[ The Court may be ready to scuttle remaining portions of the
Voting Rights Act by giving states the ability to racially gerrymander
by claiming that they’re only engaging in partisan gerrymandering.
Its outrageous.]
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THE US SUPREME COURT’S INCOHERENT, IDIOTIC, AND RACIST RULINGS ON
GERRYMANDERING  
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Miles Mogulescu
October 24, 2023
Common Dreams [[link removed]]

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_ The Court may be ready to scuttle remaining portions of the Voting
Rights Act by giving states the ability to racially gerrymander by
claiming that they’re only engaging in partisan gerrymandering. It's
outrageous. _

People rally against gerrymandering in front of the U.S. Supreme
Court on March 26, 2019., Evelyn Hockstein/For The Washington Post via
Getty Images

 

Were it not for the Republican-dominated U.S. Supreme Court majority,
the clown show by the House of Representatives’ narrow 5-member
Republican majority might never have come about. Instead, there would
likely be a slim House Democratic majority, Hakeem Jeffries would be
Speaker, there would have been no crisis over raising the debt limit,
no danger of the government shutting down in mid-November and aid to
Ukraine and Israel would already have passed.

As _Slate_
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reported a week before the 2022 election, “To a degree that’s
absolutely unprecedented in modern times, the midterms will be [and
were] conducted with illegal maps—all of which were approved or
imposed by Republican-controlled courts. Put simply,
Republican-appointed judges may have already guaranteed GOP control
over the House before a single ballot was cast.” _Slate _was proven
all too right. We can thank John Roberts and his right-wing SCOTUS
colleagues for the chaos in the House.

SCOTUS has incoherently created two conflicting standards for
determining whether federal courts can find that gerrymandering
abridged the constitutional rights of American citizens. In _Rucho v.
Common Cause_
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slim 5-4 Republican majority held that gerrymandering designed to
benefit one political party over the other may not be decided by
Federal Courts, enabling partisan state legislatures to pick their own
voters with no meaningful remedy. At the same time, it still permits
Federal courts to overturn gerrymandering done for purposes of racial
discrimination. But with African Americans overwhelming voting
Democratic, SCOTUS has permitted state legislatures to gerrymander in
order to increase their party’s legislative and congressional
majorities by claiming they’re doing it for partisan reasons without
any clear standards as to how to tell the difference between partisan
gerrymandering and racial gerrymandering.

If SCOTUS rules for South Carolina, it will effectively gut
protections against racial gerrymandering by letting states claim that
their motivation was party advantage, not racial disadvantage.

As constitutional lawyer David Gans stated, “The bottom line is it
would be much harder to bring a racial gerrymandering claim where a
state is saying that it sorted voters to achieve a partisan end, even
if it used race as a means to do so.”

Now SCOTUS is seriously considering making it more difficult to prove
in court that a gerrymander was done for racial reasons (which remains
illegal) as opposed to partisan reasons (which SCOTUS has ruled may
not be challenged in Federal court.)

In _Alexander v. South Carolina Conference of the NAACP_
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the South Carolina legislature moved 30,000 black voters out of the
Charleston congressional district, thus making it all but certain that
Republicans would win the House seat in the district. (Ironically, the
District in question elected Republican Nancy Mace, a supporter of Jim
Jordan for Speaker). The Federal District Court unanimously ruled that
this was an unconstitutional racial gerrymander and “made a mockery
of the districting principle of constituent consistency.”

South Carolina appealed to SCOTUS, asserting that this was a partisan
gerrymander designed to help Republicans and not a racial gerrymander
designed to disenfranchise Black voters.

During oral arguments on October 15, 2023, Republican Justices
expressed sympathy for South Carolina’s argument, and may be on the
verge of overturning the lower Federal Court and ruling it partisan,
not a racial, gerrymander, and thus A-OK. Justice Alito asked 37
questions along these lines, compared to only 28 questions from the
other 8 Justices combined. Alito had written in a previous opinion,
joined by Roberts, that courts must “presume the good faith” of
legislatures in redistricting cases.” To presume that partisan
legislatures act “in good faith” when their own political survival
is at stake is a laughable conclusion and borders on idiotic.

Chief Justice Roberts stated that the lower court’s ruling is “all
resting on circumstantial evidence…[T]hat would be breaking new
ground in our voting rights jurisprudence,” seeming to suggest that
Roberts is prepared to overturn the lower court’s factual findings
(which SCOTUS is not supposed to do) because its decision was
allegedly based on circumstantial evidence (which is permissible).

But in deciding whether a gerrymander is partisan or racial, there is
rarely smoking gun evidence like the legislature stating directly it
was making its redistricting decisions in order to disenfranchise
African Americans. If SCOTUS rules for South Carolina, it will
effectively gut protections against racial gerrymandering by letting
states claim that their motivation was party advantage, not racial
disadvantage.

This case shows the absurdity of SCOTUS’ _Rucho_ decision that the
constitutionality of a partisan gerrymander is non-judiciable for
Federal Courts, because there are no clear standards to determine if a
partisan gerrymander occurred, but there are standards to determine if
a racial gerrymander occurred. In this case, South Carolina actually
admits that gerrymandering occurred to help Republicans win more
seats, but claims that the gerrymandering could not be questioned by
Federal Courts under _Rucho_ because it was partisan and not racial.

Much of the oral arguments were consumed with debating how to
determine if a gerrymander is racial or partisan. South Carolina’s
attorney agreed that “race and politics can’t be disentangled.”
But this just demonstrates the incoherence, indeed stupidity, of
_Rucho._ Remember that _Rucho _did not find that partisan
gerrymandering is constitutional—It merely found that the standards
for determining if there is partisan gerrymandering are too unclear
for Federal courts to decide one way or the other.

South Carolina is freely admitting to gerrymandering. It is trying to
get SCOTUS to force the NAACP to jump through hoops to prove the
gerrymander is racial. Legal coherence can only be achieved by SCOTUS
revising its _Rucho _holding and finding that where the evidence shows
that partisan gerrymandering occurred, or is even openly admitted by
defendants, then it’s unconsitutional and judiciable. Anything less
allows states to lie that their reason for gerrymandering is partisan
and not racial and then receive a judicial get-out-of-jail-free card
to continue to gerrymander anyway.

Civil rights advocates fought and literally died to get the Voting
Rights Act of 1965 enacted. The Roberts Court has scuttled much of
that law, ruling in _Shelby County v. Holder_ that Section 4 of the
Act requiring Justice Department preclearance of changes to voting
rights in states with a history of racial discrimination is
unconstitutional. Now SCOTUS may be ready to scuttle the rest of the
Act by giving states the ability to racially gerrymander by claiming
that they’re only engaging in partisan gerrymandering.

Republican Supreme Court Justices may wear black robes rather than
white robes and pointed hats, but they may be as effective as Klan
members in denying African Americans the right to elect their own
representatives.

Miles Mogulescu is an entertainment attorney/business affairs
executive, producer, political activist and writer.
===
Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel
free to republish and share widely.
===

 
 

* Gerrymandering; Alexander v. South Carolina Conference of the NAACP
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* US Supreme Court; Voting Rights Act of 1965;
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