this case is that the State chose to litigate it in
categorical terms, claiming that the new district lines were based only
on political data and not at all on racial data. The State did not need to
go that far. In a gerrymandering case, a defendant can prevail by arguing that although race played some role in redistricting, it was not the
“predominant factor.” Miller,
515 U. S., at 916. The State’s eschewal of
that more moderate assertion turned the factual issue about what its
mapmakers did into a binary choice. I therefore mainly address it in
those terms, though the Challengers’ evidence was powerful enough to
support a finding of gerrymandering even had the State put predominance at issue.
18 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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KAGAN, J., dissenting
knew they needed to achieve their partisan goal. And when
statistics experts reviewed the map, they found that the
State’s politics-only story could not explain the redistricting’s extreme racial disparity. In dismissing that strong
case, the majority cherry-picks evidence, ignores credibility
findings, misunderstands expert views, and substitutes its
own statistical theories. Its opinion gives not a whit of respect to the District Court’s factual findings, thus defying
the demands of clear-error review.
A
Start with the State’s chief mapmaker. William Roberts,
as the majority notes, was a “nonpartisan staffer with 20
years of experience” drawing maps for Republicans and
Democrats alike. Ante, at 8–9. He was good at what he
did—expert, “helpful,” and “precise.” J. S. A. 74a, 254a.
And also this—he was a veteran consumer of racial data.
On cross-examination, Roberts testified as follows:
Q: I think I heard the number of 75 to a hundred localities you’ve worked in over the past 20 years?
A: Yes. . . .
Q: Before this redistricting cycle, you always looked at
race data in the 75 to a hundred districts you worked
in, correct?
A: Yes. . . .
Q: Indeed, . . . you provided guidance to localities that
they should be looking at BVAP [Black Voting-Age Population] in drawing lines, correct?
A: That’s correct.
Id., at 204a–205a. The point of looking at BVAP, according
to the mapmaker’s testimony, was not to suppress the Black
vote. Rather, Roberts stated that he did so to achieve a panoply of lawful districting goals—like assessing Voting
Rights Act compliance and “help[ing] the general public understand the race of voters getting moved in and out.”
Id.,
Cite as: 602 U. S. ____ (2024) 19
KAGAN, J., dissenting
at 206a; see id., at 205a. Whatever the particular purpose,
he consulted racial data constantly. Now as you know from
the majority, Roberts denied doing so in the redistricting at
issue here. See ante, at 14–15. But when asked “so in your
20 years of redistricting, this was the only time [that] you
didn’t look at race?,” Roberts answered “That’s correct.”
J. S. A. 207a.
True to his persistent practice (if not to his this-case-only
denial), Roberts configured maproom computers to show
how every line-drawing decision would affect the new District 1’s racial make-up. In other words, as a mapmaker
moved a district line this way or that, he could immediately
see the resulting change in the district’s BVAP. Displaying
racial data in that way was not an unavoidable feature of
the mapmaking software. As one staffer explained: “[Y]ou
could configure” the computer setup “in a multitude of
ways.” ECF Doc. 462–9, at 114. You could make it so that
new BVAP numbers appeared on your screen “while you
manipulated geography”—but “there [was] no requirement
that you ha[d] to set it up that way.” Ibid. The mapmakers
had to choose to display racial data. And here is the key
thing: They did. A Senate staffer who often sat with Roberts in the maproom explained that not only “political data”
but also “demographic data”—specifically, “race” and “voting age population by race”—was “visible” on computer
screens “[a] lot of the time.” ECF Doc. 462–4, at 40. And
on cross-examination, Roberts admitted that to be true:
Q: So BVAP was visible on the screen while you were
drawing maps?
A: Yeah. It was in the statistics window at the bottom
of the screen.
Q: So, you could see BVAP as you were making changes
in real time as you were drawing lines?
A: We could see the statistics update after a change was
made.
20 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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KAGAN, J., dissenting
Q: So, if you moved a district line, you could see if the
BVAP went up or down, right?
A: You could see on the statistics what the overall district BVAP would be.
J. S. A. 207a; see J. S. A. Supp. 402a (another staffer acknowledging: “Was I aware of, while I was drawing, what
the racial makeup of what I was drawing was? Yes”).
So Roberts’s testimony presented a puzzle. As the majority highlights, Roberts consistently denied relying on racial
data. See, e.g., ante, at 14–15, 17. But racial data, according to both him and others, was easily accessible—in fact,
was usually visible—on his computer while the line-drawing was going on. And he never explained why it was there.
Why configure a computer to tell you, at every stage of the
mapmaking process, how the slightest change in a district
line would affect Black voting-age population if you weren’t
tracking and manipulating Black voting-age population?
Roberts had no answer.
But there was an obvious reason for attending so closely
to racial data, as even the majority acknowledges: One
surefire way of making a South Carolina district more Republican is to make it less Black. See ante, at 15–16. The
difference between a “Republican tilt” and a “Democratic
tilt” in District 1, notes the majority, is the difference between a 17% BVAP and a 21% BVAP. Ibid. That is because
in recent statewide elections, more than 90% of Black South
Carolina voters—and usually more than 95%—have supported the Democratic candidate. See J. S. A. Supp. 82a.
In South Carolina, to remove a Black voter from a congressional district is pretty nearly to remove a future Democratic vote. That is no secret. So it is small wonder that
racial data was conspicuously displayed on Roberts’s computer. And then small wonder that the District Court found
Roberts to have used that data to draw district lines. See
649 F. Supp. 3d, at 191. More doubt would properly have
Cite as: 602 U. S. ____ (2024) 21
KAGAN, J., dissenting
attached to the opposite finding—that Roberts put this
hugely relevant data on his screen only to ignore it as he
worked to make District 1 more Republican. That would
have taken the self-restraint of a monk.
Especially so because using only the political data at
hand would not have done the job as well. “Why,” the majority asks, “would Roberts have used racial data” when he
had access to sub-precinct-level voting data from the 2020
election? Ante, at 18; see ante, at 33–34. The question is
apparently meant to be rhetorical; but the trial record provides a ready answer—and one more than sufficient on
clear-error review. One of the Challengers’ experts testified
that “[t]he 2020 election data” was “not a good” measure of
partisan tilt—neither so “accurate” nor so “reliable.” App.
135. And racial data, another expert suggested, served the
mapmakers’ goal better. See id., at 112. The single-sentence explanation is this: In South Carolina, a Black voter
is more likely to vote for a Democrat in the next election
than is someone who voted for a Democrat in the last election. That is because White voting preferences in the State
are not as “stable” as Black voting preferences. Ibid. A
White voter “might vote for a Democrat in one election” only
to vote “for a Republican in another.” Ibid. So to remove a
past Democratic voter (as contrasted with a Black voter) is
not necessarily to remove a future Democratic vote. 5 And
the gap only widens for past presidential voters, like those
who participated in the 2020 election. In presidential elections, one expert explained, more people than usual switch
party lines to “vote for the candidate”—a trend that thenPresident Trump’s candidacy may have further amplified.
Id., at 135; see J. S. A. 382a. Given all that, the South Carolina mapmakers’ racial data was peculiarly predictive: The
——————
5 The same variability occurs the other way around. In other words, a
White voter might vote for a Republican in one election only to vote for a
Democrat in another. So to retain a past Republican voter in a district
is not necessarily to retain a future Republican vote.
22 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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KAGAN, J., dissenting
single best thing Roberts and his staff could do to increase
the future Republican vote in District 1 was to exclude a
Black voter. That fact would not have meant they looked
at racial data alone; they also had the 2020 election data on
their computers. But the racial data offered a potent tool
for ensuring that District 1 would vote for a Republican in
coming elections. 6
And strong evidence showed, as the District Court found,
that the mapmakers wielded this tool—that they used their
racial data to meet the BVAP level needed to achieve their
partisan goal. Recall the large turnover of voters in District
1. See supra, at 15. Some 53,000 people were moved into,
and 140,000 people were moved out of, the district (which
wound up with 730,000 total). Yet the district’s racial balance did not budge. The district began with a 16.6% BVAP.
See J. S. A. 430a. That number went up with the 53,000-
person addition, because almost 40% of the new residents
were Black. See id., at 439a. So what did the mapmakers
do? As noted earlier, they removed from District 1 over 60%
of Black Charleston County residents, by excising a part of
the county more than twice as Black (23.8%) as the part
they kept in (10.3%). See 649 F. Supp. 3d, at 189–190;
Supp. App. 153a; supra, at 16. That brought the district’s
BVAP right back down to 16.7%—again below the 17% required to create the desired Republican tilt. See J. S. A.
452a; 649 F. Supp. 3d, at 188. In the majority’s description,
——————
6 In arguing to the contrary—that the political data was superior to,
and would have removed any incentive to use, racial data—the majority
emphasizes that only the political data “accounted for voter turnout.”
Ante, at 18, and n. 7, 33. But as one of the Challengers’ experts explained, that fact is a double-edged sword, because turnout in presidential elections is highly unrepresentative of turnout in off-year ones. See
App. 135. And still more important, the mapmakers did not have to
make a choice between using political data alone and racial data alone.
They could get whatever turnout (or other) information the political data
provided even as they used the racial data as an especially reliable and
accurate measure of individual voting behavior.
Cite as: 602 U. S. ____ (2024) 23
KAGAN, J., dissenting
what happened was of no particular note—just that the District’s BVAP “stayed more or less constant.” Ante, at 15.
But consider: With approximately a quarter of District 1’s
population moving in or out, the district’s BVAP shifted by
. . . one-tenth of one percentage point. The District Court
observed that uncanny stability, knowing that racial data
was at the mapmakers’ fingertips. See 649 F. Supp. 3d, at
191. And the court, as addressed shortly, had heard statistical experts deny that the racially disparate districting
could have come about through political sorting. See infra,
at 26–33. So it was no large step—and hardly clear error—
for the court to conclude that the mapmakers had gerrymandered Charleston County to achieve “a target of 17%”
BVAP. 649 F. Supp. 3d, at 193.
As against all that, what does the majority offer? Only a
series of self-serving denials. The sum and substance of the
State’s case came from the testimony of Roberts and State
Senator George Campsen, who was the redistricting plan’s
sponsor. Yes, the new map, Roberts conceded, had a “tremendous” racial skew. J. S. A. 262a. But Roberts and
Campsen maintained that they had never sorted by race—
never used their (constantly accessible) racial data to draw
district lines. Both insisted that they had looked only to
voting results from the 2020 election to ensure their partisan goal. The majority buys it—hook, line, and sinker. Indeed, the majority relies on nothing else. It treats Roberts’s
and Campsen’s account as a “fact of the matter,” rather
than a vigorously contested assertion. Cooper, 581 U. S., at
307, n. 6; see, e.g., ante, at 8–10. The majority trusts the
two State witnesses, and believes what they said.
The problem is that the three judges who sat on the District Court did not. And they are the ones entitled to make
credibility judgments. See supra, at 5; Cooper, 581 U. S., at
309 (“[W]e give singular deference to a trial court’s judgments about the credibility of witnesses”). That is for an
obvious reason: They were there. They could assess every
24 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
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KAGAN, J., dissenting
aspect of a witness’s testimony, including demeanor, tone of
voice, and facial expression. They could see when the witness was at ease and when he stumbled. And after taking
account of all those cues, the three judges all reached the
same conclusion about Roberts and Campsen. They
thought that those two witnesses were not telling the truth.
The panel was especially disbelieving of Roberts, if almost in spite of itself. The court (contra the majority) well
understood what the presumption of good faith required.
The judges were predisposed, as the majority has to
acknowledge, to think that this “good man,” who had for so
long been a fixture on the South Carolina political scene,
would play it straight. Ante, at 8–9, and n. 5 (citing J. S. A.
23a, 74a–75a, 254a, 263a, 421a). But in the end, the court
felt compelled to find that Roberts’s old habit of relying on
race died hard. To the panel, the mapmaker’s tale did not
hang together. He said he did not consider race in drawing
lines; but he could recite “off the top of his head” the racial
breakdown of particular precincts in District 1. 649
F. Supp. 3d, at 191. Those “highly accurate” estimates, the
court noted, reflected Roberts’s obvious knowledge of “the
racial demographics of the state down to the individual precinct level.” Ibid., n. 12. And Roberts never did—never
could—explain why he put so much racial data on his computer screen if not to look at it as he drew district lines.
Especially given the surrounding evidence, the court found,
Roberts’s “claim that he did not consider race” in excluding
voters from District 1 “rings hollow.” Id., at 191 (internal
quotation marks omitted). On normal clear-error review,
that credibility judgment would control.
And so too for Campsen, who obfuscated at every turn.
At trial, Campsen reversed his own deposition testimony
about whether state senators knew the racial makeup of
their districts. (First they knew, then he couldn’t possibly
speak for them.) See J. S. A. 377a–378a. He answered as
simple a question as whether “race and party are correlated
Cite as: 602 U. S. ____ (2024) 25
KAGAN, J., dissenting
in South Carolina” this way:
“Yes—well, yes and no. I guess that’s fluid. It is fluid,
but yes. . . . Well, it’s not in every instance, but generally African Americans tend to vote higher, you know,
more—you can look at the polls—when you look at the
numbers after the fact—I didn’t look at them drawing
the map—but you see that in the numbers.” Id., at
381a.
And he contradicted common knowledge—as well as the
State’s own defense—when he point-blank denied that sorting people based on their voting behavior could result in racial disparities. See id., at 383a (“Q: You would agree with
me that if you . . . focus on partisan numbers, there’s a risk
that you might disproportionately impact Black voters in
drawing lines, right? A: No, I’m not going to agree with
that”). Would you buy what this man was selling? As the
contradictions, non-answers, and evasions mounted, the
District Court quite reasonably decided that it could not.
Put all this together, and the Challengers offered—even
before getting to their statistical studies—a more than
plausible case of racial gerrymandering. They showed that
the exclusion of voters from District 1 was racially disproportionate—not by a little but by a lot. They showed that
the State’s star mapmaker had always—always—before
considered race in drawing district lines. They showed why
he would want to do so here, to create a reliable Republican
tilt. They showed that the mapmaker configured his computer to exhibit in real time how every adjustment of a district line affected the district’s racial make-up. And they
showed that after moving nearly 200,000 residents this way
and that, the mapmaker managed to land on the exact
BVAP figure he knew would ensure his political goal. Now
it is true that the State, when confronted with this evidence, did not confess error, as the majority comes close to
demanding. Its officials, as you might expect, adamantly
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KAGAN, J., dissenting
disputed the charge of racial discrimination. But they could
not keep their story straight or make it believable to three
judges. The more the officials talked, the more the court
became convinced that, to create a red District 1, they had
divided citizens by race. And that, again, was even before
the statisticians took center stage.
B
Once the statisticians did so, the Challengers’ case was
clinched—at the least, from a clear-error perspective. Consider how much the controverted issue lent itself to statistical evidence. That issue began with a simple fact: The
part of Charleston County that the mapmakers excised
from District 1 was (vastly) disproportionately Black. The
dispute was about what caused that disparity. Statistical
evidence showing that it could have arisen from political
sorting would significantly benefit the State’s defense. Conversely, statistical evidence showing that the racial disparity could not have arisen in that way would significantly
benefit the Challengers’ case. So you might think that the
trial would feature a war of statistical experts, each presenting their own multivariate regressions. But you would
be wrong. The Challengers did their part, but the State
failed to respond in kind. Rather than submit its own statistical studies, the State devoted all its efforts to trying to
pick apart the Challengers’. It thus anticipated today’s majority, which (given the unbalanced record) can do nothing
more than search for holes, however minute, in the Challengers’ expert evidence. But two separate studies emerge
unscathed, and with significant probative force—fully sufficient on clear-error review to justify the District Court’s
conclusion. Each analysis was designed to answer the critical question: whether Charleston County was split as it
was based on its residents’ race. And each found that it
was. Even controlling for political preference, Black voters
Cite as: 602 U. S. ____ (2024) 27
KAGAN, J., dissenting
were more likely than White voters to be removed from District 1. 7
Dr. Jordan Ragusa’s regression found that race, separate
and apart from partisanship, was “an important factor in
the design of the 1st district.” J. S. A. 509a; see 649
F. Supp. 3d, at 192. Ragusa looked at the size, racial demographics, and partisan composition of each precinct in
the old District 1. (His measure of partisanship was the
vote count for then-candidate Biden in the 2020 election,
which mirrored the political data the State’s mapmakers
possessed.) By controlling for all three of those variables,
Ragusa explained, he could “statistically disentangle the effect of each factor.” J. S. A. 505a. And when he did so, Ragusa determined that “the decision to move a [precinct] out
of [District 1] was highly correlated to the number of African American voters” in the precinct. 649 F. Supp. 3d, at
192; see J. S. A. 508a–509a, 514a. If, for example, a precinct had 100 to 500 Black voters, “the chance of [its] being
moved out” of District 1 was “no greater than 20%.” 649
F. Supp. 3d, at 192. But as the number climbed, so did the
likelihood: When a district had 1,500 Black voters, the probability of exclusion reached 60%. See ibid. And on top of
that analysis, Ragusa directly compared the effects of partisanship and race on the exclusion decision. He found that
the mapmakers removed 41% of precincts with more than
1,000 Biden voters, but 62% of precincts with more than
1,000 Black voters. See J. S. A. Supp. 14a. That comparison showed that “the racial composition of a precinct was a
——————
7 Two other studies on which the majority expends much effort, see
ante, at 19–22, 28–29, had only a tenuous connection to the race-versuspolitics question. Dr. Moon Duchin’s analysis was offered primarily to
support the Challengers’ independent vote-dilution claim. And Dr.
Kosuke Imai’s report was designed to address a different defense the
State could have raised—that traditional districting principles accounted for District 1’s lines. Those two studies are therefore irrelevant.
They do not help the Challengers on the disputed issue. But neither does
the majority score any points for saying as much.
28 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
stronger predictor of whether it was removed” from District
1 “than its partisan composition.” Ibid.; see 649 F. Supp.
3d, at 192.
A second expert, Dr. Baodong Liu, reinforced Ragusa’s
conclusions about the significance of race, using a complementary methodology and data set. Liu evaluated the different likelihoods that White Democrats and Black Democrats would wind up outside or inside District 1. Based on
demographic data and vote tabulations from the 2018 Democratic primary, Liu first found that Black Democrats were
moved out of District 1 disproportionately to White Democrats. Whereas 26% of Black Democrats in the district were
excluded, only 19% of White Democrats were; so the rate at
which Black Democrats were excluded was more than onethird higher. See J. S. A. Supp. 94a. And then Liu sliced
his data another way, which confirmed his results. Replicating a methodology that this Court approved in Cooper,
see 581 U. S., at 315, Liu looked at Democratic voters in all
the counties that at least partly overlapped with District 1.
Which of those voters, Liu asked, actually wound up in District 1 and which did not? Once again, the answer showed
a significant racial disproportion. Whereas 69% of White
Democrats in the region were placed in the new District 1,
only 51% of Black Democrats were put there. J. S. A. Supp.
100a.
The majority’s primary objection to Ragusa’s and Liu’s
studies—that they did not “control for contiguity or compactness,” ante, at 23, 27—is woefully misplaced. The gripe
is that the experts assumed “unrealistic[ally]” that any precinct, no matter where located, could be moved. Ante, at 23.
If the experts had thought about geography, the majority
suggests, they might have found that Black Democrats
were disproportionately relocated because they lived in precincts closer to a district boundary. The argument is reprised from Cooper—but (what a surprise) only from the
dissent. See 581 U. S., at 358. And the reason the objection
Cite as: 602 U. S. ____ (2024) 29
KAGAN, J., dissenting
got nowhere in Cooper applies once again. The relevant district in Cooper was super-thin, so that the lion’s share of
precincts within it were close enough to a boundary line to
be easily moved. See id., at 326. And so too here. Recall
that the only issue under review is whether the State improperly moved Black voters from District 1 to District 6—
because that is the only gerrymander the District Court
found. Now turn to the map of South Carolina’s old districts
in this opinion’s Appendix. District 1 was a narrow strip on
the Atlantic coast; District 6 ran along its whole length.
Nearly everyone within District 1 lived close to the border
line; so nearly everyone could have been sent to District 6,
consistent with contiguity and compactness. That is true
even of people who lived on the beach. Under the State’s
districting guidelines, “[c]ontiguity by water is sufficient,”
so the mapmakers could—and in fact did—split the new
District 1’s land area by pulling District 6 all the way to the
water. J. S. A. 541a; see Appendix, infra, at 35, Figure 2
(Inset to 2022 Congressional Map). The upshot is that precinct location did not meaningfully constrain the State’s
choice of which voters to move from District 1 to District 6.
And so the Challengers’ experts were not required to pretend that it did. 8
That is why the majority, to support its contiguity theory,
must use a “simple example” of zero relevance to this case.
——————
8 None of that is to say, as the majority seems to think I say, that all or
nearly all District 1 precincts touch the District 1-District 6 line. See
ante, at 24–25, n. 8. Some of the district’s precincts are indeed several
precincts away from the border. But that fact in no way revives the majority’s objection to the expert reports. Because of District 1’s thinness,
almost all of its 300 precincts could (contra the majority) “[ ]realistic[ally]” have been moved, either alone or with a few others, to District
6. Ante, at 23. (And so what if with a few others?: The State generally
moved precincts around in clumps.) In other words, the State’s preference for contiguity and compactness left almost all precincts on the table
as candidates for removal. The choice of which of those precincts to move
must therefore have been explained by other variables, as the Challengers’ experts concluded.
30 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
Ante, at 23. Says the majority: District 6 “precincts near
[Colleton C]ounty’s northern border with Bamberg County
could not have been moved into District 1 without egregiously flouting the State’s important interests in contiguity or compactness.” Ante, at 24. That is true: As the map
shows, District 6 is fat, and the precincts the majority mentions are far away from the District 1-District 6 line. See
Appendix, infra, at 35, Figure 1. But of course this case has
nothing to do with those outermost District 6 precincts, or
even with the closer-in District 6 precincts that could have
been moved into District 1. The sole issue here, again, is
whether the State disproportionately selected heavily African-American precincts to move out of District 1. When it
gets around to that issue, the majority says: “[T]he same
problem” as in its example “arises with respect to the question whether a precinct in District 1 . . . could have been
moved into District 6.” Ante, at 24. But that is not true, for
self-evident reasons. As just described—and shown on the
map—the old District 1 was thin, and the great bulk of its
precincts were close to the District 1-District 6 line. See
Appendix, infra, at 35, Figure 1. So they could have been
moved “without egregiously flouting”—actually, without
flouting at all—“the State’s important interests in contiguity or compactness.” Ante, at 24. The majority’s inapt comparison is revelatory in one sense only: It shows why appellate courts are supposed to use a clear-error standard—to
make sure we are fixing, not introducing, mistakes.
The majority’s other main criticism, aimed solely at Ragusa, is original to this Court: It was never raised or considered below (or, as far as I know, in other voting suits).
The objection relates to the way Ragusa measured each precinct’s partisan tilt. He asked how many 2020 Biden voters
lived in a precinct relative to its voting-age population. So,
for example, a 1,250-person precinct with 700 Biden voters
would count as much more Democratic than the same-sized
precinct with 350 Biden voters. The majority says that
Cite as: 602 U. S. ____ (2024) 31
KAGAN, J., dissenting
measure may be “statistically permissible”—but still is not
good enough. Ante, at 26. In the majority’s view, Ragusa
should have “account[ed] for” potential variance in precinct
turnout by looking to the Biden net vote instead of the
Biden total vote. Ante, at 25–26. Now I’ll admit: I’m not a
statistician. I can see what the majority is saying, but my
inclination would be to seek out other opinions—including
from Ragusa himself—about the net-vote approach, and
whether it would matter. The problem is I can’t do that
here. The theory is the majority’s brainchild, absent from
the District Court’s proceedings. The State never asked Ragusa about it, before or during trial. The State’s own expert
did not bring it up. The State did not raise it in briefing
below. And most important: Nothing in the trial record suggests that adopting the net-vote measure would have made
a real difference. The majority, to show you why it might,
offers what it calls a “simplified” example. Ante, at 25. For
simplified read “fictional”—meaning, not reflective of any
actual precinct’s vote. And for simplified, also read “unrepresentative”? To take just one example: Maybe there are
some, but I doubt there are many, precincts in which 1,100
of 1,250 voting-age people make it to the polls. See ante, at
26. A number of things about precinct composition and
turnout would need to be true for the net-vote/total-vote distinction to make a significant difference to Ragusa’s analysis—and we know none of them. Sure, it’s fun to play armchair statistician. But it’s irresponsible to reverse a trial
court’s decision—on clear-error review—based on such hypothesizing.
A couple of final attacks fare no better. The majority
faults Liu for testing partisan tilt in District 1 with data
from the 2018 gubernatorial primaries, rather than the
2020 presidential election. The majority confidently declares that because an off-year primary has a lower turnout,
the “[d]ata from [it] is less informative.” Ante, at 28. Liu’s
explanation is deemed unworthy of mention. It was that
32 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
the higher turnout of a presidential election, along with its
greater focus on individual candidates, makes it a poorer
measure of a district’s year-in, year-out partisan tilt. See
App. 135. The State’s own expert did not contest that view,
so the majority’s skepticism again finds no support in the
trial record. And even if 2020 data is better than 2018
data—it might be—what is better than either is both. That
is what the Challengers had: Ragusa’s study based on 2020
data and Liu’s based on 2018 data, each showing a racial
gerrymander.
Much the same thing is true as to a more obscure methodological issue the majority raises (again, needless to say,
sua sponte): whether statistical analysis should “operate[ ]
at the voter level” or the precinct level. Ante, at 27, n. 9.
Here, the majority cannot get its attack-line consistent.
First the majority claims that Ragusa’s testimony was
worse than the expert’s in Cooper because Ragusa’s relied
on “precinct-level analysis” rather than looking at individual voters. Ibid. But within a page the majority asserts
that Liu’s study was “highly unrealistic” because he
“treated each voter as an independent unit” rather than
considering “neighbors” together. Ante, at 27–28. So an expert challenging a gerrymander can’t win either way. But
put that aside; the key thing, once more, is that the Challengers had not one but two types of analysis working in
their favor. However a statistician looked at the data—
whether voter-level or precinct-level—he reached the same
conclusion: that the State’s mapmakers targeted Black voters.
And the State offered little by way of rebuttal. It, too, had
an expert witness. And that witness, Sean Trende, took a
couple of shots at Ragusa’s methods. See ECF Doc. 510, at
46–52. But he did not offer the most relevant kind of evidence—a counter-analysis showing that partisanship subsumed race in the design of District 1. Trende had access
Cite as: 602 U. S. ____ (2024) 33
KAGAN, J., dissenting
to all the same data Ragusa did. He even had access to Ragusa’s computer code, so that he would not have needed to
start from scratch. See id., at 58. He could just have rerun
the code after fixing whatever variables he thought wrong.
What should one make of Trende’s failure to do so? If I were
adopting the majority’s methods, I would draw an “adverse
inference” from the decision not to submit such “easily
churn[ed] out” evidence. Ante, at 30. Surely it must count
as an “implicit concession” by the State that the statistical
analysis, even with the desired fixes, would keep showing
evidence of a racial gerrymander? Ante, at 31. But I don’t
need to create a novel adverse inference to make the critical
point. It was hardly clear error for the District Court to
credit the Challengers’ statistical evidence about race’s predominant role when the State presented no similar evidence to support its partisanship theory. The majority’s
contrary view—that the State’s nothing necessarily beat
the Challengers’ something—is one more tell that it has left
the proper review standard way behind.
III
In every way, the majority today stacks the deck against
the Challengers. They must lose, the majority says, because the State had a “possible” story to tell about not considering race—even if the opposite story was the more credible. Ante, at 16. And they must lose again, the majority
says, because they failed to offer a particular form of proof—
which they did not know would be relevant and which this
Court recently told plaintiffs was not required. It does not
matter that the Challengers offered extensive evidence, including expert statistical analyses, that the State’s districting plan was the product of racial sorting. It does not matter that the State, by way of response, offered little more
than strained and awkward denials. It does not matter that
three judges—entitled to respect for their factual findings—
thought that those denials were not believable, and did not
34 ALEXANDER v. SOUTH CAROLINA STATE CONFERENCE
OF THE NAACP
KAGAN, J., dissenting
put a dent in the plaintiffs’ proof. When racial classifications in voting are at issue, the majority says, every doubt
must be resolved in favor of the State, lest (heaven forfend)
it be “accus[ed]” of “offensive and demeaning” conduct.
Ante, at 6.
What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race
as a proxy to achieve partisan ends. See supra, at 20–22.
And occasionally they might want to straight-up suppress
the electoral influence of minority voters. See Cooper, 581
U. S., at 319, n. 15. Go right ahead, this Court says to
States today. Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at
best) using race as a short-cut to bring about partisan
gains—to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks
in the end: Just raise a “possibility” of non-race-based decision-making, and it will be “dispositive.” Ante, at 16. And
so this “odious” practice of sorting citizens, built on racial
generalizations and exploiting racial divisions, will continue. Shaw, 509 U. S., at 643. In the electoral sphere especially, where “ugly patterns of pervasive racial discrimination” have so long governed, we should demand better—
of ourselves, of our political representatives, and most of all
of this Court. Id., at 639. Respectfully, I dissent.
Cite as: 602 U. S. ____ (2024) 35
KAGAN, J., dissenting
Figure 1. 2011 Congressional Map (adapted from ECF Doc. 323–1, p. 2)
Figure 2. 2022 Congressional Map (adapted from J. S. A. Supp. 306a)
