The Supreme Court on Wednesday held oral arguments in a case over whether Republican legislators relied on race to an impermissible degree when gerrymandering South Carolina's congressional map after the 2020 census, and multiple court observers predict that the conservative majority is likely to uphold the map. Because the GOP-appointed justices prohibited federal courts from hearing partisan gerrymandering challenges in a 2019 decision, that outcome would make it harder to sue over racial gerrymanders that GOP mapmakers claim are only partisan in nature.
Earlier this year, a federal court struck down South Carolina's 1st District, ruling that Republicans intentionally discriminated against Black voters. The three-judge panel concluded that legislators had violated the 14th Amendment's equal protection clause by packing too many Black voters into the neighboring 6th District, illegally letting race predominate without serving a compelling government interest when drawing their new map. However, the Supreme Court put the ruling on hold while Republicans appealed.
As shown on the map at the top of this story, the 1st District includes parts of the Charleston area and coastal South Carolina (click here for an interactive version). It was home to multiple competitive elections under the last decade's GOP map: Democrat Joe Cunningham won a 51-49 upset in 2018 before losing by that same margin to Republican Nancy Mace in 2020. However, the GOP's new gerrymander insulated Mace from future challenges by extending Donald Trump's 2020 margin of victory from 52-46 to 53-45. Mace, in part thanks to this new map, comfortably won reelection 56-42 last year.
Voting patterns in much of the South are heavily polarized along racial lines—Black voters overwhelmingly prefer Democrats and white voters heavily favor Republicans. Republican mapmakers looking to protect Mace took advantage of this by moving Black voters from the 1st into the already dark blue 6th District, a Voting Rights Act-protected seat that has long elected Rep. Jim Clyburn, a Black Democrat. Even though the 1st needed to shed population to the 6th and Republicans made it redder, the 1st remained roughly 17% Black, and the court found it likely the GOP had illegally set a fixed population target.
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While the Supreme Court prohibited federal courts from adjudicating cases based on partisan gerrymandering four years ago, the court for decades has allowed challenges based on racial gerrymandering and last issued a major decision on the matter in 2017. Mapmakers can only rely on race to a degree when they have a compelling government interest to do so, such as complying with the VRA to prevent vote dilution of a protected minority group. They also can't set an arbitrary population percentage target without compelling evidence that such a threshold is necessary to comply with the VRA.
Racial gerrymandering cases under the 14th Amendment are distinct from VRA cases in key ways, however. When a district is struck down for diluting Black voting power under the VRA, for instance, the law requires the creation of a new district where Black voters have the equal opportunity to elect their preferred candidates. However, if a district is simply struck down for racial gerrymandering but not a VRA violation, the law doesn't require creating an additional district that lets Black voters elect their chosen candidates, but rather that a new district be devised without race illegally predominating.
Because of this limitation with racial gerrymandering lawsuits, this legal challenge was already unlikely to result in a new Democratic-leaning district where Black voters could reliably elect their preferred candidate, who would likely be a Black Democrat. That's because there are other ways that Republican lawmakers could have devised a partisan gerrymander without overly relying on race, for instance by moving more white Democrats into the 6th instead of Black Democrats.
However, not all racial gerrymandering challenges happen in contexts like South Carolina's. Last decade, Virginia saw successful racial gerrymandering lawsuits lead to new congressional and state House districts: This empowered Black voters because Republicans had lost the governor's office in the years since they first enacted the maps and lacked the votes to override vetoes. Federal courts responded to the GOP's inability to pass new gerrymanders over Democratic opposition by implementing their own maps, and the new boundaries created additional districts won by Black Democrats.
Critically, those rulings against racial gerrymandering last decade happened before the Supreme Court barred future challenges to partisan gerrymandering, and Republican mapmakers at the time were usually—but not always—reluctant to claim partisanship as their motivation for fear of trading one legal liability for another. But if the Supreme Court's ruling on the South Carolina map fully endorses allowing Republicans to claim partisanship as a motivation—even when evidence indicates they relied on race when it wasn't necessary to further those partisan ends—it could make it prohibitively difficult to challenge current and future racial gerrymanders.
