Supreme Court Takes On Whether Political Gerrymandering Is Unconstitutional Racial Gerrymandering By Another Name

In Alexander v. S. Carolina State Conf. of the NAACP, the Court returns to a thorny challenge of untangling race and partisan interest as legislatures go about their mandatory obligation to redraw political lines following each census. The issue before the Court involves the difference between political gerrymandering and unconstitutional racial gerrymandering, and the elusive standards for differentiating between the two.

In 1994, the South Carolina General Assembly implemented a congressional districting plan that divided Charleston County between Districts 1 and 6. This division remained in place through 2011, despite legal challenges, as it had received preclearance from the Department of Justice and withstood challenges related to racial gerrymandering and intentional vote dilution.

For most of the next decade, the districting plan consistently resulted in a 6-1 Republican-Democrat delegation, with District 1 typically electing Republicans until 2018, when it briefly shifted to a Democratic representative before returning to Republican representation in 2020. Meanwhile, Districts 2 through 5 consistently elected Republicans in 2020, and District 6 consistently elected a Democrat.

But according to the 2020 Census data, population shifts occurred, with people moving away from predominantly rural African-American areas to urban, predominantly white coastal regions. This led to overpopulation in Districts 1 and 6. The Census also revealed changes in South Carolina's racial demographics, with the statewide African-American population percentage decreasing from 28.2% to 25.9%, and Charleston County experiencing a more significant drop, from 30.0% to 23.2%.

In response, the state legislature developed an updated districting plan with publicly accessible redistricting guidelines. These guidelines outlined legal requirements and traditional criteria such as contiguity, compactness, core preservation, communities of interest, and incumbent protection. Various groups, including the NAACP, proposed alternative plans.

The state legislature created and made public draft maps, with the input of an expert cartographer. These maps were designed to meet the political preferences of both Republican and Democratic senators, based on data from the 2020 Presidential election and traditional criteria, without considering race. The plan retained the Charleston County split, aimed to secure a 54.33% Republican vote share in District 1, preserved district cores, accommodated the requests of African-American congresspersons and other legislators, and adhered to traditional criteria. The primary goal was to “create a stronger Republican tilt” in District 1, resulting in a Republican majority district.

The NAACP then filed a lawsuit alleging unconstitutional racial gerrymandering in Districts 1, 2, and 5, as well as intentional vote dilution.  Of particular relevance here, the district court panel invalidated District 1, determining that although the legislature's stated objective was to create a majority Republican district, race had primarily motivated the redistricting, with political considerations used as a proxy for racial gerrymandering. The panel also ruled for the intentional discrimination claim, applying the same standard as for the racial gerrymandering claim.

During oral argument, Justice Kagan read from the Supreme Court’s decision in Cooper v. Harris, 582 U.S. 285 (2017), and stated on the record that it does not contain a requirement to use an alternative map. However, Justice Alito implied that Cooper could be read a different way. Justice Kagan was also critical of Appellants’ argument that the district court panel had committed legal error, since the proposed errors all seemed to be factual. Chief Justice Roberts asked about the standard for overturning decisions based on factual errors and counsel for the Appellants stated that only one factual error is required if it shows a clear error by the district court panel.  During his argument, counsel for the Appellees, when pressed, seemed to concede that an alternative map could have been created by their experts.

This case was argued on October 11, 2023. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information about this alert, please contact the authors of this alert, Chantel Febus, James Azadian, David Schenck, Christopher Sakauye, McKenna Crisp, Monika Harris, and Puja Valera.