The Supreme Court's ruling on racial gerrymandering.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

My interview on Inner Cosmos.

Last week, I got to go on one of the biggest science podcasts in the world to discuss the work we do at Tangle, how doing that work has impacted my brain, and the value of wrestling with conflicting ideas. Big thanks to David Eagleman, the show's host, for bringing me on — and a hearty welcome to all the Inner Cosmos listeners who joined Tangle after the episode aired. You can watch or listen to the episode here.

Quick hits.

1. A New York jury will begin deliberating today on whether former President Donald Trump falsified business records to cover up an alleged sexual encounter with Stormy Daniels. (The deliberations)
2. Israeli tanks entered the center of Gaza's southern city Rafah yesterday for the first time since the war began. (The latest) Separately, Israel's national security advisor said that he expected military operations in Gaza to continue through the end of the year (The comments), and a U.S.-built pier to deliver aid to Gaza was damaged by rough seas. (The damage)
3. Storms continued to batter Texas yesterday, with reports of baseball-sized hail that left over 800,000 homes and businesses in the Dallas and Fort Worth areas without power. (The storms)
4. Harvard announced that it will refrain from taking official positions on controversial public policy issues after months of controversy surrounding its public comments about the Israel-Hamas war. (The policy)
5. Hong Kong police arrested six people for allegedly publishing seditious social media posts, the first arrests under a new security law. (The arrests)

Today's topic.

South Carolina's congressional map. On Thursday, the Supreme Court ruled in a 6-3 decision that South Carolina could use a congressional map that a lower court had deemed unconstitutional. The court’s conservative majority found that the federal district court had erred when it determined the map unconstitutionally sorted voters primarily based on their race (also known as racial gerrymandering). The majority opinion, written by Justice Samuel Alito, supports the state’s map as drawn, secures Republicans' 6-1 advantage in the state's congressional delegation, and creates a high bar for plaintiffs to prove racial gerrymandering in the future.

Back up: The case, Alexander v. South Carolina, centered on South Carolina's Republican legislature’s decision to divide Charleston County into different districts during the 2021 redistricting process. The new map moved nearly two thirds of the black voters in Charleston County out of District 1 and into District 6. District 1 is currently represented by Republican Rep. Nancy Mace, while District 6 is represented by Democratic Rep. Jim Clyburn.

Black Charleston County voter Taiwan Scott and the NAACP challenged the redistricting and, in 2023, a lower court ruled that the map was unconstitutionally drawn to reduce the political power of black voters. Central to the Supreme Court’s case was the question of how courts should distinguish between unconstitutional redistricting motivated by race versus legal redistricting motivated by party affiliation when there are strong correlations between the two.

What happened: In his opinion, Justice Alito rejected the federal court’s conclusion that the Republican legislature had relied primarily on race. Alito concluded that plaintiffs were required to produce extraordinary evidence of racial bias violating the Constitution's equal protection guarantee in places where race and party preference are closely linked.

“We start with a presumption that the legislature acted in good faith,” Alito said, adding that a ruling against South Carolina would signal to litigants that any partisan districting could feasibly be called racial.

Further, Alito said, the court has repeatedly emphasized that federal courts must exercise extraordinary caution in adjudicating gerrymandering claims to ensure federal courts do not intrude on vital state functions. Finally, Alito suggested one way plaintiffs could meet this standard is by providing their own map to achieve the same political goals without relying on race, which the plaintiffs in this case did not do.

Justice Elena Kagan dissented from the court's decision, joined by Sonia Sotomayor and Ketanji Brown Jackson. Kagan argued that the decision turned the legal standard for redistricting upside down, and told legislators who wanted to rely on race "as a proxy to achieve partisan ends" that they were allowed to do so. She suggested legislators and mapmakers could now simply say they relied on factors other than race in order to evade scrutiny from the courts.

In a similar case last year, the court ruled in favor of plaintiffs who challenged an Alabama map for racial gerrymandering and ordered the state to create a second majority-black district. That case was brought under the Voting Rights Act, while this ruling relied on the Fourteenth Amendment's Equal Protection Clause.

Today, we're going to examine some arguments from the right and left about the case, then my take.

What the right is saying.

• The right supports the decision and the boundaries it sets around future claims of racial gerrymandering. 
• Some say the plaintiffs had a weak case and were unprepared to defend their central argument.
• Others explore whether Thomas’s concurrence foreshadows a more significant ruling to come.

In National Review, Dan McLaughlin said “the Supreme Court gets slightly less nonsensical about race and redistricting.”

“Alexander was not a Voting Rights Act case, and that meant that the Court was not deciding whether South Carolina did enough to be race-conscious but rather whether it did too much. But it did so with no actual evidence that the legislature actually considered race in drawing the map,” McLaughlin wrote. “There are two ways to determine whether race ‘predominated’: direct evidence of intent to consider race — which typically comes out of discussions of VRA compliance — and circumstantial inferences. Alito observed that the latter is, and should be, extremely hard to prove.”

“The Court added another safeguard against endless litigation of redistricting by ruling that, if plaintiffs intend to show that race, not partisanship, must have been the only explanation for a map, they have to offer their own map that would achieve the legislature’s partisan ends without reference to race. That, of course, is a requirement that the (almost invariably Democratic) plaintiffs in these cases hate, because the whole point of their motivation in bringing suit is to obtain a map more favorable to their party. Requiring a Democratic plaintiff to submit a map that is just as good for Republicans is a massive disincentive to bring these cases in the first place.”

In The Carolina Journal, Dallas Woodhouse and Andy Jackson praised the court for returning “power back to elected legislatures where it belongs.”

“Plaintiffs must prove that race, not political geography or partisan politics, was the predominant factor in the defendants’ map-drawing. They could have done that in Alexander by showing evidence that the South Carolina General Assembly considered race above all other factors when drawing maps. However, they failed to consider factors other than race adequately in their analysis and so were unprepared to account for those factors when examining the districts the legislature drew,” Woodhouse and Jackson wrote. “Indeed, the court admonished the plaintiff’s four expert witnesses for ignoring ‘traditional districting criteria such as geographical constraints and the legislature’s partisan interests.’”

“This is the same court that found for the plaintiffs in a recent racial gerrymandering case from Alabama and refused to stay a lower court decision that overturned state legislative districts drawn by Michigan’s redistricting commission for being racial gerrymanders. Plaintiffs can still successfully make racial gerrymandering claims; they just have to prove that their claims are really about race,” Woodhouse and Jackson said. “Two outcomes endure as we view the political landscape: Partisan gerrymandering is legal, and proving racial gerrymandering just became much harder.”

In Reason, Josh Blackman suggested “Justice Thomas is setting up to find that the Voting Rights Act is unconstitutional, at least with regard to redistricting.”

“First, Justice Thomas explains that there are no judicially manageable standards to resolve such racial gerrymandering claims… Second, Justice Thomas wrote that The Constitution contemplates no role for the federal courts in the districting process.’... Third, Justice Thomas observes that the Fourteenth and Fifteenth Amendments do not provide a ‘textual basis for judicial resolution of districting claims,’” Blackman wrote. “If the text of the Fourteenth and Fifteenth Amendments do not provide any sort of textual authority over redistricting, then those provisions cannot be the jurisdictional hook for the Voting Rights Act.”

“If Thomas is right about the Fourteenth and Fifteenth Amendments, then the Voting Rights Act could not be constitutionally applied to redistricting. The federal courts absolutely could not redraw maps. This would be a gargantuan shift in the law,” Blackman said. “Thomas wrote for the unanimous Court in DeVillier v. Texas, ‘constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose.’... It may have been on Thomas's mind in Alexander.”

What the left is saying.

• The left disagrees with the decision, arguing it gives priority to politicians over voters.
• Some say the court’s conservatives have openly embraced gerrymandering in all forms.
• Others say the court appears split over the meaning of racism.

In The Washington Monthly, Joshua A. Douglas wrote “today’s Supreme Court is anti-voter.”

“The Court’s unduly deferential approach to the Palmetto State’s politicians permeates its opinion, beginning with two startling propositions in the introduction: ‘A legislature may pursue partisan ends when it engages in redistricting’ and ‘We start with a presumption that the legislature acted in good faith,’” Douglas said. “The first statement goes even further than the Court’s 2019 opinion in Rucho v. Common Cause when it refused to address partisan gerrymandering but did not explicitly endorse the practice; the second claim offers blind trust to politicians in the very area—election law—where they are most self-interested.” 

Voting rights “are the one area where we should trust politicians the least, as they have every incentive to enact election rules that will help to keep themselves in office. In this way, the current approach undermines the right to vote and representative democracy,” Douglas wrote. “The Court has engaged in judicial activism—to protect politicians and help them stay in office. Instead, it should elevate the individuals who are the lifeblood of a democracy: the voters.”

In Vox, Ian Millhiser called the ruling “a love letter to gerrymandering.”

Alito’s opinion “is written explicitly to permit political parties to draw rigged maps, even when those maps maximize the power of white voters and minimize the power of voters of color,” Millhiser said. “Along the way, Alito’s opinion gives the Court’s explicit blessing to maps that are drawn for the very purpose of maximizing one political party’s power. In the very first paragraph of his Alexander opinion, Alito states that ‘as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.’

“This is a significant statement, as it endorses a practice — partisan gerrymandering — that the Court has previously treated as unseemly. The Court’s most significant previous opinion on partisan gerrymandering, Rucho v. Common Cause (2019), held that federal courts lack jurisdiction to hear cases challenging partisan maps, but it stopped short of saying that such maps are actually permissible under the Constitution,” Millhiser wrote. Alexander is “a very significant loss for proponents of fair legislative maps. The case is likely to cause partisan gerrymandering to proliferate in the United States even more than it already has.”

In Bloomberg, Noah Feldman said “the Supreme Court doesn’t agree on what racism is.”

“Alito and the conservatives think that the Constitution should only protect Black people from the most virulent bigotry – the kind that led South Carolina to embrace slavery until it lost the Civil War and segregation until the Civil Rights movement produced the Voting Rights Act of 1965,” Feldman wrote. “More than that, they believe that such explicit racism has now effectively disappeared. The judicial presumption of good faith is implicitly based on the notion that the White South Carolina Republicans who gerrymandered the district just want Republicans to be elected to Congress and wouldn’t care if those Republicans happen to be Black.”

“At a legal level, you could see the Supreme Court’s split in this case as a consequence of its refusal to find partisan gerrymandering unconstitutional… the conservatives are following the logical implications of their acceptance of partisan gerrymandering,” Feldman added. “At a more fundamental level, the divide on the court reflects a divide in the country about race and racism. In that respect, this case is similar to last year’s major decision on affirmative action in college admissions. We can expect more of the same in the years to come.”

My take.

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• Simply put, I think this ruling is going to create a detrimental outcome resulting in more gerrymandering.
• At the same time, I think the majority has a sound legal argument.
• Separating racial and partisan districting is fraught, and our system really needs to address the root problem of gerrymandering.

When the Supreme Court ruled last year that Alabama needed to redraw a map that violated the Voting Rights Act, they did so by consulting a three-part test that had been established in a previous case. I wrote at the time that I was happy about the practical outcome, but thought the minority's dissenting opinion was simpler, easier to follow, and in many ways more compelling.

In this case the reverse is true: I am deeply concerned about the practical outcome, but the majority’s opinion is simpler, easier to follow, and in many ways more compelling.

The practical outcome argument is simple. Gerrymandering is a bipartisan crisis, and it is a scourge on our democracy. This ruling is going to make it easier for lawmakers all over the country to gerrymander in ways that protect their majorities. Gerrymandering creates non-competitive congressional districts; which builds incentives for politicians to win over the most partisan and extreme members of their voting bloc; which generates more extreme, more polarized, less-willing-to-do-the-work politicians. Hence, Congress today.

Consider the outcome in this case. District 1 was a longtime Republican stronghold. In 2018, a Democrat won the district. In 2020, Rep. Nancy Mace (R-SC) defeated him by less than 1%. The next race was going to be very tight, so Mace was going to have to — God forbid — do the difficult work of winning over swing voters, moderating her politics to match her constituents (or convincing them of her views), and find a way to appeal to the most voters in her district.

Instead, Republicans decided to change her district. They split it up along new lines, moving all the Democrats they could out, effectively guaranteeing her victory in the next election before it even happens. How could anyone defend this process as a way to elect members of Congress? In the most simple terms possible, voters are no longer choosing their politicians; politicians are choosing their voters. And to reiterate: That’s not a problem unique to Republicans. Democrats are gerrymandering in the same ways, for the same reasons, and now at a very similar scale, all over the country.

Despite that, I think the decision in this case makes perfect sense on its legal merits. That conclusion says more about the current state of voting rights — and the failures of current legislation and practice on this issue — than it does about the merits of gerrymandering, but I can separate my loathing of gerrymandering as a practice from what the law says.

Alito is right: The precedent we have from the last few decades of cases indicates that federal courts should only interfere in the mapmaking process in the most extraordinary circumstances. That means plaintiffs need to provide compelling evidence, and in this case the NAACP did not. Since the law allows mapmakers to gerrymander districts for political benefits, and since South Carolina's voters' political preference so strongly tracks with race, it is very hard to prove the state’s motivations were racial and not political.

The test Alito proposed — draw me a map that achieves similar political ends without racial gerrymandering — seems reasonable as a point of reference to me. I’m not convinced it should be a requirement (it’s very possible that voters could choose their candidates in part for their stances on racial issues, making race and politics basically inseparable), but if plaintiffs could draw such a map, it would provide a good piece of evidence to prove racial gerrymandering.

At the same time, the ruling has some really problematic elements. Joshua A. Douglas summed them up best (under “What the left is saying”) and explained them well on our podcast today. Perhaps most obvious is Alito's suggestion that we should assume good faith from the politicians drawing these maps. Assuming “innocent until proven guilty” is appropriate in courtrooms, but there’s a difference between presuming innocence and assuming good faith. To me, this is backward: We should trust politicians the least in this process, because every incentive they have is to bend the election rules to their whim and keep themselves in office. This case is a perfect example of why we should not trust politicians, and why we should assume the worst partisan intentions and act accordingly.

Douglas also makes the valid point that, up until the 1970s, the Supreme Court actually approached these cases with a high degree of judicial scrutiny. He wrote an entire book about how the court has become more deferential to state rules since then, and how that has harmed everyday voters by allowing practices like gerrymandering to proliferate. I agree with Douglas that these rulings have harmed voters, and I certainly believe we should have more jurisprudence to rein in gerrymandering. Unfortunately the last few decades of precedent and rulings, along with legislative inaction, have allowed the court to reasonably land where it did in this South Carolina case.

Finally, and as I alluded to above, if voters of a certain race strongly correlate to voting with a certain political party, it's now going to be extremely difficult to prove racial gerrymandering. This is a problem because the race of a lot of voters in a lot of areas tracks strongly with certain political preferences. Of course, this is only a problem because the court is permitting partisan gerrymandering — which it shouldn't do — and now it's saying that once you permit partisan gerrymandering it becomes very difficult to prove racial gerrymandering.

Again, the reasoning is enough to track, but the outcome is frightening: Gerrymandering is already a major issue, and now the court is being more permissive of it than it was even a few years ago.

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Under the radar.

Most Americans know about the CIA, but very few have ever heard of the INR. Yet that intelligence agency —  the State Department’s Bureau of Intelligence and Research — has a superior record when it comes to predicting major world events, risk assessments, and global strategic outcomes. The INR was correct in key assessments about wars in Vietnam, Iraq, and Ukraine when other major agencies got them wrong. What’s more, the INR has no satellites, no spies abroad, and isn’t bugging anyone’s communications — the small staff analyzes the same raw intel everyone else has access to. Yet almost nobody has heard of them. Why? Vox has the story.

Numbers.

• 1874. The year South Carolina introduced the first non-contiguous voting district in the U.S. 
• 10. The number of years in a redistricting cycle, after which U.S. states redraw their congressional and state legislative maps. 
• 41%. The percentage of U.S. adults who said they had heard nothing about redistricting processes in their state in 2022, according to Pew. 
• 24%. The percentage of U.S. adults who said they were dissatisfied with how their state was handling redistricting in 2022. 
• 19%. The percentage of U.S. adults who said they were satisfied with how their state was handling redistricting in 2022. 
• +4.5. The polling difference (in favor of Republicans) between the partisan lean of South Carolina’s median district and the state as a whole in the state’s previous congressional map, according to FiveThirtyEight.
• +7.0. The polling difference (in favor of Republicans) between the partisan lean of South Carolina’s median district and the state as a whole in the state’s new congressional map.
• 0. The number of districts in South Carolina whose partisan leanings are between R+15 and D+15 for both the old congressional map and the new one.

The extras.

• One year ago today we had just written about Ron DeSantis running for president.
• The most clicked link in yesterday’s newsletter was Isaac’s conversation with Israeli journalist Haviv Gur.
• Nothing to do with politics: Our friends at Rambull are compiling a map of the best dive bars in the world.
• Yesterday’s survey: 873 readers answered our survey on Rafah with 31% saying Israel should accelerate its operations. “This is a war between Israel and Hamas. Unfortunately, in war collateral damage occurs and innocents suffer. The sooner Hamas is destroyed and a government in place without the avowed purpose of destroying Israel representing the Palestinians, the better,” one respondent said.

Have a nice day.

Mary Leahy, an 18-year-old violinist in Peterborough, Ontario, broke her wrist just two days before her big solo after falling off a farm cart. But instead of pulling out, she literally got a helping hand from her father, Donnell Leahy — who happens to be one of the best fiddle players in Canada. Donnell oscillated the bow while Mary, a full-time musician, fingered the strings. “I don’t know how, but I managed to play with my left hand only,” said Mary. “His left hand was playing the fingers on my back (which) was tickling me, while I had to imagine myself playing the bow with my right hand.” Good News Network has the story.

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