New Rules on Appealing Factual Findings under the Clear-Evidence Rule

Advocates usually face tough sledding if their appeal merely disputes factual findings. Those appeals confront the “clear-evidence” standard, a demanding test that requires the appellate court to find that the findings are not plausible given the evidentiary record. Appellate courts assume that trial courts have greater expertise in evaluating the facts because experiencing the presentation of the case in the living courtroom allows a judge to assess credibility, among other things, that a cold written record cannot convey.

In Cooper v. Harris (2017), the Supreme Court, in an opinion written by Justice Kagan, applied that rubric to uphold a three-judge panel’s decision that invalidated a North Carolina congressional redistricting plan under the “deferential standard of review” that applies to factual findings. The Court held that a “plaintiff may make the required showing [to demonstrate that race was the predominant factor in drawing district lines] through ‘direct evidence’ of legislative intent, ‘circumstantial evidence of a district’s shape and demographics,’ or a mix of both.” The decision distinguished an earlier favorable review of one of the same districts in  Easley v. Cromartie (2001), because the majority read that decision to involve a particularly week evidentiary record of racial considerations that could only be overcome if the plaintiffs had offered an alternative map. That map would have to demonstrate that the legislators’ political goal could have been achieved without regard to race. In Cooper, the Court held sufficient strong evidence, including direct evidence, existed so that an alternate map was unnecessary.

Justice Thomas concurred, writing that the analysis in Cooper “represents a welcome course correction to this Court’s application of the clear-error standard.”

Justice Alito wrote the dissent. He asserted that the majority had treated the earlier precedent “like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash.” He labeled the absence of an alternative map “a critical factor in our analysis” in Cromartie and asserted its absence in the Cooper record required that North Carolina’s new map be upheld.

What a difference a few years and a few justices make! On May 23, the Supreme Court reinstated a South Carolina congressional map that the district court had found to be the product of racial gerrymandering. This time, the writers switched sides. Justice Alito wrote the majority opinion, Justice Thomas concurred with the new majority, and Justice Kagan authored the dissent. The majority’s treatment of the clear-evidence standard suggests a new wrinkle for the clear-evidence rule that likely affects a wide swath of cases.

In Alexander v. South Carolina State Conference of the NAACP, No. 22-807, the Court held that politics permissibly informed the map-drawing task even if the political motivation correlated with treating race as a predominant factor in the maps. Because the district court did not disentangle race and politics, the Court said, its findings of fact were clearly erroneous. To prevail on the racial-gerrymandering issue, the Court required a plaintiff to rule out the competing explanation of politics. It insisted, as it asserted Cromartie required, that a plaintiff would have to draw a partisan map consistent with the legislature’s intent to favor the dominant political party but with greater racial balance. In other words, the plaintiff had to do a better job of creating the same partisan advantage without evidencing any racial discrimination, a requirement that probably sounds the death knell for racial gerrymandering cases. The Court declared that the district court committed “clear factual error in concluding that race played a predominant role in the legislature’s design,” and the absence of an alternative map warranted an “adverse inference against the Challengers.”

The opinion further called the plaintiffs’ expert reports “deeply flawed” for much the same reason. The “tens of thousands of maps [produced] with differently configured districts” did not include “a single map that achieved the legislature’s partisan goal” of keeping the challenged districts Republican, the majority held.

In the majority’s version of the evidence, no direct evidence suggested the legislature’s map was drawn with a racial “target,” as the district court found. The Court also criticized the district court for “infer[ring]” that, by keeping the racial percentages in the districts the same as previously existed (17 percent), race played a predominant role in the districts’ shape. It noted that no map offered by the plaintiffs “would have satisfied the legislature’s political aim” without increasing the concentration of minority voters, which would have created a Democratic majority. Thus, the majority concluded the 17-percent standard was “simply a side effect of the legislature’s partisan goal” and not constitutionally suspect.

The majority also rejected the dissent’s criticism that clear-error review is essentially perfunctory, declaring that “appellants are entitled to meaningful appellate review” of factual findings.

Justice Thomas concurred but protested the searching factual review that the majority undertook because, in his view, it “exceeds the proper scope of clear-error review” and was unnecessary to resolve the case. It is worth noting that the bulk of the Thomas dissent argues against the Court’s involvement in racial gerrymandering cases altogether. Within that stance, Thomas criticizes a “boundless view of equitable remedies” that he traces to fallout from Brown v. Board of Education and the decision’s “impatience with the pace of discrimination,” seemingly treating that as an original sin, which may have been justified at the time but that has brought about “extravagant uses of judicial power” well beyond the “Framers’ design.”

Justice Kagan’s dissent mounted more withering criticism, starting with the majority’s portrayal of the plaintiffs’ evidence in only the “sketchiest of terms.” She pointed out that evidence established that the software used by the mapmakers was configured to show how any change in the district lines affected the district’s racial composition and achieved “to the decimal point” the exclusion of African-American citizens to accomplish their partisan goals. Perhaps more importantly for appellate advocates, she accused the majority of abandoning the clear-error standard that substantially defers to plausible factual findings, by choosing the evidence that supports its preferred outcome, “ignores or minimizes less convenient proof,” and errs in its reading of expert opinions, while asserting a better understanding of the evidence than did the three-judge district court.

Kagan’s critique also asserts that the majority’s new clear-evidence rule defers, not to the district court, but to the losing defendant because the majority interposed a presumption that legislatures act in good faith. She adds that the alternative-map requirement constitutes a new invention by the majority, in whose absence an adverse inference is drawn “no matter how much proof of a constitutional violation [plaintiffs] otherwise present,” describing this as judicial “micro-management of a plaintiff’s case . . . elsewhere unheard of in constitutional litigation.” She then suggests that the majority opinion is an adoption of Justice Alito’s dissent from Cooper so that the “dissent becomes the law.” Only in that dissent, she points out, did an alternative map requirement receive support before. She also lambasted the majority for reformulating her own majority opinion in Cooper.

The bottom line outside the context of gerrymandering cases is that the majority endorsed a more powerful review of evidence by appellate courts, particularly when legal presumptions exist that support the appellant, creating a level of deference to their evidence over that found by the district court. Any advocate seeking clear-evidence review should now search for favorable presumptions that would support greater appellate scrutiny of the evidence.