SUPREME COURT OF THE UNITED STATES
_________________
No. 22-807
_________________
THOMAS C. ALEXANDER, in his official capacity
as PRESIDENT OF THE SOUTH CAROLINA SENATE, et al., APPELLANTS
v. THE SOUTH CAROLINA STATE CONFERENCE OF THE NAACP, et
al.
on appeal from the united states district
court for the district of south carolina
[May 23, 2024]
Justice Kagan, with whom Justice Sotomayor and
Justice Jackson join, dissenting.
This voting case, as the Court acknowledges,
turns on a quintessential factual dispute: Did South Carolina rely
on racial data to reconfigure the State's Congressional District 1?
The parties here agree that the South Carolina Legislature wanted
to make District 1 more Republican. They further agree that in
pursuit of that aim, the legislature moved nearly 200,000 people
into or out of the district. What the parties disagree about is how
the people expelled from the district were chosen. The State
contends that its mapmakers looked exclusively at data from the
last election and targeted people who had voted Democratic. If that
is true, the State's actions (however unsavory and undemocratic)
are immune from federal constitutional challenge. The Challengers,
though, offer a different account. They say that the mapmakers, not
content with what the election data revealed, also reviewed and
heavily relied on racial data—thus exploiting the well-known
correlation between race and voting behavior. And if that is true,
the Challengers have a good constitutional claim, because the Equal
Protection Clause forbids basing election districts mainly on race
in order to achieve partisan aims. See
Cooper v.
Harris, 581 U. S. 285, 291, and n. 1, 308, n. 7 (2017);
Miller v.
Johnson, 515 U. S. 900, 914 (1995). So the
key question again: In drawing District 1, did the mapmakers
consider voting data alone, or did they also closely attend and
respond to which residents were Black and which were White?
A three-judge District Court undertook to
resolve that factual dispute. And the court, over nearly a year,
did everything one could ask to carry out its charge. After
overseeing broad discovery, the court held a 9-day trial, featuring
some two dozen witnesses and hundreds of exhibits. It evaluated
evidence about South Carolina geography and politics. It heard
first-hand testimony about the redistricting process. And it
considered the views of statistical experts on how the State's new
district lines could—and could not—have come about. In the end, the
court had to decide between two starkly different stories, backed
by opposing bodies of evidence. One side you know from having read
the majority opinion: The state officials repeatedly denied using
race in choosing the people kicked out of District 1, insisting
that they based their decisions on political data alone. The other
side you have not yet heard, except in the sketchiest of terms. It
is that the State's mapmakers were experienced and skilled in the
use of racial data to draw electoral maps; that they configured
their mapmaking software to show how any change made to the
district would affect its racial composition; that the racial
make-up they landed on was precisely what they needed, to the
decimal point, to achieve their partisan goals; and that their
politics-only story could not account, as a statistical matter, for
their large-scale exclusion of African-American citizens. Faced
with that proof, all three judges agreed: The Challengers' version
of events was the more credible. The court, to put the matter
bluntly, did not believe the state officials. It thought they had
gerrymandered District 1 by race.
In reviewing those conclusions, the majority
goes seriously wrong. Factfinding about electoral districting, as
about other matters, is reversible “only for clear error.”
Cooper, 591 U. S., at 293. This Court must give a district
court's view of events “significant deference,” which means we must
uphold it so long as it is “plausible.”
Ibid. Under that
standard, South Carolina should now have to redraw District 1. As
I'll detail, the Challengers introduced more than enough evidence
of racial gerrymandering to support the District Court's judgment.
The majority's attempt to explain its contrary result fails at
every turn. The majority picks and chooses evidence to its liking;
ignores or minimizes less convenient proof; disdains the panel's
judgments about witness credibility; and makes a series of mistakes
about expert opinions. The majority declares that it knows better
than the District Court what happened in a South Carolina
map-drawing room to produce District 1. But the proof is in the
pudding: On page after page, the majority's opinion betrays its
distance from, and lack of familiarity with, the events and
evidence central to this case.
Yet there is worse: The majority cannot begin to
justify its ruling on the facts without in two ways reworking the
law—each to impede racial-gerrymandering cases generally. First,
the majority, though ostensibly using the clear-error standard,
effectively inverts it whenever a trial court rules against a
redistricting State. In the majority's version, all the deference
that should go to the court's factual findings for the plaintiffs
instead goes to the losing defendant, because it is presumed to act
in good faith. See
ante, at 5. So the wrong side gets the
benefit of the doubt: Any “possibility” that favors the State is
treated as “dispositive.”
Ante, at 16. Second, the majority
invents a new rule of evidence to burden plaintiffs in
racial-gerrymandering cases. As of today, courts must draw an
adverse inference against those plaintiffs when they do not submit
a so-called alternative map—no matter how much proof of a
constitutional violation they otherwise present. See
ante,
at 30-31. Such micro-management of a plaintiff 's case is elsewhere
unheard of in constitutional litigation. But as with its
upside-down application of clear-error review, the majority is
intent on changing the usual rules when it comes to addressing
racial-gerrymandering claims.
To be fair, we have seen all this once
before—except that it was in a dissent. Just seven years ago, this
Court decided another racial-gerrymandering case, strikingly
similar to this one. In
Cooper v.
Harris, the Court
rejected the State's request for an alternative-map requirement;
the dissent vehemently objected. See 581 U. S., at 318;
id.,
at 334-337 (Alito, J., dissenting). The Court applied normal
clear-error review, deferring to all plausible trial court
findings. See
id., at 293. The dissent, invoking a
presumption of good faith, instead deferred to all plausible
arguments of the losing State defendant. See
id., at 357
(Alito, J., dissenting). Today, for all practical purposes, the
Cooper dissent becomes the law.
Perhaps most dispiriting is what lies behind the
Court's new approach—its special rules to specially disadvantage
suits to remedy race-based redistricting. The
Cooper dissent
thought plaintiffs would use racial-gerrymandering actions as
“weapons of political warfare.”
Id., at 335 (Alito, J.,
dissenting). And it lamented that courts finding gerrymanders were
“accus[ing]” States of “offensive and demeaning conduct.”
Id., at 334 (internal quotation marks omitted). So the
problem was more with challenging racial gerrymanders than with
putting them into place. Today, that view becomes central to the
majority opinion. See
ante, at 6. The suspicion, and indeed
derision, of suits brought to stop racial gerrymanders are
self-evident; the intent to insulate States from those suits no
less so. But consider what this altered perspective misses. That a
State may in fact have engaged in such “offensive and demeaning”
conduct. That it may have sorted citizens by their race with
respect to the most fundamental of all their political rights. That
it may have done so for no reason other than to achieve partisan
gain. And here, that a three-judge court unanimously found all this
to have occurred.
The proper response to this case is not to throw
up novel roadblocks enabling South Carolina to continue dividing
citizens along racial lines. It is to respect the plausible—no, the
more than plausible—findings of the District Court that the State
engaged in race-based districting. And to tell the State that it
must redraw District 1, this time without targeting
African-American citizens.
I
Begin with the law, and more particularly the
usual standard of review. This Court all the time recites the
words: “only for clear error.”
Cooper, 581 U. S., at 293,
309. And those words always mean (or anyway, always meant) the same
thing. Under the clear-error standard, a lower court's factual
findings “warrant[ ] significant deference.”
Id., at 293. We
do not rubber stamp those findings, but we affirm them so long as
they are “plausible” in light of the full record.
Anderson
v.
Bessemer City, 470 U. S. 564, 574 (1985). And that is so
even if, left to our own devices, we “would have decided the
[matter] differently.”
Id., at 573. We can reverse only when
“left with the definite and firm conviction that a mistake has been
committed.”
Ibid. And nowhere is that high bar higher than
when witness credibility is at issue. A trial court's judgment
about whether a witness is telling the truth is entitled to
“singular deference.”
Cooper, 581 U. S., at 309.
The reasons for thus deferring to trial court
factfinding are equally well-settled. Trial courts are the
judiciary's factfinding specialists. They live with a case for
months or years, supervising discovery, ruling on the admission of
expert opinions, and watching how the evidence unfolds. They
preside over the trial and see the live witnesses (24 in this case)
up close. They can observe “the variations in demeanor and tone”
that “bear so heavily” on credibility judgments.
Anderson,
470 U. S., at 575. They know the ins and outs of often massive
records. (This case boasts, for example, a 2,122-page trial
transcript, a 1,694-page compilation of key deposition testimony,
and (as one judge remarked) too many exhibits to fit in the
courtroom. No. 3:21-cv-3302 (D SC), ECF Doc. 503, p. 23.) Chances
are, then, that a trial court will do better factfinding than an
appellate court parachuting in at the last moment. The clear-error
standard is a recognition of comparative competence. And it is a
forced dose of humility—a virtue which sometimes doesn't come
naturally to appellate courts. Apply that last point to this Court
in particular. The clear-error standard tells us that when we
disagree with a trial court's view of the facts, we are the ones
likely to be wrong. So we should make triple sure that we are
correcting, not creating, an error before we reverse.
Cooper illustrates how the ordinary
clear-error standard works in districting litigation. The question
there, as here, was whether a state legislature chose voters for a
congressional district based on their race, or instead based on
their past political choices. The three-judge District Court found
that race accounted for the new district lines. On review, we
decided the evidence “adequately support[ed]” that conclusion. 581
U. S., at 309. As that phrasing suggests, we nowhere claimed the
court was actually right. To the contrary, we observed that in this
“thoroughly two-sided case,” both views of the evidence were
“plausible” and “permissible,” and we declined to choose between
them.
Id., at 299, 307, n. 6; see
id., at 316-317
(“Maybe we would have evaluated the testimony differently had we
presided over the trial; or then again, maybe we would not have”).
Our decision followed from the deference we thought owed to the
District Court. Under clear-error review, we noted, “we will not
take it upon ourselves to weigh the trial evidence as if we were
the first to hear it.”
Id., at 316. Because the District
Court's view was “plausible in light of the full record,” it “must
govern”—even if another were “equally or more so.”
Id., at
293 (internal quotation marks omitted).
Today's decision could not be more different. To
be sure, the majority recites the clear-error standard. See
ante, at 13. But from then on, the majority ignores it—no,
worse, does the opposite of what the standard commands. It is not
just that the majority refuses to defer to the District Court's
findings in favor of the Challengers. It is that the majority
defers to the assertions of the State defendants—the side that lost
below. Invoking a “presumption of legislative good faith,” the
majority insists that “when confronted with evidence that could
plausibly support multiple conclusions,” a court must “draw the
inference that cuts” in the State's favor.
Ante, at 5. So
over and over the majority puts its thumb on the scale
against the District Court. Each time it takes up a piece of
evidence, the majority declares that there is a “possibility” of
seeing it the State's way.
Ante, at 16, 19. And that
possibility is “dispositive”; because of it, the State's version of
the facts must control.
Ante, at 16; see also,
e.g.,
ante, at 5, 17, 22 (similarly awarding points to the State
because its claims were “plausible,” even if the Challengers' were
more so). In effect, the majority's demand for deference to the
State overrides clear-error review's call for deference to the
trial court. If the District Court wants deference, it had better
just rule for the State.
That approach conflicts with this Court's
precedent. Indeed, it has only ever appeared in the
Cooper .
. . dissent. There too, Justice Alito argued for reversing the
trial court's view of evidence because it was not “the only
plausible interpretation.” 581 U. S., at 357. There too, he called
for accepting the State's contrary view because the evidence could
“as easily be understood” that way.
Ibid.; see
id.,
at 345, 350, 352, 358-359. The
Cooper Court noticed—and
disapproved. The dissent, it said, “repeatedly flips the
appropriate standard of review,” to give the State rather than the
trial court deference.
Id., at 309, n. 8. But that move
reflected “an elemental error”: There is no “super-charged,
pro-State presumption on appeal, trumping clear error review.”
Ibid. Of course clear-error review takes into account the
standard of proof in the trial court. See
ante, at 29-30, n.
11. But that standard is not transformed because of the good-faith
presumption. In our precedents, that presumption tells a court not
to assume a districting plan is flawed or to limit the State's
opportunities to defend it. See
Abbott v.
Perez, 585
U. S. 579, 603 (2018) (the presumption requires a plan's
challengers to bear the burden of proof );
Hunt v.
Cromartie, 526 U. S. 541, 553 (1999) (the presumption may
suggest sending a case to trial, rather than rejecting a plan on
summary judgment). And the presumption reminds a court that it is a
serious matter to find a State in breach of the Constitution. See
Miller, 515 U. S., at 915. But that is all. Nothing in our
decisions suggests that a trial court must resolve every plausibly
disputed factual issue for the State (as if we could hardly imagine
officials violating the law). And still less do our decisions
suggest that the trial court's factual findings are deprived of
deference on appeal. To the contrary, as
Cooper stated,
clear-error review of those findings proceeds just as usual,
unaffected by the presumption. See 581 U. S., at 309, n. 8; see
also
Miller, 515 U. S., at 915 (good faith is presumed
“
until a claimant makes a showing” of “race-based
decisionmaking” (emphasis added)).
The majority's deeper reasons for specially
indulging the State also clash with this Court's decisions. In the
majority's view, claims of racial gerrymanders are often “weapons
of political warfare,” using courts for illegitimate ends.
Ante, at 6. And when courts vindicate those claims, they
“accus[e]” States of “offensive and demeaning conduct,” bearing “an
uncomfortable resemblance to political apartheid,”
ibid.—an
apparently intolerable insult even when justified. Those
sentiments, again, come straight out of the
dissent in
Cooper. See 581 U. S., at 334-335. The
Court there
took a different view, more reflective of our precedents. See
id., at 319, n. 15. Time and again, this Court has noted the
important role suits like this one play in stopping the unlawful
race-based division of citizens into electoral districts. See,
e.g.,
Bethune-Hill v.
Virginia State Bd. of
Elections, 580 U. S. 178, 187 (2017). For sorting of that kind
does occur—sometimes (as here) to serve partisan goals,
occasionally just to suppress the political influence of minority
voters. See
Cooper, 581 U. S., at 319, n. 15. And when it
does, the Court has held, it requires a judicial response. See,
e.g.,
Shaw v.
Reno, 509 U. S. 630, 649 (1993).
If calling out a racial gerrymander “accus[es]” a State of a grave
wrong, then so be it. This Court is not supposed to be so fearful
of telling discriminators, including States, to stop
discriminating. In other recent decisions, the Court has prided
itself on halting race-based decision-making wherever it
arises—even though serving far more commendable goals than partisan
advantage. See,
e.g.,
Students for Fair Admissions,
Inc. v.
President and Fellows of Harvard College, 600 U.
S. 181, 213-214 (2023). It is not the ordinary thing to agonize so
much about giving “offens[e]” to a discriminating State.
Ante, at 6.
And it is not the right thing either. In
adopting its novel credit-the-losing-State approach, the majority
thwarts efforts to undo a pernicious kind of race-based
discrimination. See
Shaw, 509 U. S., at 643 (recognizing
racial gerrymanders as “odious”). True enough, as the majority
highlights, that the judicial system fails when a State is wrongly
found to have gerrymandered a district. But the system fails as
badly or worse when a State that has gerrymandered a district gets
away with it. This Court has prohibited race-based gerrymanders for
a reason: They divide citizens on racial lines to engineer the
results of elections (without the justification of protecting
minority voters' rights). And litigation to remedy that harm is
already none too easy. Because of the complex political context,
this Court has required challengers of electoral maps to show that
race was not just a single but the “predominant” factor in moving
voters between districts.
Bethune-Hill, 580 U. S., at 187.
That is, and is meant to be, a demanding burden. But once
plaintiffs have met it to a three-judge district court's
satisfaction, their hardest job should be done. They should not
have to face an upside-down form of clear-error review, in which
this Court reverses if it decides there is a “possibility” of
seeing the evidence the State's way.
Ante, at 16. The
principal effect of that novel rule will be to defeat valid
voting-discrimination claims.
And the majority is not yet done putting
uncommon burdens on gerrymandered plaintiffs. From now on, those
plaintiffs will also be subject to an “adverse inference” unless
they present a specific form of evidence—an “alternative map” that
would “achieve[ the State's] legitimate political objectives” while
“producing significantly greater racial balance.”
Ante, at
30-31 (internal quotation marks omitted). And that inference gives
every sign of packing a wallop. The majority labels it “dispositive
in many, if not most, cases,” except when the plaintiff presents
(1) direct evidence of a gerrymander (say, an email admitting to
the targeting of Black voters) or (2) “some extraordinarily
powerful circumstantial evidence such as the strangely irregular
twenty-eight-sided district lines” in
Gomillion v.
Lightfoot, 364 U. S. 339 (1960).
Ante, at 31
(internal quotation marks omitted). Think about that last category,
as the majority frames it. The majority must go back 65 years, to
the most grotesque racial gerrymander in the U. S. Reports, to find
a case based on circumstantial evidence that could have survived
its adverse inference. How better to make the point: The majority's
new evidentiary rule is meant to scuttle gerrymandering cases.
Odd that the majority fails to mention a
seemingly pertinent fact:
Cooper expressly rejected a
similar demand that a plaintiff alleging a gerrymander submit an
alternative map. In that case, North Carolina argued that “[w]hen
race and politics are competing explanations of a district's
lines,” the challenger must introduce “an alternative map that
achieves the legislature's political objectives while improving
racial balance.” 581 U. S., at 317 (alterations omitted). The
Cooper dissent agreed. See
id., at 332-337. The
Cooper Court did not. See
id., at 317-322. The Court
freely acknowledged that such a map could be good evidence of a
racial gerrymander. See
id., at 317. So too, it recognized
“as a practical matter” that a plaintiff with an otherwise weak
case would not prevail without a map.
Id., at 319.[
1] But we could not have been more
adamant in rebuffing the State's proposed requirement. “[I]n no
area of our equal protection law,” we reasoned, “have we forced
plaintiffs to submit one particular form of proof.”
Ibid.
And we were not about to start. A “plaintiff 's task” in a
gerrymander case, we stated, “is simply to persuade the trial
court—without any special evidentiary prerequisite”—that race was
the predominant factor in redistricting voters.
Id., at 318.
Like all other submissions in a gerrymandering case—the “testimony
of government officials,” proof about the data available to
mapmakers, and “expert analysis”—“[a]n alternative map is merely an
evidentiary tool.”
Id., at 318-319. So “neither [a map's]
presence nor its absence can itself resolve a racial gerrymandering
claim.”
Id., at 319.
The majority cannot evade
Cooper's force
by casting today's holding as an “adverse inference” rule rather
than a simple requirement. First, there is precious little
difference between the two. Given the apparent strength of the
majority's adverse inference, few litigants will feel free to
proceed without commissioning alternative maps. The majority's
inference is effectively a requirement, whether or not it goes by
that label. And anyway,
Cooper's reasoning easily
encompasses—which is to say forbids—the majority's new inference
rule. The point in
Cooper was to treat maps equivalently
to—rather than “elevate” them above—other forms of evidence.
Id., at 318. So if the plaintiff 's non-map evidence
supports a claim, the Court stated, the absence of a map “does not
matter.”
Ibid. The
Cooper dissent well understood the
point. No less than three times, the dissent quoted the Court's
“does not matter” line, arguing vociferously that a map's absence
should matter, if not in all cases, at least in all but
“exceptional ones.”
Id., at 336; see
id., at 329,
359. The dissent lost that battle, but now succeeds in overturning
the essence of
Cooper's map ruling.
The majority-née-dissent's reasons for elevating
maps above other evidence have not improved since
Cooper
held to the contrary. The majority states that maps can serve as a
good way to undermine a State's “it was all politics” defense. See
ante, at 30-31. No argument there: The
Cooper Court
also said as much. 581 U. S., at 317. But it went on to say that
maps “are hardly the
only means” of attacking such a
defense—as this case well shows.
Id., at 318; see
infra, at 15-33. The majority also insists that plaintiffs
can “easily churn out” alternative maps at “little marginal cost.”
Ante, at 30 (quoting, of course, the
Cooper dissent).
Maybe or maybe not; either way, the
Cooper Court said, the
matter is irrelevant: We have no “warrant to demand” that
plaintiffs jump through “evidentiary hoops” of our creation,
“whether the exercise would cost a hundred dollars or a million, a
week's more time or a year's,” if they can otherwise prove that
race predominated in drawing district lines. 581 U. S., at 319, n.
15.[
2] Finally, the majority
suggests that all plaintiffs with serious gerrymandering cases
should have known to produce an alternative map. See
ante,
at 5. But that assertion requires airbrushing
Cooper out of
our caselaw. What plaintiffs should have known after
Cooper
was that they could but need not submit an alternative map. The
majority today punishes the Challengers for thinking that this
Court would be good to its word.
In any event, the Challengers had an
understandable reason for not offering the kind of map the majority
demands. The point of such a map, as the majority explains, is to
help figure out whether race or politics accounts for districting
lines. See
ante, at 30-31. That function becomes
important—so a map makes sense—only if a State in fact defends its
plan as arising from political considerations. At trial, South
Carolina indeed adopted that defense. But it was not clear
beforehand, when the plaintiffs were developing their evidence for
trial, that the State would do so. The plain fact is, politicians
don't like admitting to partisan gerrymanders: They often deny them
as aggressively as they draw them. That is because “[e]xcessive
partisanship in districting” is-and is thought by voters to
be—“incompatible with democratic principles.”
Rucho v.
Common Cause, 588 U. S. 684, 718 (2019). So it is scarcely
surprising that, during legislative debate, the districting plan's
sponsor responded to charges of a partisan gerrymander by asserting
“that's really not the case.” J. S. A. Supp. 286a.[
3] Or that during pretrial proceedings key
State witnesses continued to deny partisan motives. Luke Rankin,
the Republican chair of the Senate Judiciary Committee, testified
in discovery that it was
not “a goal of [his] to make”
District 1 “more reliably republican.”
Id., at 425a.
Likewise, a Republican member of the House Redistricting Committee
testified that he “never considered partisan gain as a goal” of
redistricting, and “never” heard “anyone else” admit that goal
either.
Id., at 409a-410a. And the Senate Redistricting
Subcommittee's counsel swore that there was “no effort” to make
District 1 “more Republican leaning.”
Id., at 392a. So the
Challengers, prior to trial, were not on notice of a partisanship
defense. The State, to be sure, changed tack in the end: A strong
case made by plaintiffs can powerfully concentrate a defendant's
mind. But by that time, the Challengers' mapmaker (Dr. Kosuke Imai)
had completed his work, and the trial had begun.
Even before looking at the trial evidence, the
majority thus places the Challengers in a deep hole. Although this
Court recently disclaimed any need for an alternative map, the
majority today draws an adverse inference from such a map's
absence. And contrary to settled practice, the majority decrees
that, even on clear-error review of a ruling for the Challengers,
the State will emerge victorious if its version of events is so
much as
possible. Combine those two facets of the majority's
approach, and the trial evidence fades into insignificance. A legal
twist here and a legal bend there ensure that the majority need
show no respect for the three-judge District Court's
well-considered factual findings.
II
Normal clear-error review would lead to a
different outcome. The District Court faced a factual question: Did
the State rely significantly on racial data in drawing its new
District 1? Based on the mountains of evidence presented, the court
decided that the State had done so. That finding was reasonable,
and deserves to be affirmed.
As the majority explains, this case concerns
changes that South Carolina made in its most recent redistricting
to Congressional District 1. See
ante, at 7-12. Under the
pre-existing map, District 1 was a thin strip of land stretching
along the Atlantic Coast. See Appendix,
infra, at 35, Figure
1 (2011 Congressional Map). It was bordered to the northwest by
District 6, the State's only majority-Black district. See
ibid.; J. S. A. 429a. After the 2020 census, South Carolina
had to redraw both those districts to comply with the
Constitution's one-person, one-vote requirement. District 1 was
overpopulated by about 88,000 people, and District 6 was
underpopulated by about 85,000. The State chose, though, not to
make a one-way transfer of residents from the overpopulated to the
underpopulated district. To unite two counties, the State first
moved around 53,000 residents from (the underpopulated) District 6
into (the overpopulated) District 1. That shift, of course,
exacerbated the problem: The State now needed to transfer some
140,000 residents in the opposite direction. It did so mainly by
moving a large chunk of Charleston County from District 1 to
District 6.
And here is the rub—the thing that created this
case. The part of the county that the legislature moved out of
District 1 was disproportionately Black, and by a lot. The
mapmakers targeted several heavily Black neighborhoods in North
Charleston, while leaving many heavily White neighborhoods alone.
See
id., at 261a-262a. And no matter how you slice the
numbers, the effects were stark. More than 60% of Black Charleston
County residents previously in District 1 were relocated to
District 6. 649 F. Supp. 3d 177, 189 (SC 2023). Of the 11 precincts
with the largest Black populations, 10 were gone.
Ibid.
Overall, the proportion of African Americans in the excised part of
the county (23.8%) was more than twice as high as in the remaining
part (10.3%). See
id., at 190; Supp. App. 153a. The upshot
was that 79% of Charleston County's Black population now found
itself in District 6, whereas only 53% had been there before. See
649 F. Supp. 3d, at 190, and n. 9. As the State's main mapmaker—and
star witness—acknowledged, the new lines created a “tremendous
[racial] disparity” in comparison to the old districting plan. J.
S. A. 262a; 649 F. Supp. 3d, at 189.
The question at trial was how that disparity had
come about. By that time, the State had adopted its politics-only
defense. It argued, as the majority says, that the point of
redrawing District 1 was to “enhance[ ] the Republican advantage”
there—
i.e., to make sure a Democratic candidate could not
win.
Ante, at 9. But that claim, even if true, would not be
enough for the State to prevail. As this Court has held, a State
cannot divide voters by race to achieve political ends. See
Miller, 515 U. S., at 914. “[T]he sorting of voters on the
grounds of their race” is a constitutional problem “even if race is
meant to function as a proxy” for political affiliation.
Cooper, 581 U. S., at 309, n. 7; see
id., at 291, and
n. 1. So the critical issue was not whether the State's ultimate
aim was political or racial (though the majority often phrases it
that way, see,
e.g.,
ante, at 1, 5, 17). Instead, the
issue was whether the State had advanced its partisan objective
primarily by racial means. The Challengers maintained that it had.
They said the State's mapmakers had consciously removed Black
citizens from District 1 on the (justified) assumption that doing
so would turn the district redder. The State, by contrast, denied
in any way using race to draw District 1's lines. According to its
account, the disproportionate removal of African Americans from
District 1 was just an accidental byproduct of political
sorting—more specifically, of ejecting precincts that had strongly
supported then-candidate Biden in the 2020 election.[
4] Faced with those competing stories, the
District Court had to decide which to credit.
The court's decision to credit the Challengers,
as I'll next show, was not clear error—indeed, far from it. There
was of course evidence pointing in each direction; like
Cooper, this was a “two-sided case.” 581 U. S., at 307, n.
6. But the Challengers made a weighty showing that the mapmakers
relied substantially on racial data in moving voters around. The
mapmakers had the incentive to do so, given the limits of the
political information in their possession. They had the ability to
do so—both access to data and experience using it. And direct
testimony showed that the mapmakers had in fact continually
examined racial data during the line-drawing process. The map
yielded by that process hit on the dot the Black voting percentage
that state officials knew they needed to achieve their partisan
goal. And when statistics experts reviewed the map, they found that
the State's politics-only story could not explain the
redistricting's extreme racial disparity. In dismissing that strong
case, the majority cherry-picks evidence, ignores credibility
findings, misunderstands expert views, and substitutes its own
statistical theories. Its opinion gives not a whit of respect to
the District Court's factual findings, thus defying the demands of
clear-error review.
A
Start with the State's chief mapmaker. William
Roberts, as the majority notes, was a “nonpartisan staffer with 20
years of experience” drawing maps for Republicans and Democrats
alike.
Ante, at 8-9. He was good at what he did—expert,
“helpful,” and “precise.” J. S. A. 74a, 254a. And also this—he was
a veteran consumer of racial data. On cross-examination, Roberts
testified as follows:
Q: I think I heard the number of 75 to a
hundred localities you've worked in over the past 20 years?
A: Yes. . . .
Q: Before this redistricting cycle, you always
looked at race data in the 75 to a hundred districts you worked in,
correct?
A: Yes. . . .
Q: Indeed, . . . you provided guidance to
localities that they should be looking at BVAP [Black Voting-Age
Population] in drawing lines, correct?
A: That's correct.
Id., at 204a-205a. The point of looking
at BVAP, according to the mapmaker's testimony, was not to suppress
the Black vote. Rather, Roberts stated that he did so to achieve a
panoply of lawful districting goals—like assessing Voting Rights
Act compliance and “help[ing] the general public understand the
race of voters getting moved in and out.”
Id., at 206a; see
id., at 205a. Whatever the particular purpose, he consulted
racial data constantly. Now as you know from the majority, Roberts
denied doing so in the redistricting at issue here. See
ante, at 14-15. But when asked “so in your 20 years of
redistricting, this was the only time [that] you didn't look at
race?,” Roberts answered “That's correct.” J. S. A. 207a.
True to his persistent practice (if not to his
this-case-only denial), Roberts configured maproom computers to
show how every line-drawing decision would affect the new District
1's racial make-up. In other words, as a mapmaker moved a district
line this way or that, he could immediately see the resulting
change in the district's BVAP. Displaying racial data in that way
was not an unavoidable feature of the mapmaking software. As one
staffer explained: “[Y]ou could configure” the computer setup “in a
multitude of ways.” ECF Doc. 462-9, at 114. You could make it so
that new BVAP numbers appeared on your screen “while you
manipulated geography”—but “there [was] no requirement that you
ha[d] to set it up that way.”
Ibid. The mapmakers had to
choose to display racial data. And here is the key thing: They did.
A Senate staffer who often sat with Roberts in the maproom
explained that not only “political data” but also “demographic
data”—specifically, “race” and “voting age population by race”—was
“visible” on computer screens “[a] lot of the time.” ECF Doc.
462-4, at 40. And on cross-examination, Roberts admitted that to be
true:
Q: So BVAP was visible on the screen while you
were drawing maps?
A: Yeah. It was in the statistics window at the
bottom of the screen.
Q: So, you could see BVAP as you were making
changes in real time as you were drawing lines?
A: We could see the statistics update after a
change was made.
Q: So, if you moved a district line, you could
see if the BVAP went up or down, right?
A: You could see on the statistics what the
overall district BVAP would be.
J. S. A. 207a; see J. S. A. Supp. 402a (another
staffer acknowledging: “Was I aware of, while I was drawing, what
the racial makeup of what I was drawing was? Yes”).
So Roberts's testimony presented a puzzle. As
the majority highlights, Roberts consistently denied relying on
racial data. See,
e.g.,
ante, at 14-15, 17. But
racial data, according to both him and others, was easily
accessible—in fact, was usually visible—on his computer while the
line-drawing was going on. And he never explained why it was there.
Why configure a computer to tell you, at every stage of the
mapmaking process, how the slightest change in a district line
would affect Black voting-age population if you weren't tracking
and manipulating Black voting-age population? Roberts had no
answer.
But there was an obvious reason for attending so
closely to racial data, as even the majority acknowledges: One
surefire way of making a South Carolina district more Republican is
to make it less Black. See
ante, at 15-16. The difference
between a “Republican tilt” and a “Democratic tilt” in District 1,
notes the majority, is the difference between a 17% BVAP and a 21%
BVAP.
Ibid. That is because in recent statewide elections,
more than 90% of Black South Carolina voters—and usually more than
95%—have supported the Democratic candidate. See J. S. A. Supp.
82a. In South Carolina, to remove a Black voter from a
congressional district is pretty nearly to remove a future
Democratic vote. That is no secret. So it is small wonder that
racial data was conspicuously displayed on Roberts's computer. And
then small wonder that the District Court found Roberts to have
used that data to draw district lines. See 649 F. Supp. 3d, at 191.
More doubt would properly have attached to the
opposite
finding—that Roberts put this hugely relevant data on his screen
only to ignore it as he worked to make District 1 more Republican.
That would have taken the self-restraint of a monk.
Especially so because using only the political
data at hand would not have done the job as well. “Why,” the
majority asks, “would Roberts have used racial data” when he had
access to sub-precinct-level voting data from the 2020 election?
Ante, at 18; see
ante, at 33-34. The question is
apparently meant to be rhetorical; but the trial record provides a
ready answer—and one more than sufficient on clear-error review.
One of the Challengers' experts testified that “[t]he 2020 election
data” was “not a good” measure of partisan tilt—neither so
“accurate” nor so “reliable.” App. 135. And racial data, another
expert suggested, served the mapmakers' goal better. See
id., at 112. The single-sentence explanation is this: In
South Carolina, a Black voter is more likely to vote for a Democrat
in the next election than is someone who voted for a Democrat in
the last election. That is because White voting preferences in the
State are not as “stable” as Black voting preferences.
Ibid.
A White voter “might vote for a Democrat in one election” only to
vote “for a Republican in another.”
Ibid. So to remove a
past Democratic voter (as contrasted with a Black voter) is not
necessarily to remove a future Democratic vote.[
5] And the gap only widens for past
presidential voters, like those who participated in the 2020
election. In presidential elections, one expert explained, more
people than usual switch party lines to “vote for the candidate”—a
trend that then-President Trump's candidacy may have further
amplified.
Id., at 135; see J. S. A. 382a. Given all that,
the South Carolina mapmakers' racial data was peculiarly
predictive: The single best thing Roberts and his staff could do to
increase the future Republican vote in District 1 was to exclude a
Black voter. That fact would not have meant they looked at racial
data alone; they also had the 2020 election data on their
computers. But the racial data offered a potent tool for ensuring
that District 1 would vote for a Republican in coming
elections.[
6]
And strong evidence showed, as the District
Court found, that the mapmakers wielded this tool—that they used
their racial data to meet the BVAP level needed to achieve their
partisan goal. Recall the large turnover of voters in District 1.
See
supra, at 15. Some 53,000 people were moved into, and
140,000 people were moved out of, the district (which wound up with
730,000 total). Yet the district's racial balance did not budge.
The district began with a 16.6% BVAP. See J. S. A. 430a. That
number went up with the 53,000-person addition, because almost 40%
of the new residents were Black. See
id., at 439a. So what
did the mapmakers do? As noted earlier, they removed from District
1 over 60% of Black Charleston County residents, by excising a part
of the county more than twice as Black (23.8%) as the part they
kept in (10.3%). See 649 F. Supp. 3d, at 189-190; Supp. App. 153a;
supra, at 16. That brought the district's BVAP right back
down to 16.7%—again below the 17% required to create the desired
Republican tilt. See J. S. A. 452a; 649 F. Supp. 3d, at 188. In the
majority's description, what happened was of no particular
note—just that the District's BVAP “stayed more or less constant.”
Ante, at 15. But consider: With approximately a quarter of
District 1's population moving in or out, the district's BVAP
shifted by . . . one-tenth of one percentage point. The District
Court observed that uncanny stability, knowing that racial data was
at the mapmakers' fingertips. See 649 F. Supp. 3d, at 191. And the
court, as addressed shortly, had heard statistical experts deny
that the racially disparate districting could have come about
through political sorting. See
infra, at 26-33. So it was no
large step—and hardly clear error—for the court to conclude that
the mapmakers had gerrymandered Charleston County to achieve “a
target of 17%” BVAP. 649 F. Supp. 3d, at 193.
As against all that, what does the majority
offer? Only a series of self-serving denials. The sum and substance
of the State's case came from the testimony of Roberts and State
Senator George Campsen, who was the redistricting plan's sponsor.
Yes, the new map, Roberts conceded, had a “tremendous” racial skew.
J. S. A. 262a. But Roberts and Campsen maintained that they had
never sorted by race—never used their (constantly accessible)
racial data to draw district lines. Both insisted that they had
looked only to voting results from the 2020 election to ensure
their partisan goal. The majority buys it—hook, line, and sinker.
Indeed, the majority relies on nothing else. It treats Roberts's
and Campsen's account as a “fact of the matter,” rather than a
vigorously contested assertion.
Cooper, 581 U. S., at 307,
n. 6; see,
e.g.,
ante, at 8-10. The majority trusts
the two State witnesses, and believes what they said.
The problem is that the three judges who sat on
the District Court did not. And they are the ones entitled to make
credibility judgments. See
supra, at 5;
Cooper, 581
U. S., at 309 (“[W]e give singular deference to a trial court's
judgments about the credibility of witnesses”). That is for an
obvious reason: They were there. They could assess every aspect of
a witness's testimony, including demeanor, tone of voice, and
facial expression. They could see when the witness was at ease and
when he stumbled. And after taking account of all those cues, the
three judges all reached the same conclusion about Roberts and
Campsen. They thought that those two witnesses were not telling the
truth.
The panel was especially disbelieving of
Roberts, if almost in spite of itself. The court (contra the
majority) well understood what the presumption of good faith
required. The judges were predisposed, as the majority has to
acknowledge, to think that this “good man,” who had for so long
been a fixture on the South Carolina political scene, would play it
straight.
Ante, at 8-9, and n. 5 (citing J. S. A. 23a,
74a-75a, 254a, 263a, 421a). But in the end, the court felt
compelled to find that Roberts's old habit of relying on race died
hard. To the panel, the mapmaker's tale did not hang together. He
said he did not consider race in drawing lines; but he could recite
“off the top of his head” the racial breakdown of particular
precincts in District 1. 649 F. Supp. 3d, at 191. Those “highly
accurate” estimates, the court noted, reflected Roberts's obvious
knowledge of “the racial demographics of the state down to the
individual precinct level.”
Ibid., n. 12. And Roberts never
did—never could—explain why he put so much racial data on his
computer screen if not to look at it as he drew district lines.
Especially given the surrounding evidence, the court found,
Roberts's “claim that he did not consider race” in excluding voters
from District 1 “rings hollow.”
Id., at 191 (internal
quotation marks omitted). On normal clear-error review, that
credibility judgment would control.
And so too for Campsen, who obfuscated at every
turn. At trial, Campsen reversed his own deposition testimony about
whether state senators knew the racial makeup of their districts.
(First they knew, then he couldn't possibly speak for them.) See J.
S. A. 377a-378a. He answered as simple a question as whether “race
and party are correlated in South Carolina” this way:
“Yes—well, yes and no. I guess that's
fluid. It is fluid, but yes. . . . Well, it's not in every
instance, but generally African Americans tend to vote higher, you
know, more—you can look at the polls—when you look at the numbers
after the fact—I didn't look at them drawing the map—but you see
that in the numbers.”
Id., at 381a.
And he contradicted common knowledge—as well as
the State's own defense—when he point-blank denied that sorting
people based on their voting behavior could result in racial
disparities. See
id., at 383a (“Q: You would agree with me
that if you . . . focus on partisan numbers, there's a risk that
you might disproportionately impact Black voters in drawing lines,
right? A: No, I'm not going to agree with that”). Would you buy
what this man was selling? As the contradictions, non-answers, and
evasions mounted, the District Court quite reasonably decided that
it could not.
Put all this together, and the Challengers
offered—even before getting to their statistical studies—a more
than plausible case of racial gerrymandering. They showed that the
exclusion of voters from District 1 was racially
disproportionate—not by a little but by a lot. They showed that the
State's star mapmaker had always—always—before considered race in
drawing district lines. They showed why he would want to do so
here, to create a reliable Republican tilt. They showed that the
mapmaker configured his computer to exhibit in real time how every
adjustment of a district line affected the district's racial
make-up. And they showed that after moving nearly 200,000 residents
this way and that, the mapmaker managed to land on the exact BVAP
figure he knew would ensure his political goal. Now it is true that
the State, when confronted with this evidence, did not confess
error, as the majority comes close to demanding. Its officials, as
you might expect, adamantly disputed the charge of racial
discrimination. But they could not keep their story straight or
make it believable to three judges. The more the officials talked,
the more the court became convinced that, to create a red District
1, they had divided citizens by race. And that, again, was even
before the statisticians took center stage.
B
Once the statisticians did so, the
Challengers' case was clinched—at the least, from a clear-error
perspective. Consider how much the controverted issue lent itself
to statistical evidence. That issue began with a simple fact: The
part of Charleston County that the mapmakers excised from District
1 was (vastly) disproportionately Black. The dispute was about what
caused that disparity. Statistical evidence showing that it could
have arisen from political sorting would significantly benefit the
State's defense. Conversely, statistical evidence showing that the
racial disparity could not have arisen in that way would
significantly benefit the Challengers' case. So you might think
that the trial would feature a war of statistical experts, each
presenting their own multivariate regressions. But you would be
wrong. The Challengers did their part, but the State failed to
respond in kind. Rather than submit its own statistical studies,
the State devoted all its efforts to trying to pick apart the
Challengers'. It thus anticipated today's majority, which (given
the unbalanced record) can do nothing more than search for holes,
however minute, in the Challengers' expert evidence. But two
separate studies emerge unscathed, and with significant probative
force—fully sufficient on clear-error review to justify the
District Court's conclusion. Each analysis was designed to answer
the critical question: whether Charleston County was split as it
was based on its residents' race. And each found that it was. Even
controlling for political preference, Black voters were more likely
than White voters to be removed from District 1.[
7]
Dr. Jordan Ragusa's regression found that race,
separate and apart from partisanship, was “an important factor in
the design of the 1st district.” J. S. A. 509a; see 649 F. Supp.
3d, at 192. Ragusa looked at the size, racial demographics, and
partisan composition of each precinct in the old District 1. (His
measure of partisanship was the vote count for then-candidate Biden
in the 2020 election, which mirrored the political data the State's
mapmakers possessed.) By controlling for all three of those
variables, Ragusa explained, he could “statistically disentangle
the effect of each factor.” J. S. A. 505a. And when he did so,
Ragusa determined that “the decision to move a [precinct] out of
[District 1] was highly correlated to the number of African
American voters” in the precinct. 649 F. Supp. 3d, at 192; see J.
S. A. 508a-509a, 514a. If, for example, a precinct had 100 to 500
Black voters, “the chance of [its] being moved out” of District 1
was “no greater than 20%.” 649 F. Supp. 3d, at 192. But as the
number climbed, so did the likelihood: When a district had 1,500
Black voters, the probability of exclusion reached 60%. See
ibid. And on top of that analysis, Ragusa directly compared
the effects of partisanship and race on the exclusion decision. He
found that the mapmakers removed 41% of precincts with more than
1,000 Biden voters, but 62% of precincts with more than 1,000 Black
voters. See J. S. A. Supp. 14a. That comparison showed that “the
racial composition of a precinct was a stronger predictor of
whether it was removed” from District 1 “than its partisan
composition.”
Ibid.; see 649 F. Supp. 3d, at 192.
A second expert, Dr. Baodong Liu, reinforced
Ragusa's conclusions about the significance of race, using a
complementary methodology and data set. Liu evaluated the different
likelihoods that White Democrats and Black Democrats would wind up
outside or inside District 1. Based on demographic data and vote
tabulations from the 2018 Democratic primary, Liu first found that
Black Democrats were moved out of District 1 disproportionately to
White Democrats. Whereas 26% of Black Democrats in the district
were excluded, only 19% of White Democrats were; so the rate at
which Black Democrats were excluded was more than one-third higher.
See J. S. A. Supp. 94a. And then Liu sliced his data another way,
which confirmed his results. Replicating a methodology that this
Court approved in
Cooper, see 581 U. S., at 315, Liu looked
at Democratic voters in all the counties that at least partly
overlapped with District 1. Which of those voters, Liu asked,
actually wound up in District 1 and which did not? Once again, the
answer showed a significant racial disproportion. Whereas 69% of
White Democrats in the region were placed in the new District 1,
only 51% of Black Democrats were put there. J. S. A. Supp.
100a.
The majority's primary objection to Ragusa's and
Liu's studies—that they did not “control for contiguity or
compactness,”
ante, at 23, 27—is woefully misplaced. The
gripe is that the experts assumed “unrealistic[ally]” that any
precinct, no matter where located, could be moved.
Ante, at
23. If the experts had thought about geography, the majority
suggests, they might have found that Black Democrats were
disproportionately relocated because they lived in precincts closer
to a district boundary. The argument is reprised from
Cooper—but (what a surprise) only from the dissent. See 581
U. S., at 358. And the reason the objection got nowhere in
Cooper applies once again. The relevant district in
Cooper was super-thin, so that the lion's share of precincts
within it were close enough to a boundary line to be easily moved.
See
id., at 326. And so too here. Recall that the only issue
under review is whether the State improperly moved Black voters
from District 1 to District 6—because that is the only gerrymander
the District Court found. Now turn to the map of South Carolina's
old districts in this opinion's Appendix. District 1 was a narrow
strip on the Atlantic coast; District 6 ran along its whole length.
Nearly everyone within District 1 lived close to the border line;
so nearly everyone could have been sent to District 6, consistent
with contiguity and compactness. That is true even of people who
lived on the beach. Under the State's districting guidelines,
“[c]ontiguity by water is sufficient,” so the mapmakers could—and
in fact did—split the new District 1's land area by pulling
District 6 all the way to the water. J. S. A. 541a; see Appendix,
infra, at 35, Figure 2 (Inset to 2022 Congressional Map).
The upshot is that precinct location did not meaningfully constrain
the State's choice of which voters to move from District 1 to
District 6. And so the Challengers' experts were not required to
pretend that it did.[
8]
That is why the majority, to support its
contiguity theory, must use a “simple example” of zero relevance to
this case.
Ante, at 23. Says the majority: District 6
“precincts near [Colleton C]ounty's northern border with Bamberg
County could not have been moved into District 1 without
egregiously flouting the State's important interests in contiguity
or compactness.”
Ante, at 24. That is true: As the map
shows, District 6 is fat, and the precincts the majority mentions
are far away from the District 1-District 6 line. See Appendix,
infra, at 35, Figure 1. But of course this case has nothing
to do with those outermost District 6 precincts, or even with the
closer-in District 6 precincts that could have been moved
into District 1. The sole issue here, again, is whether the
State disproportionately selected heavily African-American
precincts to move
out of District 1. When it gets around to
that issue, the majority says: “[T]he same problem” as in its
example “arises with respect to the question whether a precinct in
District 1 . . . could have been moved into District 6.”
Ante, at 24. But that is not true, for self-evident reasons.
As just described—and shown on the map—the old District 1 was thin,
and the great bulk of its precincts were close to the District
1-District 6 line. See Appendix,
infra, at 35, Figure 1. So
they could have been moved “without egregiously flouting”—actually,
without flouting at all—“the State's important interests in
contiguity or compactness.”
Ante, at 24. The majority's
inapt comparison is revelatory in one sense only: It shows why
appellate courts are supposed to use a clear-error standard—to make
sure we are fixing, not introducing, mistakes.
The majority's other main criticism, aimed
solely at Ragusa, is original to this Court: It was never raised or
considered below (or, as far as I know, in other voting suits). The
objection relates to the way Ragusa measured each precinct's
partisan tilt. He asked how many 2020 Biden voters lived in a
precinct relative to its voting-age population. So, for example, a
1,250-person precinct with 700 Biden voters would count as much
more Democratic than the same-sized precinct with 350 Biden voters.
The majority says that measure may be “statistically
permissible”—but still is not good enough.
Ante, at 26. In
the majority's view, Ragusa should have “account[ed] for” potential
variance in precinct turnout by looking to the Biden net vote
instead of the Biden total vote.
Ante, at 25-26. Now I'll
admit: I'm not a statistician. I can see what the majority is
saying, but my inclination would be to seek out other
opinions—including from Ragusa himself—about the net-vote approach,
and whether it would matter. The problem is I can't do that here.
The theory is the majority's brainchild, absent from the District
Court's proceedings. The State never asked Ragusa about it, before
or during trial. The State's own expert did not bring it up. The
State did not raise it in briefing below. And most important:
Nothing in the trial record suggests that adopting the net-vote
measure would have made a real difference. The majority, to show
you why it might, offers what it calls a “simplified” example.
Ante, at 25. For simplified read “fictional”—meaning, not
reflective of any actual precinct's vote. And for simplified, also
read “unrepresentative”? To take just one example: Maybe there are
some, but I doubt there are many, precincts in which 1,100 of 1,250
voting-age people make it to the polls. See
ante, at 26. A
number of things about precinct composition and turnout would need
to be true for the net-vote/total-vote distinction to make a
significant difference to Ragusa's analysis—and we know none of
them. Sure, it's fun to play armchair statistician. But it's
irresponsible to reverse a trial court's decision—on clear-error
review—based on such hypothesizing.
A couple of final attacks fare no better. The
majority faults Liu for testing partisan tilt in District 1 with
data from the 2018 gubernatorial primaries, rather than the 2020
presidential election. The majority confidently declares that
because an off-year primary has a lower turnout, the “[d]ata from
[it] is less informative.”
Ante, at 28. Liu's explanation is
deemed unworthy of mention. It was that the higher turnout of a
presidential election, along with its greater focus on individual
candidates, makes it a poorer measure of a district's year-in,
year-out partisan tilt. See App. 135. The State's own expert did
not contest that view, so the majority's skepticism again finds no
support in the trial record. And even if 2020 data is better than
2018 data—it might be—what is better than either is both. That is
what the Challengers had: Ragusa's study based on 2020 data and
Liu's based on 2018 data, each showing a racial gerrymander.
Much the same thing is true as to a more obscure
methodological issue the majority raises (again, needless to say,
sua sponte): whether statistical analysis should “operate[ ]
at the voter level” or the precinct level.
Ante, at 27, n.
9. Here, the majority cannot get its attack-line consistent. First
the majority claims that Ragusa's testimony was worse than the
expert's in
Cooper because Ragusa's relied on
“precinct-level analysis” rather than looking at individual voters.
Ibid. But within a page the majority asserts that Liu's
study was “highly unrealistic” because he “treated each voter as an
independent unit” rather than considering “neighbors” together.
Ante, at 27-28. So an expert challenging a gerrymander can't
win either way. But put that aside; the key thing, once more, is
that the Challengers had not one but two types of analysis working
in their favor. However a statistician looked at the data—whether
voter-level or precinct-level—he reached the same conclusion: that
the State's mapmakers targeted Black voters.
And the State offered little by way of rebuttal.
It, too, had an expert witness. And that witness, Sean Trende, took
a couple of shots at Ragusa's methods. See ECF Doc. 510, at 46-52.
But he did not offer the most relevant kind of evidence—a
counter-analysis showing that partisanship subsumed race in the
design of District 1. Trende had access to all the same data Ragusa
did. He even had access to Ragusa's computer code, so that he would
not have needed to start from scratch. See
id., at 58. He
could just have rerun the code after fixing whatever variables he
thought wrong. What should one make of Trende's failure to do so?
If I were adopting the majority's methods, I would draw an “adverse
inference” from the decision not to submit such “easily churn[ed]
out” evidence.
Ante, at 30. Surely it must count as an
“implicit concession” by the State that the statistical analysis,
even with the desired fixes, would keep showing evidence of a
racial gerrymander?
Ante, at 31. But I don't need to create
a novel adverse inference to make the critical point. It was hardly
clear error for the District Court to credit the Challengers'
statistical evidence about race's predominant role when the State
presented no similar evidence to support its partisanship theory.
The majority's contrary view—that the State's nothing necessarily
beat the Challengers' something—is one more tell that it has left
the proper review standard way behind.
III
In every way, the majority today stacks the
deck against the Challengers. They must lose, the majority says,
because the State had a “possible” story to tell about not
considering race—even if the opposite story was the more credible.
Ante, at 16. And they must lose again, the majority says,
because they failed to offer a particular form of proof—which they
did not know would be relevant and which this Court recently told
plaintiffs was not required. It does not matter that the
Challengers offered extensive evidence, including expert
statistical analyses, that the State's districting plan was the
product of racial sorting. It does not matter that the State, by
way of response, offered little more than strained and awkward
denials. It does not matter that three judges—entitled to respect
for their factual findings—thought that those denials were not
believable, and did not put a dent in the plaintiffs' proof. When
racial classifications in voting are at issue, the majority says,
every doubt must be resolved in favor of the State, lest (heaven
forfend) it be “accus[ed]” of “offensive and demeaning” conduct.
Ante, at 6.
What a message to send to state legislators and
mapmakers about racial gerrymandering. For reasons I've addressed,
those actors will often have an incentive to use race as a proxy to
achieve partisan ends. See
supra, at 20-22. And occasionally
they might want to straight-up suppress the electoral influence of
minority voters. See
Cooper, 581 U. S., at 319, n. 15. Go
right ahead, this Court says to States today. Go ahead, though you
have no recognized justification for using race, such as to comply
with statutes ensuring equal voting rights. Go ahead, though you
are (at best) using race as a short-cut to bring about partisan
gains—to elect more Republicans in one case, more Democrats in
another. It will be easy enough to cover your tracks in the end:
Just raise a “possibility” of non-race-based decision-making, and
it will be “dispositive.”
Ante, at 16. And so this “odious”
practice of sorting citizens, built on racial generalizations and
exploiting racial divisions, will continue.
Shaw, 509 U. S.,
at 643. In the electoral sphere especially, where “ugly patterns of
pervasive racial discrimination” have so long governed, we should
demand better—of ourselves, of our political representatives, and
most of all of this Court.
Id., at 639. Respectfully, I
dissent.