Argument Analysis

Justices question finding that S.C. district was unconstitutional racial gerrymander

The Supreme Court on Wednesday was skeptical of a lower court’s decision that a congressional district on the South Carolina coast was an unconstitutional racial gerrymander. After over two hours of oral argument, a majority of the court seemed inclined to rule for the state in a dispute that centers on the often close correlation between race and political-party affiliation, as well as efforts by courts and litigants to disentangle the two.

South Carolina adopted the map at the center of the dispute in 2021. The new map moved nearly two-thirds of the Black voters in Charleston County out of District 1, which is currently represented by Republican Nancy Mace, into District 6, represented by Democrat Jim Clyburn. The map also moved Republican areas in nearby Beaufort, Berkeley, and Dorchester Counties into District 1 from District 6.

The state defended the plan against allegations of racial gerrymandering, countering that the Republican-controlled legislature’s goal in enacting the map was to ensure that the district remained a safe seat for Republicans, who hold a 6-1 advantage in the state’s congressional delegation. 

In Jan. 2023, a three-judge federal district court – which hears challenges to the constitutionality of a congressional map – ruled that District 1 violated the Constitution because it was the product of racial gerrymandering. The court ordered the state to draw a new map, although that order is now on hold awaiting the Supreme Court’s decision.

Representing the state, lawyer John Gore told the justices that the dispute before them was a “circumstantial case,” based on “very weak circumstantial evidence.” The three-judge district court, he said, had overlooked the state’s direct evidence that it relied on party, rather than race – and in particular, on data from the 2020 presidential election – to draw District 1. Instead, he contended, the lower court’s decision rested on the opinions offered by the challengers’ experts, which he characterized as “unreliable” and “unprobative.” Moreover, Gore added, the challengers had not even offered an alternative map, to demonstrate that lawmakers could have achieved their goal of a safer Republican seat while still adhering to traditional redistricting principles.

Justice Elena Kagan pushed back against Gore’s suggestion that the challengers were obligated to provide an alternative map, but Chief Justice John Roberts appeared sympathetic to Gore’s position. He told Leah Aden, who argued on behalf of the challengers, a District 1 voter and the South Carolina State Conference of the NAACP, that her clients have the “very, very difficult” burden of “disentangling race and politics in a situation like this.” “And you’re trying to carry it,” Roberts said doubtfully, “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.”  Moreover, Roberts added dubiously, the challengers’ argument is that Republican lawmakers went to great efforts to move Black voters into and out of District 1, but the net increase in Republican voters in District 1 was just 1.36%. “I’m not saying we can’t get” to a ruling for the challengers, Roberts concluded, “but this would be breaking new ground” in the court’s redistricting cases.

Justice Neil Gorsuch also was receptive to Gore’s arguments. Even if an alternative map was not required, he told Caroline Flynn, the assistant to the U.S. solicitor general who argued on behalf of the federal government, it would “have been the simplest thing to do” and “really strong probative evidence” that the lawmakers were not being truthful about their motives, particularly when computers “spit out maps by the thousands these days.”

Justice Samuel Alito expressed doubt about the basis for the three-judge court’s conclusions. He observed that mapmaker Will Roberts had “a long record of working for the legislature and” had “drawn maps for both Republicans and Democrats.” He also probed flaws in some of the reports submitted by the challengers’ experts, at one point observing that one of the experts had run a simulation that created 10,000 maps without ever considering politics in drawing the maps. “In a case that’s all about disentangling race and politics,” Alito asked Aden, “how can we possibly give any weight to an expert report that did not take politics into account at all purportedly?”

Justice Brett Kavanaugh also appeared to give some weight to the state’s argument that it had relied on data from the 2020 presidential election, despite the challengers’ argument that such evidence was unreliable. “If that data is good,” he queried, “should we reverse?”

For her part, Aden urged the justices to leave the lower court’s ruling in place. The three-judge district court, she emphasized, “properly concluded that race predominated over partisanship in CD1’s design based on strong factual findings, including that after map drawers moved more than 193,000 people in and out of CD1, its” Black voting-age population “remained identical as in the 2011 map.” “Disentangling race and party affiliation,” Aden continued, “the panel credited the unrebutted expert testimony that race was a better predictor than partisan affiliation for the design of” District 1.

Both Aden and the court’s liberal justices stressed that the question before the justices was not whether they agreed with the three-judge district court’s decision, but whether it was clearly wrong. Justice Ketanji Brown Jackson made this point repeatedly. She told Gore that he was effectively asking the Supreme Court to take a fresh look at all of the evidence, rather than reviewing it to see whether it was clearly wrong. But the “clear error” standard is a “highly deferential standard,” she said. The Supreme Court cannot reverse the three-judge court’s decision simply because it might have reached a different conclusion.

Justice Sonia Sotomayor echoed this argument. She told Gore that when he argued that the justices should give weight to one expert over another, he found himself “in a very poor starting point under clear error,” because under the “clear error” standard the Supreme Court should defer to a district court’s finding that an expert is credible.

Other justices did not necessarily see the “clear error” standard as imposing such a high bar. Alito acknowledged that the “clear error” standard is “very demanding,” but he insisted that it is not a rubber stamp. This is particularly true, he added, in a case like this one, in which the justices are the only court to review the findings of a three-judge district court – whose findings in turn rely on expert reports.

Justice Amy Coney Barrett agreed that under the “clear error” standard, the justices should generally defer to the district court’s findings. But she saw the justices’ inquiry as perhaps more complicated than just asking whether the three-judge district court’s findings were clearly wrong. She told Flynn that the justices were actually reviewing the lower court’s ruling “in light of the fact 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.” “How,” she asked Flynn, “do you think that should affect our review of the facts?”

Justice Clarence Thomas asked Flynn what the justices should do with the challengers’ second claim – that lawmakers intended to discriminate against Black voters – if they find that District 1 was not a racial gerrymander. Flynn urged the court to send that claim back to the lower court for another look, arguing that the “district court used the wrong legal standards to evaluate that claim.” Thomas’s question was another good sign for the state. But whatever the court does, it is likely to act quickly, to give the state enough time to prepare for the 2024 elections.