How the SCOTUS South Carolina Ruling Could Impact Fight for Fair Representation

The U.S. Supreme Court’s decision to uphold a South Carolina congressional map that federal courts deemed racially discriminatory against Black voters prompted outrage from civil and voting rights advocates, as well as the people directly impacted by the ruling.

In a 6-3 decision handed down last month, the majority-conservative Court found that South Carolina’s congressional map is not unconstitutionally racially gerrymandered, reversing the lower court decision that struck down the map’s 1st Congressional District. The opinion authored by Justice Samuel Alito in Alexander v. South Carolina NAACP said there is “no direct evidence” that the Legislature relied on race when it drew the district, and that the evidence provided to support that conclusion fell “far short of showing that race, not partisan preferences, drove the districting process.”

Brenda Murphy, president of the South Carolina State Conference of the NAACP, which brought the case, described the ruling as another “gut punch” to voting rights. “The future of democracy in South Carolina is dangling by a thread,” she said at the May 23 press conference.

Beyond the immediate harm, legal experts said the Court’s ruling will likely make it more difficult for plaintiffs in South Carolina and elsewhere to bring racial gerrymander claims against electoral maps and sufficiently distinguish between race and/or politics as the driving force behind the new map. This could make it harder for voters to fight for fair representation

Racial gerrymandering cases already have a high burden for plaintiffs. The Court may have made it even harder to bring claims.

In 2019, the Supreme Court handed down a ruling that essentially put an end to litigating partisan gerrymander cases in federal courts, determining in Rucho v. Common Cause that such cases are “beyond the reach of the federal courts,” the Rucho opinion held.

The ruling gave map-drawers “kind of a cover to claim they’re doing this just for partisan reasons, even though they are using race to fulfill those partisan reasons, which is still unconstitutional,” Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers’ Committee, told Democracy Docket. “It’s a conundrum at this point.”

In South Carolina, the lawsuit filed by the state’s NAACP chapter against Republican legislative leaders centered on lawmakers’ decision to move over 30,000 Black voters from Charleston County out of the state’s 1st Congressional District and into the 6th Congressional District. The new map packed Black voters in the 6th Congressional District, while diluting Black voter strength in the 1st, 2nd and 5th Congressional Districts, the plaintiffs alleged.

In January of last year, a three-judge panel agreed in part, striking down the 1st Congressional District for an unconstitutional racial gerrymander. South Carolina Republicans maintained throughout the case that they were motivated by political objectives.

Citing Rucho in the Court’s South Carolina ruling, Alito writes that when partisanship and race correlate, “it naturally follows that a map that has been gerrymandered to achieve a partisan end can look very similar to a racially gerrymandered map.” To prevail on a racial gerrymander claim, the opinion explains, plaintiffs must “disentangle race from politics,” by proving that race drove the redrawing.

“If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.”

But that’s a high bar to clear. Plaintiffs who can provide direct evidence of racial gerrymandering — such as, for example, a map-drawer or legislator testifying that race was the primary factor — typically have a stronger likelihood of prevailing compared to plaintiffs with circumstantial evidence, such as expert testimony. In the South Carolina case, the plaintiffs relied largely on four expert witnesses to help make their case.

It wasn’t enough. The plaintiffs, the opinion says, “provided no direct evidence of a racial gerrymander, and their circumstantial evidence is very weak.” 

Alito makes clear in the opinion that one piece of evidence would have helped: an alternative map — specifically one that demonstrates that the state could have achieved its partisan goals without cracking the 1st Congressional District. In fact, Alito repeatedly faults the plaintiffs for not providing this in the opinion.

After the ruling, attorneys for the plaintiffs took issue with the Court’s requirement.

“We presented expert analysis that actually disentangled race from partisanship, and showed conclusively that voters were moved into and out of [the 1st Congressional District] because of their race, not because of their political affiliation,” Allen Chaney, legal director of the ACLU of South Carolina, said at the NAACP press conference. “ I think that this makes it more difficult moving forward, for folks to meet their newly heightened evidentiary burden under a racial gerrymandering claim.”

Rick Pildes, a constitutional law professor at the NYU School of Law, explained to Democracy Docket via email that the alternative map requirement was first suggested in a majority opinion authored by now-retired Justice Stephen Breyer (a Clinton appointee) in the 2001 Easley v. Cromartie case, which Alito frequently cites in Alexander.

The ruling is already impacting at least one other active case. On Monday, the Court sent a case challenging Arkansas’ congressional districts back to the district court where the court will have to apply the new standards adopted in Alexander.

“In 2017, the Court limited the scope of any such requirement, but the South Carolina case now elevates the importance of an alternative map,” Pildes wrote. “Plaintiffs essentially have to show the state how it could have achieved its partisan gerrymandering objectives with less of a role for race. That might deter plaintiffs from bringing certain of these claims altogether.”

The Supreme Court’s ruling didn’t completely close the door in Alexander.

Speaking to Democracy Docket, Rosenberg noted that the Court did not reject the entirety of the district court’s ruling. The opinion states that the district court wrongly conflated the plaintiffs’ racial gerrymander and vote-dilution claims, which are fundamentally different.

Rosenberg pointed to vote dilution claims under Section 2 of the Voting Rights Act (VRA) as a potential defense against discriminatory maps.

Racial gerrymander claims are typically brought under the 14th Amendment’s Equal Protection Clause, which requires a state to govern impartially, “not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.” Racial vote-dilution claims are usually brought under Section 2 of the VRA against maps that minimize minority voter strength by either packing minority voters into one district (weakening their voting power elsewhere) or scattering minority voters across districts, denying them the ability to elect their preferred candidate. 

The latter focuses on discriminatory results, the former on discriminatory intent. “So there are avenues of relief,” Rosenberg said.

Racial gerrymandering cases have changed dramatically since they were first brought in the 1990s. “In that first decade, it functioned mainly as a constraint on the creation of VRA districts,” Pildes explained. Many 1990s cases, such as 1993’s Shaw v. Reno, were brought by white plaintiffs. “In the 2000s it was mostly irrelevant. In the 2010[s] round of redistricting, it then became a tool on behalf of minority voters to limit excessive packing of [B]lack voters.

“My sense in this decade,” Pildes said, “is that it’s going to be invoked by both sides, with South Carolina being an example of minority plaintiffs invoking it and the pending Louisiana congressional-districting case being an example of its use to try to limit creation of VRA districts.”

In the Louisiana case, a group of mostly white plaintiffs are challenging a congressional map with two majority-Black districts that was created to remedy a VRA violation with a previous map. They allege the map is an unconstitutional racial gerrymander. A federal district court struck down the map in April. Both the state and NAACP appealed to the U.S. Supreme Court, which ultimately allowed Louisiana to move forward with the struck down map for this fall’s election.

“One thing the [Alexander] decision did reiterate,” Rosenberg said, “is that you cannot use race to achieve partisan ends, even if partisan ends is a legitimate goal. As mapmakers, you can’t use race to achieve it. How we prove that is the problem now.”

This story has been corrected to show that a three-judge panel struck down South Carolina’s congressional map in January of last year, not April of this year.