South Carolina redistricting case could add Democratic House seats

The U.S. Supreme Court hears another redistricting case Wednesday, one that could well end up giving Democrats at least a shot at winning a second congressional seat in South Carolina.

At issue is the way the Republican-dominated state legislature equalized the population of its congressional districts, as it is required to do by the Constitution after the decennial Census. Specifically under the microscope is congressional district one — CD 1 — which encompassed Charleston County and had 88,000 too many voters in it, while the neighboring CD 6, represented by the state's only Black congressman, had 85,000 too few voters.

Now, you might think that the natural solution would be to move the excess voters from CD 1 to CD 6, but that's not what the map-makers did. Instead the GOP plan chopped up Charleston County, stripping from CD 1 most of the city of Charleston and ending its 120-year history as the anchor for the district.

The South Carolina State Conference of the NAACP challenged the redistricting in court. As the organization's president Brenda Murphy puts it, residents who live in Charleston County use the same schools, the same churches and the same hospitals, but these residents "are now split."

The state of South Carolina, however, maintains that its gerrymander wasn't racial; it was partisan. It makes a difference because, under Supreme Court precedents, a gerrymander that is "predominantly based on race" is a violation of the 14th Amendment's guarantee to equal protection of the law, but a partisan gerrymander, while unattractive, is perfectly legal.

Figuring out the difference can be tricky, especially in the South where voting remains racially polarized, and some 90% of Black voters are Democrats. As a result, these cases are very much determined by the factual findings of the lower courts.

In this case, a three-judge federal district court held an eight-day trial. It found that while the Republican legislature had drawn the lines for CD 1 to create a safer Republican district, race was "the predominant motivating factor" in drawing the district lines. Specifically, the court found that the GOP determined that it needed to keep the Black voting age population in CD 1 at a relatively low 17.3% in order to achieve its partisan goal, and that it "targeted" the Black vote to achieve that goal, in the process violating its own map-drawing rule which called for the least change possible to district lines.

Interestingly, in a very real sense, the NAACP's argument in this case is the same one embraced by the Supreme Court in last term's affirmative action decision. In that case, the court said colleges were sorting students by race, and that's unconstitutional. In this case, the NAACP claims the GOP state legislature sorted voters by race, and that's unconstitutional.

NYU law professor Richard Pildes, an election law expert, sees "a kind of consistency" in all this.

"In both areas the Roberts court has taken the position that the explicit use of race in public policy-making or in educational admissions practices can only be done if the government has the most compelling justifications for doing it," he says. "In redistricting the only compelling justification is complying with the Voting Rights Act. That's not on the table here."

In other words, this could be a case in which the conservative Roberts court sides with civil rights groups. Both sides have asked the Supreme Court to expedite a decision by January so that a new map will be in place for the 2024 election.

Democrats believe that similar redistricting wins are possible in Louisiana and Georgia and that, combined with a recent win in Alabama, could conceivably be enough for the Democrats to recapture control of the House of Representatives. It's a stretch, but not a crazy one.

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