he Supreme Court heard oral arguments on Wednesday in Alexander v. South Carolina State Conference of the NAACP, a case that could help decide which party controls the House of Representatives in 2024, along with the future of minority representation and voting rights litigation in the South.

In 2018, Joe Cunningham became the first Democrat in nearly 40 years to win South Carolinaā€™s 1st congressional district, which is centered around Charleston.

Two years later, Republican Nancy Mace defeated Cunningham by one point. But that victory was too close for comfort for Republicans.

When South Carolinaā€™s GOP-controlled state legislature redrew the stateā€™s congressional districts in 2021, a GOP state senator from the area said he wanted to ā€œgive the district a stronger Republican lean.ā€ Republicans accomplished that goal by moving nearly 30,000 Black voters in Charleston County (62 percent of the countyā€™s total Black population) from the swing 1st district to the safely Democratic seat of longtime Rep. James Clyburn, one of the most powerful House Democrats. (ProPublica reported that Clyburn worked with Republicans to add more Black voters to his district to shore it up; he has denied this and filed a brief in support of civil rights groups.)

In 2022, Mace won re-election by 14 points. Last week she made headlines by becoming one of eight House Republicans who voted to oust House Speaker Kevin McCarthy.

Civil rights groups, led by the South Carolina NAACP, challenged the GOPā€™s map and in January a three-judge panel struck down the district as a ā€œstark racial gerrymander.ā€ Republicans promptly appealed to the Supreme Court.

South Carolina said the district drawn for Mace was motivated by politics, not race. ā€œDistrict 1 is not a racial gerrymander,ā€ said John Gore, an attorney at Jones Day who represented South Carolina. (Gore was head of the Justice Departmentā€™s Civil Rights Division under Donald Trump and one of the driving forces behind the Trump administrationā€™s failed effort to add a question about citizenship to the 2020 census, pushing the bogus argument that it was needed to better enforce the Voting Rights Act.) His argument in the Alexander case could be used to justify nearly any instance of racial gerrymandering, making it next to impossible to strike down maps that discriminate against voters of color.

The courtā€™s conservative majority appeared sympathetic to South Carolinaā€™s defense that it was difficult to disentangle race and politics. Chief Justice John Roberts told Leah Aden, senior counsel for the NAACP Legal Defense Fund, that civil rights groups faced a ā€œhigh burdenā€ and ā€œyouā€™re trying to carry it without any direct evidence, with no alternative map, with no odd shaped districts.ā€ A ruling vacating South Carolinaā€™s map based on what he termed ā€œcircumstantial evidence,ā€ Roberts said, ā€œwould be breaking new ground in our voting rights jurisprudence.ā€

The Roberts Court has already made it very difficult to strike down gerrymandered maps, ruling that partisan gerrymandering cannot be challenged in federal court, and has reliably sided with Republicans in voting rights disputes. As Justice Elena Kagan noted, the Courtā€™s 2019 decision in Rucho v. Common Cause preventing federal courts from invalidating partisan gerrymandering gave states like South Carolina a green-light to enact racial gerrymanders but claim they were simply done for partisan reasons.

One surprising exception to the Courtā€™s hostility to voting rights came last summer, when it invalidated Alabamaā€™s congressional map because it did not include a second majority-Black district in a state that is 27 percent Black. The new seat ordered by the courts is expected to elect a new Black member of Congress from Alabama and boost Democratsā€™ chances of retaking the House. These developments have raised hopes that the conservative majority may be open to policing racially gerrymandered maps in a new way.

In Alabama and South Carolina, Republicans pursued different strategies to dilute Black voting strength. Republicans in Alabama simply ignored Black political power by refusing to draw a second majority-Black district. In South Carolina, ā€œBlack voters were used as political puzzle pieces in the state legislatureā€™s attempt to ensure and insulate the legislative majority partyā€™s power,ā€ says Mitchell Brown, senior voting rights counsel at the Southern Coalition for Social Justice.

In Alabama, Republicans didnā€™t consider race enough. In South Carolina, they considered race too much. In that sense, civil rights groups are making an argument often used by Republicansā€”that race should not be the driving force in drawing political linesā€”to argue against racial gerrymandering.

ā€œState legislators are free to consider a broad array of factors in the design of a legislative district, including partisanship, but they may not use race as a predominant factor and may not use partisanship as a proxy for race,ā€ the three-judge panel wrote in South Carolina.

The Supreme Court similarly ruled in 2017 in Cooper v. Harris that a district is likely unconstitutional if ā€œrace was the predominant factor motivating the legislatureā€™s decision to place a significant number of voters within or without a particular district.ā€

ā€œNo party disputes Cooperā€™s basic legal rule that absent a compelling interest, race cannot predominate in line drawing, even as a means to achieve a partisan goal,ā€ said Aden.

But in the Alexander case oral arguments, the Courtā€™s conservative majority seemed to suggest that its recent decision striking down racial gerrymandering in Alabama may be a one-off.

Civil rights groups have asked the Supreme Court to issue a decision by January 1, 2024, so that new lines could take effect for the 2024 election if the lower court decision is upheld.

  • BeautifulMind ā™¾ļø@lemmy.world
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    1 year ago

    Isnā€™t it? If the 14th can be circumvented by contriving a non-discriminatory-seeming pretext for the purpose, racial discrimination could be de facto legal for states if SCOTUS overlooks it with a nod and a wink by pretending that the pretext isnā€™t a pretext and doesnā€™t produce that outcome on purpose.

    Maybe Iā€™m missing the point, but to me this feels a bit like like arguing that when they said the Civil War was about ā€œstatesā€™ rightsā€, that it wasnā€™t about slavery.

    • MooseBoys@lemmy.world
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      1 year ago

      The difference is that ā€œ14A can be circumvented by lying about intentā€ is a weaker concern than correlative discrimination. It implies that as long as someone is being honest, they would not run afoul of non-discrimination laws. My point is that even honest and legitimate non-racially-motivated intents can still be discriminatory.

      • BeautifulMind ā™¾ļø@lemmy.world
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        1 year ago

        Thanks, thatā€™s a useful distinction.

        My thought here is that it shouldnā€™t make a difference if theyā€™re honest vs. lying about intent if the point to 14Aā€™s equal protection clause is prevention of discrimination- after all, lying about intent is easy to do and hard to test