Commentary
Steve McFarland is a 3L at Fordham University School of Law, where he is the Symposium Editor for the Voting Rights & Democracy Forum and a staff member of the International Law Journal. He holds a bachelor's degree in Political Science and Education from Swarthmore College and a master's degree in urban education from the University of Pennslyvania. Before law school, Steve worked on a successful gubernatorial race and served in the administration of Governor Tom Wolfe.
To train the next generation of lawyers in the law and practice of voting rights, ballot access, campaign finance, election administration, and democracy protection.
By Steven McFarland
February 20, 2024, 10:30 AM
While there is debate regarding the extent of the Supreme Court’s recent politicization, its impact on our politics cannot be overstated. From Citizens United, which opened our nation’s elections to a flood of super PAC money,1Citizens United v. FEC, 558 U.S. 310 (2010).to Rucho, which found partisan gerrymandering to be unreviewable by federal courts,2Rucho v. Common Cause, 139 S. Ct. 2484 (2019). the Roberts Court has transformed our political environment. Rulings over the last fifteen years have accentuated and, arguably, aggravated hyper-partisanship, reducing swing seats and increasing candidate reliance on special-interest super PACs.
Some of the critical democratic safeguards for racial equity that emerged from the civil rights movement have also been a casualty of this Court’s jurisprudence,3See Shelby County v. Holder, 570 U.S. 529 (2013). and others remain in peril.
Last October, the Court heard a South Carolinian gerrymandering case, Alexander v. South Carolina Conference of the NAACP.4Pending, Alexander v. South Carolina Conference of the NAACP (2023) (No.22-807). The case reached the Court on appeal from a district court decision finding that South Carolina Republicans deliberately reduced Black electoral power when drawing the state’s most recent congressional maps. The South Carolina district court concluded that the reassignment of 30,000 Black voters from one congressional district to another was “effective bleaching.”5South Carolina State Conf. of the NAACP v. Alexander, 2023 U.S. Dist. LEXIS 4040, *21 (2023). Notably, these reallocated Black voters accounted for over 60 percent of the initial district’s Black population.6Id.
Many voting rights advocates see the Court’s most recent foray into gerrymandering as incredibly high-stakes, potentially representing another monumental blow to voting rights protections and threatening to rob minority communities of congressional representation. With Alexander, the Court could make it harder for plaintiffs to challenge racial gerrymandering, allowing states to engage in the practice so long as there is an overarching political purpose (which, under Rucho, would make these actions nonjusticiable).
The Court first addressed racial gerrymandering in 1993. In Shaw v. Reno,7Shaw v. Reno, 509 U.S. 630 (1993). plaintiffs challenged North Carolina’s congressional map for violating the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. The Court held that, if race is the predominant consideration when districts are drawn, strict scrutiny applies.8Id. First, the plaintiff must demonstrate that race was the primary factor motivating the legislature’s decision to place voters within or outside of a particular district.9Miller, 515 U.S. 900. Successfully satisfying this requirement necessitates proof that race preceded other considerations—such as compactness, political subdivisions, communities of interest, and partisan advantage—in shaping the district map. Under the applicable strict scrutiny standard, the state or legislature has the burden to show that the use of race in shaping the districts serves a compelling purpose and that no less restrictive means are available.10Shaw, 509 U.S. 630. This burden is heavy and meant to ensure the fair and equitable drawing of district maps.
In successive cases, the Court has ruled that racial gerrymandering claims must be analyzed district by district,11Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254 (2014). and that proof of legislative intent may be referenced in assessing the existence of racial motivation.12Miller v. Johnson, 515 U.S. 900 (1995). This racial gerrymandering precedent was reaffirmed almost seven years ago.13Cooper v. Harris, 581 U.S. 285 (2017); Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2017). This Court, however, has recently demonstrated a willingness to overrule long-standing precedent;14Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141 (2023). thus, Alexander represents a threat to Shaw and, by extension, protections against racial gerrymandering.
Alexander touches on South Carolina’s long history of slavery and racial oppression. Prior to abolition, enslaved persons were the majority of the state’s population. Populations in the coastal areas, where the congressional district at issue is located, were 80 to 90 percent enslaved. The first shots of the Civil War were fired in the state. Since 1970, every congressional map has been the subject of litigation. South Carolina continues to struggle with fair and equal representation. Moreover, Black South Carolinians continue to suffer voter disenfranchisement and suppression. This context is important in understanding this case and its collision course with the Roberts Court.
The present litigation was started by the NAACP and Taiwan Scott, a member of the Gullah people who are descendants of enslaved African Americans forced to work in plantations throughout the region. Scott emphasized the importance of South Carolina’s long history, which cannot be ignored in the at-issue litigation—Mitchelville, the first freedman town established during the Civil War, is an area drawn out of the congressional district. Based on the tenor of the conservative justices’ questioning during oral argument, they seem uninterested in the history and how it informs the present.
Meanwhile, the legislature has defended its maps by relying on Rucho, claiming the individuals were moved because they were Biden voters, not because they were Black. However, the evidence undercuts this defense. It’s unusual for a legislature to only use data from one election to draw congressional maps that will exist for the next decade, as South Carolina did. As counsel for the NAACP pointed out during oral argument, legislatures normally draw districts using evidence of political voting behavior over time, because that enables mapmakers to have the most accurate information to consider.15Transcript of Oral Argument at 70, Alexander v. South Carolina Conference of the NAACP (2023) (No.22-807). Rather than using data from congressional races to redraw their maps, the South Carolina legislature focused only on the 2020 presidential election. Notably, the district court did not find this data sufficiently reliable as to voters’ political preferences, rejecting South Carolina’s partisan gerrymandering defense.16South Carolina State Conf. of the NAACP v. Alexander, 649 F. Supp. 3d 177, 198.
Generally, racial demographics are a more reliable indicator of future political preferences than previous presidential election votes, which can vary cycle-to-cycle due to a variety of factors. For example, Democrats have consistently won Black voters, with 84 percent of Black voters identifying as Democrat/Leaning Democrat in 1992 and 87 percent identifying as such in 2016. Due to the media excitement that concentrates voters’ attention, presidential elections bring out voters who often sit out off-year elections or midterms. If South Carolina’s argument is persuasive to the Supreme Court, it will signal to legislatures that they need not worry about engaging in racial gerrymandering so long as there is some thin political justification.
Like Dobbs or Students First, Alexander could have a profound effect on our democratic society. This is especially true in southern states where a significant majority of Black Americans continue to live. This decision has the potential to be catastrophic, beginning a backslide that packs Black people into districts and thereby limits their representation in the Congress. This would have a significant political impact on our national politics as Black representation wanes and more extreme public officials pop up in their place. Look at Representative Nancy Mace, whose district was impacted by the at-issue redrawing. Her district used to have more liberal-to-moderate Black voters, and she adjusted her political positions accordingly. Now, with a constituency that skews strongly right, she has gone from refusing to object to the 2020 election results to being one of Trump’s loudest and most unwavering partisans.
Politicians who echo that the next election is “the most important” ought to be sounding the alarm. The upcoming holding in Alexander could dilute Black representation and further unravel the gains made in Black suffrage over the last sixty years. Perhaps the Court has become more politicized; perhaps it has not. Regardless, it is undeniable that the Roberts Court has continued its assault on the voting rights of Black Americans.17Shelby County v. Holder, 570 U.S. 529 (2013); Rucho, 139 S. Ct. 2484. To Taiwan Scott, the effects of this Court’s politicization are real. The history of South Carolina makes this real—from the millions who endured the brutality of slavery, to the soldiers who refused to surrender Fort Sumter, to the Black congregants who were methodically murdered while they prayed by a misinformed, radicalized white supremacist.
The history of South Carolina emphasizes that we do not live in a color-blind society, and a Court that has equal protection under the law inscribed into its edifice ought to acknowledge such reality. In Alexander, the Court could usher in a constitutional regime that allows racial gerrymandering to be rebranded as partisan gerrymandering. It is dangerous to think that given the nation’s history, this Court could look at race and reply no, just politics as usual.
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