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Supreme Court arguments on Wednesday suggested that, thanks to the court’s Republican supermajority, the congressional seat held by U.S. Rep. Nancy Mace, R-S.C., is safe from Democratic challenge. More broadly, the case reinforces the absurdity of where the GOP-dominated court is on elections these days.
The supposed legal issue at the heart of the dispute, Alexander v. South Carolina State Conference of the NAACP, isn’t whether the state GOP can keep the admittedly gerrymandered seat safer for Mace or another Republican. It’s whether it was a racial gerrymander, as opposed to a partisan one. The former is illegal but the latter is just fine as far as the Supreme Court is concerned.
Though the court diminishing voting rights isn’t new, to understand where we’re at, we'll refer briefly back to 2019. It was then that the court held in Rucho v. Common Cause, along 5-4 party lines, that partisan gerrymandering presents a “political question” that federal courts can’t address.
Writing for the then-four Democratic appointees, Justice Elena Kagan observed in her powerful dissent: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” She noted that partisan gerrymandering practices “imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
After that wretched ruling and the 2020 census, South Carolina Republicans pushed a new map that kicked over 30,000 Black people out of the state’s first congressional district. Mace had won the seat in 2020 by barely beating a Democrat. Republicans apparently didn’t want to chance another close one, and Mace won by a wider margin in 2022 with the new map in place.
But the problem with that map, according to a three-judge panel in January that evaluated evidence and witnesses, is that it's an illegal racial gerrymander that pushed Black people out for predominantly racial reasons. The Democratic-appointed panel cited a 2017 Supreme Court case, Cooper v. Harris, in which the court said sorting voters on racial grounds is suspect even if race is used as a proxy for politics.
Yet on Wednesday, the Supreme Court’s Republican appointees sounded more suspicious of the gerrymandered map’s challengers. Chief Justice John Roberts, who authored the Rucho decision that effectively blessed partisan gerrymandering, said “disentangling race and politics in a situation like this is very, very difficult.”
In fact, the lawyer for South Carolina Republicans said letting the panel ruling stand would “undermine this Court’s holding that partisan gerrymandering claims are not justiciable.” Such claims “can always be repackaged as racial gerrymandering claims,” the lawyer, former Trump Justice Department official John Gore, argued to the justices.
So even if racial gerrymandering is technically illegal, the fact that partisan gerrymandering is allowed makes it easier to racially gerrymander in practice. How much easier could be made clearer when the court issues its decision. The court's most contentious rulings often come in late June, but this one could come sooner so the state can have its map ready for the 2024 election cycle.
That's all to say that we don't appear poised for another surprise pro-democracy decision like June's 5-4 ruling in the Alabama case, which affirmed the Voting Rights Act. (The South Carolina case involves different legal mechanisms but likewise affects the balance of power in elections to come.) Of course, the nature of surprise being what it is, we won't know until we know. But if Wednesday's argument is any indication, this latest case from South Carolina could underscore what an outlier that Alabama ruling was.