Voting Rights and Democracy

Friend or Foe: Amicus Briefs In SCOTUS Case Over South Carolina Congressional Map

On Oct. 11, the U.S. Supreme Court will hear oral argument in Alexander v. South Carolina State Conference of the NAACPa racial gerrymandering case out of South CarolinaBefore the Supreme Court hears the case, amicus curiae “friend of the court” briefs are filed on behalf of individuals or organizations that are not parties in the case but nevertheless have an interest in the outcome.

Early this year, a federal court struck down South Carolina’s 1st Congressional District — which is currently represented by Rep. Nancy Mace (R) — for being an unconstitutional racial gerrymander, but Republican legislators appealed the decision to the Supreme Court, which agreed to hear the case in full. Now, all of the amicus briefs have been submitted — from South Carolina’s governor, state attorneys general, civil rights groups and more.

In this case, 14 amicus briefs were filed — six of which support South Carolina Republican legislators and officials and want the court to reverse the decision that struck down the 1st Congressional District for being an unconstitutional racial gerrymander. Seven briefs support the South Carolina NAACP and want the court to uphold the ruling striking down the state’s congressional map. One brief was filed by the U.S. Department of Justice (DOJ) — which gets involved when the U.S. has an interest in the outcome of a case — and supports neither party but, agrees that the district court’s decision should be affirmed.

In recent years, some have been critical of the role of amici and the lack of disclosure rules governing this particular process. Given the recent ethics revelations about the nation’s highest court, it is important to pay close attention to who is trying to influence the court, why and how.

The amicus briefs in support of the South Carolina Republicans highlighted a common theme: Republicans do not want to be held accountable for their gerrymandered maps that discriminate against minority communities. The briefs in support of the South Carolina NAACP also culminated in a central thesis: Using partisan goals as a defense of a map should not be misconstrued to argue that the 1st Congressional District is not a racial gerrymander. With 14 individual briefs filed, we highlight a few notable ones below.

Six amicus briefs highlight that Republicans do not want to be held accountable for discriminatory maps.

In 2021, U.S. Sen. Sheldon Whitehouse (D-R.I.) concluded that “amicus curiae briefs, an increasingly influential part of our legal system, have become the lobbying tool of choice for right-wing dark-money interests, who can coordinate systematized armadas of commonly funded briefs to push for their preferred political outcomes.”

South Carolina Gov. Henry McMaster (R), who enacted the map, was the first to defend the state. In his brief, he put it tersely: “This case is a posterchild for abusive redistricting litigation.”

In defending the racially gerrymandered map, Republicans are taking a similar approach, arguing that the problem is not the map itself, but rather adds to the sheer volume of redistricting cases, which Republicans have deemed to be meritless. Many briefs all echo a similar sentiment that redistricting lawsuits are, for lack of a better term, a nuisance. Ultimately, this argument misses the point. If legislators simply passed fair maps, these lawsuits would not be necessary.

McMaster uses most of his 31-page brief to simply complain and spew reactionary conservative talking points. He argues that he was “needlessly named” for “publicity purposes” in the litigation. Of course, the governor’s signature was needed to enact the state’s congressional map and he did so on Jan 27, 2022.

The governor did not have a latent involvement in the redistricting process. Indeed the contrary is true: he made an affirmative decision to sign the map into law. Nevertheless, he argues that the plaintiffs who brought the case “had no justification whatsoever for naming [him] as the lead defendant in this lawsuit. Yet they did.” This brief is truly remarkable as it appears the governor spends more time complaining about the lawsuit than defending the map itself.

Even though he is no longer a defendant, McMaster bemoans the fact that he was once the lead defendant, which according to him resulted in an “unnecessarily frustrating experience” that he would like to illuminate for the Court.The governor is not the first to make this argument, as the specter of excessive redistricting litigation is a common conservative response to voters who challenge the unfair maps Republicans enact.

His argument culminates in an attack on pro-voting groups that are fighting each and every day to challenge the unfair maps and voter suppression laws implemented by Republicans. He writes:

“Sadly, such groundless litigation tactics and illogical claims aren’t unique to this case. Redistricting cases across the country (indeed, voting cases generally) see plaintiffs assert flimsy arguments and take baseless positions that, in other, more run-of-the-mill cases, would never escape the threshold jurisdictional evaluation without judicial condemnation. But when the stakes are as high as they are in redistricting cases, the ultimate focus of the case often allows plaintiffs to evade having to account for their actions. This Court should make sure that lower courts do not let these shenanigans continue unchecked.”

Overall, this brief only illuminated that McMaster is angry for all the wrong reasons. The plaintiffs who brought this lawsuit are not involved in “shenanigans”, they are fighting for a fair map for Black voters who have long been discriminated against in South Carolina politics. It is as much ludicrous as it is insulting to argue that these cases are frivolous and for the governor to argue that he himself is the victim when he oversaw the implementation of a map that moved “over 30,000 African Americans in a single county from Congressional District No. 1 to Congressional District No. 6.”

Alabama and 15 other states joined forces in support of South Carolina’s racially gerrymandered congressional map. 

Remember when the state of Alabama defied a federal court order and refused to redraw its congressional map to include a second majority-Black district? Alabama wants to silence any opposition to unfair maps in the future in their state and other states as well.  This brief, written by Alabama Attorney General Steve Marshall (R) — yes this Steve Marshall — and joined by Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Louisiana, Mississippi, Montana, Nebraska, South Carolina, Tennessee, Texas, Utah and West Virginia, argues that the lower court did not presume that the Legislature passed the map in good faith.

“Thus, even if the district court wasn’t willing to presume the General Assembly’s good faith, it should have at least assumed that the General Assembly would not needlessly (and recklessly) sort voters based on race instead of partisanship when trying to ‘create a stronger Republican tilt to Congressional District No. 1.”’ This is an absolutely stunning argument from Alabama, whose Legislature has acted in bad faith throughout the entirety of the redistricting process.

In fact, over two-thirds of the states represented in this brief have maps that are currently being challenged in court because their Republican-led legislatures passed unfair, Republican-drawn  maps. Alabama’s presence in this brief is especially bold given the lengths to which Republican leaders have gone to disobey court orders requiring a map that is more fair for Black voters. Redistricting litigation exists precisely for this reason since Legislatures often act in bad faith to further entrench their own power.

Similar to other briefs, the Republican-led states also warn of “a flood of new lawsuits for state and local governments.” When officials do not want to be accountable for their gerrymanders, they bewail the purported colossal volume of redistricting lawsuits, disguising what they really think: that voters should not have recourse to fight unfair and discriminatory maps.

One anti-voting group is a constant in redistricting lawsuits before the Supreme Court. 

In the three major redistricting cases over the last year (Moore v. HarperAllen v. Milligan and now Alexander v. South Carolina State Conference of the NAACP) 119 amicus briefs have been submitted. Almost a third of these briefs — 35 — have been submitted in favor of the anti-voting party. One group, the National Republican Redistricting Trust (NRRT), has filed an amicus brief in support of the anti-voting party in all three lawsuits.

In the South Carolina case, the NRRT argues that it is time to “disentangle” race and politics. “Over the last four years, Democrat-aligned plaintiffs have filed lawsuits nearly everywhere Republicans hold the mapdrawing pen. Fourteenth Amendment claims have been made in Texas, Florida, and Arkansas…These cases cry out for a disentanglement of race and politics,” the brief reads. The NRRT’s argument is not singular, but rather part of a larger trend of Republicans seeking to strip voters of the ability to fight discriminatory maps and painting litigants who fight for fair representation as having purely partisan motives.

Judicial Watch, a common right-wing litigant, similarly argues against drawing a connection between race and partisanship. 

Judicial Watch, a conservative group well known for making false voter fraud claims and filing lawsuits to purge voters from voter rolls, argues that the district court’s decision should be reversed. The brief argues that if the Court were to side with the South Carolina State Conference of the NAACP, “the panel’s decision will have a disastrous effect on the future, judicial review of redistricting plans” because a decision in favor of the plaintiffs would “conflate the racial and political concerns that are always present in redistricting disputes in a way that could impair the perceived legitimacy of the judicial branch.”

The right-wing group cynically argues that “partisan Democrats will draw the conclusion that it is worth challenging any Republican congressional district with even a small minority population.”

Finally, Judicial Watch concludes that “the public will draw its own conclusions, when it sees that a party that routinely draws half of the national vote has been placed in a legally disadvantageous position under the U.S. Constitution.”

The DOJ filed a brief in support of neither party, but agrees that the 1st Congressional District should remain blocked.  

The DOJ argues that the district court’s decision should be affirmed, writing:.“This Court should affirm the district court’s judgment based on plaintiffs’ racial-gerrymandering claim. The court’s finding that race predominated in the construction of CD1 was neither clearly erroneous nor infected by legal error, and defendants have not argued that CD1 satisfies strict scrutiny.”

However, the DOJ submitted its brief in support of neither party as it argues that the Court should vacate the lower court’s decision on the vote dilution claims because they assert that the district court did not apply the correct legal standard. Despite this, ultimately the DOJ concludes that if the court does affirm the lower court’s decision that the map is a racial gerrymander, the Court does not need to address the plaintiffs’ vote dilution claim. However, the DOJ argues that if the Court does reach the plaintiffs’ vote dilution claim, it should void the decision and remand the case back to the district court because the district court did not use the proper legal standard.

Seven groups submitted amicus briefs in support of the South Carolina State Conference of the NAACP and the position that South Carolina’s map should be replaced for 2024.

Overarchingly, civil rights groups, Democratic officials, historians and political scientists argue that South Carolina’s 1st Congressional District is a racial gerrymander that violates the U.S. Constitution and request that the court dismiss conservatives’ attempts to undermine voters’ ability to challenge unfair maps. These briefs similarly argue that the Court should reject the Republican officials’ attempts to use partisanship as a defense for racial gerrymandering.

“This is a textbook case of racial gerrymandering.”

Contrary to arguments that this case impermissibly conflates partisan and racially discriminatory intent, pro-voting groups explain that this case is actually a simple example of racial gerrymandering. The Constitutional Accountability Center, a think tank and public interest law firm dedicated to “fulfilling the inherently progressive promise of the Constitution’s text, history, and values” submitted a brief arguing that this should be an easy case.

The brief takes a sledgehammer to South Carolina’s main argument: that the map was drawn with a partisan goal, not a racial one.

“This argument fails as a matter of both constitutional text and history and precedent. The Framers of the Fifteenth Amendment, well aware of partisan divisions along racial lines and the likelihood that white-dominated state legislatures would seek to curtail the power of Black voters, guaranteed the right to vote free from discrimination as a bulwark that would empower Black voters ‘to protect themselves in the southern reconstructed States’ from attacks on their rights,” the brief reads.

Several briefs highlight how South Carolina’s history cannot be separated from this case. 

A brief filed on behalf of The League of Women Voters of South Carolina, Gullah Geechee Chamber of Commerce, the Charleston Branch of the Association for the Study of African American Life and History and the Circular Congregational Church explains the reality for voters impacted by South Carolina’s map. The brief explains how splitting Charleston County demonstrates the predominance of race as the primary factor when the Legislature drew the map.

“Fifty-five million years ago, the Atlantic Ocean and South Carolina’s coast converged in the Midlands, more than one-hundred miles from the state’s modern-day shoreline. Not since that time has Columbia held interests resembling those of Charleston County.”

Not only does South Carolina’s blocked map make the 1st Congressional District noncontiguous, it also, “for the first time ever, lumped together in a single district the whole of the Charleston Peninsula and downtown Columbia, which are separated by several rural counties and more than half the state’s length.”

The blocked map splits the Port of Charleston among two districts, dividing the port’s two largest terminals and separating the community concerned with Chartleston’s port into two congressional districts. This means that those who have an interest in “the success and sustainability of Charleston’s port… must appeal to two different representatives.”

The brief explains that the fragmentation of Charleston in addition to the consolidation of completely separate communities frustrates voters’ ability to effectuate meaningful political change within their own communities.

The historians, who specialize in the history of the South, South Carolina, election laws and racial relations rebut South Carolina and other briefs’ argument that the map was implemented with a partisan goal, not a racial one. The scholars explain that throughout history, political parties that are not supported by Black voters have repeatedly sought to diminish Black voters’ political power. According to the brief, during Reconstruction, the Democratic Party excluded Black voters from political participation through “intimidation, murder, blocking access to polls, stuffing ballot boxes, and diminishing the impact of Black votes through racial gerrymandering.”

When Black leaders finally took office in the 1860s, they were “violently or illicitly ousted from office from the late 1870s until the 1890s.” In reaction to the Black leaders’ small window of progress, the brief explains that maps in the 19th century and on were then gerrymandered to “make it difficult or impossible for Black officials to be elected in the future,” and as a result of this historical pattern, “Racial gerrymandering has been a fixture in South Carolina politics ever since.”

Ahead of oral argument before the U.S. Supreme Court, which will take place on Wednesday, Oct. 11 at 10 a.m. EDT, find all of the court documents, including amicus briefs, here. We will also provide live updates during oral argument, which can be listened to here.

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