The Supreme Court appeared likely to preserve a South Carolina voting map that would likely keep Republicans in control of a key congressional seat, a major redistricting case that could affect ongoing legal challenges in other battleground states and control of Congress in next year's elections.
At issue is the Republican-controlled legislature's redrawing of congressional voting boundaries, and whether race was used as a proxy for partisan affiliation, in violation of the 14th Amendment.
After two hours of often heated oral arguments at the high court, the outcome could come down to the votes of the three newest conservative justices: Neil Gorsuch, Amy Coney Barrett and particularly Brett Kavanaugh. Each asked tough questions of both sides.
The nine-member court actively engaged in questions over whether the original map created by the legislature was an impermissible racial gerrymander.
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Citing two experts who have analyzed the map, Justice Elena Kagan said of their findings: "We can show you that Black Democrats and White Democrats are not being treated the same way, that Black Democrats are being excluded for the district at a far greater proportion. So every regression analysis has things that you can poke holes in, but you didn't give anything in response to that," Kagan said of the state's claims.
But Chief Justice John Roberts said that accepting the arguments of the plaintiffs challenging the state "would be breaking new ground in our voting rights jurisprudence."
"We've never had a case where there's been no direct evidence, no [alternative] map, no strangely configured districts, and a very large amount of political evidence" to counter the racial gerrymander claims, he said.
All six of the court's conservative majority expressed concern over a federal court ruling that ordered the state to create a new congressional map in time for the November 2024 election.
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That three-judge panel found that the coastal 1st Congressional District now represented by Rep. Nancy Mace, R-S.C., was an unlawful racial gerrymander when Republican lawmakers shifted about 30,000 Black voters from Charleston County over to the state’s 6th Congressional District, which became more solidly Democratic than it was before. That seat is held by Rep. James Clyburn, D-S.C., a longtime member of Congress who is Black.
The state, in its appeal to the Supreme Court, said the lower court "failed to apply the presumption of good faith" to the legislature when creating its map.
Lawyers for the state told the high court on Wednesday that partisan politics and a dynamic population growth along coastal areas explains its redistricting efforts and that race did not play a factor.
But groups like the NAACP and ACLU challenging the boundaries said that the GOP-led legislature had adopted "perhaps the worst option of the available maps" for Black voters.
"There was a racial target, it reflects that there was a significant sorting of Black people, it reflects unrebutted expert evidence of race rather than party explaining the assignment of voters, it reflects a disregard of traditional redistricting principles," Leah Aden, a lawyer for the NAACP's Legal Defense Fund, said at argument.
Both sides have asked for an expedited ruling by Jan. 1 to allow for new maps to be possibly redrawn.
Mace narrowly won election in 2020 over former incumbent Rep. Joe Cunningham, D-S.C., by 1 percent, or about 5,400 votes. With newly redrawn redistricting maps in place, she comfortably won re-election by 14%.
Mace was among eight Republicans who voted last week to remove Rep. Kevin McCarthy, R-Calif., as speaker.
The high court's ruling could broadly affect the 2024 elections, a template for ongoing redistricting efforts in states like Louisiana, Ohio, New York and Texas. There are more than two dozen pending lawsuits across 12 states challenging congressional maps.
The Supreme Court in June upheld a lower court ruling ordering Alabama to again redraw its map that would create two Black-majority congressional districts. Currently, only one of the state's seven districts has a substantial number of Black voters, in a state where Blacks are 27% of the overall population. Roberts and Kavanaugh had sided with the court's three more liberal justices when concluding that Alabama had diluted the voting power of Black voters.
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The justices seemed duly aware of the implications that their ruling in the South Carolina case will have nationwide. Democratic pickups in that state, Alabama and Louisiana, which is facing a similar legal challenge, could tip the balance of power in a closely divided Republican majority in the House of Representatives.
Justice Samuel Alito strongly defended those helping draft the 2022 map favoring Republicans and questioned the conclusions of the four opposing experts hired by the plaintiffs. "Is there any reason why one or more of them could not have drawn up an alternative map that met the legislature's stated partisan goal but had a different effect on the racial composition?" he asked.
"I mean, this whole case is about disentangling race and politics, right?" Alito added.
But Justice Ketanji Brown Jackson echoed the arguments of those challenging the GOP-drawn map.
"In a situation in which you're bringing in more White voters and moving out Black voters, in this kind of circumstance, you're still relying on race in a way that is, you say, improper?" she said. "Your argument is that racial data was really kind of driving this because they didn't have a robust set of political data that they were drawing from in order to do this?"
The case is Alexander v. South Carolina State Conference of the NAACP (22-807). A possible ruling by January 2024 would come a month before the Feb. 24 primary in South Carolina.
