Supreme Court decision in favor of South Carolina gerrymander undermines democratic principles

The Supreme Court overturned the finding that South Carolina engaged in racial gerrymandering, disregarding long held precedent and adopting novel rules that will likely thwart efforts to fight race-based voter discrimination.

Following the 2020 census, South Carolina redrew its congressional district maps and moved predominantly black neighborhoods into the state's only democrat-leaning district while leaving many white neighborhoods untouched.

The National Association for the Advancement of Colored People challenged the new map, alleging that it diluted the electoral power of the state’s black voters through racial gerrymandering. South Carolina denied using race as a factor in drawing the district maps, arguing that the high correlation between black and democratic voters made the new district map only appear to have been based on race. Instead, the state claimed, the gerrymandering was purely politically motivated.

A three-judge district court unanimously held that South Carolina had indeed used race as the predominant factor in redrawing district lines. Following nearly a year of thorough discovery, a 9-day trial, testimony from two dozen witnesses and hundreds of exhibits of additional evidence, the district judges viewed the challenger's version of events to be more credible.

On May 23, 2024, the conservative majority of the Supreme Court overturned the district court's decision, however, to do so they distorted long held legal standards. Furthermore, the majority adopted unprecedented rules that require courts give all favorable deference to the state and created barriers for parties challenging racial gerrymandering and voter dilution.

New, and unprecedented, presumption of good faith

The conservative majority adopted a novel "presumption of good faith" which contradicts precedent and sends a message to the states that undermines our democratic system of government.

According to the conservative majority, both district and appellate courts must always begin with a presumption that state legislatures acted in good faith. This presumption of good faith, the majority claims, requires courts "draw the inference that cuts in the legislature’s favor" when the evidence "could plausibly support multiple conclusions."

However, there is nothing in Supreme Court precedent that suggests that district courts must resolve every plausibly disputed factual issue in favor of the state, nor is there any precedent supporting the idea that reviewing courts must defer to the state’s version of plausibly disputed facts.

The majority cites the reference to a “presumption of good faith” in Miller v. Johnson to support their conclusion. However, in that case, the Supreme Court merely held that the state’s good faith is presumed until a challenger meets the burden of showing race was the predominant motivation. Nowhere in that case, or any other, did the Supreme Court suggest the always-defer-to-the-state rule the conservative majority now adopts.

Even more out of touch with precedent is the conservative majority’s application of the presumption in appellate review. In Cooper v. Harris, the Supreme Court expressly rejected the presumption of good faith during appellate review of a trial as “an elemental error," holding that there is no “super-charged, pro-State presumption on appeal."

By adopting this unprecedented presumption in favor of state legislators, the conservative majority sends a very problematic message to the states: you are now free to gerrymander based on race, whether for purely partisan gain or to dilute the electoral power of minority voters, because it will be easy to cover your tracks so long as you plausibly allege the mere possibility that the gerrymandering was not based on race.

Undue evidentiary burdens

Once again contradicting precedent, the conservative majority imposed a new evidentiary burden on parties challenging racial gerrymandering that could allow courts to dispose of claims in their entirety based on one specific peace of evidence, regardless of what other evidence is presented.

According to the conservative majority's opinion, the district court should have drawn an “adverse inference” against the challengers for not providing an alternative redistricting map. A challenger’s failure to submit an alternative map, the majority held, may entirely resolve the dispute where a claim lacks “direct evidence” or “extraordinarily powerful circumstantial evidence" that the gerrymander was predominately motivated by race.

However, the Supreme Court has previously rejected such a specific evidentiary requirement. In Cooper v. Harris, the Supreme Court held that “an alternative map is merely an evidentiary tool” to show that racial gerrymandering has occurred. And, in Miller v. Johnson, the Supreme Court held that “parties may rely on other evidence to establish race-based districting.”

The conservative majority ignores this established precedent, and in doing so increases the evidentiary burden far beyond what was previously placed on parties challenging racial gerrymandering.

Previously, an abundance of compelling circumstantial evidence may have been enough for challengers to meet their burden of proof, with or without an alternative district map. Now, without an alternative map, no matter how much circumstantial evidence a challenger produces, it will not be enough unless the circumstantial evidence is “extraordinarily powerful.”

If the Supreme Court can simply raise evidentiary barriers on a whim, then how can claimants know what evidence they need to prove their allegations? Similarly, how can defendants know what is required to prove their innocence? Such a practice undermines the evenhanded, predictable and consistent application of the law that is essential to a fair and reliable judicial process.

Consequences for democracy from the Supreme Court’s decision

The new precedent the Supreme Court conservative majority established in this gerrymandering case, and its disregard for decades of previous precedent, is unsettling at best.

Whether states divide citizens on racial lines for purely political gain or to dilute the voting power of minority groups, the Supreme Court has consistently recognized that it is an unconstitutional practice that requires a judicial remedy.

Despite this, regardless of whether it was their intent, the novel evidentiary and always-favor-the-state rules the conservative majority adopted will most likely thwart efforts to undo an insidious kind of race-based voter discrimination that undermines the most fundamental right of any democracy.

To be sure, the judicial system fails when a state is wrongly found to have gerrymandered a district. But the system fails even worse when a state that has unlawfully gerrymandered gets away with it. The consequence of the former is that a state must redraw a congressional district, and the consequence of the latter is that voters are disenfranchised based on their race.

Voting is a democracy’s most fundamental right, guaranteed to all United States citizens by the 14th and 15th amendments, and we should demand better of those entrusted with protecting that right.