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Justices take up challenge to purported racial gerrymander in South Carolina’s congressional map

Dome of the South Carolina State House building with flags flying.

The court will hear oral argument next term in a challenge to the congressional redistricting plan that South Carolina’s Republican-controlled legislature enacted in the wake of the 2020 census. The justices added Alexander v. South Carolina Conference of the NAACP to their merits calendar for the 2023-24 term as well as three other cases, including a dispute arising from former President Donald Trump’s lease of a government-owned building in Washington, D.C., and two cases involving the Armed Career Criminal Act.

The South Carolina case began as part of a broader challenge, filed by the South Carolina NAACP and an individual voter, to three of the state’s seven congressional districts. A three-judge panel ruled in January that one of the districts was an unconstitutional racial gerrymander because the legislators had deliberately moved tens of thousands of Black voters to a different district, making the district a safe seat for Republicans. The panel ordered the state to draw a new map.

The legislators appealed to the Supreme Court. They stressed that the three-judge panel presumed that they had acted in bad faith, with a focus on race in drawing the district. But in fact, they emphasized, they had focused on politics – specifically, trying to ensure “a stronger Republican tilt” in the district. They cautioned that if the panel’s decision is allowed to stand, it would “place state legislatures in an impossible bind: it would improperly turn the purported racial effect . . . of pursuing political goals and traditional criteria into racial predominance across an entire district.”

The challengers urged the justices to leave the panel’s ruling in place. They told the court that “[w]hether partisanship was the Legislature’s ultimate goal (though Defendants disclaimed it at the time) or a post-hoc rationale, the panel correctly found that race was the gerrymander’s primary vehicle.” The legislators’ reliance on race “is impermissible even if mapmakers used race as a proxy for politics,” they insisted.

The South Carolina case falls under the Supreme Court’s mandatory jurisdiction – that is, the narrow category of appeals in which it must take some action. On Monday, the justices noted “probable jurisdiction,” a step that puts the case on their merits docket for argument sometime next term.

The court granted the Biden administration’s request to weigh in on a dispute dating back to the Trump administration, involving efforts by a group of Democratic members of Congress to obtain information from the General Services Administration. The members contended that a 2013 lease for the Old Post Office, a government-owned building in Washington, D.C., between the GSA and a company owned in part by former President Donald Trump posed “numerous issues” requiring “congressional oversight.” Relying on 5 U.S.C. § 2954, a federal law enacted in 1928 that directs executive agencies to respond to requests for information from at least seven members of the House Oversight Committee, in 2017 they asked the GSA for documents – such as correspondence with Trump’s company and reports showing the hotel’s revenue and expenses – related to the lease.

When the GSA declined to turn over some of the requested documents, the members went to federal court. U.S. District Judge Amit Mehta dismissed the case. He agreed with the government that the members lacked standing – that is, a legal right to bring the case.

On appeal, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed. In an opinion by Judge Patricia Millett, the majority compared the members’ right to go to court to challenge the denial of information under Section 2954 to standing to sue for the denial of requests under laws like the Freedom of Information Act.

Millett also “rejected the government’s claim that the members of Congress do not have standing to sue because any injury from the denial of their request would only harm Congress as an institution, rather than them personally. “Section 2954 vested them specifically and particularly with the right to obtain information,” she reasoned. “The 34 other members of the Committee who never sought the information suffered no deprivation when it was withheld” – nor did the other members of the House of Representatives who did not sit on the committee.

The government went to the Supreme Court last fall, asking the justices to weigh in, and after considering the case at seven consecutive conferences, the justices agreed to take up the case.

The justices also agreed to take up a pair of cases involving the Armed Career Criminal Act, which extends the minimum sentence – from 10 years to 15 – for an individual who had been convicted of a felony and possesses a firearm when that person has at least three “serious drug offenses.” The question that the court agreed to decide is whether the definition of “serious drug offense” in the ACCA incorporates the federal drug schedules that were in effect when the individual committed the firearm offense, or instead the schedules that were in effect at the time of the state drug offenses. The justices granted review in two cases presenting this question, Brown v. United States and Jackson v. United States, and consolidated them for one hour of oral argument.

Eight years ago, the Supreme Court ruled that a prisoner who challenges the method that the state plans to use to execute him must show that another method is feasible and “readily implemented.” Last year the U.S. Court of Appeals for the 11th Circuit ruled that Kenneth Smith, a prisoner in Alabama, had met that requirement by pointing to a state law adopting nitrogen hypoxia as an alternative to lethal injection. Alabama asked the court to reverse the lower court’s decision, arguing that the mere existence of the law was not enough, but on Monday the justices – over a dissent from Justice Clarence Thomas, joined by Justice Samuel Alito – rejected that request.  

Smith was convicted of the 1988 robbery and murder of Elizabeth Sennett. Prosecutors contended that Sennett’s husband, a minister, paid both Smith and John Forrest Parker $1,000 each to kill Sennett so that he could collect the life insurance for her death. Sennett’s husband died by suicide shortly after her death; Parker was executed in 2010 for his role in her murder. The jury that convicted Smith voted 11-1 to sentence him to life in prison, but the trial judge overrode that determination (a power the court no longer has) and sentenced him to death.  

Smith filed a federal civil rights lawsuit last year challenging the lethal injection protocol that Alabama planned to use to execute him. He cited the July 2022 botched execution of Joe Nathan James, which took prison officials more than three hours to carry out because of problems starting an IV line. Smith himself came within a few hours of being executed in November, but prison officials were unable to start either a regular IV line or a “central line” under his collarbone.  

In its petition for review, the state insisted that nitrogen hypoxia was not actually an available method of execution. Indeed, the state noted, even “Smith himself alleges that a workable protocol for” nitrogen hypoxia “has not [been] established” and “remains unknown.” The state warned that the lower court’s decision in Smith’s case was a “headlong attack” on Supreme Court’s cases that has “foisted years of meritless litigation on Alabama.” The ruling was so wrong, the state argued, that the justices should summarily reverse it – that is, overturn it without calling for additional briefing on the merits or oral argument.   

Smith countered that, at least in this case, he has met his burden of showing a feasible and readily implemented alternative to lethal injection, as Glossip requires. The state “currently plans to execute at least” 48 inmates by nitrogen hypoxia, he noted. And not only does the state continue to offer nitrogen hypoxia as a method of execution for people who are sentenced to death, but it in fact settled a lawsuit filed by Alan Miller, whose Sept. 2022 execution the state called off when prison officials were unable to start an IV before the death warrant expired, by agreeing to execute him using nitrogen hypoxia. 

In a five-page opinion, Thomas indicated that he would have granted the state’s request to reverse the 11th Circuit’s ruling. That decision, he explained, was based on other “flawed” cases in the 11th Circuit that are “irreconciliable with our method-of-execution case law.” In particular, Thomas emphasized, the “focus” of the Supreme Court’s requirement that an alternative method of execution be “feasible and readily implemented” is “practical availability.” But in this case, he wrote, Smith only alleged that the state had adopted nitrogen hypoxia as another method of execution – which is not enough, for Thomas, to make out a viable claim.

More broadly, Thomas complained, the requirement that an inmate show an alternative method of execution “remains an essential element of an Eighth Amendment” claim, and courts should review them carefully to ensure that inmates do not attempt to use them as a delay tactic. The lower court’s “approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger,” Thomas added.

The justices sought the Biden administration’s view in a pair of cases arising from the 2019 bankruptcy filing of Highland Capital Management, a Texas-based investment management fund. In September 2022, the U.S. Court of Appeals for the 5th Circuit largely upheld the bankruptcy court’s order confirming a reorganization plan, but both Highland Capital and NexPoint, one of the firm’s clients, asked the Supreme Court to review aspects of that ruling. The justices instead asked the Biden administration to weigh in; there is no deadline for U.S. Solicitor General Elizabeth Prelogar to file her response.

The justices will meet again for another private conference on Thursday, May 18. We expect orders from that conference on Monday, May 22, at 9:30 a.m.

This article was originally published at Howe one the Court

Recommended Citation: Amy Howe, Justices take up challenge to purported racial gerrymander in South Carolina’s congressional map, SCOTUSblog (May. 15, 2023, 1:57 PM),