What happens when race and political preference are so strongly correlated that state legislatures can cloak racial gerrymanders in the guise of partisanship?
Gerrymandering — manipulating the drawing of political district boundaries by elected authorities, i.e., when politicians selecting their voters, rather than the other way around — may be unseemly, but it is not technically illegal. Only certain forms of gerrymandering are forbidden. This is the basis of the problem before the court.
To review briefly: Under prevailing Supreme Court precedent, racial gerrymandering — the sorting of people into districts on the basis of race, or using race to redistrict — is unconstitutional. But partisan political gerrymandering, using voter profiles to sort people into districts on the basis of partisanship, is broadly permitted and essentially unregulated, because the court has deemed it a "political question" and concluded that there are no known workable standards that could regulate the practice.
In short, similar districting practices are subject to extraordinarily divergent legal standards: strict scrutiny on the one hand and unreviewable on the other. The reason this is a dilemma is that there are cases — like the one before the court — where it is difficult to distinguish between the two practices.
The state Legislature apparently used race, in redrawing at least some districts, as a proxy for partisanship, and is now defending its redistricting plan, in part, on the grounds that any use of race was in service of, and subordinate to, partisan objectives, specifically to "create a stronger Republican tilt."
Detailed data from recent elections, combined with sophisticated geographic information system mapping technology, easily facilitate this kind of endeavor.
In the 2020 presidential election, 92% of Black voters in South Carolina voted for Biden, while 73% of white voters supported Trump. In South Carolina — as in much of the country, but especially the south — race predicts political party preference.3 With detailed and fine-grain demographic data from the census, it is relatively easy to draw districts based on race that can achieve the partisan objective.
One of the focal points of this case is a U.S. House seat, known as Congressional District 1, which runs from the southern tip of South Carolina up the coast past Charleston.4
In October 2022, a three-judge panel in the U.S. District Court for the District of South Carolina ruled that the state's redistricting of CD1 was intentionally discriminatory and an unconstitutional racial gerrymander.
Both CD1, and the adjacent CD6, are strangely drawn, elongate with zigzagging borders reminiscent of Elbridge Gerry's "salamander," from which the term gerrymander originates.5 The district also threads through South Carolina's two largest cities, places with strong Democratic Party support.
The new plan moved an estimated 62% of CD1's Black voters out, and added more white and rural voters, to make it slightly safer for Republican candidates.
It would seem clear that this kind of line-drawing violates both the letter and spirit, holdings and dicta, of the Supreme Court's racial gerrymandering cases, from 1993's Shaw v. Reno on,6 as well as the larger 14th Amendment's anti-classification jurisprudence it seems to be situated within.
But there are many complexities and nuances that have yet to be ironed out or fully resolved within the court's prior jurisprudence, along with additional tensions arising as a consequence of the court firmly and formally, by a clear majority, granting a license for state legislatures to engage in partisan political gerrymanders in Rucho v. Common Cause, decided in 2019.7 Space only permits me to name a few.
One unresolved issue is precisely how to operationalize what is meant by "predominance."
In 1995, in Miller v. Johnson,8 the court clarified that, to establish a racial gerrymandering claim, a plaintiff must prove that "race was the predominant factor" behind the legislature's decision "to place a significant number of voters within or without a particular district," and that it subordinated traditional race-neutral districting principles.
The predominance test makes sense when the possible consideration of race is independent and separate from those "traditional" principles, like compactness, or other factors. But what if race is not separate and independent?
"Independence" is an important mathematical principle, a condition upon which we can calculate probabilities over a course of events, like flipping coins or rolling dice. Similarly, factor independence is a necessary condition to calculating predominance, either in fuzzy qualitative or more specific quantitative terms.
Consider a hypothetical: Suppose a court or an expert were able to determine that partisan motives are 60% of the considerations in redrawing district lines in a particular case. Suppose further that race is the chief proxy for sorting among partisan affiliation, such that race is somehow estimated to predominate the other factors — either because it is 51% of the actual inputs or a plurality, weighed more than any other single input.
This produces a paradoxical outcome: Race predominates as an input factor, but it is subservient to partisan motives. The result is only paradoxical because, in this context and example, race and partisanship cannot be separated as independent factors.
Members of the judiciary are not unaware of this dilemma. In the 2016 oral argument in Wittman v. Personhuballah,9 Chief Justice Roberts asked: "If race and partisanship are coextensive, which one predominates?" But that case was dismissed for lack of standing, and the question remains unanswered, in the sense that the court has yet to provide definitive guidance.
Critically, this dilemma becomes more pressing as state legislatures, freed by the court, craft more aggressive partisan districting schemes, while challengers, cut off from direct attack, are more likely to challenge such plans on racial grounds. Moreover, partisan gerrymandering is increasingly likely to subvert the court's general rule against racial gerrymandering, by allowing these plans to exist under the cover of partisanship.
This problem would be less pressing if the standards for judicial review of such cases were in closer proximity, because they could be conflated with less serious consequences; but they become acute and enormously consequential in light of the enormous gulf between them — strict scrutiny on the one hand, and nonjusticiable, on the other.
Another issue relates to the Supreme Court's broader body of anti-classification jurisprudence.10 The general rule against racial classifications is distinct from other areas of civil rights law, both constitutional and statutory, in that it is neither principally concerned with motives (intent), nor effects (like disparate impact claims under Title VII or Title VIII).
Much of the court's racial gerrymandering jurisprudence seems to suggest that it is the actual use of race as a factor in line drawing, not the ultimate intent of the legislature nor segregative effects, that violate the U.S. Constitution. I call this the "subjective" versus the "objective" version of the predominance test.
In some cases, such as the 2001 decision in Easely v. Cromartie,11 the court seems to be suggesting that the predominance test is a subjective test based on motivation. In other cases, the court's language is more consistent with the broader body of anti-classification jurisprudence, and focuses on the actual use of race as a factor or consideration, not intent or effects.
This latent ambiguity forms part of the backdrop to some of the arguments developed in the briefs in the case currently before the court, including a colloquy whether racial gerrymandering claims are better understood as intentional discrimination claims, like the Supreme Court's 1977 decision in Village of Arlington Heights v. Metropolitan Housing Development Corp.,12 or distinct, and possibly as a subset of racial classification cases — like Adarand Constructors v. Pena, City of Richmond v. J.A. Croson Co. or Grutter v. Bollinger, decided by the court in 1995, 1989 and 2003, respectively.13
My close reading of Shaw and progeny squarely situates it in the latter, although as a subtype.
I won't hazard a prediction of how the court might rule in this case, but I will set out a few logical, rather than likely, possibilities of how to resolve the problem of the entanglement of race and politics in cases such as this.
The first possibility, although extremely unlikely, is to reverse Rucho and bring politician partisan gerrymanders under judicial review. This possibility probably entails the most additional complications, which I'll close by reviewing.
A second possibility, and from my perspective the least desirable, is to carve out an exception to the rule against racial gerrymanders if they are defended on the basis of serving partisan political purposes. Such a loophole would not only subvert the court's existing anti-classification jurisprudence — however desirable or not, certain features of it may be — but undermine racial justice and racial equity in voting, and exacerbate our nation's perilous undemocratic tendencies.
The court could also do this indirectly, not by explicitly carving out an exception, but by asserting that, in cases where race and partisan preference are correlated, the use of race cannot be said to "predominate."
A third possibility would be to bring partisan political gerrymanders under judicial review, but only in cases in where race was established, as a matter of fact, to have been used as a proxy or significant consideration, and in which partisanship is correlated with race or in which such districting results in racial segregation across political districts.
This could be done under the valid pretext of simply enforcing the court's existing racial gerrymandering jurisprudence, but with further guidance that lower courts should reject state legislative defenses based on partisan objectives where race appears to have been used.
From the record in this case, it seems relatively clear that the Legislature used race as a proxy for partisanship. Although the court would have to determine whether that this use of race "predominated," it would be hewing to precedent for the court to regard this use of race as a violation of either the racial gerrymandering jurisprudence or its broader anticlassification jurisprudence, which looks askance at any direct consideration of race in public policy or administration.
Unfortunately, the court may decide this case without addressing the larger problem or any of the other unresolved ambiguities in this jurisprudence.
It could craft a ruling that speaks in generalities and avoids delving too deeply into existing precedent and the nuances of Shaw and progeny.
Or, conversely, it could resolve the case on a fact-specific basis that avoids addressing the larger issues or unresolved ambiguities. This is especially so since this case falls the court's mandatory jurisdiction — one reason that we should avoid reading too much from the fact that the Court is hearing the case, as it did not arise through the ordinary certiorari petition process.
As noted, the court could use this case as a vehicle for extending or buttressing its anticlassification jurisprudence, building on its recent affirmative action decision, to warn against using race as a proxy for other ends — or vice versa. Or, it could sidestep existing jurisprudence by crafting new standards and guidance that, in effect, replace Miller and company. There are other possibilities besides, and they may become clearer during oral argument.
The reason these possibilities leave the larger problem of the entanglement of race and politics unresolved is that, even if the court were to affirm the panel below and strike down the redistricting plan, a future plan could simply disguise its use of race better.
The correlation between race and partisan preference means that individuals are easily and readily sorted into different districts by race, and the partisan cloak is such that a judge may never be able to tell the difference between those who actually use race and those who claim to avoid use of race.
Ultimately, what may be at stake is what exactly is meant to "consider race," something future affirmative action cases, using race-neutral alternatives or race-proxies, may force the court to take up.
Returning to the first possibility, of reversing Rucho, one of the reasons that members of the court, especially conservative justices, have consistently voted against bringing partisan political gerrymanders under judicial scrutiny is for a "lack of workable standards." I believe justices like John Paul Stevens had the better argument when they point to the existence, and presumed workability, of standards like the "predominant factor" test in Miller in the racial gerrymandering context, notwithstanding the unresolved ambiguities.
But there are other standards, more recently developed, that the court appears not to have seriously considered, including the so-called "efficiency gap"14 created by Nicholas Stephanopoulos and Eric McGhee. These scholars have proposed specific quantitative thresholds, beyond which a plan should be considered presumptively unlawful. Helpfully, they also maintain a website that analyzes and scores redistricting plans, including this one, under these standards.15
It is my opinion, however, that, over the long-term, advocates should work towards a revival of the guarantee clause,16 as both a buttress to reinforce the unconstitutionality of racial gerrymandering claims, and as a more logical home for challenges to partisan gerrymandering while arresting and redressing other undemocratic tendencies in our political order.
This dormant clause, if activated, could be a vehicle for regulating many of our antidemocratic tendencies, from extreme partisan gerrymandering to other forms of voter suppression and disenfranchisement. The clause appears to guarantee, under the Constitution, that every state in the union have a "republican" form of government.
As Alexander Hamilton and James Madison repeatedly asserted in the Federalist Papers, the fundamental principle of republican government was majoritarianism — that the majority should prevail. Gerrymandering, like these other devices, is too often a tool for cementing the opposite: minority rule, where parties that win fewer votes are able to secure a majority of seats.
Alexander v. South Carolina will force the court to confront the entanglement of race and politics in the gerrymandering context, but it is unlikely to be the final word on this issue. The stakes, however, are enormous: The court will either strengthen our democracy or weaken it at a time when the institutions that guard and protect may be in peril.
Stephen Menendian is the assistant director at the Othering & Belonging Institute at the University of California, Berkeley. He recently published an article on this topic in the Southern California Law Review, "Race and Politics: The Problem of Entanglement in Gerrymandering Cases."
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Editor's note: The ideas expressed in this blog are not necessarily those of the Othering & Belonging Institute or UC Berkeley, but belong to the author.
This blog was originally published on Law360.com.
- 1Alexander v. South Carolina NAACP, No. 22-807 (D.S.C. filed Feb. 17, 2023).
- 2I foresaw this problem and warned about it in a recently published law review article. Stephen Menendian, "Race and Politics: The Problem of Entanglement in Gerrymandering Cases," 96 S. Cal. L. Rev. 301 (2023), available at https://southerncalifornialawreview.com/2023/04/24/race-and-politics-the-problem-ofentanglement-in-gerrymandering-cases/. My article has been cited by several civil rights groups in an amicus brief filed in this case. http://www.supremecourt.gov/DocketPDF/22/22-807/275663/20230818133103374_22-807bsacLawersCommitteeForCivilRightsUnderLaw.pdf.
- 3South Carolina Presidential Election Results 2020, NBC News (Nov. 3, 2020), https://www.nbcnews.com/politics/2020-elections/south-carolina-president-results/.
- 4Janie Boschma, Renée Rigdon, Byron Manley & Ethan Cohen, Redistricting in South Carolina, CNN Politics (Nov. 8, 2022), https://www.cnn.com/interactive/2022/politics/usredistricting/south-carolina-redistricting-map/.
- 5Jennifer Davis, Elbridge Gerry and the Monstrous Gerrymander, Libr. of Cong. Blogs (Feb. 10, 2017), https://blogs.loc.gov/law/2017/02/elbridge-gerry-and-the-monstrousgerrymander/.
- 6Shaw v. Reno, 509 U.S. 630 (1993).
- 7Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
- 8Miller v. Johnson, 515 U.S. 900 (1995).
- 9Transcript of Oral Argument at 54, Wittman v. Personhuballah, 578 U.S. 539 (2016) (No. 14-1504).
- 10I have comprehensively surveyed this issue in another law review article: Stephen Menendian, "What Constitutes a 'Racial Classification'?: Equal Protection Doctrine Scrutinized," 24 Temp. Pol. & C. R. L. Rev. 81 (2014) (surveying the Supreme Court's entire anti-classification jurisprudence for ambiguities and indeterminacies as well as coherence).
- 11Easley v. Cromartie (Cromartie II), 532 U.S. 234 (2001).
- 12Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
- 13Adarand Constructors v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Grutter v. Bollinger, 539 U.S. 306 (2003).
- 14Nicholas O. Stephanopoulos, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015).
- 15South Carolina Passed Congressional Plan S.865, PlanScore (Feb. 1, 2022), https://planscore.org/plan.html?20220201T202359.130549862Z.
- 16Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. Colo. L. Rev. 849 (1994).