About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


2026 U. Ill. L. Rev. 1 (2026)

handle is hein.journals/unilllr2026 and id is 1 raw text is: THE STANDARD OF PROOF IN RACIAL- GERRYMANDERING CASES: ALEXANDER'S MISTAKE AND ITS IMPLICATIONS Michael S. Pardo* In Alexander v. South Carolina State Conference of the NAACP, the United States Supreme Court reversed a district court ruling that a South Carolina congressional district was an unconstitutional racial gerryman- der. From the perspectives of constitutional law, election law, and politics, the decision was notable for several important reasons and the decision will no doubt prompt scholarly discussion in these areas. Alexander, however, was also a case about evidence, evidence law, and legal proof The case turned on whether the district court's factual finding that the plaintiffs had met their burden ofproofwas clearly erro- neous. When viewedfrom the perspective of evidence law and legal proof the decision is both surprising and problematic. It is surprising because the majority opinion mistakes the substantive legal standard for the evidentiary standard of proof (a mistake not called out by an otherwise detailed dis- sent). It is problematic because, in doing so, the majority opinion also ap- pears to raise the standard ofprooffrom preponderance of the evidence to something like clear and convincing evidence, without explicitly jus- tifying that policy choice. If this reading of Alexander is correct, several implications follow. First, the analysis clarifies aspects of the doctrine that are otherwise con- fusing or obscure most importantly, the presumption of good faith by the legislature and the evidentiary significance of alternative legislative maps. As will be illustrated, the standard of proof gives content to these aspects. Second, the analysis best explains the disagreements between the majority and the dissent about the evidence in the case and the application of the clear error standard. Third, and most importantly, the analysis makes explicit an issue on which future cases will depend. As a matter of * Scott K. Ginsburg Professor of Evidence Law, Georgetown University Law Center. My thanks for helpful comments to Ron Allen, Josh Chafetz, Amy Griffin, Rick Hasen, Dennis Patterson, Meredith Render, Gustavo Ribeiro, Paul Smith, Doug Spencer, and the participants at a faculty workshop at Rutgers Law School (Camden), a seminar at American University Washington College of Law, and the Evidence Summer Workshop at Vanderbilt Law School. 1