Supreme Court Conservatives Add New Minority Voter Roadblocks

The US Supreme Court made it more difficult for Black and minority voters to argue that legislators relied too much on race in drawing new voting maps, civil rights advocates said.

The 6-3 ruling Thursday that South Carolina voters hadn’t proved that race rather than partisanship motivated Republican legislators in drawing district lines creates new roadblocks to those challenging racial gerrymandering and reverberates well beyond South Carolina.

“I do not want to say that these claims cannot be established under different facts and under different circumstances,” said NAACP Legal Defense Fund Senior Counsel Leah Aden, who argued the case on behalf of a group of South Carolina voters. But “the bar keeps getting moved and it keeps getting harder and harder for plaintiffs to prove racial discrimination,” Aden told reporters after the ruling.

The decision, backed only by the court’s conservative majority, comes ahead of the November election where Democrats and Republicans are fighting for control of the US House.

Though the South Carolina dispute involved the 1st Congressional District, currently held by Republican Rep. Nancy Mace, it could affect redistricting disputes across the US.

Martina Tiku, the NAACP’s assistant general counsel, noted that the group is actively challenging maps in North Carolina and Tennessee.

The “impact goes far beyond the attack on black South Carolinians,” she said.

In particular, the decision will make it harder for those to bring racial gerrymandering claims arguing that race predominated during the map-drawing process.

Travis Crum, a law professor at Washington University in St. Louis said those claims were initially brought by white plaintiffs in the 1990s challenging efforts to create majority-Black districts. It wasn’t until the 2010s when civil rights groups started bringing these cases to increase Black voting power, Crum said.

Thursday’s ruling “looks quite different from the approach of earlier courts,” said Kareem Crayton, the Brennan Center’s senior director for voting and representation.

That’s in part because Justice Samuel Alito wrote in his opinion for the Supreme Court’s conservative majority that “in assessing a legislature’s work, we start with a presumption that the legislature acted in good faith.” It’s a presumption that he said would often be dispositive.

Now, only the most flagrant kind of evidence pointing to racial intent—"someone standing in the public square and saying they’re drawing a racist map"—is going to move forward, said Adriel Cepeda Derieux, deputy director of the ACLU’s Voting Rights Project, who was part of the team challenging the South Carolina map. But “we all know that bad or illegal motives are not always out in the open,” he said.

And Crayton noted that sussing out legislative intent has gotten harder after the Supreme Court effectively undid the need for certain jurisdictions to “preclear” voting changes with federal courts or the Justice Department. The process has become less transparent as the need for legislators to “show their work” has gone away, he said.

Instead, the ruling will encourage legislators to claim they were acting with partisan motives, Aden said.

The “court has said time and time again that using race as a proxy for party, harming Black voters in service of trying to entrench yourself in power, that that is constitutionally suspect,” she said.

But the Supreme Court in 2019 said federal courts can’t police partisan gerrymandering claims.

The court’s decision in the South Carolina case “green lights legislators to hide behind partisanship,” Aden said. To the extent that “legislators come up with excuses, other explanations for their line drawing, this court seems to be giving them more bandwidth to do that.”

Aden’s comments echo a dissent by Justice Elena Kagan, who wrote for the three liberal justices.

“In every way, the majority today stacks the deck against the Challengers,” Kagan wrote. “When racial classifications in voting are at issue, the majority says, every doubt must be resolved in favor of the State, lest (heaven forfend) it be ‘accused’ of ‘offensive and demeaning’ conduct.”

The case is Alexander v. South Carolina State Conference of the NAACP, U.S., No. 22-807, 5/23/24.