WASHINGTON — The Supreme Court heard oral arguments on Wednesday for Alexander v. The South Carolina State Conference of the NAACP, a case that could impact how states use politics and race to create their legislative districts in the future.
Historically, South Carolina’s first congressional district, which includes Charleston, the state’s most populated city, has been a Republican stronghold. In 2018, Rep. Joe Cunningham (D–S.C.), won the race by a narrow majority, flipping the historically Republican seat. After losing his reelection bid in 2020 by another small margin to Rep. Nancy Mace (R–S.C.), the Republican legislature divided Charleston County in 2021, excluding 80% of its Black population.
According to the Fourteenth Amendment’s Equal Protection Clause, race cannot serve as a factor in creating new districts, and states cannot intentionally weaken a racial group’s vote for political gain. While the lower court ruled South Carolina’s Republican legislature purposefully excluded large portions of the Black community to keep a Republican majority in the district, the plaintiff and Thomas C. Alexander, president of the South Carolina Senate, claimed their maps were based on political affiliation and not race, which is permissible by law. Citing the defendants’ inability to produce an alternative map, a tool used to separate race and politics, the plaintiff claimed the lower court violated a clear error standard in their decision.
Alternative maps, which have been used in racial gerrymandering cases to show that a race-blind redistricting map is achievable, have served as useful tools in determining the intent behind maps.
“We normally have an alternative map in these redistricting cases but we do not have one here,” Justice Clarence Thomas said, “In these instances where you have a high correlation between race and political affiliation, how would you constitutionally disentangle it?”
Without an alternative map, direct evidence of discrimination, and the absence of odd-shaped gerrymandered districts, several of the justices including Chief Justice John Roberts said this case was unique in its lack of direct circumstantial evidence.
Justice Elena Kagan, however, said she believes that alternative maps have been used as a strong tool, but said she doesn’t think they are always necessary. Citing Cooper v. Harris, a racial gerrymandering case before the Supreme Court in 2017, Kagan said the plaintiff’s job is to persuade the court that race instead of politics served as the intent in mapmaking. According to the equal protection law, she said she doesn’t believe plaintiffs must submit evidence in order to be successful.
“The alternative map requirement, I mean, doesn’t exist,” Kagan said. “An alternative map is merely an evidentiary tool. Neither its presence nor its absence can itself resolve a racial gerrymandering case.”
While the defendant acknowledged their lack of direct evidence, they claimed their expert evidence was successful in distinguishing between race and politics.
Their expert evidence, which examined the South Carolina legislature’s use of a racial target, revealed the state legislature’s dependency on Charleston County’s racial demographics throughout its mapmaking process. Using one election map from the 2020 election between former President Donald Trump and President Joe Biden, the defendants said the plaintiff could not have relied on political evidence because there wasn’t enough to generate useful maps.
“Four of the five heaviest Black precincts were moved out of Congressional District 1,” said Leah Aden, representative for the South Carolina State Conference of the NAACP. “By contrast, only five of the 17 majority white precincts were removed.”
During the redistricting process, the South Carolina legislature moved 193,000 Charleston residents around the surrounding districts. The result, the defendants said, led to the exclusion of 80% of Charleston’s Black population in the new congressional maps. While the plaintiff said the racial implications were a coincidence, the defendants said this was an intentional move to dilute the power of Black voters and maintain a Republican presence in Charleston.
Several of the justices, including Kagan and Justice Ketanji Brown Jackson, said though the defendant failed to provide direct evidence, the plaintiff failed to provide enough evidence to the lower court to change their decision.
“If you make your case some other way, that’s good enough,” Kagan said. “And, here, the Court found, again, on a clear error standard, that the plaintiff [the South Carolina State Conference of the NAACP] made their case some other way.”
While the justices stood divided in their assessments of the evidence presented by both parties, the court will come to a decision before the end of its term in June.
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