Voting rights advocates fear that the U.S. Supreme Court is poised to reconfirm a loophole for racial gerrymandering. This development comes after a significant victory in the Alabama voting district map case reaffirming the Voting Rights Amendment.

If the high court sides with South Carolina in Alexander v. South Carolina NAACP, legislators would have federal court approval to create maps that dilute Black voting power by claiming they were targeting voters because of their party affiliation – not their race.

How SCOTUS opened a backdoor to racial gerrymandering

There’s a distinction between racial gerrymandering, which remains unconstitutional, and partisan gerrymandering that the Supreme Court allows.

State legislatures redraw their electoral district lines every 10 years based on new federal census data. 

Gerrymandering happens when the party in power draws, often in contorted ways, boundaries to favor their candidates in elections.

However, the Supreme Court has prohibited states from racial gerrymandering, which includes cracking compact racial communities into multiple districts or packing them into districts to dilute the voting power.

President Lyndon B. Johnson signed the Voting Rights Act of 1965 (VRA) to protect the ballot rights of Black Americans who faced death, intimidation and various schemes, including literacy tests, to prevent them from voting. Since then, the high court has weakened – but not outlawed – the VRA through its 2013 Shelby County v. Holder ruling and Brnovich v. Democratic National Committee in 2021.

Partisan, or political, gerrymandering, is a different matter. 

In a controversial 2019 decision, the Supreme Court ruled in Rucho v. Common Cause that federal courts cannot hear partisan gerrymandering cases involving the party that controls the legislature drawing favorable maps for its candidates.

Chief Justice John G. Roberts Jr., writing for the court’s conservative majority, said the drafters of the Constitution recognized that politics would impact how state lawmakers drew election districts. But voting rights advocates have warned that Rucho would open a backdoor to racial gerrymandering. That’s because race and party affiliation are tied together for Black Americans, who vote heavily Democratic.

Common Cause noted that North Carolina Republicans redrew district lines on partisan grounds after courts struck them down in 2017 for racial gerrymandering.

SCOTUS hears first racial gerrymandering case since Rucho

The Supreme Court heard oral arguments on Oct. 11 in Alexander – the first case that pits alleged racial gerrymandering against a partisan gerrymandering defense since Rucho.

The  New York Times said the case addresses the “constitutional puzzle” of “how to distinguish the roles of race and partisanship in drawing voting maps when Black voters overwhelmingly favor Democrats.”

In 2022, the NAACP’s South Carolina chapter and Taiwan Scott, a Black voter in Charleston’s 1st District, sued state Republicans for allegedly redrawing district lines for the state’s 1st, 2nd and 5th congressional districts to disadvantage Black voters, which violates the 14th and 15th amendments, Charleston’s Post and Courier reports.

The state has defended its redrawing of Charleston’s 1st district (a lower court found no constitutional violation in the 2nd and 5th districts) as a political – not racial – strategy that the high court authorized in Rucho.

South Carolina moved about 30,000 Black voters from District 1 to Rep. James Clyburn’s 6th Congressional district. Under that map, Clyburn, a Black democrat, represents one out of seven congressional districts in a state that is more than 25 percent Black.

The 1st District was reliably Republican for decades until 2018, when Democrat Joe Cunningham flipped the seat. Two years later, Rep. Nancy Mace returned the seat to GOP control with a slim 1.27 percentage point win over Cunningham. State Republicans underscored that Cunningham won by 14 percent in 2022 after they moved Democratic voters – who happened to be Black – out of the district.

A unanimous three-judge federal panel sided with the NAACP, ruling that the district lines reduced the overall Black percentage in the 1st District for political gain.

“The strategies he (state mapmaker) employed ultimately exiled over 30,000 African American citizens from their previous district and created a stark racial gerrymander of Charleston County and the City of Charleston,” the panel wrote in its Jan. 6 ruling, according to the Post and Courier.

The Supreme Court agreed to hear South Carolina’s appeal.

“They [legislators] were consistently looking at race because they had an expectation that race was a predictor of how political parties would perform,” Legal Defense Fund attorney Leah Aden, who represented the NAACP, told the Supreme Court justices.

“In light of the total record, it reflects that there was a racial target, it reflects that there was a significant sorting of Black people, it reflects unrebutted expert evidence of race rather than party explaining the assignment of voters, it reflects a disregard of traditional redistricting principles — and all of that evidence in total is more than plausible, in the record, for using race as a means to harm individual plaintiffs.”

But the high court’s conservatives appeared to doubt the NAACP’s arguments, according to NBC News. They questioned whether the civil rights organization showed sufficient evidence that South Carolina targeted Black voters because of their race, underscoring the challenge of disentangling race from political affiliation.

Roberts said the NAACP’s case rested solely on “circumstantial evidence” of racial gerrymandering.

Justice Amy Coney Barrett noted that courts generally presume that lawmakers acted in “good faith,” meaning that the plaintiffs had a heavy burden to overturn that presumption.

Fellow conservative Justice Neil Gorsuch said, “Here, there's no evidence the legislature could have achieved its partisan tilt, which everyone says is permissible in any other way,” according to NBC News.

The court’s three liberal justices appeared to side with the NAACP. Justice Ketanji Brown Jackson said no court precedence required the plaintiffs to produce a “smoking gun,” showing that race was South Carolina’s primary consideration in drawing district lines.

Justice Elena Kagan noted that state legislators had “good reasons to use race as a proxy for politics” instead of election data because race can be “more predictive of future voting behavior,” according to NBC News.

How South Carolina differs from Alabama

Roberts shocked many voting rights advocates when he and fellow conservative Justice Brett Kavanaugh joined the court’s three liberal justices in a 5-4 ruling in June that delivered a win for Alabama Black voters.

In Allen v. Milligan, the court struck down a Republican-drawn congressional district map that civil rights activists said was racially discriminatory.

The majority agreed with a lower court decision that lawmakers should have drawn districts in a way that gave Black voters a majority, or something close to it, in two of the state’s seven congressional districts. They said it violated VRA’s section 2 by denying Black voters a fair chance to elect a representative of their choice.

On the other hand, the South Carolina case alleged a violation of the 14th Amendment, which requires an equal application of laws. The argument was that the amendment’s Equal Protection Clause prohibits racial gerrymandering.

The American Civil Liberties Union, which joined the NAACP in the lawsuit, explains: “The Equal Protection Clause of the Fourteenth Amendment forbids the sorting of voters on the basis of their race, absent a compelling interest. The Fourteenth and Fifteenth Amendments also forbid intentional racial discrimination. The suit alleged that South Carolina violated these principles.”

The Supreme Court will likely release its South Carolina decision in June 2024, when it typically releases opinions for the session.