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Justices Poised to Restore Voting Map Ruled a Racial Gerrymander


Several members of the Supreme Court’s conservative majority seemed prepared on Wednesday to reinstate a South Carolina voting map that a lower court had ruled was an unconstitutional racial gerrymander.

Chief Justice John G. Roberts Jr., for instance, seemed unpersuaded by the lower court’s findings and reasoning. He said the evidence that Republican state lawmakers had used race as the predominant factor was circumstantial and consistent with something that is legally acceptable: trying to achieve the partisan goal of creating a district with a distinct conservative tilt.

“Disentangling race and politics in a situation like this is very, very difficult,” he said. A ruling for the challengers, he added, “would be breaking new ground in our voting rights jurisprudence.”

The case concerned a constitutional puzzle: how to distinguish the roles of race and partisanship in drawing voting maps when Black voters overwhelmingly favor Democrats. The difference matters because the Supreme Court has said that only racial gerrymandering may be challenged in federal court under the Constitution.

The case, Alexander v. South Carolina State Conference of the N.A.A.C.P., No. 22-807, is superficially similar to one from Alabama in which the court ruled in June that state lawmakers had diluted the power of Black voters in drawing a congressional voting map. But the two cases involve distinct legal principles.

The Alabama case was governed by the Voting Rights Act, the landmark civil rights statute, and the one from South Carolina by the Constitution’s equal protection clause. The two can tug in opposite directions.

A unanimous three-judge panel of the Federal District Court in Columbia, S.C., ruled in January that the state’s First Congressional District, drawn after the 2020 census, violated the Constitution by making race the predominant factor.

Justice Elena Kagan said the ruling was sound, even though the lawmakers were free to achieve their political goals directly by using data on partisan voting. What they could not do, she said, was achieve those goals indirectly, by using data on race. She told a lawyer for the lawmakers that “the evidence showed that you were using race as a proxy for politics.”

She added that the practice was a curious one. “Why would mapmakers, in general and in this case, use race as a proxy to do partisan gerrymandering now that you could just, like, do partisan gerrymandering?” she asked.

The answer, she suggested, was that data on racially polarized voting may be more reliable than data about given election results in predicting a new district’s partisan tilt. The racial data relied on in South Carolina, she said, may produce a more secure Republican gerrymander.

The lawmakers denied using racial data. John M. Gore, arguing on their behalf on Wednesday, said that “racial data is not a good predictor of partisan outcomes because racial data doesn’t measure turnout or voting behavior.”

Leah C. Aden, a lawyer with the NAACP Legal Defense and Educational Fund, which represents the challengers, said it was unsurprising that there was only circumstantial evidence of the lawmakers’ reliance on race.

“If you’re asking whether there is direct evidence that the legislature admitted in the 21st century that they sorted voters on the basis of race as a means to achieve their political goal,” she told the chief justice, “no, we do not have that.”

Justices across the ideological spectrum agreed that the Supreme Court may only overturn the lower court’s findings if they were ruled to be clearly erroneous, a demanding standard.

Caroline A. Flynn, a lawyer for the Biden administration arguing in support of the challengers, said that standard was enough to decide the case. “Racial predominance is a factual finding subject to clear error review even when there’s a politics defense,” she said.

But several conservative justices indicated that they were prepared to rule that the lower court had committed a clear error.

Justice Amy Coney Barrett, for instance, said the court must also take account of two other factors: “that the plaintiffs bear an exceedingly heavy burden when they’re trying to disentangle race and politics and that we give the legislature a presumption of good faith.”

Chief Justice Roberts suggested that the administration’s position was novel and surprising.

“Have you ever supported the plaintiffs in a case in which there was no evidence of any direct discrimination, no alternative map, no oddly shaped districts and a volume of political data?” he asked Ms. Flynn.

The challenged district, anchored in Charleston, had elected a Republican every year since 1980, with the exception of 2018. But the 2020 race was close, with less than one percentage point separating the candidates, and Republican lawmakers “sought to create a stronger Republican tilt” in the district after the 2020 census, the lower-court panel wrote.

The lawmakers achieved that goal, the panel found, in part by the “bleaching of African American voters out of the Charleston County portion of Congressional District No. 1.”

The new House map moved 62 percent of Black voters in Charleston County from the First District to the Sixth District, a seat that Representative James E. Clyburn, a Black Democrat, has held for 30 years.

The move helped make the new First District a Republican stronghold. In November, Nancy Mace, the Republican incumbent, won re-election by 14 percentage points.

The demographics of her new district may have figured in Ms. Mace’s recent shift to the right, as evidenced by her decision to join seven hard-core conservatives to oust Representative Kevin McCarthy from the speaker’s chair.

The panel ruled that the district’s boundaries must be redrawn before future elections are held. But the panel rejected challenges to two other House voting districts, saying that civil rights groups had failed to demonstrate that the districts had been predominantly drawn to dilute Black voting power.



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