A new Supreme Court case threatens to make gerrymandering even worse

South Carolina’s lawyers propose a rule that could make it virtually impossible to challenge racial gerrymanders.

The Supreme Court announced Monday it will hear a case that could give state lawmakers even more leeway than they already have to draw gerrymandered maps.

In January, a federal court determined that South Carolina violated the Constitution’s prohibition on racial gerrymandering when it drew one of its congressional districts in the 2021 redistricting cycle. This case, known as Alexander v. South Carolina Conference of the NAACP, tees up the question of whether state lawmakers may use race to identify Democratic voters, and then draw district lines intended to diminish these voters’ ability to elect a candidate of their choice.

Should the Supreme Court permit this kind of gerrymandering, it would likely have profound consequences for voting rights throughout the nation — potentially shutting down one of the few remaining ways to challenge a gerrymandered map that violates the US Constitution.

Briefly, the lower court that heard Alexander determined that South Carolina’s mapmakers intentionally kept nearly 80 percent of the Black population of Charleston County out of the state’s First Congressional District in order to shore up the Republican vote in that district. The lower court rested much of its reasoning on the Supreme Court’s decision in Cooper v. Harris (2017), which held that a district is presumptively unconstitutional if “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”

The evidence examined by the lower court, in other words, suggests that state lawmakers were driven by a desire to empower the Republican Party at the expense of Democrats, rather than by a purely white supremacist desire to prevent Black voters from electing their preferred candidates. But, regardless of why the state decided to exclude so many Black voters from the First District, the fact remains that, according to the panel of three federal judges that heard this case, the state sorted voters into districts based on their race.

Ultimately, the justices will likely need to decide whether such race-based sorting is allowed when it is purportedly driven by partisan and not purely racist goals.

Two types of gerrymandering, briefly explained

One reason why this case is needlessly difficult is that the Court has treated cases alleging race discrimination as largely separate from cases alleging partisan gerrymandering, even though these two concepts are frequently intertwined.

Generally speaking, there are two kinds of gerrymandering cases that are often heard by federal or state courts. “Racial” gerrymandering lawsuits allege that a state drew district lines in order to diminish the voting power of voters of a particular race. “Partisan” gerrymandering suits, by contrast, allege that a state drew district lines to benefit one political party over the other.

Although the Supreme Court’s precedents currently allow some racial gerrymandering suits to prevail in federal court, the Court held in Rucho v. Common Cause (2019) that federal judges may not hear lawsuits challenging partisan gerrymanders. Notably, however, Rucho did not hold that partisan gerrymanders are permissible — indeed, Rucho suggested that such gerrymanders are “incompatible with democratic principles” — it merely reached the (somewhat dubious) conclusion that federal courts have no way to determine which maps are excessively partisan. Many state courts still hear lawsuits challenging partisan gerrymanders within their state.

The dispute in Alexander, meanwhile, can fairly be characterized as both a racial gerrymandering case and a partisan gerrymandering case.

The lower court in Alexander determined that Black voters were unlawfully excluded from South Carolina’s First Congressional District, a one-time swing district that is currently represented by Rep. Nancy Mace (R-SC), in order to shore up Republican control of this district. In 2018, the First District elected former Rep. Joe Cunningham, a Democrat. Mace barely defeated Cunningham in 2020 to regain this district for the GOP.

Specifically, the lower court found state Sen. George “Chip” Campsen, a key Republican lawmaker who championed the district’s current configuration, wished to include the entirety of Beaufort and Berkeley Counties in the redrawn district, and to also include much of Dorchester County. As the court explained, “all three of these counties were regarded by Senator Campsen as strong Republican performing counties,” and he wished to include them in Mace’s former swing district to “give the district a stronger Republican lean.”

But congressional districts must all be roughly equal in population within a state, and these three regions did not have enough residents to make up an entire district. That meant that mapmakers had to include at least some residents of nearby Charleston County. To ensure that these Charleston County residents did not shift the district toward Democrats, the lower court found that mapmakers gerrymandered 79 percent of the African Americans in Charleston County into a nearby district, thus producing a district that would favor Republicans.

This issue, where state lawmakers essentially used race to identify which voters are likely to support Democrats, arises all the time in racial gerrymandering suits. Because Black voters are overwhelmingly Democratic — in 2020, 90 percent of Black voters in South Carolina voted for Democratic President Joe Biden, according to CNN exit polls — lawmakers who wish to reduce the Democratic Party’s voting power can do so very effectively by targeting Black communities with tactics like gerrymandering.

Some of the Supreme Court’s racial gerrymandering precedents suggest that a state can defeat an allegation that its maps were racially gerrymandered by showing that the primary purpose of the gerrymander is to advance partisan goals. And these precedents take on much greater significance in a post-Rucho world, where it is no longer possible to bring a federal lawsuit challenging a gerrymander as too partisan.

In Easley v. Cromartie (2001), for example, the Court rejected a racial gerrymandering challenge to a North Carolina district, finding that district lines were drawn to achieve the partisan goal of creating a “safe Democratic seat,” rather than the racial goal of sorting voters into districts based on their race. In so holding, the Court emphasized that “race must not simply have been ‘a motivation’” for the state’s decision to draw a particular district, but rather it must be “the ’predominant factor’ motivating the legislature’s districting decision.”

But, if the Supreme Court ultimately determines that the South Carolina maps can be upheld in Alexander because race was not the “predominant factor” driving which district Black voters in Charleston County would be placed within, that decision could have profound implications in a post-Rucho world.

South Carolina’s defense of its gerrymander is completely shameless

Before Rucho, partisan gerrymandering suits were governed by Davis v. Bandemer (1986), which established that, at least in some extreme cases, a map drawn to intentionally benefit one party or the other could violate the Constitution’s guarantee that no one will be denied “the equal protection of the laws.”

Admittedly, in the interim period between Davis and Rucho, the justices were unable to agree upon a single legal standard that could govern partisan gerrymandering suits. As the Court said in Rucho, post-Davis decisions “struggled without success over the past several decades to discern judicially manageable standards for deciding [partisan gerrymandering] claims.” And Rucho’s GOP-appointed majority pointed to this struggle to justify its conclusion that federal courts simply should not hear partisan gerrymandering suits.

But Davis, at the very least, discouraged state lawmakers from being too explicit about what they were up to when they drew gerrymandered maps. For as long as Davis was good law, there was a real risk that the Supreme Court would strike down a partisan gerrymander. Now that this risk is gone, many states are quite open about the motives underlying gerrymandered maps.

In a brief to the Supreme Court explaining why the justices should hear the Alexander case, South Carolina is utterly shameless about its motivations. It admits that the challenged congressional district was drawn “to create a stronger Republican tilt.” And it even concedes that the state legislature “never would have enacted, for obvious political reasons, any plan that turned District 1 into a majority-Democratic district.”

It is far from clear why, even under Rucho, a state should be allowed to openly claim such a motive. Again, Rucho did not hold that partisan gerrymanders are permitted; it merely held that federal courts should not decide partisan gerrymandering cases because it is too difficult to determine which districts were created for partisan purposes.

But why should that reasoning apply to a case like Alexander, where the state admits in a filing before the Supreme Court that it engaged in partisan gerrymandering? It is exceedingly easy to determine that the map in Alexander was created for a partisan purpose when the state admits that the map was created for a partisan purpose.

Worse, if states can now openly confess to drawing partisan gerrymanders, it will be exceedingly difficult for civil rights plaintiffs to challenge many racial gerrymanders because race is so often a close proxy for partisanship. Mapmakers will potentially be allowed to draw maps that intentionally minimize the power of Black voters, then successfully defend those maps in court by claiming that their real purpose was to minimize the power of Democratic voters.

The reality is that race and partisanship cannot be so easily separated, and they are often so intertwined that there’s no meaningful distinction between a racial gerrymander and a partisan gerrymander.

At least according to the lower court that heard Alexander, the state’s goal was to produce a Republican district. But the method it used to achieve this goal was to sort Charleston County’s voters based predominantly on their race. That should be enough to invalidate South Carolina’s first district as an impermissible racial gerrymander.