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U.S. Supreme Court,
Constitutional Law,
Civil Rights

Oct. 9, 2023

Partisan-based gerrymandering is code for discrimination

Redistricting is too often manipulated to discriminate against communities of color, advantage one political party over another, protect incumbent legislators, or all of the above.

Dan Vicuna

Director, Common Cause

Redistricting and Representation

Every 10 years, voting districts at all levels of government are redrawn to ensure that districts of the same type have the same number of residents in them. Redistricting is an essential and constitutionally required exercise following the decennial census designed to ensure equal representation in the halls of power. It also determines how power is distributed and impacts the ability of people to advocate for the health, safety, and educational resources their communities need. This redistricting cycle, Common Cause and our allies in CHARGE (Coalition Hub for Redistricting & Grassroots Engagement) trained grassroots leaders across the country to submit community maps, tell the stories of their neighborhoods through written and verbal testimony, and let decision-makers know that the people were watching. These efforts produced unprecedented public involvement in the process of shaping new voting maps and significant victories for fair representation.

Despite this active organizing, redistricting is too often manipulated to discriminate against communities of color, advantage one political party over another, protect incumbent legislators, or all of the above. In some states, especially those in which elected officials draw districts, communities of color are either packed into as few districts as possible to limit their influence on surrounding districts or cracked into many districts to ensure that they cannot elect their preferred candidate in any of them. But the people are fighting back. On Oct. 11, the U.S. Supreme Court will hear oral arguments in Alexander v. South Carolina State Conference of the NAACP, a challenge to South Carolina’s racially discriminatory congressional map.

In this case, plaintiffs argued that three of South Carolina’s congressional districts were drawn in a way that discriminated against Black voters in violation of the Fourteenth and Fifteenth Amendments to the U.S. Constitution. The plaintiffs, South Carolina State Conference of the NAACP and a voter named Taiwan Scott, are represented by ACLU, ACLU of South Carolina, Arnold & Porter, and the NAACP Legal Defense Fund.

South Carolina defended its map with a claim that it was a partisan gerrymander and not a racial gerrymander. If that sounds like an odd defense, that’s because it is. Here’s where it comes from. Several years ago, Common Cause and our co-plaintiffs brought a case to federal court seeking a ruling from the U.S. Supreme Court that partisan gerrymandering violates the U.S. Constitution. In Rucho v. Common Cause (2019), the U.S. Supreme Court issued a 5-4 opinion stating that partisan gerrymandering is a nonjusticiable political question and that, therefore, federal courts can do nothing to stop it. In addition to the direct threat that judicial inaction on partisan gerrymandering creates, it also helped politicians invent the “we were discriminating against the other party’s voters, not people of color” defense in redistricting cases.

Fortunately, the judicial panel in the South Carolina case saw through this smokescreen and handed the plaintiffs a unanimous victory. The panel found that the enacted map treated Black voters differently than white voters, even when those voters voted for the same political party. In other words, race, not partisan preferences, explains the “exile” of 30,000 Black voters into a neighboring district. The panel found that Congressional District 1 is racially gerrymandered and designed with a discriminatory purpose. The judges also determined that the map “bleached” Black voters out of a district and made a “mockery” of traditional districting principles. Specifically, the panel found that the enacted map split communities of interest in Charleston, despite pleas throughout the legislative process to keep Charleston County whole.

The panel ordered the state to draw a map that complies with the U.S. Constitution. Rather than abide by the panel’s mandate, South Carolina has decided to spend taxpayer dollars appealing the case to the U.S. Supreme Court.

The facts could not be clearer. South Carolina engaged in a racially discriminatory redistricting process that violates the U.S. Constitution, which is exactly what the three-judge panel ruled. We believe the plaintiffs and their attorneys will succeed in making that case to the United States Supreme Court. Unfortunately, South Carolina is not the only state in which plaintiffs are challenging racially discriminatory maps. Common Cause is a plaintiff in Florida, where we made the case that Gov. DeSantis and the legislature intentionally discriminated against Black voters in the northern part of the state. We are also challenging maps in Georgia and Texas that dilute the votes of communities of color.

The fight against racial discrimination in redistricting continues through grassroots organizing that shines much-needed light on the process in legislatures and informs litigation that is winning victories for voters across the country.


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