Analysis of the U.S. Supreme Court’s South Carolina Gerrymandering Decision Finds Disturbing Guidance for Lower Courts

Brian Beihl

The American Democracy Minute Radio Report & Podcast for June 3, 2024

Today’s Script

(Variations occur with audio due to editing for time. Today’s Links below the script)

Analysis of the U.S. Supreme Court’s South Carolina Gerrymandering Decision Finds Disturbing Guidance for Lower Courts

You’re listening to the American Democracy Minute, keeping YOUR government by and for the people.

We reported last week on U.S. Supreme Court Justice Samuel Alito’s opinion in a South Carolina case, finding no racial gerrymandering when 30,000 Black voters were moved to dilute Black voting power in the state’s 1st Congressional district.  Scholars found even more voting rights damage in the fine print.

The high court’s majority found that the South Carolina NAACP didn’t prove the South Carolina legislature gerrymandered for racial reasons, just partisan reasons, allowed by the 2019 Rucho decision.  Most observers agree the decision unleashes racial gerrymandering cloaked as partisan gerrymandering for future redistricting cycles.

But nested in Alito’s opinion, scholars found two disturbing messages to lower courts.  University of Nebraska Law professor Brandon J. Johnson writes that Alito’s opinion, QUOTE “Also moves the goalposts for what is required of plaintiffs bringing racial gerrymandering claims.” ….“Plaintiffs will now be essentially required to produce a model map that would have the same partisan effect with a different racial makeup in order to succeed on their claim.”

UCLA Law’s Rick Hasen and other scholars point out that Alito also gave state legislatures a “presumption of good faith” when redistricting, despite widespread recognition that gerrymandering is an inherently “bad faith” activity.  

Expect more brazen gerrymandering to go unchecked by the courts.  Find links to the analysis at AmericanDemocracyMinute.org.  I’m Brian Beihl.

Today’s Links

Articles & Resources:
NPR – Supreme Court ruling makes it harder to bring racial gerrymandering claims
Prof. Rick Hasen, Election Law Blog – Breaking and Analysis: Justice Alito for Republican Justices, over the Dissent of Democratic Justices, Rewrites Racial Gerrymandering Standards to Help White Republican States
Prof. Brandon J. Johnson, Election Law Blog – Brandon Johnson: “There’s ‘Clear Error’ in the Supreme Court’s New Racial Gerrymandering Decision
Michael Li, Brennan Center for Justice via MSNBC – This Supreme Court ruling is a ‘get-out-of-jail’ card for racial discrimination
Post and Courier – (Opinion) Commentary: ‘Good faith’? Not in the SC Legislature and not on the US Supreme Court

Groups Taking Action:
NAACP Legal Defense Fund, ACLU, Constitutional Accountability Center, Campaign Legal Center, League of Women Vote

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