The Supreme Court appeared ready Wednesday to reverse a lower court ruling that determined a South Carolina congressional district was an unconstitutional gerrymander against Black voters.
South Carolina officials want the justices to overturn the lower court ruling, which concluded race was the “predominant motivating factor” in the lines approved by the Republican-controlled state legislature for the 1st District. The three-judge panel found the district violated the Equal Protection Clause in the 14th Amendment and ordered the map to be redrawn.
But over two hours of oral arguments, conservatives on the Supreme Court aired skepticism about the lower court decision. They said the case was based on circumstantial evidence, focused on the legal bar for whether the lower court made an error and discussed the absence of an alternative map from challengers to the district lines.
Chief Justice John G. Roberts Jr. told Leah Aden, senior counsel at the NAACP Legal Defense and Educational Fund, that the group has the burden to prove race was the predominant factor in the district lines. And the court has found that the burden of disentangling race and politics in these situations is “very, very difficult.”
“And you’re trying to carry it without any direct evidence, with no alternative map, with no odd-shaped districts — which we often get in gerrymandering cases — and with a wealth of political data that you’re suggesting your friends on the other side would ignore in favor of racial data,” Roberts said.
Roberts said there’s a large amount of evidence for political reasons for the lines of the district map, and the case all rested on “circumstantial evidence.”
“I’m not saying you can’t get there, but it does seem that this is the — this would be breaking new ground in our voting rights jurisprudence,” Roberts said.
Aden disagreed with Roberts’ assessment and said there was “strong circumstantial evidence” and hinted that the sort of direct evidence Roberts mentioned would not be expected.
“If you’re asking whether there’s 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. No, we do not have that,” Aden said.
Aden also alluded to a finding from the lower court: That state lawmakers deliberately moved 30,000 Black residents from Charleston County out of the district to keep its population about 17 percent Black, a “target” that meant the district would keep a “desired partisan tilt” in favor of Republicans.
South Carolina state officials contend the changes were made with politics in mind, not race. The case before the Supreme Court sets up a test about how courts review similar gerrymandering challenges when racial identification and political affiliation can be highly correlated.
Conservative justices questioned the lower court decision and the strength of the case brought by the challengers. Justice Neil M. Gorsuch probed about the lack of an alternative map from challengers to the district lines.
“I would have thought that would have been a relatively modest burden,” Gorsuch said.
Justice Samuel A. Alito Jr. questioned why experts in the case did not draw up an alternative map that met the partisan goals of the state legislature.
Aden responded that the justification for the district map was largely based on traditional redistricting principles until trial. It wasn’t until midway through the trial that the partisan justifications became clear, she said.
Justice Elena Kagan read from a previous Supreme Court decision to make the point that an alternative map is “merely an evidentiary tool. Neither its presence nor its absence can itself resolve a racial gerrymandering claim.”
“I don’t know how to more clearly say that there is no alternative map requirement in these kinds of cases,” Kagan said.