In its most recent round of redistricting, the South Carolina legislature changed the demographic of a congressional district, resulting in a number of Black voters being moved to a different district. Challengers argued that the state violated the 14th Amendment by unlawfully racially gerrymandering the district; while lawmakers countered that political, not racial, factors motivated the redistricting. Election law experts Rick Hasen of UCLA Law and Jason Torchinsky of the Holtzman Vogel law firm, join National Constitution Center President and CEO Jeffrey Rosen to break down this week’s oral arguments in the case, discuss the claims being made, and how the Court might evaluate them.
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Today’s episode was produced by Bill Pollock, Samson Mostashari, and Lana Ulrich. It was engineered by Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Jason Torchinsky is a partner at Holtzman Vogel, specializing in campaign finance and election law. He and his firm served as counsel of record in filing two amicus briefs in support of appellants in this case.
Rick Hasen is professor of law and political science at the UCLA School of Law. In addition to numerous books and articles, he is the author of the forthcoming book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Alexander v. South Carolina NAACP (oral argument audio / transcript)
- Brief of Amicus Curae Nancy Mace, et al, in support of appellants (Jason Torchinsky, counsel of record)
- Brief of Amicus Curae the National Republican Redistricting Trust in support of appellants (Holtzman Vogel, counsel of record)
- “The Supreme Court upholds the provision prohibiting racial gerrymandering,”NPR Interview with Richard Hasen (June 2023)
- Richard Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (forthcoming 2024)
- “Redistricting in Alabama and the Voting Rights Act—Part 2,” We the People podcast (Oct. 2022)
- “Recapping Allen v. Milligan: The Court Upholds Section 2 of the VRA,” We the People podcast (June 2023)
Excerpt from interview: Rick Hasen discusses whether the Supreme Court would benefit from adopting the idea that political gerrymandering is justiciable.
Jeffrey Rosen: Rick, you began by saying that you're not a fan of the Shaw v. Reno cases which say that expressive racial harms are justiciable. And the court also decided in Rucho that political gerrymandering claims are justiciable. Justice John Paul Stevens, the late Justice Stevens, thought that both political and racial gerrymandering claims should be justiciable. If the court embraced that view, would these cases be easier to resolve?
Rick Hasen: Well, I think that if you could make a partisan gerrymandering claim depending on what it looked like, Justice Stevens wanted it to look like the Shaw claim, which I'm not a fan of that either, which would be does it appear that you're separating voters on the basis of party without adequate justification? You know, if you're gonna have a partisan gerrymandering claim, I would much rather it be a dilution kind of claim, whether that's using the standards that Justice Kagan put forward in her dissent in Rucho or something else. But I do think it would have the benefit, if partisan gerrymandering were policed directly it would have the benefit of putting less emphasis on race in how the court has to decide these things, and that would probably be otherwise appealing to Justice Thomas, who wants us to be less race conscious in how we do all of these things.
So would we have less litigation? Probably not. Would we be talking more honestly about what's going on in a lot of these cases? I think probably yes. But because we're not, as I said, you litigate with the tools that you have, and you know, if it's not a perfect fit, you try your best. This is why after Rucho this is something I think we talked about over a year ago, when partisan gerrymandering claims are found to be non-justiciable under the US Constitution there was a claim made under the North Carolina Constitution. And when democrats controlled the North Carolina Supreme Court, they found that partisan gerrymandering of the state constitution. Then there was a big push by republicans to change the composition of that court, they did, now partisan gerrymandering claims are no longer justiciable in North Carolina under North Carolina's Constitution. But in Wisconsin, the opposite happened. Wisconsin rejected partisan gerrymandering claims when republicans controlled the state Supreme Court there, and now there's a big fight because democrats, or justices allied with democrats have taken over control in that state.
So, see, to kind of give the general point here, the general point is that people are going to fight with whatever political tools they have, and Justice Frankfurter, who warned against courts going into the political thicket, maybe he was onto something, because these cases go on for every decade, because there's a new line that's drawn after each census, they start again, you know, in the '01, '11, '21, '31, you can expect the litigation cycle to start anew. That's why I'm a fan of states with the initiative process passing redistricting commissions and enacting those. The Supreme Court has seemed to give some blessing to doing that. And the one thing you can say about lines drawn by commission is they tend to be much harder to challenge in court, and they tend to be more resilient throughout the entire decade.
Excerpt from interview: Jason Torchinsky explains how the South Carolina legislature is defending its plan and what specifically is at issue in the case.
Jason Torchinsky: Sure. The South Carolina legislature basically said, "Look, we drew this map to strengthen the republican vote in the first congressional district." The first congressional district is in southeastern South Carolina and centers around Charleston County it is actually Nancy Mace's district, she had narrowly lost that seat and then she won it in 2020, and the republicans in Columbia said, basically, "We wanna make sure that it's stronger and more republican." So they had the guy who was the legislature's map drawer draw on the basis of politics, and that was basically their defense through this. And, and they said, "We drew to make this more republican. We didn't draw on the basis of race. And therefore, this racial gerrymandering claim should fail."
Going back to what Rick was just pointing out about the whole question of predominance the question was, was why? What was driving the line? And probably the easiest predominance case to use as an example is there's a case out of Virginia called the Bethune-Hill where the legislature said, "We want every majority black district to be at least 55% black because we have this anecdotal evidence that says that's what we need for African American candidates to win, and so we're gonna hit this target and we're gonna draw based on this racial target," and the Supreme Court said, "No, you can't just set out a racial target." And so what the plaintiffs did was basically argue they had a couple of different professors do some analysis and say, "Aha, we find that they moved out more African Americans than they moved out white voters, and therefore this was an intentional racial gerrymander.' And the state came back and said, "No, when republican vote and or when democratic vote and black vote correlate so highly in this region of South Carolina," which no one's really disputing, when you try to strengthen the district and make it more republican, there's a consequential effect of reducing the black population of the district because you're trying to put more republicans in there.
And there's two other sort of critical background facts in think people need to understand when they think about this case. The first congressional district was overpopulated by about 90,000 people, which meant when you looked at how South Carolina's population had grown or shifted within the state the South, the first congressional district was overpopulated, so that district had to shed 90,000 people. And what, ultimately, after they did what they did with the political data, the black population of the district dropped from, I believe, 17.78 to 16.72 black voting age population. And that, the plaintiffs argued, violated the Constitution.
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