SCOTUS Hears Another Gerrymandering Case

On Tuesday, the Supreme Court held oral argument in Alexander v. South Carolina State Conference of the NAACP. It is the most recent gerrymandering case to come before the Court.

Legal Defense Fund Attorney Leah Aden, who argued the case for the plaintiffs, on her way out of Court on Tuesday

In 2019, the Supreme Court held in Rucho v. Common Cause that federal courts cannot invalidate voting maps that are partisan gerrymanders—maps that are drawn to benefit candidates of one political party. But racial gerrymanders are still unconstitutional under Section 2 of the Voting Rights Act, at least when the people challenging the map can meet the high burden of proof the Court has set. (The state of Alabama found that out last term, although it’s still trying to avoid the Court’s ruling.)

Alexander tees up this issue: What will the Supreme Court do when a Republican legislature “defends” its map as a partisan gerrymander against a challenge brought by Black voters that it’s a racial one. Republican legislative majorities in conservative states have, with increasing frequency, drawn maps that entrench safe Republican seats. Since Black voters are likely to vote Democratic as a block, the maps that achieve the desired goal for Republicans often squash as many block voters as possible into one district, while the remainder are sprinkled among a state’s remaining districts so that their voting power as a block is diluted.

That’s the situation in South Carolina, which adopted a new map after the decennial census that shunted almost 2/3 of the Black voters who had been in District 1 (represented by White Republican Nancy Mace) into District 6 (represented by Black Democrat Jim Clyburn). The new map also pulled Republican voters out of Clyburn’s district and put them into Mace’s district. South Carolina’s defense to the claim its new map was a racial gerrymander was to proudly proclaim that it was, in fact, a partisan one. They conceded that the legislature’s goal when it adopted the map was to protect District 1 and ensure it remained a safe Republican district. That permits Republicans to continue to hold six of South Carolina’s seven house seats.

Their defense amounts to this: what we did is awful, but it’s lawful.

As we know from following last term’s Alabama case, gerrymandering cases don’t follow the usual path through the federal courts. Normally, a single district judge decides a case, which can be appealed to a three-judge panel at a court of appeals, possibly heard en banc by the full court, and then presented to the Supreme Court on certiorari by the party that lost in the court of appeals in an effort to convince the Supreme Court to hear the case. Gerrymandering cases are different. They are decided in the first instance by a three-judge panel consisting of two district judges from in-state and one judge from the relevant court of appeals. The three-judge panel’s decision is appealable directly to the Supreme Court.

That’s how Alexander ended up before the Supreme Court this week. The three-judge panel that heard the case held that South Carolina’s maps were an unconstitutional racial gerrymander. But the Supreme Court didn’t appear to see in that way on Tuesday. By the end of the argument, it looked as though a majority might be willing to pass it off as a partisan gerrymander. Reading the tea leaves from oral argument is an inexact science, but an exchange between the Chief Justice and the lawyer arguing on behalf of the South Carolina NAACP plaintiffs, Leah Aden, was revealing. Justice Roberts told Aden that her clients faced the “very, very difficult” burden of “disentangling race and politics in a situation like this,” before going on to characterize the direct evidence she had as weak. Roberts said that ruling in favor of Black voters would involve the Court “breaking new ground” from prior Section 2 cases. That’s not very encouraging from a Court that, excepting the outrageous Alabama case last term, seems focused on progressively gutting more and more of the protections found in the Voting Rights Act.

Justices Gorsuch, Alito, and Kavanaugh seemed inclined to side with the Chief Justice. It would be surprising given his past votes if Justice Thomas did not join them. And that would be a majority right there, without regard to how Justice Barrett votes, although she too engaged on questions about the “high burden of proof” the plaintiffs face in establishing their race claim. Chief Justice Roberts told Aden that “I’m not saying we can’t get” to a ruling that would protect South Carolina voters, but it didn’t seem to be a very likely prospect.

If the Supreme Court lets South Carolina get away with its map, it will be another blow for Americans who believe that the people should select their elected representatives, instead of letting politicians pick their voters. The lawyer for South Carolina told the Justices that the three-judge panel that ruled against it overlooked direct evidence presented by the state that established it relied on party, not race, when it drew its new maps. But the distinction is a sophistic one, particularly in states where party can be substituted as an effective proxy for race. If South Carolina gets away with this argument, then it will be even more difficult to do away with discriminatory maps after they are adopted by state legislatures.

South Carolina told the Court that voters’ claims of racial gerrymandering were based on “very weak circumstantial evidence.” But for anyone with their eyes open, the evidence of racial discrimination seems as strong as it was when Black people were prevented from registering to vote if they didn’t accurately guess the number of bubbles on a bar or soap or the number of jellybeans in a jar. The Supreme Court should be able to see through “we didn’t look at race, just party.” The lower court did. And frankly, it’s not that difficult.

So, while the issue in Alexander is whether South Carolina map is an unlawful racial gerrymander, the real issue is whether the Supreme Court is willing to protect the rights of voters. The Court will get an additional chance to do that soon, when Alabama, which refused to draw maps that gave Black voters the opportunity to elect candidates of their choice consonant with their numbers in the population, returns to the Court with objections to the new map adopted for the state by the three-judge panel after the legislature refused to comply with SCOTUS’s order. But it would be astonishing if the Court didn’t require Alabama to follow the ruling it handed down just last term—it’s the Court’s ruling in the South Carolina case that may be more telling. At bottom, the case is about whether pretending you’re not discriminating against Black voters is enough for a legislature to get away with it.

Even in the midst of this, there is also good news about voting, although you have to look carefully. As Republican-controlled states have adopted measures that make it more difficult to vote, states are passing, perhaps more quietly, pro-voting measures. Some states have expanded early voting and vote by mail, others have restored the rights of people who have been convicted of felonies to vote. A May report by the Voting Rights Lab found that “more than half of all elections-related bills introduced in the first quarter of the 2021, 2022, and 2023 legislative sessions would expand voting access and support nonpartisan election administration.”

Protections for voting rights can be passed on what we might consider unfertile ground. Michigan adopted a new bipartisan approach to drawing maps that rejects gerrymandering. By all accounts, the first efforts have been successful. Other states have a used a similar process for a long time. There is no reason we can’t all push for it in our own states—there are plenty of people who don’t want politicians supplanting their own choices, regardless of their party affiliation.

During the pandemic, intense public pressure in Alabama resulted in expanding absentee voting so people could vote safely. And instead of resulting in fraud, it resulted in more people voting. That’s something that matters to secretaries of state—they keep track of voter turnout. They all know which states are doing the best job. It’s the record that secretaries of state run on in elections. And really, that’s what we need to remember. A big part of voter suppression is convincing voters they’re powerless and they can’t make a difference. But it’s not true. Vigilance and public pressure can prevent states from passing anti-voting measures and ensure people’s rights are protected. In Maine, when conservative Democrats joined forces with Republican legislators to revoke rank choice voting after the 2016 election, citizens pulled together despite the need to get an extraordinary number of signatures on petitions in a very brief period of time so they could exercise their “citizens’ veto” over the legislature’s action. Rank choice voting is still in place in Maine because citizens did not hesitate to protect their rights.

Understanding that this Court is often disinclined to protect voting rights means we know that we have to leverage our resources, and work together at the federal, state and local levels to protect voting rights. Civil Discourse readers come from across the country (and the world). Not only will some of us run, many of us will work at the polls, advocate for candidates we believe in, help people register, make sure they get to the polls, and act as poll watchers. We can help each other figure out what work needs doing. Past experience tells us it won’t be easy, but we can do this, if we all stay engaged.

I hope you’ll stick around here at Civil Discourse—please consider subscribing if you don’t already—because we have work to do as the next election cycle approaches. Personally, I’m encouraged to know that I’m not alone, and that every little task I’m able to accomplish in this area is amplified by the work of tens of thousands of people across the country who care about our elections. The Supreme Court may not be willing to prevent politicians from picking their voters, but we can take steps at the state level and do it without them. It’s going to take some hard work. But we have the ability to make progress. And we know we can win elections—we did it in 2020.

We’re in this together,

Joyce