Disentangling Race and Partisanship: The Fate of 30,000 Charlestonians and One South Carolina Congressional District 

On Wednesday, oral argument was held in a South Carolina redistricting lawsuit — Alexander v. South Carolina NAACP — after the state’s Republican legislators appealed a three-judge panel’s decision to strike down the 1st Congressional District. 

The federal court held that South Carolina’s 1st Congressional District was a racial gerrymander and struck down the map, pointing out that the creation of this district would have been “effectively impossible without the gerrymandering of the African American population of Charleston County.” 

In October 2021, after lawmakers kept delaying the 2020 redistricting process and had not yet enacted a new reapportioned map, plaintiffs challenged the state’s 2010 congressional map as being malapportioned. After the Legislature enacted a new map with 2020 census data, the plaintiffs filed amended complaints challenging the new map for being a racial gerrymander in violation of the 14th and 15th Amendments.

On Jan. 6, 2023, a federal three-judge panel held that South Carolina’s 1st Congressional District — home to Charleston County — was a racial gerrymander and struck down the map.

Republicans, however, appealed the decision to the U.S. Supreme Court, which took the case in full and heard oral argument this week.

During the two-hour argument, the Court pursued a line of questioning to inform the issue before them — whether a federal three-judge panel correctly held that South Carolina’s 1st Congressional District violates the U.S. Constitution’s prohibition on racial gerrymandering. There are a few particular takeaways to pay attention to:

• Alexander is the Court’s first racial gerrymandering case since it issued a landmark ruling on partisan gerrymandering in 2019. South Carolina’s central argument in Alexander is that the state’s Republican-controlled Legislature relied on partisanship — not race — when redrawing the state’s congressional map after the 2020 census. 

• The concept of an “alternative map” came up repeatedly throughout oral argument. At the onset of the argument, South Carolina asserted that the three-judge panel erred by failing to “enforce the alternative map requirement.” Justice Elena Kagan was quick to retort: “The alternative map requirement doesn’t exist.” 
• Certain justices seemed to entertain South Carolina’s claim that the lower court committed “clear legal errors.” Under what is known as the “clear error standard,” an appellate court may only reverse a lower court’s finding of facts if they are “clearly erroneous.” The state attempted to identify a series of factual issues that it believed constituted “clear error.” In addressing the state’s arguments, Justice Ketanji Brown Jackson reasoned that the clear error standard…is a highly deferential standard, that the Court may not reverse just because it would have decided the matter differently.”
• The fate of South Carolina’s congressional map and racial gerrymandering claims hang in the balance. While the oral argument focused on some of the more technical aspects of the case, what is fundamentally at stake in Alexander is to what extent the Court is willing to accept partisan defenses in racial gerrymandering cases.

If the Court were to fully embrace South Carolina’s core arguments, it would become much more difficult for plaintiffs to prove their claims and prevail in racial gerrymandering cases. 

North Carolina Republicans Hit With a Double Whammy After Veto Override

On Tuesday, with its new veto-proof supermajority, the Republican-controlled North Carolina Legislature overrode Democratic Gov. Roy Cooper’s veto of two voting and election laws, Senate Bill 747 and Senate Bill 749. 

• S.B. 747 would have invalidated more than 13,000 votes if it had been in effect during the 2020 presidential election. Among other provisions, the voter suppression law will ban private grants for election administration, launch a pilot program for signature verification and move up the deadline to receive mail-in ballots from three days after Election Day to 7:30 p.m. on Election Day.

• S.B. 759 will remove the governor’s power to appoint election board members to the state board, granting it to the North Carolina Legislature instead. The power-grabbing in S.B. 749 has been opposed at every level: from the current governor to the North Carolina Supreme Court and the majority of voters.

Within minutes of the veto overrides, pro-voting groups filed a lawsuit challenging S.B. 747’s new “Undeliverable Mail Provision,” which the plaintiffs contend will arbitrarily disenfranchise North Carolina’s same-day voters, those who register to vote on the same day they cast their ballots during the state’s early voting period. 

• The pro-voting groups allege that the Undeliverable Mail Provision violates the Due Process Clause of the 14th Amendment and places an undue burden on the right to vote in violation of the First and 14th Amendments. The lawsuit requests that a federal court declare the provision unconstitutional and prevent its enforcement. 

Later that same day, the Democratic National Committee and the North Carolina Democratic Party filed a federal lawsuit challenging multiple provisions including various provisions of the law that impose new barriers and requirements for same-day voters. The Democratic groups assert that the law creates a distinct set of onerous standards for same-day registrants, many of whom are students, young voters, elderly voters and low-income voters. 

• The plaintiffs also mount claims against a provision of S.B. 747 that moves up the absentee ballot receipt deadline (for ballots that are postmarked by Election Day) from three days after the election to 7:30 p.m. on Election Day. At the same time, the law expands the window for challenging absentee ballots to five days after Election Day. The plaintiffs also challenge a portion of the law that empowers partisan poll observers to move freely about a polling place with fewer regulations and restrictions. The Democratic groups ask the court to temporarily and permanently block the enforcement of the challenged provisions.

Despite Claims of Racial Discrimination, Portions of Georgia’s Suppressive S.B. 202 Go Unblocked 

On Wednesday, a federal judge declined to temporarily block five provisions of Georgia’s 2021 voter suppression law, Senate Bill 202. Earlier this year, several pro-voting groups and the U.S. Department of Justice asked a federal court to temporarily block five provisions of S.B. 202, which:

• Drastically limit the availability of drop boxes in the state,
• Prohibit voters from distributing food and water to voters waiting in long lines, 
• Shorten the absentee ballot application window, 
• Prohibit counting timely cast provisional ballots in the wrong precinct and 
• Require voters applying for an absentee ballot use a driver’s license or state identification card number, or a copy of an alternative identification to confirm their identity on their absentee ballot application.

Pro-voting groups are continuing their fight against this suppressive omnibus law. Litigation is still ongoing in a consolidated lawsuit made up of six groups’ lawsuits challenging S.B. 202. Two lawsuits that were not consolidated with these six are ongoing in federal court as well. While this decision is a setback for voters, in August, the same judge temporarily blocked two of S.B. 202’s provisions after finding that the plaintiffs were likely to prevail on their First Amendment and Materiality Provision of the Civil Rights Act claims.

Wisconsin Republicans Retreat After Badgering Former Supreme Court Justices On Protasiewicz Impeachment

Yesterday, Assembly Speaker Robin Vos (R) and fellow Republicans indicated that they would walk back their impeachment crusade against liberal state Supreme Court Justice Janet Protasiewicz. This comes after last week when former Wisconsin Supreme Court Justice David Prosser advised Vos that there should be “no effort to impeach” Protasiewicz over her refusal to recuse herself from an ongoing legal challenge to the state’s legislative maps. 

The calls have focused on political statements that Protasiewicz made while campaigning earlier this year. Specifically, she has referred to the maps as “rigged.” Republicans argued this constituted a predetermination of how the justice would rule on a case challenging the maps. In September, a state judiciary disciplinary panel rejected multiple complaints filed by Republicans alleging the statements violated ethics rules.   

• Last Friday, the Wisconsin Supreme Court announced it will hear a case alleging that the state's legislative districts are extreme partisan gerrymanders that favor Republicans. Oral argument is scheduled for Nov. 21. The petitioners ask the Wisconsin Supreme Court to block the current legislative maps and order new, fairer maps for future elections. Finally, the petitioners ask the court to order special elections in 2024 for certain state senators whose terms would not otherwise expire until 2027, arguing that “[b]ecause they were elected from unconstitutionally configured districts, they lack legal entitlement to their office.” 

More News

• A New Mexico court upheld the state's congressional map. The court found that while the map favors Democrats, it is not an "egregious gerrymander" and therefore does not violate the state constitution. 

• Proposed objections to Ohio’s new state legislative maps have been filed in all three ongoing legislative redistricting cases before the Ohio Supreme Court.

• The 6th U.S. Circuit Court of Appeals upheld a Tennessee law that makes it a felony for individuals to pass out mail-in ballot applications if they are not a state election employee. Civil and labor rights groups argued that the law violates the First and 14th Amendments of the U.S. Constitution.

• Louisiana filed its response in the U.S. Supreme Court to Black voters and civil rights groups' emergency request for a hearing on new congressional districts. The 5th U.S. Circuit Court of Appeals ordered the hearing to be canceled, delaying a fair map.

OPINION: In South Carolina, Making Redistricting Work for All

By Brenda Murphy, the president of the South Carolina State Conference of the NAACP, a plaintiff in the U.S. Supreme Court case challenging that the state’s enacted congressional map is a racial gerrymander. Read more ➡️

There is yet another breaking story from ProPublica detailing the connection between Leonard Leo, the U.S. Supreme Court’s conservative justices and a wide-reaching web of donors. In 2018, Leo organized a large group of donors to launch a $10 million media blitz in support of now-Justice Brett Kavanugh’s confirmation, following the damning testimony from Christine Blasey Ford. 

If you’re an Ohio voter, early voting kicked off this week! You can find your polling location here. On the ballot are two high-profile constitutional amendments considering the legalization of recreational marijuana and the right to abortion. 

On this week’s episode of Defending Democracy, Marc and Paige speak with Skye Perryman, the president and CEO of Democracy Forward, about how the same forces that work to reduce abortion access also aim to suppress voters! Listen on Apple, Spotify or wherever you get your podcasts.