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redistricting
US Supreme Court Accused of 'Full-On Gutting of the Equal Protection Clause'
The right-wing majority's ruling in South Carolina case will make it "nearly impossible for any plaintiff to prove racial gerrymandering in court," said one legal expert.
May 23, 2024
Upholding a district map that was previously found by a lower court to be unconstitutional due to its racially gerrymandered boundaries, the U.S. Supreme Court's right-wing majority demonstrated on Thursday that it is "a MAGA Court," according to one advocate for judicial reform.
In a 6-3 decision along partisan lines, with Justice Samuel Alito writing the majority opinion, the court ruled in favor of a South Carolina district map which was drawn by the GOP-controlled state legislature and moved 30,000 Black voters from the state's 1st District to the 6th District.
Under the map, 62% of Black voters in Charleston County were moved to the district represented by Rep. James Clyburn (D-S.C.), making the new 1st District a Republican stronghold where Rep. Nancy Mace (R-S.C.) later won reelection in 2022 by 14 percentage points—having won by a far smaller margin two years earlier.
The court reversed a ruling by a three-judge panel of the U.S. District Court for South Carolina last summer, which had ruled that "race was the predominant motivating factor" in the redistricting decision.
Alito wrote in the Alexander v. the South Carolina State Conference of the NAACP ruling that since Black voters frequently support Democratic candidates, the fact that predominantly Black voting precincts in Charleston County were moved to a new district "does little to show that race, not politics drove the legislature's choice."
"Without an alternative map, it is difficult for plaintiffs to defeat our starting presumption that the legislature acted in good faith," Alito wrote, despite the lower court's finding that the GOP had unlawfully "exiled" Black voters.
Sarah Lipton-Lubet, president of Take Back the Court, said the decision—combined with reporting that Alito displayed flags that have been adopted by the "Stop the Steal" movement—shows when the right-wing supermajority "thought America was greatest: before the Constitution was amended to prevent voter discrimination based on race."
The NAACP Legal Defense Fund (LDF), which joined the ACLU and ACLU of South Carolina in challenging the maps, said the ruling was "a rejection of the historical deference given to the trial court's factual findings and adds to the already difficult evidentiary burden that plaintiffs must demonstrate to remedy racial discrimination in voting."
"The highest court in our land greenlit racial discrimination in South Carolina's redistricting process, denied Black voters the right to be free from the race-based sorting and sent a message that facts, process, and precedent will not protect the Black vote," said Janai Nelson, president and director-counsel of LDF. "Today the voices of Black South Carolinians were muted, and if we are not careful the next set of votes denied could be those in your state."
"The voting rights of Black communities remain under attack and the LDF will continue to meet moments like these with the resolve and determination necessary to protect voting rights and enforce key protections of the 14th and 15th Amendments," added Nelson.
The LDF and its allies argued their case with testimonies from 24 witnesses including six experts, as well as 652 pieces of evidence "demonstrating the hallmarks of racial discrimination in the design of the 2022 congressional map."
Writing the dissent for the court's three liberal justices, Justice Elena Kagan said the right-wing majority sent a "dispiriting" message in its ruling, which she said would "specifically disadvantage suits to remedy race-based redistricting."
"And so this 'odious' practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue," Kagan wrote. "In the electoral sphere especially, where 'ugly patterns of pervasive racial discrimination' have so long governed, we should demand better—of ourselves, of our political representatives, and most of all of this Court."
Adriel Cepeda Derieux, deputy director of the ACLU's Voting Rights Project, concurred with Kagan's finding that the right-wing majority came to its conclusion by "'ignoring and minimizing' clear evidence that South Carolina racially gerrymandered its map."
"The Supreme Court’s ruling is an affront to Black voters, democracy, and precedent. South Carolina's legislature carved Black voters out of Congressional District 1 for the sake of partisan advantage and weakening their voting power," said Derieux. "And the proof that the court now asks of plaintiffs fighting discrimination is 'unheard of in constitutional litigation.' We continue to stand with our brave clients in this ongoing fight for voting rights."
By making it "nearly impossible for any plaintiff to prove racial gerrymandering in court," said Slate journalist and legal expert Mark Joseph Stern, Alito's opinion amounts to "a full-on gutting of the equal protection clause."
Taiwan Scott, a resident of Hilton Head, South Carolina who was a plaintiff in the case brought by LDF, said advocates for fair voting maps in South Carolina will "journey onward towards justice."
"We are deeply disappointed in the Supreme Court's decision to allow South Carolina's proposed congressional map to stand for yet another election after a unanimous federal three-judge panel recognized the racial discrimination in that map and ordered that a remedial map be used in upcoming elections beginning this year," said Scott. "Our battle to fairly represent and account for everyone in our beautiful state doesn't stop here."
Leah Aden, senior counsel at LDF, noted that the majority returned the plaintiffs' claim that the legislature aimed to dilute voters' power to the district court for further proceedings.
"Despite this unfortunate decision," said Aden, "we will continue, including on remand on a surviving claim from this decision, to create fair redistricting maps and advocate for Black South Carolinian voters."
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State Supreme Court Races Could Make or Break 'Firewall for Our Democracy'
"After Roe v. Wade was overturned, we had to turn to state courts and state constitutions as the critical backstop to protecting access to abortion," said one advocate. "And the stakes are unbelievably high."
Jan 04, 2024
Two key state supreme court races in 2023 showed that Americans "are beginning to understand that state courts can serve as a firewall for our democracy," said an official at a national grassroots advocacy group in an op-ed Thursday—but the energy voters brought the Pennsylvania and Wisconsin Supreme Court races, she warned, must spread nationwide in 2024 in order to safeguard Americans' "fundamental freedoms."
At The Fulcrum, Stand Up America's deputy communications director, Sarah Harris, wrote that about a quarter of all state supreme court justices will be on ballots in November due to term limits, mandatory elections, and retirements. Voters in 33 states are set to decide who should sit on top courts.
"Americans can't afford to elect judges who are unwilling to state their position on democracy issues, or risk further assaults on our right to vote and our right to reproductive healthcare," wrote Harris. "Wisconsin and Pennsylvania voters have set a commendable example, highlighting that the strength of our democracy rests in the hands of those who actively engage in its preservation."
In Wisconsin, Justice Janet Protasiewicz won her state supreme court seat last April in an election that inspired the state's highest-ever turnout for an off-election year judicial race. Supporters of the Democratic judge highlighted her strong backing of abortion rights, voting access, and worker protections, and noted that a Democratic majority on the state's high court could decide whether former President Donald Trump would be able to challenge the 2024 election results, as he attempted to in 2020.
Voters in Ohio and Michigan are among those who face similarly high stakes this year, Harris said. In the former state, two Democratic judges and one Republican are up for reelection to a court that currently has a 4-3 majority favoring the GOP.
"The state Supreme Court is going to be the ultimate arbiter of the meaning of the new constitutional amendment that the people voted for and organized around... That is a huge amount of power."
Voters turned out in droves in November to pass a constitutional amendment affirming that Ohioans have the right to make their own reproductive health decisions, including whether to obtain abortion care.
More than 30 abortion restrictions are in place in the state, and challenges to them could end up before Ohio's top court, making the state supreme court race "very high-stakes," Jessie Hill, a law professor and consultant for Ohioans United for Reproductive Rights, toldThe Associated Press last week.
"The state Supreme Court is going to be the ultimate arbiter of the meaning of the new constitutional amendment that the people voted for and organized around," Hill told the outlet. "That is a huge amount of power."
"We saw an incredible number of voters come out to vote on that amendment and an incredible amount of investment in those campaigns," Hill added. "I think we'll see a similar attention and investment in Ohio."
In Michigan, where the high court has a 4-3 Democratic majority and two judges on the 2024 ballot—one from each party—victories for the GOP could also allow a new conservative majority to reverse several pro-abortion rights laws passed in 2023.
"After Roe v. Wade was overturned, we had to turn to state courts and state constitutions as the critical backstop to protecting access to abortion," Brigitte Amiri, deputy director at the ACLU's Reproductive Freedom Project, told the AP. "And the stakes are unbelievably high in each of these cases in each of these states."
The results of this year's state court races could also have implications for redistricting efforts, which the Republican State Leadership Committee told the AP it is focusing on heavily, calling the state supreme courts the "last line of defense against far-left national groups."
Republicans are hoping to expand their 5-2 majority on the North Carolina Supreme Court, which last year reversed a previous ruling on a redistricting case and allowed political gerrymandering, giving the GOP an electoral edge.
"Voters' increased attention on state supreme court races is a direct response to Republican-led efforts to restrict access to the ballot and overturn the will of the voters in 2020," Harris wrote at The Fulcrum. "Americans are also paying closer attention to the courts after key U.S. Supreme Court decisions left reproductive justice and voting rights in the hands of state legislatures."
"Right now," she added, "the electorate is demanding justices who uphold the democratic process and rule on cases without a partisan agenda."
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'Huge Victory' for Democracy as NY Court Orders Congressional Map Redrawn
"It's important that the Independent Redistricting Commission get to work expeditiously and present a map that fairly reflects the racial, ethnic, cultural, religious, and socioeconomic diversity of our great state," said U.S. House Minority Leader Hakeem Jeffries.
Jul 13, 2023
Progressives on Thursday expressed hope that a ruling by a state appeals court in New York will give the Democratic Party an opportunity to regain control of several U.S. House seats that were won by Republicans in last year's midterm elections following what critics called an "undemocratic process" of drawing the state congressional map.
The appellate division of the state Supreme Court sided on Thursday with the Democratic Party, which had argued in a lawsuit that the district map that was drawn for the 2022 midterms was only meant to be temporary.
The current map was drawn last year by a special master who had been appointed by the state Supreme Court after it ruled that Democrats had unfairly gerrymandered the previous map. That ruling took the responsibility for redistricting out of the hands of the state's Independent Redistricting Commission (IRC).
The five-judge panel on Thursday voted 3-2 in favor of ordering the IRC to "commence its duties forthwith" and redraw the state map.
If it stands, the ruling is set to give the New York Legislature, which is dominated by Democrats, final say over the state's 26 U.S. House districts in the coming years. The party could retake as many as six seats currently held by Republicans who won their elections last year, including U.S. Rep. Mike Lawler in the 17th District and Rep. George Santos in the 3rd District.
Marc Elias of the voting rights group Democracy Docket called the ruling a "huge victory" for fair districting.
U.S. House Minority Leader Hakeem Jeffries (D-N.Y.) said the ruling presents the party with an opportunity to retake seats it lost after "the current congressional map was drawn by an unelected, out-of-town special master appointed by an extreme right-wing judge, who himself was handpicked by partisan political operatives," referring to Judge Patrick McAllister of the state Supreme Court.
"It's important that the Independent Redistricting Commission get to work expeditiously and present a map that fairly reflects the racial, ethnic, cultural, religious, and socioeconomic diversity of our great state," said Jeffries.
The special master-drawn map forced progressive former Rep. Mondaire Jones out of the 17th District and changed the district where grassroots organizer Rana Abdelhamid had been campaigning, pitting her against other progressives and forcing her to end her U.S. House bid. Jones announced earlier this month that he is running again in the 17th District.
The ruling handed down on Thursday "is huge and could have massive national implications," said Abdelhamid.
Democrats could now win back enough seats in New York to offset losses that are expected in North Carolina, where the right-wing state Supreme Court earlier this year cleared the way for Republicans to redraw the state map.
Republican lawmakers said they will appeal Thursday's ruling, which would give the state Court of Appeals the final word. The Court of Appeals has moved to the left in the last year, with liberal Judge Rowan Wilson—who dissented last year when the court rejected Democrats' appeal of the appointment of the special master—having replaced former Chief Judge Janet DiFiore.
Organizer Victor Shi called the appellate division's ruling a "victory for anyone who cares about democracy and voting rights."
"The right to participate in the democratic process is the most essential right in our system of governance," said the court. "The procedures governing the redistricting process, all too easily abused by those who would seek to minimize the voters' voice and entrench themselves in the seats of power, must be guarded as jealously as the right to vote itself; in granting this petition, we return the matter to its constitutional design."
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