The Supreme Court Just Made It Easier for Republicans to Get Away With Racial Gerrymandering

The conservative supermajority upheld South Carolina’s congressional map.

Collage that features Nancy Mace, the Supreme Court facade, the seal of the state of South Carolina and a South Carolina congressional map.

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The Supreme Court on Thursday upheld the constitutionality of a South Carolina congressional map that a lower court had previously found diluted the power of Black voters. In a 6-3 decision authored by Justice Samuel Alito, the Court’s conservative supermajority wrote that “the Challengers provided no direct evidence of a racial gerrymander, and their circumstantial evidence is very weak.”

The court’s ruling protects the seat of GOP Rep. Nancy Mace, a onetime relative moderate who has veered sharply to the right after Republicans redrew her district following the 2020 census to make it more GOP-friendly. She was one of eight House Republicans who voted to oust Speaker Kevin McCarthy, and she subsequently endorsed Donald Trump despite once saying that she held him responsible for the January 6 insurrection. Mace defeated Democrat Joe Cunningham by one point in 2020, but she won reelection in her redrawn Charleston-based district by 14 points in 2022.

A GOP state senator from the area said he wanted to “give the district a stronger Republican lean.” Republicans accomplished that goal by moving nearly 30,000 Black voters in Charleston County (62 percent of the county’s total Black population) from the swing 1st district to the safely Democratic seat of longtime Rep. James Clyburn, one of the most powerful House Democrats.

A federal court ruled in January 2023 that the map was a “stark racial gerrymander.” But the Supreme Court disagreed, finding that South Carolina Republicans were motivated by politics, not race, and “acted in good faith.” The conservative justices rejected the factual findings of the lower court, which the high court is only supposed to do if the findings are clearly wrong. The court’s delay in issuing a ruling (civil rights groups had asked the justices to rule by the beginning of the year) already forced the lower court to allow the disputed map to stay in place for this election, handing Republicans another House seat for 2024. 

In her dissent, Justice Elena Kagan said that the decision would make it much harder to strike down racially gerrymandered maps. “The majority’s new evidentiary rule is meant to scuttle gerrymandering cases,” she wrote. Going forward, plaintiffs now need to show extremely clear evidence of racial gerrymandering because courts are now supposed to give legislators the benefit of the doubt. This will make it easier for white Republicans to dilute the votes of communities of color. As Kagan’s dissent points out, Alito’s majority opinion places “uncommon burdens on gerrymandered plaintiffs” that will make it very difficult to bring successful racial gerrymandering cases in the future. “This Court is not supposed to be so fearful of telling discriminators, including States, to stop discriminating,” Kagan wrote.

The Roberts Court has already made it very difficult to strike down gerrymandered maps, ruling that partisan gerrymandering cannot be challenged in federal court. The court has routinely sided with Republicans in other voting rights disputes, as well, gutting the Voting Rights Act on multiple occasions. The court’s opposition to voting rights has become a key part of the GOP strategy to enshrine conservative minority rule. In a concurring opinion in the South Carolina case, Justice Clarence Thomas went so far as to suggest that racial gerrymandering and vote dilution claims could never be struck down in court. The Constitution, Thomas asserted, “contemplates no role for the federal courts in the redistricting process.” The Supreme Court, however, has frequently intervened in the redistricting process throughout US history, most notably in the “one person, one vote” cases from the 1960s. 

One exception to the court’s hostility to the right to vote came last June, when it invalidated Alabama’s congressional map because it did not include a second majority-Black district in a state that is 27 percent Black. That led to the drawing of a new majority-Black district that is expected to send a Democrat to the House in November. A similar result followed in Louisiana, where that state also drew a second majority-Black district. 

But the court’s sympathy to Black voting rights did not extend to South Carolina, and the outcome is a significant win for Republicans hoping to retain their narrow House majority. Given the GOP’s tiny edge in the lower house, a swing of just a few seats in November could be enough to decide who controls the chamber this year.

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