| Last week, in Abbott v. League of United Latin American Citizens (LULAC), the U.S. Supreme Court stayed a decision of a three-judge federal district court that had found that the plaintiffs challenging the Texas legislature’s mid-cycle redistricting as an unconstitutional racial gerrymander were likely to succeed on the merits and otherwise entitled to a preliminary injunction. As a result, in next year’s mid-term elections, Texas will be permitted to use an electoral map that was redrawn in response to President Donald Trump’s request that red states engage in political gerrymandering to hold onto the slim Republican majority in the House of Representatives. |
| Wait. What’s wrong with that? In the 2019 case of Rucho v. Common Cause, the Supreme Court held that while racial gerrymandering is unlawful, federal courts may not invalidate electoral maps on the ground that they are political gerrymanders. Challenges to political gerrymandering, the Court held, present so-called nonjusticiable political questions. If—as has been widely reported—Texas legislators redrew their electoral districts with the aim of aiding Republicans, that’s a political gerrymander, not a racial gerrymander, right? |
| Not exactly. The Court’s precedents establish that a racial gerrymander exists when race is the “predominant” reason for the electoral districts a state created. The district court’s extremely thorough 160-page opinion provides detailed evidence that this was what happened in Texas. |
| If state legislators draw district lines by looking at past voting patterns, and those lines tend to correlate with race, that is not by itself an indication of a predominantly racial motive. It is what one would expect, given that Texas (and most of the country) has racially polarized voting. However, if state legislators use race as a shortcut—assuming that Black and Latino citizens are more likely to be Democrats than Republicans, say—and draw maps based on those assumptions, that is a racial gerrymander. It does not matter that the legislators are using race for the ultimate purpose of securing political advantage. The Constitution forbids racial gerrymandering as a means no less than it forbids it as an end in itself. |
| In this case, the district lines did not just happen to track racial patterns. Upon consideration of extensive evidence, the district court concluded that the Texas legislature and governor gave primary consideration to race. Indeed, the district court found that the driving force behind the redistricting was a letter from the Department of Justice demanding that Texas redraw its lines to eliminate “coalition districts” in which two or more minority groups (typically Blacks and Latinos in Texas) comprise a majority. The demand was rooted in the baseless claim that such coalition districts are unlawful, but that is not relevant to the question of motivation. The record contains substantial subjective and objective evidence that the state redrew the maps to eliminate coalition districts—i.e., that race was the predominant reason why the state redrew the maps the way it did rather than by choosing some other means of maximizing the number of Republican-majority districts. |
| A Presumption of Bad Faith |
| Why, then, did the Supreme Court reverse? The Court cited two “serious errors” that the district court supposedly committed. First, it “failed to honor the presumption of good faith by construing ambiguous direct and circumstantial evidence against the legislature.” Second, it failed to draw a sufficiently conclusive adverse inference from the plaintiffs’ failure to “produce a viable alternative map that met the State’s avowedly partisan goals.” |
| The district court made neither such error. Taking them in reverse order, as noted by both the district court and Justice Elena Kagan’s dissent (for herself and Justices Sonia Sotomayor and Ketanji Brown Jackson), the relevant precedent does not require the plaintiff to produce an alternative map where there is direct evidence of racial motivation, as there was in this case. Further, the case came to the Supreme Court in a preliminary posture; the district court noted that an alternative map could be produced at a later stage. And in any event, the record evidence showed that there were indeed many alternative maps that would have achieved the legislature’s partisan goals without elevating racial considerations. |
| What about the presumption of good faith? The dissent showed that the district court in fact afforded such a presumption but that it was overcome by the very substantial evidence of racial motivation. |
| There is another—more fundamental—reason the Supreme Court majority’s complaint misfires: if the Texas legislature and governor are presumed to have acted in good faith, that actually proves the plaintiffs’ case. |
| As the record makes plain, Texas legislators and the governor repeatedly stated that they were redistricting in the way that they were to address the concerns raised by the Department of Justice. They expressly stated that their aim was to eliminate coalition districts. In other words, they said they were redistricting based on considerations of race. Presuming that they were acting in good faith by doing what they said they were doing means presuming that they were engaged in a racial gerrymander. |
| It is only possible to conclude that the Texas legislature and governor did not make race the predominant factor in their redistricting by ignoring the district lines they drew and by assuming that they were lying when they said that they were redrawing the maps to eliminate coalition districts. Put differently, one would need to disregard objective evidence and presume bad faith on the part of the Texas legislature and governor to rule for the state. And yet, that is what a majority of the Supreme Court effectively did. |
| * * * |
| How did the Supreme Court get matters so backwards that, in the name of demanding an effectively irrebuttable presumption of good faith, it actually adopted a presumption of bad faith? Part of the answer is partisan politics. It will not have escaped notice that all six of the Court’s Republican appointees voted to approve the map drawn by Texas Republicans, while all three of the Court’s Democratic appointees dissented. |
| But the problem goes beyond partisanship. Like so many of the Supreme Court’s other recent controversial decisions, LULAC was a brief per curiam ruling on the emergency docket. The Court twisted itself around about the presumption it was applying because of its own presumptuousness. As the dissenters noted: “The District Court conducted a nine-day hearing, involving the testimony of nearly two dozen witnesses and the introduction of thousands of exhibits.” The majority’s willingness to dismiss that extensive and careful work in a five-paragraph opinion, supplemented by three paragraphs from Justice Samuel Alito in a concurrence joined by Justices Clarence Thomas and Neil Gorsuch, displays extraordinary arrogance—perhaps even bad faith. |
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