GARLINGTON: States Should Listen to Justice Thomas on Redistricting

Louisiana isn’t the only State that has had to walk down a ditch full of horse manure lately just to get a federal congressional map approved – her sister South Carolina has also experienced those difficulties, though the outcome of her trial was better than Louisiana’s.  The federal Supreme Court’s decision Alexander vs South Carolina NAACP upheld the map drawn by the South Carolina Legislature, which is good, but the best part of the ruling – and thus most worthy of note by conservatives/revivalists in the States – is the concurrence by Justice Clarence Thomas.

The late Rush Limbaugh once said that if he had to have someone’s else brain, he would choose Justice Thomas’s.  Such a statement becomes very understandable as one watches him roast the federal Court’s flimsy gerrymandering jurisprudence one piece of illogic at a time.  And also like Mr Limbaugh, he can do so with a bit of humor at times.  One can picture a wry smile curling his lips as he writes ‘just enough’:

As these cases make clear, this Court’s jurisprudence puts States in a lose-lose situation. Taken together, our precedents stand for the rule that States must consider race just enough in drawing districts. And, what “just enough” means depends on a federal court’s answers to judicially un-answerable questions about the proper way to apply the State’s traditional districting principles, or about the groupwide preferences of racial minorities in the State. There is no density of minority voters that this Court’s ju-risprudence cannot turn into a constitutional controversy.

But let us put that aside and focus on the main points of his concurrence.  Right away he says what is obvious from a plain reading of the federal constitution:

Determining the proper shape of a district is a political question not suited to resolution by federal courts. The questions presented by districting claims are “ ‘nonjusticia-ble,’ or ‘political questions.’ ” Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). We have explained that a question is nonjusticiable when there is “ ‘a lack of judi-cially discoverable and manageable standards for resolv-ing’ ” the issue or “ ‘a textually demonstrable constitutional commitment of the issue to a coordinate political depart-ment.’ ” Id., at 277–278 (quoting Baker v. Carr, 369 U. S. 186, 217 (1962)).

In Rucho v. Common Cause, 588 U. S. 684 (2019), we ap-plied those principles to conclude that partisan gerryman-dering claims are nonjusticiable. Partisan gerrymandering claims allege that a political map unduly favors one politi-cal party over another. We explained that partisan gerry-mandering claims therefore present questions about how to “apportion political power as a matter of fairness,” despite the fact that “[t]here are no legal standards discernible in the Constitution for making such judgments, let alone lim-ited and precise standards that are clear, manageable, and politically neutral.” Id., at 705, 707. We bolstered our con-clusion by reference to “the Framers’ decision to entrust dis-tricting to political entities” in the Elections Clause, Art. I, §4, cl. 1. Id., at 697, 701. Because courts “have no commis-sion to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority,” we held that partisan ger-rymandering claims are nonjusticiable. Id., at 721.

The same logic demonstrates that racial gerrymandering and vote dilution claims are also nonjusticiable. As with partisan gerrymandering claims, the racial gerrymander-ing and vote dilution claims in this case lack “judicially dis-coverable and manageable standards” for their resolution. Vieth, 541 U. S., at 277–278 (internal quotation marks omitted). And, they ask us to address an issue—congres-sional districting—that is textually committed to a coordi-nate political department, Congress. Id., at 277. As a re-sult, racial gerrymandering and vote dilution claims brought under the Fourteenth and Fifteenth Amendments are nonjusticiable.

He then elaborates on why courts are ill-suited to resolve redistricting controversies:

Racial gerrymandering claims ask courts to reverse- engineer the purposes behind a complex and often arbitrary legislative process. The standard developed under our prec-edents “require[s] the plaintiff to show that race was the ‘predominant factor motivating the legislature’s decision to place a significant number of voters within or without a par-ticular district.’ ” Ante, at 2 (quoting Miller, 515 U. S., at 916). In other words, “a plaintiff must prove that the legis-lature subordinated traditional race-neutral districting principles . . . to racial considerations.” Id., at 916. The Court’s focus on legislative purpose is unavoidable because “the constitutional violation in racial gerrymandering cases stems from the racial purpose of state action,” not the re-sulting map. Bethune-Hill v. Virginia State Bd. of Elec-tions, 580 U. S. 178, 189 (2017) (internal quotation marks omitted).

Divining legislative purpose is a dubious undertaking in the best of circumstances, but the task is all but impossible in gerrymandering cases. “Electoral districting is a most difficult subject for legislatures,” a pure “exercise [of] the political judgment necessary to balance competing inter-ests.” Miller, 515 U. S., at 915. We have therefore cau-tioned courts to “be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.” Id., at 915–916.

It is those same legislative branches, State and federal, to which the federal constitution has granted oversight of redistricting, not the judiciary:

Although States have the initial duty to draw district lines, the Elections Clause commits exclusive supervisory authority over the States’ drawing of congressional districts to Congress—not federal courts. It provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, §4, cl. 1. The first part of the Clause “imposes a duty upon” state legislatures to “pre-scribe the details necessary to hold congressional elections.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 862 (1995) (THOMAS, J., dissenting). The second part “grants power exclusively to Congress” to police the state legisla-tures’ performance of their duty. Id., at 864. Critically, the Clause leaves the Judiciary out of the districting process entirely.

The Clause’s assignment of roles is comprehensive. For example, a state legislature’s responsibility over congres-sional elections “ ‘transcends any limitations sought to be imposed by the people of a State’ ” through other state ac-tors; the state legislature is the exclusive state authority. Moore v. Harper, 600 U. S. 1, 58 (2023) (THOMAS, J., dis-senting) (quoting Leser v. Garnett, 258 U. S. 130, 137 (1922)). In a similar vein, the Clause makes Congress the exclusive federal authority over States’ efforts to draw con-gressional districts, to the exclusion of courts.

The later 14th and 15th Amendments did not change this arrangement:

None of the Constitution’s other provisions undercuts or countermands the Elections Clause’s clear mandate for Congress to supervise the States’ districting efforts. The Court has viewed the Fourteenth and Fifteenth Amend-ments as the source of its authority to entertain challenges to districts. But, the Reconstruction Amendments are per-fectly consistent with Congress’s exclusive authority to oversee congressional districting.

. . . Reading the Equal Protection Clause—or anything else in §1 of the Fourteenth Amendment—to invite judicial in-volvement in disputes over voting rights also ignores the fact that another part of the Fourteenth Amendment deals directly with those rights. Section 2 provides that “when the right to vote . . . is denied” to a State’s voting-age male citizens “or in any way abridged,” the State’s apportionment of congressional representatives “shall be reduced in the proportion” of the denial of the franchise. Congress alone can provide that remedy through its power to apportion rep-resentatives among the States. See Art. I, §2, cl. 3. Federal courts are therefore unable to enforce §2. See Saunders v. Wilkins, 152 F. 2d 235 (CA4), cert. denied, 328 U. S. 870 (1945). The express provision of a nonjudicial remedy for voting-rights violations in §2 counsels against reading §1 to allow judicial remedies implicitly in those same voting-rights disputes. Cf. Reynolds v. Sims, 377 U. S. 533, 594 (1964) (Harlan, J., dissenting).

Reading the Equal Protection Clause to support claims for racial gerrymandering or vote dilution also makes the existence of the Fifteenth Amendment unexplainable. If §1 of the Fourteenth Amendment allows for such fulsome pro-tection of the franchise by federal courts, it is hard to see why “Congress and the States still found it necessary to adopt the Fifteenth Amendment—which protects ‘[t]he right of citizens of the United States to vote’—two years af-ter the Fourteenth Amendment’s passage.” McDonald, 561 U. S., at 852 (opinion of THOMAS, J.).

Nor can the Fifteenth Amendment justify racial gerry-mandering or vote dilution claims in its own right. The Fif-teenth Amendment is the primary constitutional protection for the voting rights of racial minorities. But, the Fifteenth Amendment “address[es] only matters relating to access to the ballot.” Holder, 512 U. S., at 930 (opinion of THOMAS, J.). “[I]ts protections [are] satisfied as long as members of racial minorities [can] ‘ “register and vote without hin-drance.” ’ ” Id., at 921 (quoting Mobile v. Bolden, 446 U. S. 55, 65 (1980) (plurality opinion)). The Court’s decision in Gomillion v. Lightfoot, 364 U. S. 339 (1960)—a Fifteenth Amendment case often cited as a touchstone of our racial gerrymandering jurisprudence—is consistent with this un-derstanding. Gomillion involved only a claim “that the boundaries of a city had been drawn to prevent blacks from voting in municipal elections altogether,” not a claim about the way minority voters were distributed between two dis-tricts. Holder, 512 U. S., at 920, n. 20 (opinion of THOMAS, J.).

But because the federal courts have overstepped their proper bounds, state legislatures are placed in a no-win situation:


The Court’s attempts to adjudicate the impossible have put the States in an untenable position. We have hesitated to subject States to the “ ‘ “competing hazards of liability” ’ ” that arise from the fact that the Constitution “restricts con-sideration of race and the [Voting Rights Act] demands con-sideration of race.” Abbott v. Perez, 585 U. S. 579, 587 (2018) (quoting Vera, 517 U. S., at 977 (plurality opinion)). But, the lack of manageable standards for districting claims and the unfortunate trajectory of the Court’s Voting Rights Act precedents combine to make it impossible for States to navigate these hazards.

His conclusion should reverberate through all the States:

The Court’s involvement in congressional districting is unjustified and counterproduc-tive. . . . The Constitution provides courts no power to draw districts, let alone any standards by which they can attempt to do so. And, it does not author-ize courts to engage in the race-based reasoning that has come to dominate our voting-rights precedents. It is well past time for the Court to return these political issues where they belong—the political branches.

We ought to be grateful to God for giving the South a culture that can bring forth men of good sense like Mr Justice Thomas:

Mizelle asked Thomas about his tendency to write separate or dissenting opinions that question the wisdom of long-standing precedent, as he did with the constitutional right to abortion prior to the court striking down that right in 2022 with its Dobbs v. Jackson Women’s Health decision.

“My granddaddy would always say, ‘boy, if it don’t make no sense, it don’t make no sense,’” Thomas said.

“I’m not going to reflexively go along with something simply because others have always gone along with it,” he added.

Mizelle recalled Thomas holding his law clerks to tough but clear expectations such as getting the work done perfectly and on time, which he said originated from lessons learned on his grandparents’ farm when he was growing up in south Georgia.

“If you live on a subsistence farm, you either closed the chicken yard up or you didn’t. OK, if you didn’t, you may not have any chickens tomorrow,” he said. “Everything is this fine line between getting stuff done right and existing and eating and having food for the next year.”

It would be an excellent show of gratitude to the Lord and to Justice Thomas if those same Southern States and all others with their heads on straight would use the superlative legal resources Justice Thomas has given them to end the judiciary’s interference (whether federal or State) in their redistricting efforts.  As we said in an essay written after Alabama had waded through the redistricting manure ditch, the States must stop submitting their federal congressional maps to the federal courts for approval.  If someone tries to sue them in the courts, federal or State, they should not join in the proceedings.  If a court rules even in their absence, their attitude should be like President Andrew Jackson’s:  The judges have made their decision; now let them enforce it.  In other words, they should ignore it.  The only body capable of legitimately modifying maps drawn by State Legislatures is the federal Legislature.  And if it will not step in, then the States should stand firmly with the maps they have drawn against all comers.

The States are slowly reawakening to the truth that they, and not the federal government that they created, are the sovereigns in our political system.  Current and future redistricting controversies will be a good opportunity for them to show how much they have strengthened their wills in accordance with that remembrance.



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