Today, the Supreme Court issued a decision in Abbott v. Perez, a racial gerrymandering challenge out of Texas. The Court held that the lower court had used an improper intent analysis to invalidate congressional and state house district maps, that the lower court had improperly applied the “effects” test of Section 2 of the Voting Rights Act to invalidate three districts, and that the fourth challenged district was an impermissible racial gerrymander because the state did not prove narrow tailoring in its use of race.
Justice Alito wrote for the five-justice majority, noting that district map challengers bear the burden of showing discriminatory intent (citations omitted):
We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed. . . .
The court refused to accept this conclusion, but its reasons for doing so cannot stand up. As an initial matter, the court thought that the two districts would have to be redrawn based on its finding regarding the intent of the 2013 Legislature, and it therefore deferred a final decision on the §2 issue and advised the plaintiffs to consider at the remedial phase of the case whether they preferred to have two districts that might not perform or just one safe district. The court’s decision cannot be sustained on this ground, since its finding of discriminatory intent is erroneous.
The only other reason provided by the court was the observation that [Mexican-American Legal Caucus] “failed to show” that two majority-Latino districts in Nueces County would not perform. This observation twisted the burden of proof beyond recognition. It suggested that a plaintiff might succeed on its §2 claim because its expert failed to show that the necessary factual basis for the claim could not be established. Courts cannot find §2 effects violations on the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to comply with §2 (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the “ ‘broad discretion’ ” to comply as it reasonably saw fit in 2013.
With regard to the invalidated district (citations omitted):
By contrast, where we have accepted a State’s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State established that the primary map drawer “discussed the district with incumbents from other majority-minority districts[,]. . . considered turnout rates, the results of the recent contested primary and general elections,” and the district’s large prison population. The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan consensus.” Texas’s showing here is not equivalent.
Perhaps Texas could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander. On remand, the District Court will have to consider what if any remedy is appropriate at this time.
Also worth noting, the Court found that though the lower court did not label its order as an injunction, it functioned as an injunction and the lower court could not avoid review under 28 U.S.C. § 1253 by labeling the order something other than an injunction.
Justice Thomas has been alone in saying that Section 2 of the Voting Rights Act cannot justify using race in redistricting and that therefore requiring legislatures to form majority-minority districts by considering race is impermissible. But today, Justice Gorsuch joined his concurrence in Abbott reiterating that stance, which may prove very important in future racial gerrymandering cases at the Supreme Court.
The Court also vacated and remanded Rucho v. Common Cause, a partisan gerrymandering challenge out of North Carolina that many liberals are hoping will meet the standing requirements of Gill v. Whitford, back to the district court for further proceedings in light of Gill.
While it may seem that little was decided today, the Court's reiteration of the appropriate burden of proof in redistricting cases is vital to courts consistently deciding redistricting cases according to actual legal principles.