Image Credits: @jackieboylhart on Unsplash (Unsplash License)

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Introduction

Gerrymandering, the act of redrawing state and federal Congressional districts, has been a prevalent issue in the United States since 1812. Jeffersonian Republicans in Massachusetts redrew their legislative map to gain seats in the state senate, effectively diluting citizen’s votes. While this was the first instance of redrawing legislative districts to benefit a political party in the United States, it would not be the last, and it would spur centuries of disenfranchisement within states. 

The Supreme Court and Congress have established precedents and legislation to combat the practice throughout history. However, interstate gerrymandering cases were not heard by the Supreme Court until 1963. Since the Baker v. Carr (1963) precedent, the Supreme Court has been able to hear and rule on gerrymandering cases. Following the decision, numerous precedents have changed the practice of gerrymandering in the US.

The History of Racially Based Gerrymandering in the US

When gerrymandering became a practice, its intent was always political, i.e., gaining seats in the state legislature to benefit the party in power. That type of gerrymandering is legal, racially based gerrymandering is not. A political gerrymander is intended to politically benefit one party over the other, while a racial gerrymander is one whose intent is to dilute the votes of minorities to help the party in power. The practice of racially based gerrymandering was not federally recognized until 1993, but pieces of legislation in the US had been aimed at protecting minority votes for decades. 

The Voting Rights Act of 1964 established many barriers to prevent minority vote dilution, including setting majority-minority districts. These are congressional districts in which the majority of the constituents in the district are racial or ethnic minorities. These districts may be created to avoid or remedy violations on redistricting plans that diminish the ability of a racial or language minority to elect its candidates of choice. §10101 of the VRA says that no “standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” In the context of gerrymandering, federal law dictates that majority-minority districts can be created in order to prevent the dilution of minorities’ votes in compliance with the VRA. Thornburg v. Gingles (1986) established a three-part test for proving whether vote dilution in violation of the VRA has occurred in a district:

• A minority group must demonstrate it is large and compact enough to constitute a majority in a single-member district.
• A minority group must demonstrate it is politically cohesive.
• A minority group must demonstrate the majority group votes sufficiently to defeat the minority group’s preferred candidate.

The Supreme Court used this test in numerous cases until 1993 when they heard and ruled on the case of Shaw v. Reno (1993). 

Since Shaw v. Reno (1993), racially based gerrymandering has been illegal in the United States. Shaw was the first time the term “racially based gerrymandering” was coined by legal scholars and the first time the issue was federally recognized. However, the problem had been prevalent for many years before the decision. Ultimately, when the court ruled in favor of Reno, they established that using racial reasons for redistricting is unconstitutional and violates sections of the Voting Rights Act (1964) and the Equal Protection Clause. 

Plaintiffs in Shaw v. Reno argued that a North Carolina congressional district was so bizarrely shaped that it amounted to a “racial gerrymander,” which violated the Equal Protection Clause. North Carolina countered and claimed that the map merely created a majority-minority district. However, the court ruled in favor of Reno because members of minority groups in different geographic areas do not have the same interests, and having a more locally-oriented representative would better address those interests. Shaw v. Reno was monumental. Still, it was the first judicial recognition that majority-minority districts can be used to suppress minority votes/interests 

Following Shaw v. Reno, the cases Miller v. Johnson (1995), Shelby County v. Holder (2013), Alabama Legislative Black Caucus v. Alabama (2014), and Cooper v. Harris (2015) all focused on whether race interfered with the redrawing of legislative districts. The slew of precedents have created an area of US law prohibiting racially motivated redistricting in the US. 

Alexander v. South Carolina Conference of the NAACP (2023)

Cooper v. Harris (2015) established that racially based gerrymandering is still unconstitutional even when it is a byproduct of political gerrymandering, i.e., unintentional. Alexander v. South Carolina Conference of the NAACP could reverse that precedent entirely. 

States redistrict their congressional maps after each census, Per the S.C. Const. Ann. Art. III, § 3, South Carolina can redistrict their congressional maps after each census. South Carolina created a new Congressional map in the 2021-22 legislative season, signed into law by Governor Henry McCaster on January 26, 2022. The new maps placed the cities of Charleston and North Charleston together with South Carolina’s Midlands Region, nearly one hundred miles away, to create the sixth Congressional district. In February of that year, the South Carolina Conference of the NAACP filed a complaint arguing the first, second, and fifth congressional districts were racially gerrymandered in violation of the Fourteenth and Fifteenth Amendments.

The NAACP’s complaint asserted the legislature employed race as one of the determining factors in creating the new congressional districts. Even though using race as a factor in gerrymandering was outlawed with the precedent of Shaw v. Reno (1963), the plaintiffs alleged race was the sole defining factor in South Carolina’s redistricting. The NAACP argued when the gerrymandered map is adopted, it will divide counties and cities among multiple districts, move Black voters to the sixth congressional district, and decrease the percentages of Black voters in the surrounding first, second, and fifth congressional districts. According to the complaint, this tactic directly reduced the ability of Black voters to affect elections in the challenged districts. This is a direct violation of the Voting Rights Act (1964), which states that the intentional dilution of minority votes is prohibited.

After a trial before a three-judge panel on January 27, 2023, the United States District Court for the District of South Carolina Columbia Division ruled that the legislature had racially gerrymandered South Carolina’s first congressional district by moving over 30,000 Black residents, concentrated in North Charleston, and placing them in the sixth Congressional district (see Figure A). The court ordered the legislature to submit a remedial map by March 31, 2023, and forbade more elections using the district until the racial gerrymander was remedied. 

Figure A. 

The state appealed to the Supreme Court, arguing the new map was a political gerrymander, and that the three-judge panel erred by failing to grant the legislature the presumption of good faith, among other alleged errors. Because racial implications were a “by-product” of the intended political redistricting, the state argued their actions did not constitute a racial gerrymander. The Supreme Court heard oral arguments on October 11, 2023, and is expected to hand down a ruling before the end of the term in December 2023.  

The Future of Racially Based Gerrymandering

Two outcomes can arise from the decision Alexander v. South Carolina Conference of the NAACP (2023). If the court rules in favor of the NAACP, the previous precedent of Cooper v. Harris (2015) would be upheld, and racially gerrymandering without direct intention (when a political gerrymander) would remain unconstitutional as it is now. Additionally, South Carolina would have to create a new Congressional map that is proportional and equal for all state residents. 

However, if the court sides with South Carolina, racial gerrymandering in the US will look entirely different than it does now. Proving racial gerrymandering within cases of vote dilution would be significantly more difficult, as states would be able to claim a political gerrymander that had unintentional racial implications. This precedent would allow states to use political intentions as a catch-all for redistricting– which may discourage victims of racial gerrymandering from taking legal action because this precedent could encourage states to claim a political gerrymander when, in reality, they racially gerrymandered. When minority communities are racially gerrymandered, it is harder for them to elect representatives that represent their political and social interests.

Leah Aden of the NAACP Legal Defense Fund, who argued the case for the plaintiffs in front of the Supreme Court, said, “such an outcome would send a terrible signal to states that they can hide behind political defenses even when their means to get there is by excessive uses of race and minimizing the voting power of racial minorities.” By voting power, she refers to the power constituents have to elect leaders that accurately represent them. To that end, Harvard Law School professor Nicholas Stephanopoulos, a redistricting expert, said if the Supreme Court reverses the three-judge panel’s decision, “it will be even more important for plaintiffs in future cases to disentangle race from the party.”

Conclusion

Racially based gerrymandering has deep roots within the United States legal system and society. If the Supreme Court sides with South Carolina, hundreds of thousands of minority votes can be diluted with little to no ramifications from the federal government. Gerrymandering is generally a practice meant to favor one party over the other, whether that be a political, socioeconomic, or racial party. Alexander v. South Carolina Conference of the NAACP can change how lawmakers are allowed to draw maps and how the court influences the state’s redistricting process.