On Wednesday, Oct. 11, the U.S. Supreme Court heard oral argument in Alexander v. South Carolina State Conference of the NAACP, a congressional redistricting case out of South Carolina.
In Alexander, the Court is considering whether a federal three-judge panel correctly held that South Carolina’s 1st Congressional District violates the U.S. Constitution’s prohibition on racial gerrymandering. The Equal Protection Clause of the 14th Amendment and prior Supreme Court precedent forbid using race as the predominant factor in placing a significant number of voters within or without an electoral district unless there is a compelling state interest in doing so. Below are a few key takeaways from today’s oral argument.
Alexander is the Court’s first racial gerrymandering case since it issued a landmark ruling on partisan gerrymandering in 2019.
South Carolina’s central argument in Alexander is that the state’s Republican-controlled Legislature relied on partisanship — not race — when redrawing the state’s congressional map after the 2020 census. At oral argument and in its briefing, the state maintained that the Legislature’s decision to move over 30,000 Black voters from Charleston County out of the state’s 1st Congressional District was motivated by a desire to make the district a more reliable Republican stronghold.
Leaning into South Carolina’s arguments about partisanship, Justice Samuel Alito, along with several of the other conservative justices, honed in on the idea that “this whole case is about disentangling race and politics.”
The state’s reliance on avowedly partisan motives was made possible by the U.S. Supreme Court’s 2019 decision in Rucho v. Common Cause. In Rucho, the Court ruled that it did not have authority nor the ability to resolve partisan gerrymandering claims, paving the way for states to blatantly gerrymander their congressional maps to favor one party over another.
During the argument, Justice Elena Kagan acknowledged the impact of Rucho on racial gerrymandering claims: “Before Rucho, you could understand completely why it was that mapmakers started [using] race in order to achieve partisan gerrymanders because they couldn’t do partisan gerrymanders directly. They were afraid that was going to be found unlawful…so why do people keep using race when they can just [partisan gerrymander] directly?”
In contrast to the state’s defense, the lawyer for the South Carolina NAACP and Black voters (“the NAACP lawyer”) repeatedly pointed to the record evidence showing that the Legislature was using “race as a proxy to predict partisan behavior.” According to the South Carolina NAACP, the Legislature did so when it moved over 193,000 people in and out of the 1st Congressional District, but nonetheless maintained the same 17% Black voting-age population throughout the district by removing “11 of the 12 precincts with the highest Black voting-age populations.”
Citing the lower court’s findings, Justice Sonia Sotomayor stated during a colloquy with the NAACP lawyer that “if the only way that you can satisfy yourself, for whatever your political reasons are, is by using race, that’s illegal.” The NAACP lawyer agreed that “you can’t use race as a proxy for a political goal,” citing the Supreme Court’s most recently decided racial gerrymandering decision from 2017, Cooper v. Harris.
It is unclear how the justices will land on the issue of race and partisanship in the post-Rucho context. While the lower court found that the Legislature deliberately and impermissibly used race when redrawing the state’s congressional districts, some justices seemed inclined to use Alexander to refashion the Court’s racial gerrymandering precedent as it pertains to cases in which race and politics closely intertwine.
The concept of an “alternative map” came up repeatedly throughout oral argument.
At the onset of the argument, South Carolina asserted that the three-judge panel erred by failing to “enforce the alternative map requirement.” Under this purported “requirement,” plaintiffs bringing racial gerrymandering claims would have to produce an alternative map to the one being challenged in order to demonstrate that the Legislature could achieve its political aims without using race as a predominant factor.
Kagan was quick to retort: “The alternative map requirement doesn’t exist.”
Kagan reminded the state that under the Court’s racial gerrymandering case law in Cooper, “the plaintiffs task is simply to persuade the trial court, without any special evidentiary prerequisite, that race not politics was the predominant consideration.” Explaining that the alternative map is “merely an evidentiary tool,” but not a binding requirement, Kagan emphatically concluded that “neither its presence nor its absence, can itself resolve a racial gerrymandering.”
Unlike in Voting Rights Act redistricting cases — such as Allen v. Milligan — where plaintiffs must typically demonstrate that a racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district” via an alternative map, plaintiffs in racial gerrymandering cases have not been required to produce an illustrative map under recent Supreme Court precedent.
As the arguments proceeded, the issue of an “alternative map requirement” took center stage. Sotomayor, for example, underscored that there were alternative maps presented in the litigation by the plaintiffs’ experts “show[ing] that if race wasn’t used, the map would not look like” the enacted map.
The discussion of alternative maps spurred further questioning from the Court’s conservative bloc about the burden that plaintiffs must meet in order to prove racial gerrymandering claims. As the NAACP lawyer and U.S. Assistant Solicitor General Caroline Flynn repeatedly emphasized the Court’s racial predominance standard set forth in Cooper, Chief Justice John Roberts and Justice Neil Gorsuch referred to the Court’s older racial gerrymandering standards, which involved a host of other requirements that plaintiffs must meet.
At one point, Roberts stated that the South Carolina NAACP is trying to carry its burden of “disentangling race and politics…without any direct evidence, with no alternative map, with no odd-shaped districts.”
In contrast, Sotomayor reiterated her view that “Cooper was…clear that you don’t need a smoking gun, and if you don’t need a smoking gun, you don’t need direct evidence” (such as an alternative map) to prove a racial gerrymander.
Certain justices seemed to entertain South Carolina’s claim that the lower court committed “clear legal errors.”
Over the course of the arguments, South Carolina’s attorney claimed that the three-judge panel committed “several legal errors” when it struck down South Carolina’s 1st Congressional District on racial gerrymandering grounds.
Under what is known as the “clear error standard,” an appellate court may only reverse a lower court’s finding of facts if they are “clearly erroneous.” Against this heightened burden, the state attempted to identify a series of factual issues — ranging from faulty election data to shortcomings in the methodologies relied upon by various experts — that it believed constituted “clear error.”
In addressing the state’s arguments, Justice Ketanji Brown Jackson reasoned that as she “understood from Cooper, the clear error standard…is a highly deferential standard, that the Court may not reverse just because it would have decided the matter differently.” Jackson went on to draw an important distinction between clear error review — the standard at issue in Alexander — versus “de novo review,” in which a court decides a case anew without deference to a previous court’s decision.
I guess what I’m concerned about is that I kind of hear you wanting us to do a de novo review, as opposed to a clear error review, because, to the extent that you’re now asking us to look at the flaws in [expert] testimony and I guess disagree with the district court’s crediting [of that expert report] that sounds to me like de novo.Justice Ketanji Brown Jackson
Meanwhile, other members of the Court — including Justices Amy Coney Barrett and Alito — inquired about the methods employed by various experts, despite the NAACP lawyer’s recurring assertion that “unrebutted expert testimony [showed] that race was a better predictor than partisan affiliation for the design of CD1.” In responding to a line of questioning by Alito, the NAACP lawyer posed her own question: “[Why] are we retrying expert testimony on appeal?”
The fate of South Carolina’s congressional map and racial gerrymandering claims hang in the balance.
While today’s oral argument focused on some of the more technical aspects of the case, what is fundamentally at stake in Alexander is to what extent the Court is willing to accept partisan defenses in racial gerrymandering cases. If the Court were to fully embrace South Carolina’s core arguments, it would become much more difficult for plaintiffs to prove their claims and prevail in racial gerrymandering cases.
With federal court review of partisan gerrymandering claims off the table due to the Supreme Court’s Rucho decision, further limits on racial gerrymandering claims could drastically hinder voters’ ability to fight unfair maps.