On May 23, the Supreme Court issued its opinion upholding a South Carolina congressional map against a challenge from the NAACP. In Alexander v South Carolina State Conference of the NAACP, the Court found that the South Carolina legislature had conducted a partisan gerrymander, permissible under the Court’s precedents, and not an unconstitutional racial gerrymander. In this episode, two leading election and voting rights scholars, Joshua Douglas of the University of Kentucky College of Law, and Derek Muller of the University of Notre Dame Law School, join Jeffrey Rosen to discuss the Alexander v. NAACP majority opinion, as well as the concurrence and dissent, and review what this decision means for the future of racial gerrymandering cases.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Greg Scheckler and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Joshua Douglas is Ashland, Inc.-Spears Distinguished Research Professor of Law at the University of Kentucky Rosenberg College of Law. He is the author of Vote for US: How to Take Back our Elections and Change the Future of Voting, and co-author of an election law case book. His newest book is The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights.
Derek Muller is a professor at the University of Notre Dame Law School and a nationally recognized scholar in the field of election law. He has published over two dozen articles and book chapters on elections, voting rights and election administration, and has co-written a Federal Courts casebook (2022). He is also a contributor at the Election Law Blog.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Alexander v. South Carolina State Conference of the NAACP (2024)
- Joshua Douglas, The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights (2024)
- Joshua Douglas, "Today's Supreme Court is Anti-Voter," Washington Monthly (May 28, 2024)
- Derek Muller, "The Long Shadow of the Elections Clause" Election Law Blog (May 29, 2024)
- Derek Muller, "Faith in Elections," 36 Notre Dame J.L. Ethics & Pub. Poly 641 (2022)
Excerpt from Interview: Derek Muller explains that the Supreme Court's scrutiny of Congressional actions has varied over time. While some justices favor overturning precedents, others emphasize the need for strong justification before doing so.;
Derek Muller: Yeah, it's a great point to think about Congress because from Klu Klux Klan to Shelby County, there's no question that the court has routinely closely scrutinized what Congress has done in enacting legislation, and saying there needs to be some kind of fit. There needs to be justification to Congress of limited enumerated powers. We need to make sure that whatever it's promulgating fits those things. And in some cases, perhaps the court's review has been a bit stingy. Again, it's wheeled back from that. In other cases later on, cases like Ex Parte Siebold or cases like Katzenbach versus South Carolina, where it's very deferential to Congress, and then in other places where it's not, so it certainly has ebbed and flowed over the years when it comes to Congress.
Now, that's a little different than the redistricting process because the drawing of districts is something that has to happen, period. It has to happen in some respect. It's not necessarily affirmative legislation as much as that drawing district. And when we're thinking about the fact that it's principally left to states and Congress for these congressional districts, again, some deference at least, or some degree of deference here from the court in that front. But there's no question. I think you're right, Jeff. There's a tension in how the court's level of judicial scrutiny and review looks. I think there's a distinction perhaps to be drawn on these sort of structural issues of Congress exercising its enumerated powers versus other things. But I don't wanna split things too finely to identify the tension. And then, but then onto the, to where the court's going. I mean, I think some of the justices in the court. Chief Justice Roberts, Chief Justice Kavanaugh, Chief Justice Barrett as three in particular, when they're thinking about stare decisis or they're thinking about all of these cases, as Josh identifies going back to the '60s, before you overturn those things, you need to have some theory about why you're gonna do so, or why you need to step in or why I need to change things or show that it's so palpably wrong.
And it's done so in some cases, there's no question about that. Cases dealing with abortion or affirmative action that have been under fire for 50 years, a sustained fire for 50 years have been overturned by the court in recent years. But there are a lot of other cases that have much less salience. And in some of these election law cases in particular, I think we could expect some of those to fit the same bill where other justices and Justice Barrett and Justice Kavanaugh in particular have talked about how you need to have this explanation, this theory about why you're trying to step in and intervene and overturn the precedents. Justice Thomas does so very quickly, he is very happy to overturn those things, thinks very little of stare decisis when it comes to these constitutional matters. But for other issues to say one person, one vote, or some of these other ballot access cases or party cases or Voting Rights Act cases, or whatever they are, but I think it's gonna take a significant lift for the court to step in and overturn some of its precedents and change some of its understanding.
It recently had a decision out of Alabama interpreting section two of the Voting Rights Act, and what that looks like in districting and race and all these sorts of questions. And the majority of the court was more deferential to what happened to the lower court, more deferential to those fact findings and less deferential to the legislature. And there were some hints in that opinion suggesting we're not gonna go overturning our precedents in this area. And to the extent there's more of those cases coming under the Voting Rights Act, we might see some similar trends. So it's hard to know and hard to predict in some places except to say that these racial gerrymandering claims have certainly been disfavored in recent years. Again, Cooper was something of an exception, but they have been disfavored in recent years, and this is the latest. It's sort of a string of cases on that basis. But I don't know what that portends in other areas, justice Thomas aside, or how many others are willing to join them.
Excerpt from Interview: Joshua Douglas discusses the evolution of racial gerrymandering cases, highlighting how Justice Alito's recent ruling deviates from precedent by requiring plaintiffs to provide an alternative map.
Joshua Douglas: Well, as Derek said, there's a long line of cases involving racial gerrymandering, going back to that first Shaw versus Reno case. And there's been cases in almost every redistricting cycle invoking this theory since the 1990s. It lay dormant a little bit, and I think it was after the 2010 round of redistricting. But in sort of every cycle besides that, there have been changes in the way in which the doctrine has been used. It's also interesting that the doctrine has been used by White plaintiffs initially to sort of challenge the map that's drawn in focusing on race too much and providing too much of a thumb on the scale of including what's known as majority-minority districts. And then now it's sort of been reversed to where it's typically Democratic and Black plaintiffs who are bringing these challenges, saying that, well, the map is not egregious enough under the Voting Rights Act to invoke the Voting Rights Act to challenge the maps, and there's a whole level of doctrine there, but the map drawers still focused on race too much in drawing the lines.
So to get to your question, Justice Alito claims that this decision follows precedent, but he doesn't really, in my view, grapple enough with one of the most recent cases on racial gerrymandering before this one, which was Cooper v. Harris in 2017. That case involved North Carolina's map, and the court struck down two different districts, the 1st District and the 12th District in that case for considering race too much. And Justice Alito was in the dissent in that case. And one of the arguments he made in dissent in Cooper v. Harris is that the plaintiffs had not brought a sufficient claim because they didn't provide an alternative map. They didn't show a map that would achieve the state's goals in the same way without considering race. The majority rejected that argument in the Cooper v. Harris case by noting that whether you show a map is an evidentiary question. It's certainly helpful evidence if you can provide a map that achieves the state's goals, whatever they may be, without considering race too much. But that's not a threshold question, because if you have other evidence that is probative of a racial element, then you don't need to show an alternative map instead.
But here, Justice Alito says the plaintiffs didn't bring a map at all, and that's fatal to their claim, despite all the other evidence that the plaintiffs brought with respect to the racial intent. And as Derek noted, the problem here is disentangling a racial intent with an intent to achieve partisan gains or a partisan advantage. And here, Justice Alito said, the plaintiffs didn't do enough to demonstrate that there's an alternative map that achieves the same partisan goals, but doesn't think about race so much. The problem, of course, for the plaintiffs is that in a state like South Carolina, race and partisanship are so intimately intertwined that it's, I think, difficult for anyone to separate the two when it's true that you have what's often referred to as racial bloc voting. Minority individuals tend to vote for one kind of candidate or one party. White individuals tend to vote for the other party.
So the holding here, I think, does go beyond prior racial gerrymandering cases. And in particular, Justice Alito is able to make his dissent from that 2017 case into a majority in this case, although it doesn't say so explicitly. And I think this is a theme that we get in a lot of the court's election law cases, is that they sort of try to be incremental or seemingly incremental, but when you add them all up together, you do see a significant change in the law.
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