Johns Hopkins Undergraduate Law Review

April 8th 2024 | Kiran Sabharwal

Edited by Helina Franklin

As domestic political debate focuses on the issue of state power, the responsibilities of state legislatures will become increasingly more important, particularly regarding control over electoral districts. When casting your ballot on election day, perhaps the immediate question is who will you vote for, but a more legally complex question would be who do you vote with? In other words, who makes up one’s voting district and how are voting districts in the United States created and manipulated?

Even since the founding of the United States, electoral processes and partisan battles have gone hand in hand. Perhaps one of the most contentious areas has been the logistics of representation— the apportionment and division of congressional districts. Gerrymandering, or the process in which a party redraws district lines to better achieve their political goals, has been an often used tool in the back pocket of state legislators for over two centuries, and when practiced correctly, it can be a constitutional strategy. However, the freedom given to state legislatures in apportionment frequently overexposes the vulnerabilities of constituents in this process, allowing for the creation of districts that serve political interests instead of fundamental voting principles like one man, one vote. In recent decades, a flurry of gerrymandering cases have made their way to the highest court, and the 2020 census was no exception. Most recently, the United States Supreme Court granted certiorari to Alexander v. South Carolina Conference of the NAACP, a case that examines the delineation between partisan gerrymandering and racial gerrymandering in South Carolina’s legislator-drawn maps for the first and sixth congressional districts [1]. In the coming months, the Court will release a decision on the degree to which legislators “deliberately considered race” [2], and thus the constitutionality of the maps as a whole. A favorable ruling for South Carolina legislators, however, could further validate an already dangerous precedent of noninterference in egregiously unrepresentative maps, leaving voters at the whims of increasingly polarized state legislatures. 

State legislatures gain their powers from Article 1, Section 4 of the Constitution, wherein they are empowered to dictate the “Times, Places and Manner of holding Elections for Senators and Representatives,” which “shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Gerrymandering began even before the new Constitution went into effect, as Anti-Federalists in 1788 unsuccessfully tried to keep James Madison out of Congress by pushing him into the same district as James Monroe [3]. Another attendee of the Constitutional Convention, Massachusetts Governor Elbridge Gerry, inspired the name of this process with his infamously misshapen Senate district in the early 1800s. Accordingly, the oscillating two-party struggle over district map supremacy began early. As New America notes, “As long as state legislatures have been responsible for drawing legislative districts—that is, since the beginning of the republic—partisans have boldly bent boundaries as best they could” [3]. 

And notably, strictly partisan gerrymandering, as Article 1, Section 4 enables, is entirely constitutional. But state legislatures are also governed by two other key sections of the Constitution: the 14th Amendment, requiring equal protection, and the 15th Amendment, outlawing the denial or abridgment of the right to vote on the basis of race. Because of the way that many districts are drawn, particularly by Republican state legislatures, many maps have unfairly apportioned districts, infringing on the constitutionally protected right to equal protection in voting by decreasing the voting power of minority communities. Fortunately, the Court can aid in these cases and began to do so after a landmark gerrymandering case in the 1960s. In Baker v. Carr (1962), the Warren Court established that apportionment, while a function of the state government, is a justiciable question for federal courts, and thus created an avenue for redress of constitutional violations in this area [4]. 

Alexander v. South Carolina Conference of the NAACP, the Court’s most recent gerrymandering case, centers around a controversy over the first and sixth congressional districts in South Carolina, created by the Republican legislature following population data changes from the 2020 census. State lawmakers adopted a plan in 2022 that reapportioned districts across the state, including District One, a district which Republicans won back from the Democrat incumbent by one percentage point in 2020, and District Six, a majority African American district and the sole consistently Democratic seat in the South Carolina congressional delegation [5]. While gerrymandering District One, lawmakers split up residents of coastal Charleston County between the two districts. But in doing so, they moved 30,000 African American voters into District Six, meaning that 79% of the African American voting age population now voted in District Six, and left the rest of the county in District One. This action divided this community, even though compactness and keeping communities together are integral factors of reapportionment, and moved a group of coastal Charleston County voters into a district centered on the state capitol, nearly 120 miles away [6]. The goal, the district court found, was to reach an African American voting age population of exactly 17% for a “republican tilt” in District One, which was not possible unless lawmakers moved 30,000 voters (or 3% of the African American voting age population) out [6]. 

When reviewed by the district court, a three-judge panel found that lawmakers’ plan did constitute a racial gerrymander, and was thus unconstitutional, calling the plan a “subordination of traditional districting principles, including maintenance of constituencies, minimizing divisions of counties, and avoidance of racial gerrymandering” [7]. Such a finding required a new map to be drawn for the next election cycle, but instead the defendants appealed their case to the Supreme Court. 

The unconstitutionality of gerrymandering on the basis of race traces back to Shaw v. Reno, a 1993 case concerning “bizarre[ly]” shaped districts in North Carolina that severely disadvantaged African American voters. The Court deemed those maps unconstitutional, and classified racial gerrymandering under the strict scrutiny test, requiring that policies be both narrowly tailored and provide a compelling state interest to stand, an incredibly high bar [8]. However, the Roberts Court weakened the power of gerrymandering plaintiffs by siding with state lawmakers in Rucho v. Common Cause (2019), a dual case wherein Maryland and North Carolina legislators manipulated districts on behalf of Democrat and Republican candidates, respectively. Chief Justice Roberts stated, “Partisan gerrymandering claims present political questions beyond the reach of the federal courts,” even if this noninterference creates situations that “reasonably seem unjust” [9]. This decision practically opened the floodgates for any state legislator to claim their reapportionment process was an act of political strategy and avoid necessary oversight from the judicial branch. 

Appellants to the Supreme Court are relying on the often legally unclear line between partisan and racial gerrymandering, especially given the recent move by the Roberts Court to distance itself from political questions and infringement of state legislature decisions. They argue that while there may be a connection in this district between race and voting patterns, Republican mapmakers only took into account electoral data in drawing district lines, representing a partisan gerrymander that “merely had a racial effect” [1]. Further, they argue that the district court failed to assume a good faith analysis of their motivations. Senior Counsel for the NAACP Leah Aden, however, contends,  “ … The unrebutted expert evidence is that race was a better predictor for movement [than political affiliation] and that … Black voters were significantly and disproportionately targeted for movement” [10]. And, as Justices Ketanji Brown Jackson and Sonia Sotomayor noted during oral arguments, the burden on the Supreme Court is not to determine a definitive ruling on the case as a whole but rather to answer whether the district court clearly erred in their decision [11]. The NAACP asks the Court to affirm the district court decision that Republican lawmakers’ actions violate the strict scrutiny basis to which racial gerrymandering must ascribe, showing no compelling state interest for their broadly tailored plan and rendering the South Carolina maps clearly unconstitutional. 

Interestingly, Alexander v. South Carolina Conference of the NAACP also represents the incorporation of a new tool in the adjudication of racial gerrymandering cases. As Harvard Law Professor Nicholas Stephanapolous, who also filed an amicus curiae brief in the case, remarked to Harvard Law Today, “This is the first case in front of the Supreme Court of this kind using computer simulations to try to tell us what would have happened if race hadn’t predominated” [1]. Of course, new computer models also represent a double-edged sword; while the Supreme Court has access to this technology to check bad actors in the state legislature’s gerrymandering process, the state legislators themselves can also use computer modeling to create increasingly gerrymandered districts. 

The Supreme Court will hand down its decision in the coming months, deciding either to affirm the district court’s assertion that the South Carolina map was an unconstitutional gerrymander or side with South Carolina’s partisan view of their mapmaking strategy. A decision in favor of the NAACP will further empower constituents experiencing racial gerrymandering to file suits to restore their constitutionally endowed rights, hopefully discouraging state legislature plans that dilute the power of minority voters. But, a decision in favor of Republican lawmakers may further encourage state legislators due to the Supreme Court’s de facto policy of ignorance towards gerrymandering, especially given the legacy of Rucho v. Common Cause. 

Of course, inherently, race and politics are perpetually intertwined, but the complication of this relationship does not necessitate that the Supreme Court back away from either as a justiciable question. Instead, the complexity requires that the highest court deliberate on two issues of such great importance. In an amicus curiae brief siding with Alexander, several southern states have argued that the Supreme Court cannot get involved in gerrymandering because it would infringe on their rights to govern solely over their constituents. However, their actions prove that rogue state legislatures may need to be checked by the Supreme Court in order to prevent the placement of party politics over the basic voting rights of American citizens. 

Source:

[1] “Alexander v. South Carolina State Conference of the NAACP.” Oyez. Accessed November 10, 2023. https://www.oyez.org/cases/2023/22-807.

[2] Neal, Jeff. “Supreme Court Preview: Alexander V. South Carolina Conference of the NAACP.” Harvard Law School, October 3, 2023. https://hls.harvard.edu/today/supreme-court-preview-alexander-v-south-carolina-conference-of-the-naacp/. 

[3] Drutman, Lee. “What We Know about Redistricting and Redistricting Reform.” New America, September 19, 2022. https://www.newamerica.org/political-reform/reports/what-we-know-about-redistricting-and-redistricting-reform/. 

[4] Baker v. Carr, 369 U.S. 186 (1962)

[5] Howe, Amy. “Mandatory Minimums, Payday Lending, and Voting Rights in First Session of Supreme Court Term.” SCOTUSblog, October 6, 2023. https://www.scotusblog.com/2023/09/mandatory-minimums-payday-lending-and-voting-rights-in-the-first-session-of-the-courts-new-term/. 

[6] Lee, Ethan, and Robert Plafker. “Alexander V. South Carolina NAACP.” Edited by Wentao Yang. Legal Information Institute, October 5, 2023. https://www.law.cornell.edu/supct/cert/22-807. 

[7] “South Carolina Conference of the NAACP v. Alexander: Findings of Fact and Conclusions of Law.” Democracy Docket. Accessed December 8, 2023. https://www.democracydocket.com/wp-content/uploads/2021/10/4932022-1-6-findings-of-fact-and-conclusions-of-law.pdf. 

[8] Shaw v. Reno, 509 U.S. 630 (1993)

[9] Totenberg, Nina, Domenico Montanaro, and Miles Parks. “Supreme Court Rules Partisan Gerrymandering Is beyond the Reach of Federal Courts.” NPR, June 27, 2019. https://www.npr.org/2019/06/27/731847977/supreme-court-rules-partisan-gerrymandering-is-beyond-the-reach-of-federal-court. 

[10] DeVenny, KeeCee. “How LDF Is Challenging South Carolina’s Unconstitutional Redistricting Maps at the Supreme Court.” Legal Defense Fund, October 18, 2023. https://www.naacpldf.org/alexander-v-sc-naacp-supreme-court-gerrymandering/. 

[11] Howe, Amy. “Justices Question Finding That S.C. District Was Unconstitutional Racial Gerrymander.” SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/.