South Carolina Democrats lost a congressional racial gerrymandering case this week in such spectacular fashion that they have made these types of cases more difficult to prove and more difficult to win overall. The failed effort in Alexander v. South Carolina NAACP actually returns power back to elected legislatures where it belongs when it comes to redistricting.
The high court ruled in favor of the South Carolina legislature 6-3, with all three progressive justices dissenting. Justice Samuel Alito wrote the majority opinion, with Justice Clarence Thomas concurring in part.
The court clarified what a successful defense against a racial gerrymandering claim would look like. First, defendants can show that their maps reasonably adhere to traditional redistricting criteria such as compactness and keeping political communities of interest together. Second, they can show that it was not race but partisan politics that drove their decision-making.
The latter is essential because the Supreme Court had already ruled in Rucho v. Common Cause (2019) that “(p)artisan gerrymandering claims present political questions beyond the reach of the federal courts.” If partisan considerations, rather than race, were the predominant factor in drawing districts, then the courts have no business regulating them.
Conversely, plaintiffs must prove that race, not political geography or partisan politics, was the predominant factor in the defendants’ map-drawing. They could have done that in Alexander by showing evidence that the South Carolina General Assembly considered race above all other factors when drawing maps. However, they failed to consider factors other than race adequately in their analysis and so were unprepared to account for those factors when examining the districts the legislature drew.
Indeed, the court admonished the plaintiff’s four expert witnesses for ignoring “traditional districting criteria such as geographical constraints and the legislature’s partisan interests” and focusing almost exclusively on race instead.
Plaintiffs could have also succeeded by presenting an alternative map that “can perform the critical task of distinguishing between racial and political motivations when race and partisanship are closely entwined.” They failed to present such a map, which the high court took as “an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense.”
Justice Elena Kagan wrote in her dissent that the majority’s approach amounted to “special rules to specially (sic) disadvantage suits to remedy race-based redistricting.” However, this is the same court that found for the plaintiffs in a recent racial gerrymandering case from Alabama and refused to stay a lower court decision that overturned state legislative districts drawn by Michigan’s redistricting commission for being racial gerrymanders. Plaintiffs can still successfully make racial gerrymandering claims; they just have to prove that their claims are really about race.
Justice Alito noted that one purpose of his opinion is to prevent partisan gerrymandering claims masquerading as racial claims by exploiting the tight link between race and political preference.
The ruling makes common sense. It is obvious that South Carolina Republicans were acting in a partisan manner. They wanted to make a competitive Charleston district safer for Republicans, and it was a district that had grown too large and needed to be reduced. So, of course, they took out Democrats. It was the logical choice a partisan actor would make. In Charleston, many of those Democrats happened to be black. But they were moved because they are Democrats; they just happen to also be black.
We shared last year how NC Democrats lost the war by winning some redistricting lawsuits. Democrat-filed gerrymandering lawsuits in the Carolinas have either failed, backfired, or both. For example, in Cooper v. Harris (2017), plaintiffs succeeded in overturning two congressional districts as racial gerrymanders but, in doing so, undercut the argument that there was racially polarized voting in North Carolina sufficient to require using racial data to draw majority-black districts. That makes proving future racial gerrymandering claims more difficult.
Two outcomes endure as we view the political landscape: Partisan gerrymandering is legal, and proving racial gerrymandering just became much harder. Democrats in both Carolinas are learning the only real answer to their redistricting complaints is actually winning elections.