Civil Rights Group Seeks Another Supreme Court Win on Voting

The NAACP Legal Defense Fund will try to replicate its surprising win at the US Supreme Court when the civil rights group argues a redistricting dispute from South Carolina.

The case the justices will hear on Wednesday pits GOP legislators against Black voters who say they were unconstitutionally sorted into congressional districts based on race.

The stakes in these redistricting cases are high as congressional maps in states from New York to Texas and Utah to Louisiana are being challenged in state and federal courts according to Marina Jenkins, who is the executive director of the National Democratic Redistricting Committee. “And the number of districts that could swing and are subject to redistricting litigation is greater than the margin in the House,” Jenkins said.

Allen v. Milligan, the Alabama voting rights case from last term that favored Democrats was an unexpected win for LDF. Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s three liberals in rejecting reading the Voting Rights Act in a race-neutral way.

But the South Carolina challenge may not play out the same way. It’s brought under the 14th Amendment rather than the Voting Rights Act, which could make it more difficult to build a similar majority.

“This may be one where you see the more traditional coalition come back,” said Jason Torchinsky of Holtzman Vogel, who filed an amicus brief on behalf of members of the South Carolina congressional delegation defending the state map.

Colorblind Constitution

State officials say they sorted based on partisanship, not race. The “Republican-controlled General Assembly’s goal was to ‘create a stronger Republican tilt’ in District 1,” Jones Day’s John Gore wrote in his brief on behalf of the state legislators.

A three-judge district court panel rejected that argument. In light of the “striking evidence” that voters were sorted on the basis or race, the claim that mapmakers “did not consider race in drawing Congressional District No. 1 rings ‘hollow’ to the Court.”

The coastal district, which includes parts of Charleston, has long been held by Republicans, including Tim Scott, the Senate’s only Black Republican and now a candidate for president. A surprising upset in 2018 resulted in Democrat Joe Cunningham representing the district. It quickly switched back to Republican control in 2020 with the election of Nancy Mace, who currently holds the seat.

Gore will make his first high court argument attempting to overturn that ruling in Alexander v. South Carolina State Conference of the NAACP. The Justice Department’s Caroline Flynn is siding with the challengers who say it was race, not politics, that dominated the redistricting process.

Along side her will be Leah Aden, who will make her high court debut arguing on behalf of Black South Carolinians.

“The majority of the court has said that our Constitution is supposed to protect against the predominate use of race unless there’s a compelling interest,” Aden said. Outside of the Voting Rights Act, the 14th Amendment severely limits the use of race in drawing voting maps, she said.

This case will test the court’s commitment to that idea, Aden said, because Black South Carolinians were pulled out of voting districts because of their race.

And while this time around it’s those challenging the GOP-drawn maps that are pressing a race-neutral standard, last term in the Alabama case it was state officials who were urging the court to adopt a robust colorblind view of redistricting.

Alabama GOP legislators argued that in challenging a map under the Voting Rights Act, courts should limit the use of race as much as possible.

But a 5-4 court rejected that interpretation of the Voting Rights Act. The law “itself demands consideration of race,” Roberts wrote for the court in Allen v. Milligan.

Narrow Window

Torchinsky, who filed the amicus brief in support of North Carolina’s maps, said the cases highlight the difficulty states have in drawing voting maps.

States have to consider race under the Voting Rights Act to ensure that minority voters are able to participate meaningfully in the political process, Torchinsky. But under the Fourteenth Amendment, they practically can’t consider race at all.

“Legislatures have this real narrow bowling alley that they’re trying to navigate in redistricting,” he said. “If they don’t consider race enough they hit the gutter on one side, but if they consider race too much they hit the Fourteenth Amendment gutter on the other side.”

It’s particularly hard to do when race and politics are so closely correlated, like in South Carolina. That’s because the US Supreme Court and some states have said that courts aren’t equipped to police partisan gerrymandering.

But while partisanship might be a valid goal that map drawers can consider, the Supreme Court has said that you can’t use race as a proxy, said Mitchell Brown, a voting rights senior counsel with the Southern Coalition for Social Justice.

That’s what state officials did here by using Black voters as “political puzzle pieces,” Brown said.

A Supreme Court ruling upholding the South Carolina map drawn by GOP legislators would have national reverberations, giving the green light to states to hide the use of race in the guise of partisanship, Brown said.

High Stakes

One similarity between the Alabama and South Carolina cases is that courts allowed both the GOP-drawn maps to be used during the 2022 mid-term elections while the litigation worked its way through the system. Now both maps have been found by federal judges to be unconstitutional.

Both maps helped Republicans gain a slim majority in the House of Representatives, with just a nine member lead over Democrats.

The stakes in these redistricting cases couldn’t be higher, said the National Democratic Redistricting Committee’s Jenkins.

While she said redistricting fights aren’t new, we’re in a “new era” where the “battle is nonstop because stakes are so high.”

South Carolina GOP officials say the challenge is another political ploy.

“Control of Congress may turn on which congressional map a single State adopts,” South Carolina Governor Henry McMaster (R) wrote in a friend of the court brief in claiming the plaintiffs here were merely trying “to score political points.”

But Aden said LDF and other civil rights groups will keep fighting.

“The legacy of our organization started out largely about Black people’s total exclusion from the process,” she said. When that fell, then came literacy tests, all-white primaries, and now diluted voting maps.

The barriers “change in detail,” but Aden said “it’s our job to keep pressing forward because things will change, it just will take some time.”

The case is Alexander v. South Carolina State Conference of the NAACP, U.S., No. 22-807.