Republican state lawmakers told the Supreme Court on Oct. 11 that the justices should overturn a ruling that the South Carolina legislature racially gerrymandered a congressional district because lawmakers used political, not racial, data to justify the redrawn map.
The Supreme Court frowns on racial gerrymanders as constitutionally suspect but has adopted a hands-off attitude toward partisan gerrymanders.
In Rucho v. Common Cause (2019), the court held that partisan gerrymandering claims present political questions beyond the reach of the federal courts.
“[Although] excessive partisanship in districting leads to results that reasonably seem unjust, [this] does not mean that the solution lies with the federal judiciary,” Chief Justice John Roberts wrote for the majority at the time.
“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
The case has been closely watched because it could affect Republicans’ ability to maintain what, at present, is a thin majority in the U.S. House of Representatives after next year’s congressional elections.
The congressional seat is currently held by Rep. Nancy Mace (R-S.C.).
Ms. Mace was elected to her second term in 2022 with 56.4 percent of the popular vote, beating Democrat Annie Andrews, who won 42.5 percent of the vote. In 2020, she narrowly defeated incumbent Democrat Joe Cunningham by a margin of 50.6 percent to 49.3 percent.
Republicans outnumber Democrats in the state’s delegation to the U.S. House by six to one. Ms. Mace’s district covers the Atlantic shoreline, including Charleston and Hilton Head. Both of the state’s U.S. senators are Republicans.
The case is Alexander v. South Carolina State Conference of the NAACP (court file 22-807), an appeal against a ruling of the U.S. District Court in South Carolina. State Sen. Thomas Alexander, a Republican, is president of the South Carolina Senate.
In January, following an eight-day trial, a three-member panel of the district court ordered that a new map be drawn for South Carolina’s 1st Congressional District, determining that the 2022 map violated the equal protection clause of the 14th Amendment because it had been calculated to water down the power of black voters.
The district court didn’t receive direct evidence that race was used by mapmakers but relied on experts who said the map couldn’t have been drawn without recourse to racial demographics.
All members of the panel were appointed by Democrats. Two of the judges, Mary Geiger Lewis and Richard Gergel, were appointed by President Barack Obama. The other judge, Toby Heytens, was appointed by President Joe Biden.
The appeal was filed by South Carolina Republicans, including Mr. Alexander and G. Murrell Smith Jr., speaker of the South Carolina House of Representatives.
The two lawmakers said in their February brief that the panel failed to accept the usual legal presumption that the Legislature acted in good faith when carrying out redistricting.
In striking down “an isolated portion” of the congressional district “as a racial gerrymander,” the panel “abandoned all pretext of extraordinary caution in this case.”
“The result is a thinly reasoned order that presumes bad faith and is riddled with legal mistakes,” the brief reads.
On the other side, the NAACP and its supporters argue that black voters were targeted and that the district court ruled correctly in finding that the electoral map was discriminatory.
They say that after the 2020 census results were known, the state drew the 1st Congressional District by moving black voters, who tend to vote Democrat, next door into the 6th Congressional District, which is held by Rep. Jim Clyburn (D-S.C.). They argue that the map drawers were motivated primarily by race, which would violate the 14th Amendment and the 15th Amendment, which provides that the right to vote won’t be “denied or abridged” because of race.
During the oral argument on Oct. 11, Justice Neil Gorsuch said the court accepts “as a given” that “the Legislature here did seek to pursue a partisan gerrymander, if you will, or a partisan tilt, I think, is their preferred term, and that that’s permissible under this court’s precedents.”
John M. Gore, attorney for the Republicans, told the justices that the district is “not a racial gerrymander.”
Instead, the General Assembly “largely preserved District 1 from the constitutional benchmark plan and made changes based on traditional criteria and politics.”
The district court “acknowledged that the General Assembly pursued a political goal of increasing District 1’s Republican vote share. It achieved that goal by moving Republicans into the district and Democrats out of the district. All of the direct evidence confirms that it used political data, not racial data, to identify Republicans and Democrats.”
Despite the district court’s finding of a racial gerrymander, the panel still found that the state legislature “made political changes in other parts of District 1 without using a racial target.”
“The General Assembly had no reason to and did not use a racial target. It used political data to pursue its political goals,” Mr. Gore said.
The lower court’s decision must be reversed, or it “will undermine this court’s holding that partisan gerrymandering claims are not justiciable.”
Partisan gerrymander claims can masquerade as racial gerrymander claims, according to Mr. Gore.
“Partisan gerrymandering claims can always be repackaged as racial gerrymandering claims if all plaintiffs in lower courts have to do is ignore direct evidence of intent, infer a racial target from the correlation between race and politics, and point to malleable expert analysis,” he said.
Justice Sonia Sotomayor told Mr. Gore that circumstantial evidence of race-based targeting can be enough.
In Cooper v. Harris (2017), the court was “clear you don’t need a smoking gun, and if you don’t need a smoking gun, you don’t need direct evidence.”
But Justice Samuel Alito told the attorney that the Supreme Court isn’t required to “simply rubber-stamp” the district court’s findings, “particularly in a case in which ... the basis for a judgment in favor of the [NAACP] relies very heavily, if not entirely, on expert reports.”
NAACP attorney Leah Aden told the justices that the district court was correct to find “that race predominated over partisanship in [the 1st Congressional District’s] design based on strong factual findings, including that after map drawers moved more than 193,000 people in and out of [the 1st Congressional District], its [black voting-age population] remained identical as in the 2011 map.”
“In so doing, mapmakers sorted more than 30,000 black Charlestonians based on their race, removing 11 of the 12 precincts with the highest black voting-age populations. This massive movement disregarded the least change approach that the state applied statewide and that mapmakers admitted they abandoned only in Charleston County, which had been [the 1st Congressional District’s] historical anchor,” she said.
Chief Justice Roberts told Ms. Aden that the Supreme Court has “never had a case where there’s been no direct evidence; no map, no strangely configured districts; a very large amount of political evidence, whether the district court chose to credit it or not; and, instead, [with] it all resting on circumstantial evidence.”
Ms. Aden told the chief justice that she disagreed.
The state legislature moved “193,000 people around, and they can only explain it as being by coincidence,” she said.
“30,000 Charlestonians [were] moved out of [the 1st congressional district], out of their home county,” Ms. Aden said.
She told The Epoch Times after the hearing that she was optimistic about her side’s chances.
“I think that we made clear that the standard for overturning a factual finding of a racial gerrymandering is a high one,” Ms. Aden said in an interview.
“This court is not tasked with having another mini-trial on what evidence we did or did not establish, and we convinced three judges that there was a racial gerrymander, and I believe that will be respected by this court.”
The NAACP held a rally on the courthouse steps after the hearing.
Brenda Murphy, president of the NAACP’s South Carolina State Conference, said the legislators who approved the map “are perpetuating” the state’s “long, sordid history of enslavement and systemic racism.”
“There is no place for racially discriminatory gerrymandering in a functioning democracy,” she said.
Mr. Gore didn’t respond to a request for comment by press time.
