Josh Blackman on Justice Thomas on the South Carolina Redistricting Case [Updated]Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Justice Thomas's Concurrence in Alexander v. SC NAACP - I think Justice Thomas is setting up to find that the Voting Rights Act is unconstitutional, at least with regard to redistricting.  From the introduction:

On Thursday, the Court decided Alexander v. South Carolina Conference of the NAACP. This redistricting case was unique in that it was brought directly under the Constitution, rather than under the Voting Rights Act. The Court split 6-3 along the right-left divide. The majority held that race did not predominate in drawing the congressional district. Justice Alito's majority opinion afforded a presumption of good faith to the legislature. At most, the Court found, the legislature sought to decrease the political power of Democrats. I don't have much to say about these doctrinal points in the majority, or Justice Kagan's dissent.

Instead, I train my focus where it usually goes: Justice Thomas's concurrence. He wrote "separately to address whether our voting-rights precedents are faithful to the Constitution." Thomas explains that the Court "has no power" to decide these redistricting claims under the Constitution. Thomas's opinion received the usual blowback in the press, but as usual, he shifts the Overton window, and now are talking about whether the VRA may be unconstitutional.

The post goes on to make four points about Thomas' concurrence.  Here is the fourth:

Fourth, Justice Thomas raises the issue of whether the federal courts even have the equitable power to draw remedial maps.

The Court's insistence on adjudicating racial gerrymandering and vote dilution claims has also tempted it to ignore constitutional limits on its remedial powers. Ultimately, the only remedy for the constitutional injuries caused by an illegally drawn map is a new map. But, federal courts lack "the power to create remedies previously unknown to equity jurisprudence." Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332 (1999). And, there is no "indication that the Framers had ever heard of courts" playing any role in resolving electoral districting problems. Rucho, 588 U. S., at 699. The power to redraw a States' electoral districts therefore exceeds "the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act."

I agree.  The Constitution, Article I, Section 4, says:

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.

There's nothing in there about courts.  Courts can say what a legislature does in regard to the "Times, Places and Manner of holding Elections" is unconstitutional and tell the legislature to try again.  Nothing more.

UPDATE:  At Election Law Blog, Travis Crum has further thoughts on Justice Thomas' concurrence: Justice Thomas Exits the Political Thicket.