Cite as: 581 U. S. ____ (2017)
29
Opinion of the Court
powerful direct proof that the legislature adopted the map
it did for racial reasons. See Tr. of Oral Arg. 8. Because
the plaintiffs here (as all agree) did not present such a
counter-map, North Carolina concludes that they cannot
prevail. The dissent echoes that argument. See post, at
6–11.
We have no doubt that an alternative districting plan, of
the kind North Carolina describes, can serve as key evidence in a race-versus-politics dispute. One, often highly
persuasive way to disprove a State’s contention that politics drove a district’s lines is to show that the legislature
had the capacity to accomplish all its partisan goals without moving so many members of a minority group into the
district. If you were really sorting by political behavior
instead of skin color (so the argument goes) you would
have done—or, at least, could just as well have done—this.
Such would-have, could-have, and (to round out the set)
should-have arguments are a familiar means of undermining a claim that an action was based on a permissible,
rather than a prohibited, ground. See, e.g., Miller-El v.
Dretke, 545 U. S. 231, 249 (2005) (“If that were the [real]
explanation for striking [juror] Warren[,] the prosecutors
should have struck [juror] Jenkins” too).
But they are hardly the only means. Suppose that the
plaintiff in a dispute like this one introduced scores of
leaked emails from state officials instructing their mapmaker to pack as many black voters as possible into a
district, or telling him to make sure its BVAP hit 75%.
Based on such evidence, a court could find that racial
rather than political factors predominated in a district’s
design, with or without an alternative map. And so too in
cases lacking that kind of smoking gun, as long as the
evidence offered satisfies the plaintiff ’s burden of proof.
In Bush v. Vera, for example, this Court upheld a finding
of racial predominance based on “substantial direct evidence of the legislature’s racial motivations”—including
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