The Supreme Court’s conservative supermajority made it much easier last week to attack the political power of the nation’s growing communities of color. The high court’s attacking voting rights isn’t new. But the latest blow, in a 6-3 opinion written by Justice Samuel Alito in a South Carolina case, is especially breathtaking and cynical because it creates a sweeping partisanship safe harbor for states that want to gerrymander communities of color out of power. Racially gerrymandered map? No, not us. We were just discriminating against Democrats who just happen to be Black (or Latino or Asian).
Racially gerrymandered map? No, not us. We were just discriminating against Democrats who just happen to be Black.
The decision in Alexander v. South Carolina Conference of NAACP sharply reverses course on Chief Justice John Roberts’ court’s 2017 resolution of a race-vs.-politics puzzle that had dogged the Supreme Court for nearly three decades.
Under the court’s jurisprudence, the distinction mattered because while racial gerrymandering is unconstitutional, partisan gerrymandering isn’t. But trying to ascertain whether race or politics was behind lawmakers’ mapmaking decisions drove the justices bonkers. Retired Justice Stephen Breyer bemoaned last decade that the plethora of racial gerrymandering cases required the court to spend “the entire term reviewing 5,000-page records,” reviewing map drawers’ choices precinct by precinct.
In 2017, the court had a breakthrough and resolved the conundrum by simply declaring in Cooper v. Harris that — whether it was race or politics — motive was irrelevant if evidence showed that map drawers had targeted voters of color. Writing for a majority that notably included conservative Justice Clarence Thomas, Justice Elena Kagan explained that “the sorting of voters on the grounds of their race remains suspect even if race functions as a proxy for other (including political) characteristics.” In short, partisan gerrymandering might be allowed, but you can’t use race as the crude tool to get there.
Justice Alito’s opinion throws out the court’s 2017 consensus in favor of the position he took in dissent in Cooper, joined this time around by Justice Thomas, who had a change of heart.
Before Alexander, voters of color in racial gerrymandering cases had to show merely that race had predominated in map drawers’ decision-making. After Alexander, if states defend maps on the grounds that “it was just politics,” which they will do now in every case, Justice Alito’s opinion imposes an additional head-spinning hurdle. Voters of color must now also show that it would have been possible to pull off a state’s partisan gerrymander by targeting white voters.
This is likely to be a train wreck for communities of color.
By sanctioning a partisan “get-out-of-jail” card for racial discrimination, Justice Alito’s Alexander decision is both delusional and contemptuous
No place illustrates the challenge more than the South, where race and politics are intimately entangled. White Democrats, to the extent they exist in the region, are often inconveniently situated from the standpoint of a would-be gerrymanderer: They live in the same neighborhoods as white Republicans — sometimes in the same houses. By contrast, residential segregation and racially polarized voting mean that even if a map drawer’s motives are purely partisan, adjusting the Black (or nonwhite) percentage of a district is a singularly efficient way to shift the partisan balance of a district in predictable ways.
By deliberately ignoring the role that race continues to play in American politics, and by sanctioning a partisan “get-out-of-jail” card for racial discrimination, Justice Alito’s Alexander decision is both delusional and contemptuous. In many ways, it is reminiscent of the Supreme Court’s dishonest Jim Crow-era opinions upholding literacy tests and poll taxes on the grounds that they were “race neutral.” But, then as now, pretending not to see racial discrimination won’t make it go away.
For a court that professes to be so deeply concerned about the continuation of racialized politics, the South Carolina decision is likely only to help perpetuate it.
Picture an alternative universe, one where it isn’t so easy to gerrymander voters of color.
In that world, Republicans in places like coastal South Carolina would have no choice but to compete for Black votes. To be sure, the state’s Black voters currently overwhelmingly favor Democrats. But that is at least in part because Republicans have little reason to appeal to Black concerns and interests. In a world of gerrymandered districts, they don’t have to. Compare that to vigorous competition by both major parties for votes across racial lines in Orange County, California, where a citizen-led commission drew congressional maps under rules that emphasized keeping communities together. Unable to rely on gerrymandered districts to win, both parties aggressively recruited candidates of color, opened outreach centers and knocked on doors. This is what the future of a multiracial American democracy could look like. If the Roberts court is unable or unwilling to lead us there, then Congress must. In 2022, Congress came achingly close to passing the John R. Lewis Voting Rights Advancement Act and the Freedom to Vote Act, two transformative bills that would have renewed and strengthened voting rights laws, banned partisan gerrymandering and set a baseline for election practices in line with the needs of a diverse 21st-century America. Only the stubborn refusal of two Democratic senators to change filibuster rules stopped the bill from becoming law. Picture an alternative universe, one where it isn’t so easy to gerrymander voters of color. For the time being, with a deeply divided Congress, both bills remain stalled. But the opportunity to advance them will come again, perhaps as soon as the next Congress. And when it does, House Democratic leader Hakeem Jeffries and Senate Majority Leader Chuck Schumer have rightly said, passage of the two bills will be the top Day One priority of their caucuses. History offers a sober warning about where the court might be headed. In 2009, the Supreme Court signaled that it was likely to strike down the formula used to determine which states were subject to preclearance under the Voting Rights Act, saying the formula was outdated and didn’t take into account contemporary circumstances. But despite the warning, bipartisan support at the time to update the formula and much larger Democratic majorities than today in both houses, Congress failed to act. Four years later, the Supreme Court did exactly what it had foreshadowed. Next time around, Congress must be ready to act. The future of America’s emerging multiracial democracy depends on it.
Michael Li
Michael Li serves as senior counsel for the Brennan Center’s Democracy Program, where his work focuses on redistricting, voting rights and elections. 
