As the Supreme Court held in
Cooper, a lower court’s “findings of fact — most notably, as to whether racial considerations predominated in drawing district lines — are
subject to review only for clear error.”
Alito’s
Alexander opinion pays lip service to this clear error standard, but it effectively eliminates it in redistricting cases. The new rule is that state lawmakers enjoy a “
presumption of legislative good faith” when they are accused of racial gerrymandering.
Alito writes that “nothing rules out the possibility” that movement of Black voters out of the First District “was simply a side effect of the legislature’s partisan goal.” And given the presumption that legislatures can do what they want, “that possibility is dispositive.”
Later in his opinion, Alito goes even further. The lower court, he claims, “critically erred by failing to draw an adverse inference against the Challengers for not providing a subs ute map that shows how the State ‘could have achieved its legitimate political objectives’ in District 1 while producing ‘significantly greater racial balance.’”
What Alito is saying here is that, when a state draws a partisan gerrymander, anyone who wants to challenge it as an illegal racial gerrymander should show that there is some way to draw more racially equitable maps that still achieve the same partisan goals. And if the challengers can’t do that, courts generally must rule against those challengers.