The supreme court’s conservative majority appeared skeptical on Wednesday that South Carolina Republicans discriminated against Black voters when it redrew one of the state’s congressional districts to make it friendlier to the GOP.
During two-hours of oral argument on Wednesday, the court’s conservative justices aggressively poked holes in a three-judge panel’s ruling earlier this year finding that Republicans had unlawfully moved around 30,000 Republican voters out of South Carolina’s first congressional district to make it more Republican. Chief Justice John Roberts, a key swing vote on the court, seemed unconvinced by the evidence the lower court had accepted, saying at one point the challengers were asking the court to embrace arguments that “would be breaking new ground in our voting rights jurisdprudence”.
A decision reversing the lower court would leave South Carolina’s map in place in a major win for Republicans, who control six of the state’s seven congressional districts. Meanwhile, requiring the state to redraw the map would likely make its first congressional district, represented by Republican Nancy Mace, more competitive.
The central question in the case, Alexander v South Carolina Conference of the NAACP, is whether South Carolina Republicans violated the US constitution when they drew new lines for Mace’s district after the 2020 census. In order to make it more safely Republican, they added conservative counties to the district and removed 30,000 Black voters in Charleston – 62% of those in the county – into the neighboring district. Republicans have defended their actions by saying their goal was political and that they did not consider race when drawing the districts.
Much of Wednesday’s hearing focused on evidence, specifically expert reports, that the trial court had accepted as proof that Republicans relied too much on race in their drawing of maps. John Gore, an attorney representing South Carolina Republicans, sought to convince the justices that the lower court had made a “clear error” in how it evaluated that proof.
Roberts appeared wary that the challengers hadn’t offered any direct evidence of discrimination or alternative maps to explain how Republicans could have achieved their stated goal without taking race into account. Justices Samuel Alito and Neil Gorsuch also seized on the lack of alternative maps to show that the challengers in the case had not overcome the presumption of good faith that lawmakers were entitled to.
“At least as a practical matter, in a case where this no direct evidence or virtually no direct evidence, there is no way in which a plaintiff can disentangle race and politics,” Alito said.
But Ketanji Brown Jackson, one of the court’s liberal justices, questioned whether plaintiffs would ever be able to produce that kind of evidence.
“I wonder if it is reasonable to say that such evidence could exist in a scenario where there is no majority-minority district,” she said. “In a situation like this, where that is not the case, where the state is saying instead we are trying to achieve a partisan tilt … are you saying we have to have a smoking gun?”
Leah Aden, an attorney with the NAACP Legal Defense and Educational Fund (LDF) pointed to a wealth of other evidence the plaintiffs had offered to prove race had predominated when Republicans drew the lines. The lower court had accepted an expert analysis showing that race was a better predictor than partisanship of whether or not an area was moved out of the first congressional district.
She also questioned how the Black voting age population in the district wound up remaining the same – 17.8% – after more than 190,000 voters were moved around if lawmakers had not been considering race. Challengers in the case argue that Republicans removed Black voters in Charleston to make room for Black voters from more conservative areas.
The court’s three liberal justices all appeared in favor of upholding the lower court’s decision striking down South Carolina’s map. At the start of the argument, Justice Elena Kagan pointed out the court’s precedent did not require challengers to propose an alternative map.
Jackson pressed Gore to explain how the percentage of Black voters could have remained the same if lawmakers were not considering race. “Thousands of people were moved in and out of that district, how do you explain that consistency?”
Gore responded only by saying that the Black share of the voting age population had shifted throughout the mapmaking process, and that “people were being moved around but not very many”.
The three liberal justices said Gore was encouraging the supreme court to second guess findings from the lower court that Republicans hadn’t even rebutted at trial.
The question for the court, Jackson said, wasn’t whether they would reach a different conclusion from the evidence the trial court considered, but whether the judges had made a clear error in evaluating it.
The three-judge panel had ruled in January that Republicans had undertaken an “effective bleaching” of the district, deliberately sorting Black voters based on their race. That kind of racial sorting violates the US constitution’s 14th amendment, which guarantees equal protection under the law.
There have also been allegations that Jim Clyburn, one of the most powerful Democrats in Washington, condoned adding Black voters to his district and assisted the legislature in coming up with a plan. Clyburn has strongly disputed those allegations and filed a friend of the court brief urging the supreme court to uphold the lower court’s finding and strike down the first congressional district.
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Justice Brett Kavanaugh appeared interested in Clyburn’s role on Wednesday, asking Aden about a draft map he proposed that had a lower Black voting age population in district one than Republicans ultimately adopted. Aden said Clyburn’s proposal was “irrelevant” because he was only proposing a partial map that ultimately did not determine how voters were sorted.
The US supreme court has long prohibited racial gerrymandering – sorting voters into districts based on their race with no legitimate purpose – but it also said in 2019 that there is nothing the federal courts can do to stop gerrymandering for partisan aims. Kagan noted this was the first racial gerrymandering case that had come to the court since that decision.
A ruling approving South Carolina’s redistricting approach could give lawmakers much more leeway to use partisanship as a pretext for unconstitutionally moving voters based on their race. That could be a boon to lawmakers in the US south, where voting is often racially polarized.
While the current conservative court has been extremely hostile to voting rights in recent years, litigants have had some success in similar racial gerrymandering cases. In a 2017 case, for example, the court struck down two North Carolina congressional districts because Republicans in the state had relied too much on race with no legitimate purpose.
“The sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics,” Justice Elena Kagan wrote in a footnote in the majority opinion.
“This case stands for the proposition that you cannot use partisanship as a guise to harm Black communities,” said Antonio Ingram II, a lawyer with the NAACP Legal Defense and Educational Fund (LDF), which is representing the challengers in the case. “You cannot use political goals or interests in order to harm Black voters. Black voters cannot be collateral damage to craft partisan gerrymanders.”
To bolster their argument, the challengers retained a statistical expert, Harvard professor Kosuke Imai, who produced 10,000 simulated maps that did not take race into account. None of those 10,000 simulations produced a lower Black voting age population in the first congressional district than the plan Republicans adopted.
The justice department also filed a brief urging the court to uphold the lower court’s ruling and strike down congressional district 1. “The court permissibly found that race predominated in the drawing of CD1 because mapmakers relied on race to achieve their partisan goals,” Elizabeth Prelogar, the solicitor general, wrote in a brief.
Ingram, the LDF attorney, said that the map South Carolina Republicans had implemented would ultimately make it harder for Black voters along the coast of the state to get someone to advocate for them on issues like climate change. He noted that voters in Charleston, near the coast of South Carolina, who were being attached to CD-6, were being annexed into a largely inland district.
“This is about Black voters not having champions in their own communities that are responsive to their needs that are influenced by their electoral power to really advocate for federal allocation of resources without things that will improve their quality of life.”