The Supreme Court, in a single hearing on Wednesday, will make a new effort to sort out when state legislatures may rely on race in drawing new election districts for the U.S. House of Representatives. This case from South Carolina could affect Democrats’ chances of controlling the House in 2025.
Tomorrow’s hearing: Alexander v. South Carolina State Conference of the NAACP Beginning at 10 a.m., the hearing is scheduled for one hour.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Background on Wednesday’s case: The Supreme Court has all but eliminated the power of voters under the Constitution to challenge partisan gerrymandering – the drawing of election district maps to give one party a genuine advantage in winning seats in Congress and state legislatures. It did that in the 2019 decision in Rucho v. Common Cause, finding no basis in the Constitution for courts to monitor or control that long-standing practice.
The Court continues, however, to allow challenges under the Constitution and federal voting rights law to racial gerrymanders – that is, the use of race in drawing election maps to reduce the chances that black and other minority voters will be able to elect their chosen candidates.
This case, a dispute over a single House of Representatives district in coastal South Carolina – District 1, involves a mix of racial and partisan factors. It comes down to this: If Republican legislators want to help their party win more seats, can they do so by re-drawing districts that lean Democratic or strongly Democratic when those districts also have large numbers of black voters? Is that permissible partisan gerrymandering, or illegal racial gerrymandering?
It is now a constitutional fact that, if a state does not independently adopt its own limits on partisan gerrymandering, the political skewing of district lines can only be stopped or reduced by rigorous challenges to racial gerrymandering. This case is almost a perfect example of that fact.
South Carolina’s GOP-dominated legislature, in crafting a new House district map after the 2020 Census, wound up shifting tens of thousands of black voters into and out of District 1, and that achieved the desired result of a Republican winning there.
In election after election for House seats, up through 2016, a Republican had won that district. But in 2018, a Democrat narrowly won the seat. In 2020, a Republican re-took the seat, but only narrowly. The state legislature in creating a new map in 2021 wanted to assure that the seat would be won by the GOP. And its plan worked: Republican Rep. Nancy Mace, whose 2020 victory was by less than 2 percentage points, won reelection in 2022 by nearly 14 points.
Mace’s district borders with District 6, represented since 1993 by Democratic Rep. James Clyburn. He is the only black member among South Carolina’s seven-member House delegation; Clyburn’s district has been politically safe for him, with a population that is 49 percent black.
If he or another Democrat wins District 6 in 2024, and if Mace’s District 1 has to be re-drawn as a result of this case in the Supreme Court and a Democrat is chosen there, it could help the Democrats win back a majority in the House.
The facts of this case: The South Carolina state legislature set out to draw new House districts, to account for population shifts recorded in the 2020 Census. As is commonly true in state legislatures dominated or controlled by either major political party, the South Carolina body met in Columbia to craft districts that would serve party goals – here, to preserve the Republican six-to-one seat lineup in its House delegation.
Those efforts were focused mainly on Districts 1 where, under equal districting principles, black voters would probably be able to win the seat for Democrats. As elsewhere across America, there is a direct correlation between black voters and Democratic Party allegiance. The legislature had no plan to defeat 16-term Rep. Clyburn in District 6, but the redrawing of his district, too, was necessary because of what the legislature wanted to do in neighboring District 1.
Throughout this redistricting process, and throughout the court case challenging the resulting maps, GOP leaders have insisted that they were pursuing partisan Republican objectives, as they are legally allowed to do, and were not aiming at sorting voters by race. They were fully aware, though, that moving Democratic voters to or from a district would have a racial impact.
Under existing law, if race is not the “predominant factor” in creating a district, this approach is not forbidden. But as this case illustrates, the key question is whether race was, or was not, predominant in the process in South Carolina.
The Census had shown that the ideal population of a House district in the state would be about 730,000 people. District 1, as it existed then, had about 88,000 people more than that ideal, while District 6 was short by about 85,000. Under constitutional equality principles (“one person-one vote”), districts within a state must be fairly close to equal.
Modern computer methods and highly detailed census data, including past voting patterns, allow mapmakers the capacity to achieve almost any districting goal – including party allegiance – by drawing lines to include or exclude people as needed.
In South Carolina, the legislature could have made Districts 1 and 6 closer to equal simply by moving the 88,000 (over the ideal) in District 1 into District 6. Instead, the lawmakers moved more than 53,000 people out of District 6 and into District 1, offset by moving more than 130,000 out of District 1 into District 6.
This required a considerable number of line changes for District 1’s new boundaries, contrary to an announced plan to make as few changes as necessary to respond to census results.
The lead sponsor of what would become the final map said later that he had been told to make District 1 “more Republican leaning.” He said that “we’ve got a Republican-controlled legislature, and we knew there would be no way that we would pass a plan that did otherwise.”
The principal mapmaker who drew up the final plan said later that he did not consider race at all, but added that he was aware of the racial impact of that map. The number of black voters left in District 1 was small enough that there was no dependable chance that their votes would prevail.
The final map was challenged in a three-judge federal trial court (the type used for redistricting challenges) by the state chapter of the NAACP and a black voter living in District 1. The lawsuit claimed that the new lines of the district were an unconstitutional racial gerrymander and had been drawn to intentionally dilute the voting power of its black residents.
Thar court struck down the District 1 map on both points.
It declared that the map was a racial gerrymander, finding that race was “the predominant motivating factor.” If more blacks had been left within the lines of the district, the court decided, it would have meant the Democrats could compete for the seat and might even win it. Some 62 percent of the blacks in the district, it noted, were moved by redistricting into District 6. On the vote-dilution question, that court found again that race was the predominant factor, and resulted in intentional discrimination based on race.
Barring the use of that plan by the state, the three-judge court put its ruling on hold until after a Supreme Court appeal.
Under the law governing redistricting cases, appeals go directly from trial court to the Supreme Court, bypassing a federal appeals court. The Justices do not have the option of denying review of such a case, so must take definitive action on such an appeal.
The Biden Administration’s Justice Department is taking part in the case, supporting the part of the lower court finding an invalid racial gerrymander. It disputes some of the lower court’s reasoning on the vote-dilution issue, but suggests that the Court need not deal with that part of the case if it strikes down the plan on the basis of the gerrymander.
The case was appealed by the leaders of the state legislature and by state election officials. The appeal raises six separate legal questions, centering on the core dispute of whether the lower court properly assigned a racial motive to a redistricting plan that the appeal contends was based on political factors.
The questions before the Court: What proof is needed to show that a redistricting plan was unconstitutionally based on racial factors, when the legislature insists it was pursuing a partisan political goal? Did the lower court here wrongly rule that a racial target was the legislature’s goal? Did the lower court here wrongly refuse to treat the legislature’s plan as an act of good-faith lawmaking? Can the final lines for District 1 be justified by traditional principles governing the drawing of new election districts, when there is no proof of intentional harm to black voters?
Significance: The most important test for the Supreme Court in this case is whether it can and will provide new guidance to legislatures on how they are to treat the undeniable reality that a partisan political goal is often closely related to the fact that race often reflects party affiliation. Can a legislature separate those two? If it can, must it?
The redistricting process is, at its most basic level, one of drawing lines on a map that have the political effect of moving people between election districts. People, of course, do not actually change where they live physically, but they often get new political addresses. And that new locality may have a great deal to do with whether they and people sharing their politics have a realistic chance of electing people they prefer to public office, especially in Congress and in state legislatures.
Race, to be sure, is almost always present in the process. And that is definitely so when a legislature is seeking to use its line-drawing power to achieve a partisan advantage. It is demonstrated fact that black voters – as an identifiable class, if not as individuals – tend to ally with the Democratic Party.
Because race is such a volatile issue, in politics as elsewhere in society, courts are under strict mandates on how they are to judge that issue. The standard test is that the use of race is forbidden if it is shown to be “the predominant factor” in line-drawing.
The Justice Department, in a filing in this South Carolina case, noted that this is “a demanding standard, and a trial court must conduct an especially careful inquiry when a legislature argues that its decisions were driven by politics rather than race.”
The heart of this case is whether the South Carolina Republicans’ political goal in redistricting could be achieved without any reference to the race of people being moved in or out of districts. The lower court ruled that the GOP goal would have been impossible to achieve unless it reduced the number of black voters in District 1. It is up to the Justices to say if that was right.
The Court’s next scheduled hearings will begin on October 30.
