As 2024 nears, South Carolina is one of a few states that have yet to finish drawing their congressional districts in accordance with the 2020 census. Recently, the U.S. Supreme Court heard Alexander v. South Carolina State Conference of the NAACP, a case centered on the state General Assembly’s redistricting plan.
In January 2022, South Carolina Gov. Henry McMaster approved the proposed plan, which created a strong Republican lean in Congressional District 1, an area with a large Black population. The district is anchored in Charleston County and recently elected candidates from both parties, a departure from its history as a Republican stronghold. The plan also moved 62% of District 1’s Black population into a different district.
In February 2022, the South Carolina Conference of the NAACP sued Thomas Alexander, in his official capacity as president of the state Senate, arguing the map was racially gerrymandered in violation of 14th and 15th amendments.
A U.S. District Court unanimously decided South Carolina’s reapportionment of District 1 was unconstitutional. The court applied the standard set in the U.S. Supreme Court case Miller v. Johnson, which states that in a racial gerrymandering case, the plaintiff has the burden to show “either through circumstantial evidence of a district’s shape and demographics, or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” To show this, the plaintiff “must prove that the legislature subordinated traditional race neutral districting principles, including but not limited to compactness, contiguity and respect for political subdivisions or communities defined by actual shared interests, to racial considerations.”
The District Court found that the movement of 62% of the Black population in a single county created a racial gerrymander. The court also found that the legislature departed from traditional race neutral districting principles based on expert testimony from the NAACP statistician witness.
State Says Moves Were Based on Politics, Not Race
South Carolina appealed the ruling to the Supreme Court, claiming the redistricting plan was not a racial gerrymander because the legislature’s intent was to move Republicans into District 1 and Democrats out, not to remove Black voters. The state argued that the District Court’s ruling was “clearly erroneous,” meaning the court erred in its interpretation of the evidence. In appellate cases the clearly erroneous review standard requires the reviewing court, in this case U.S. Supreme Court, to have firm conviction that a mistake was committed by the lower court, even if there is some evidence to support the finding of fact.
South Carolina argued that because the NAACP did not provide alternative maps that showed the state could achieve its goal in a manner that remedies the constitutional defects of the approved redistricting plan, the District Court could not logically conclude the redistricting plan was racial gerrymandering.
The NAACP rebutted South Carolina at oral argument, arguing that the Supreme Court precedent firmly states an alternative map is not necessary to prove the plaintiff’s claim at trial. In the case Cooper v. Harris, the court ruled that plaintiffs are not required to present an alternative map specifically as evidence in equal protection cases if they can prove a constitutionally compliant plan can be designed. The NAACP argues that they met their burden of proof with the evidence presented by their expert witness at trial.
During oral arguments, the justices seemed to focus on the standard of review. This standard applies only to questions of fact, and appellate courts usually defer to the lower courts on factual determinations. The logic for this deference is that the lower court judges have heard the testimony and have the best understanding of the evidence, while appellate courts can only examine the record of the trial.
The justices also focused on South Carolina’s argument that an alternative map was required to prove the NAACP’s case. Associate Justice Elena Kagan remarked that the NAACP’s expert witness showed evidence that Black Democrats were excluded from the district at much higher levels than white Democrats, which would tend to defeat South Carolina’s argument that the changes to District 1 were for the political purpose of excluding Democrats.
Associate Justice Neil Gorsuch pushed back against the NAACP’s argument, asking how it can prove South Carolina was acting in bad faith without a map showing the state could accomplish its political goals without using race.
The court will issue a ruling later in the term.
Last month, the court declined to hear another redistricting case, Robinson v. Ardoin, which concerns Louisiana’s new congressional map. Louisiana will be allowed additional time to consider alternative maps that comply with the Voting Rights Act, instead of immediately holding a hearing to create a remedial map.
NCSL will continue tracking redistricting developments in anticipation of the 2024 election.
Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Relations Division.