Voters make their selections at Mt. Zion AME Church

Voters make their selections at Mt. Zion AME Church on November 3, 2020 in Florence, South Carolina.

(Photo: Sean Rayford/Getty Images)

US Supreme Court Accused of 'Full-On Gutting of the Equal Protection Clause'

The right-wing majority's ruling in South Carolina case will make it "nearly impossible for any plaintiff to prove racial gerrymandering in court," said one legal expert.

Upholding a district map that was previously found by a lower court to be unconstitutional due to its racially gerrymandered boundaries, the U.S. Supreme Court's right-wing majority demonstrated on Thursday that it is "a MAGA Court," according to one advocate for judicial reform.

In a 6-3 decision along partisan lines, with Justice Samuel Alito writing the majority opinion, the court ruled in favor of a South Carolina district map which was drawn by the GOP-controlled state legislature and moved 30,000 Black voters from the state's 1st District to the 6th District.

Under the map, 62% of Black voters in Charleston County were moved to the district represented by Rep. James Clyburn (D-S.C.), making the new 1st District a Republican stronghold where Rep. Nancy Mace (R-S.C.) later won reelection in 2022 by 14 percentage points—having won by a far smaller margin two years earlier.

The court reversed a ruling by a three-judge panel of the U.S. District Court for South Carolina last summer, which had ruled that "race was the predominant motivating factor" in the redistricting decision.

Alito wrote in the Alexander v. the South Carolina State Conference of the NAACP ruling that since Black voters frequently support Democratic candidates, the fact that predominantly Black voting precincts in Charleston County were moved to a new district "does little to show that race, not politics drove the legislature's choice."

"Without an alternative map, it is difficult for plaintiffs to defeat our starting presumption that the legislature acted in good faith," Alito wrote, despite the lower court's finding that the GOP had unlawfully "exiled" Black voters.

Sarah Lipton-Lubet, president of Take Back the Court, said the decision—combined with reporting that Alito displayed flags that have been adopted by the "Stop the Steal" movement—shows when the right-wing supermajority "thought America was greatest: before the Constitution was amended to prevent voter discrimination based on race."

The NAACP Legal Defense Fund (LDF), which joined the ACLU and ACLU of South Carolina in challenging the maps, said the ruling was "a rejection of the historical deference given to the trial court's factual findings and adds to the already difficult evidentiary burden that plaintiffs must demonstrate to remedy racial discrimination in voting."

"The highest court in our land greenlit racial discrimination in South Carolina's redistricting process, denied Black voters the right to be free from the race-based sorting and sent a message that facts, process, and precedent will not protect the Black vote," said Janai Nelson, president and director-counsel of LDF. "Today the voices of Black South Carolinians were muted, and if we are not careful the next set of votes denied could be those in your state."

"The voting rights of Black communities remain under attack and the LDF will continue to meet moments like these with the resolve and determination necessary to protect voting rights and enforce key protections of the 14th and 15th Amendments," added Nelson.

The LDF and its allies argued their case with testimonies from 24 witnesses including six experts, as well as 652 pieces of evidence "demonstrating the hallmarks of racial discrimination in the design of the 2022 congressional map."

Writing the dissent for the court's three liberal justices, Justice Elena Kagan said the right-wing majority sent a "dispiriting" message in its ruling, which she said would "specifically disadvantage suits to remedy race-based redistricting."

"And so this 'odious' practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue," Kagan wrote. "In the electoral sphere especially, where 'ugly patterns of pervasive racial discrimination' have so long governed, we should demand better—of ourselves, of our political representatives, and most of all of this Court."

Adriel Cepeda Derieux, deputy director of the ACLU's Voting Rights Project, concurred with Kagan's finding that the right-wing majority came to its conclusion by "'ignoring and minimizing' clear evidence that South Carolina racially gerrymandered its map."

"The Supreme Court’s ruling is an affront to Black voters, democracy, and precedent. South Carolina's legislature carved Black voters out of Congressional District 1 for the sake of partisan advantage and weakening their voting power," said Derieux. "And the proof that the court now asks of plaintiffs fighting discrimination is 'unheard of in constitutional litigation.' We continue to stand with our brave clients in this ongoing fight for voting rights."

By making it "nearly impossible for any plaintiff to prove racial gerrymandering in court," said Slate journalist and legal expert Mark Joseph Stern, Alito's opinion amounts to "a full-on gutting of the equal protection clause."

Taiwan Scott, a resident of Hilton Head, South Carolina who was a plaintiff in the case brought by LDF, said advocates for fair voting maps in South Carolina will "journey onward towards justice."

"We are deeply disappointed in the Supreme Court's decision to allow South Carolina's proposed congressional map to stand for yet another election after a unanimous federal three-judge panel recognized the racial discrimination in that map and ordered that a remedial map be used in upcoming elections beginning this year," said Scott. "Our battle to fairly represent and account for everyone in our beautiful state doesn't stop here."

Leah Aden, senior counsel at LDF, noted that the majority returned the plaintiffs' claim that the legislature aimed to dilute voters' power to the district court for further proceedings.

"Despite this unfortunate decision," said Aden, "we will continue, including on remand on a surviving claim from this decision, to create fair redistricting maps and advocate for Black South Carolinian voters."

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