Issues
Did the South Carolina redistricting process violate the Equal Protection Clause in setting a racial target in the design process for one of its districts?
This case asks the Supreme Court to determine whether the district court panel erred in ruling that South Carolina’s Congressional District 1 (“CD1”) was a racial gerrymander prohibited by the Equal Protection Clause of the Fourteenth Amendment. Appellee the South Carolina State Conference of the NAACP (“the NAACP”) asserts that the panel correctly found that the redistricting board set a 17% black voting age population (“BVAP”) target for their new map of CD1 to create a partisan tilt favoring Republican candidates. Appellant Thomas Alexander (“Alexander”) asserts that racial data was not a factor in the redistricting process and that, instead, the designers of CD1 relied on political data, mainly the precinct-level voting patterns from the 2020 election. Thus, Alexander argues that CD1 does not violate equal protection jurisprudence which permits a political, but not racial, gerrymander. Because of the small majority the Republican Party holds in the US House of Representatives, this case has the potential to have a major shift on both South Carolina’s congressional delegation, but also the political tilt of the House as a whole.
Questions as Framed for the Court by the Parties
(1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent;
(2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case;
(3) whether the district court erred when it failed to disentangle race from politics;
(4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles;
(5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and
(6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect.
Facts
In 2022, the South Carolina Senate adopted a reapportionment plan (“Senate Plan”) to redesign the congressional districts. South Carolina State Conf. of the NAACP v Alexander at 6-7. Although Congressional districts should have almost equal population, Congressional District No. 1 (“CD1”) exceeded the ideal population by 11.99%, while Congressional District No. 6 (“CD6”), a majority African American district, had a deficiency of 11.59% due to urbanization in recent years. Id. at 7. The South Carolina Senate’s original plan included Charleston County in CD1 but found that including the county would make the African American population reach 20% in the district, higher than the 17% target sought. Id. at 13. To bring down the percentage to 17%, the Senate Plan decided to gerrymander over 30,000 African Americans in Charleston County from CD1 to CD6, so that 79% of the African American population in Charleston County fell within CD6 and the rest fell within CD1. Id. at 14-15.
Appellee the South Carolina State Conference of the NAACP and Taiwan Scott (“the NAACP”) sued Appellant Thomas C. Alexander and other members of the South Carolina Senate and House (“Alexander”) in the U.S. District Court for the District of South Carolina, alleging racial gerrymandering and discrimination under the Fourteenth and Fifteenth Amendments. Id. at 3. The three-judge panel of the district court held that CD1 was a racial gerrymander and violated the Equal Protection Clause of the Fourteenth Amendment and permanently enjoined any elections under the Senate Plan. Alexander at 27, 31. The panel emphasized that, under the Equal Protection Clause, states cannot relocate a significant number of voters predominately because of race. Brief for Appellees, South Carolina State Conf. of the NAACP at 28. “A predominant cause because of race” could be found by either legislative intent or circumstantial evidence. Id. at 29. The panel found that the designer of the Senate Plan departed from the preexisting principle of “least change” in redesigning congressional districts but instead implemented drastic changes to CD1. Id. at 20. This, combined with the scale of relocating 30,000 African Americans to meet the population target, showed that the redesigning was predominantly motivated by racial motives and violates the Equal Protection Clause. Id. at 27. The panel also noted that there was no compelling state interest served by gerrymandering, and therefore the Senate Plan could not survive strict scrutiny. Id. While the panel acknowledged that the NAACP failed to bring any alternative plans for redesigning the districts, it emphasized that an alternative plan was possible and noted that the NAACP had no affirmative duty to present alternatives. Id. at 30.
Alexander directly appealed to the United States Supreme Court, asserting jurisdiction under 28 U.S.C. §1253. Brief for Appellants, Thomas C. Alexander, et al at 7. Alexander challenged the panel’s rejection of the Senate Plan for CD1. Id. at 26. The Supreme Court noted probable jurisdiction under 28 U.S.C. § 1253.
Analysis
POLITICAL OR RACIAL MOTIVATION FOR GERRYMANDERING CD1 AND CD6
Appellant Alexander argues that the Supreme Court should overturn the district court panel’s findings and approve the existing map. Brief for Appellant Thomas C. Alexander at 1. Alexander argues that the panel misinterpreted the 17% black voting age population (“BVAP”) district composition and erred in relying on this evidence because the design used political, not racial, data. Id. at 47. He claims that “sub-precinct election data” and 2020 election data provide a superior metric to predict voter behavior than the use of racial data. Id. at 47-48. He argues that the panel failed to assume good faith in the redistricting board and that the similarities in racial composition from the last redistricting were a result of 92% of CD1 being the same. Id. at 49. Lastly, Alexander claims that the panel erred in not disentangling the correlation between race and politics. Id. at 33. He argues this irrational conclusion ties back to the panel’s failure to assume good faith in the redistricting board, because the panel assumes a racial target as opposed to a political target. Id. at 34-35.
Appellee the NAACP argues that the Supreme Court should affirm the panel’s findings. Brief for Appellee The South Carolina Conference of the NAACP at 1. The NAACP argues that the board violated the Fourteenth Amendment’s Equal Protection Clause by sorting voters by race, an action that was not “narrowly tailored to further a compelling interest.” Id. at 28. The NAACP argues that the panel’s finding of a 17% BVAP target was correct under the clear error standard Id. at 8. It contends that the board achieved this goal by splitting Charleston County, the largest in CD1, along racial lines. Id. at 10. The NAACP cites indirect evidence to show the racial gerrymandering, including the “surgical” division of the City of Charleston and the lack of continuity within CD1, with Black Charlestonians being moved to CD6 which was centered in Columbia, the state capital nearly 120 miles away. Id. at 14-15. The NAACP argues that the 17% BVAP target was racially motivated because the target’s designers viewed racial data “in real time” in the redistricting process and that CD1 did not adhere to the traditional “least change” redistricting principles in keeping true to previous district lines. Id. at 12. The NAACP argues that the lower court’s use of expert testimony to reject the appellant’s theory that the racial composition was a “coincidence,” citing empirical studies finding it impossible to design alternative districts with the same 17% BVAP composition without using racial data. Id. at 32-33. Additionally, the NAACP contends that Alexander was misguided in relying on the 2020 election data to defend the “political sorting” nature of their map, due to the election being a single data point and the atypical nature of the election being amidst an unprecedented pandemic and political turmoil. Id. at 31.
LEGAL AND FACTUAL ERRORS BY THE PANEL
Alexander argues that the district court panel erred in analyzing CD1 as a sum of its parts and should instead look to the “whole” district to determine whether it is a racial gerrymander. Brief for Appellant at 26. Alexander contends that the panel erred in looking at Charleston County alone, which constitutes only a small portion of CD1; in fact, CD1 in the Senate Plan was 92% the same as before, and the new CD1 kept the same communities together from previous iterations of the district map. Id. at 38-39. Next, Alexander asserts that the panel should not have considered the testimony of the NAACP’s four experts because this testimony misrepresented the criteria and processes that the redistricting board used by ignoring traditional considerations such as compactness, “core composition,” and incumbency protection. Id. at 20-22. Further, Alexander contends that the panel erred in inferring an intentional correlation between race and politics; for Alexander, the correlation is merely a coincidence given the close correlation between race and politics in South Carolina and the “obvious” alternative of using political data to draw the map. Id. at 33-35. Alexander also claimed that the panel erroneously waived the “alternative map” requirement for the NAACP because the panel misinterpreted prior caselaw that requires the showing of alternatives in racial gerrymandering cases built on circumstantial, as opposed to direct, evidence. Id. at 29. Lastly, Alexander argues that the panel improperly called into question the integrity of non-partisan redistricting board staff because the detailed racial knowledge of the staff does not indicate or imply a racial target. Id. at 47-50.
On the contrary, the NAACP asserts that the panel's legal and factual findings were correct. Brief for Appellee at 42. In response to Alexander’s argument that the NAACP’s experts failed to consider alternative explanations for the racial gerrymander, the NAACP argues that there is no requirement to consider the alternative explanations. Id. at 49. Instead, the NAACP reads the relevant judicial precedent as to only consider the alternative explanations helpful when there already is evidence of racial sorting. Id. at 53-55. According to the NAACP, the panel correctly concluded that the whole CD1 was a racial gerrymander with a 17% BVAP target, because CD1 had a markedly lower “core retention percentage” compared to other districts, showing significantly more movement between the districts than required. Id. at 59-60.
DISCRIMINATORY INTENT BY THE MAP DRAWERS
Alexander argues that the redistricting did not possess an “invidious discriminatory purpose” because the public nature of the redistricting process demonstrates that the redistricting was of a political nature. Brief for Appellant at 52-53. According to Alexander, the new CD1 has no adverse effect on the Black Democrats in the district because similarly situated White Democrats would have the same disadvantages in electing their preferred candidates. Id. at 55. Alexander further points out that the NAACP did not present any evidence of any specific impacts on Black voters that did not also apply to White voters. Id.
The NAACP argues that the panel was correct in finding that the board acted with discriminatory intent. Brief for Appellee at 62. The NAACP contends that, under the Fourteenth Amendment’s equal protection jurisprudence, racial discrimination does not have to be the sole motivator but “a motivating factor” in redistricting. Id. at 63. Here, the NAACP argues that the redistricting process was far less transparent than what Alexander claims. Id. at 64. The NAACP asserts that the redistricting largely ignored public input and shut the Black legislators out of the process. Id. Thus the NAACP concludes that CD1 unlawfully discriminated against Black voters, leading to an “unusually extreme” denial of opportunity to elect Black candidates. Id
Discussion
FEDERALISM AND SEPARATION OF POWERS BETWEEN THE JUDICIARY AND THE LEGISLATURE
Alabama and fifteen other states (“the States”), in support of Alexander, assert that rejecting South Carolina’s redesigning plan undermines the presumption of good faith in the states’ plans and would undermine the separation of powers by impeding the legislature. See Brief of Amici Curiae Alabama and 15 Other States at 5-6. The States contend that impeding district legislation is a paramount interference from the courts and argue that the presumption of good faith favors leaving the policymaking function to the state legislatures. Id. at 6-7.
The National Republican Redistricting Trust (“NRRT”), in support of Alexander, argues that, in opposition to the U.S. Supreme Court’s holding in Shelby County v. Holder, 570 U.S. 529 (2013), the district court panel revived a “nonretrogression principle” requiring that the states could not decrease a minority population in a particular district to disfavor a minority candidate. See Brief of Amicus Curiae National Republican Redistricting Trust at 5. According to NRRT, the panel’s attempt to revive the “nonretrogression principle” intrudes state sovereignty. Id. at 11. NRRT emphasizes that federal courts should limit themselves to remedying any violations against the Amendments, and the role of setting gerrymandering politics should remain with the state legislature to adhere to federalism principles. Id. at 10-11.
Similarly, the Fair Lines America Foundation, in support of Alexander, argues that holding CD1 unconstitutional will incentivize future parties to bring lawsuits whenever the reapportionment is not in their favor and erroneously make the courts the final arbitrator to political questions, who will be able to use the Equal Protection Clause to regulate political goals that might have an incidental effect on race. See Brief of Amicus Curiae Fair lines America Foundation, in Support of Appellants at 26, 28.
The Constitutional Accountability Center (“CAC”), in support of NAACP, argues that courts have sweeping authority under the Fourteenth and Fifteenth Amendments to review and prevent states from racial gerrymandering in the disguise of political motives. Brief of Amicus Curiae Constitutional Accountability Center, in Support of Appellees at 7, 16. Otherwise, according to CAC, legislatures may easily evade the strict scrutiny standard by simply labeling racial gerrymandering as political gerrymandering and thus aggrandizing the legislative power in the process. Id. at 16. CAC further emphasizes that the framers of the Fifteenth Amendment would have meant to protect Black voters from racial gerrymandering’s intended partisan advantage because the correlation between partisan votes and races were salient in their time. Id. at 16-17.
A group of historians (“the Historians”), in support of NAACP, also express concerns over the discriminatory history of weakening the voice of African American voters in South Carolina through gerrymandering. Brief of Amicus Curiae Historians, in support of Appellees at 18-20. The Historians contend that the Senate Plan attempts to concentrate all African American votes in one district, thereby minimizing the impact of their vote and undermining the representative function. Id. at 33. The Historians further argue that this pervasive effect may result in disparate voicing perpetuation, especially as an unchecked legislative power could repeat illegitimate gerrymandering from the past. Id. at 5, 30-31.
CONCERNS OVER RACIAL REPRESENTATION
South Carolina’s Governor Henry McMaster (“the SC Governor”), in support of Alexander, argues that compared to the past, the legislative has access to advanced statistical techniques that enables the legislature to achieve political gerrymandering without referring to entire neighborhoods. Brief of Amicus Curiae, Governor Henry McMaster, in support of Appellants at 5. According to the SC Governor, given that these advanced statistical techniques can allow legislatures to draw subtler lines regardless of race, states have less incentive to put forward plans implicating racial gerrymandering than in the past because racial gerrymandering plans would have had an adverse effect, inviting litigation and ultimately being unnecessary for pursuing successful reapportionment. Id. at 5-6.
Judicial Watch Inc. and Allied Educational Foundation (“Judicial Watch”), in support of Alexander, assert that it is impossible to draw the lines between political and racial gerrymandering, and hence a ruling for NAACP will ensue more lawsuits and uncertainty regarding the legitimacy of gerrymandering of any sort. Brief of Amici Curiae, Judicial Watch Inc. et al., in Support of Appellants at 12-13. Judicial Watch emphasizes that decisions addressing whether a gerrymander is constitutional will bring political questions to the court, affect public consensus, and undermine the judiciary’s legitimacy. Id.
The Lawyers’ Committee for Civil Rights Under Law, et al. (“Lawyers’ Committee”), in support of NAACP, explains that racial and political partisanship have an intimate and inseparable correlation because statistical tools have advanced over time and enabled legislatures to make race-based gerrymanders, which are increasingly difficult to separate from politically-motivated ones. Brief of Amici Curiae Lawyers’ Committee for Civil Rights Under Law, et al., in Support of Appellees at 9. Lawyers’ Committee further points out that such gerrymandering could result in perpetuating racial segregation and discrimination that have particularly become predominant in urban areas. Id. at 17.
The League of Women Voters of South Carolina, et al. (“the League”), in support of NAACP, asserts that the South Carolina legislature paid little attention to public sentiment when discussing the reapportionment plan. Brief of Amici Curiae League of Women Voters of South Carolina, et al., in support of Appellees at 18. The League further contends that relocating African American communities will further undermine those communities from voicing future support they require from the legislative. Id. at 15-18.
Conclusion
Acknowledgments
Additional Resources
- Zack Montellaro, Supreme Court to hear racial redistricting case from South Carolina, Politico (May 15, 2023).
- Caitlin Byrd, Federal judges strike down SC’s 1st Congressional District as racial gerrymandering, The Post and Courier (Jan. 6, 2023).