North Carolina Democrats are relying on their state constitution to throw out a district map redrawn by Republicans in the state legislature. The map was drawn to favor Republican candidates and would ensure Republican majorities in the legislature, even if the popular vote goes the other way.
This is political gerrymandering. A lawsuit challenging the map argues that the North Carolina state constitution’s right to "fair" elections prohibits political gerrymandering.
Other states with similar constitutions may also be able to circumvent the U.S. Supreme Court’s recent ruling in Alexander v. South Carolina NAACP, which in essence allowed racial gerrymandering by denying the clear role of race in the case.
Alexander concerns redistricting in South Carolina, where 92 percent of Black voters support Democratic candidates. To ensure victory for Republican candidates, the Republican-controlled state legislature moved 60 percent of the voting-age Black residents in Charleston County from its white-dominated District 1 to the overwhelmingly Black District 6.
In the ruling, the Supreme Court by a 6-3 conservative majority upheld South Carolina’s right to move Black voters into other districts regardless of whether it minimized their voting power, setting the stage for other states to try the same tactic. The court previously held that political gerrymandering is not the business of federal courts; the combination of these rulings now makes it almost impossible to successfully challenge any gerrymandering in the courts.
Notably, the majority opinion chose not to cite the 15th Amendment, which states, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race.” But in a separate opinion that partly concurred and partly dissented with Alexander, Justice Clarence Thomas explained away the 15th Amendment, arguing that it is satisfied as long as minority voters can cast their ballots — it doesn’t matter if their votes are rendered meaningless.
The Supreme Court also ignored its precedent in South Carolina v. Katzenbach, where it held that “The Voting Rights Act of 1965 reflects Congress’ firm intention to rid the country of racial discrimination in voting.” Of course, the Voting Rights Act didn’t carve out an exemption for racial discrimination when it is practiced to win elections.
What's more, the Alexander decision belies the conservative majority’s alleged belief in originalism, i.e., adhering to the strictest reading of the Constitution without injecting personal preferences. Injecting personal preference is exactly what the conservative justices did here.
The Supreme Court had previously ruled that federal appeals courts must defer to lower courts’ findings of fact, including in redistricting cases, unless they’re “clearly erroneous.” In Alexander, however, the court flagrantly disobeyed that rule. The District Court unanimously reached its factual conclusions after a nine-day trial, hearing two dozen witnesses and statistical experts and considering multiple discovery documents and hundreds of exhibits demonstrating that the redrawn district was in fact a racial gerrymander. It’s a shameful stretch to hold that these factual conclusions were “clearly erroneous.” Yet the Supreme Court did exactly that.
In his separate opinion, Thomas argued that racial gerrymandering claims are “nonjusticiable” because redistricting is constitutionally reserved to state legislatures. If Thomas is right, a state legislature could pack every Black resident into one legislative district and distribute white voters over the remaining districts and no one could sue.
In fact, Thomas said he thought the majority should have gone further, suggesting that the basis for Brown v. Board of Education, which desegregated schools, is no longer valid. He argued that the court's impatience with the pace of desegregation in Brown caused it to adopt “an illegitimate new flexible power to invent whatever new remedies may seem useful at the time.”
Alexander is just the most recent in a string of decisions from our nation’s highest court disenfranchising minority voters.
For example, in 2020 it upheld an Arizona law making it a crime for someone to help voters vote by collecting ballots and delivering them to polling places on a voter’s behalf, unless it’s done by a postal worker, election official, a voter’s caregiver, family member or household member. The justices conceded this law disadvantages Native Americans living in rural counties, since only 18 percent of them get mail delivered at home. Some have to travel two hours to get to a mailbox; up to half don’t own cars, and thus rely on friends and neighbors for help casting their ballots. The law now prohibits them from helping.
Chief Justice Roberts acknowledged that Native Americans are the biggest group that uses third parties to help them vote. Yet the court upheld Arizona’s law anyway, finding that its disadvantages were acceptable, despite the fact that the number of voters it disenfranchises exceed past margins of victory.
Roberts also admitted that there was no evidence of voter fraud in Arizona, but still held that the state had an interest in preventing it. As a result, states are now free to enact voter restrictions based on whatever hypothetical scenarios politicians might dream up.
There are other examples of Roberts Court rulings that disenfranchised voters. In the 2013 Shelby v. Holder decision, the court struck down a Voting Rights Act requirement that states with histories of suppressing voting based on race preclear changes in state voting laws with federal authorities. That decision facilitated purging an estimated 16 million voters from the rolls between 2014 and 2016.
The 15th Amendment expressly gives Congress the power to enforce the preclearance requirement. Requiring federal pre-clearance clearly falls within that power. But Shelby jumped in and took that power away from Congress, which violates the Constitution’s core principle of separation of powers.
So why do that? And why deny that it violates the 15th Amendment to criminalize how minority voters deliver their ballots and to allow states to dump Black voters into districts where their votes don’t count? The Supreme Court ruling in Alexander v. South Carolina NAACP signals the reason: the majority’s intent to disenfranchise voters on the basis of race.
Neil Baron is an attorney who has represented many institutions involved in the international markets and advised various parts of the federal government on economic issues.
