Wednesday, the Court is going to hear its first case from this round of re-districting on whether race unconstitutionally predominated in the drawing of a congressional district, in this case CD 1 in South Carolina (R. Nancy Mace’s district).  There’s no dispute about the fact that  the Republican legislature set out to make CD 1 a safer Republican seat, after a Democrat had won it in 2018.

            Cases of this sort come down to whether the legislature predominantly used race or political reasons to move voters in order to achieve its political objective.  If they moved people for partisan reasons based on election-return data of voting patterns, that does not, unfortunately, violate the federal Constitution after Common Cause v. Rucho (2019) (full disclosure, I represented Common Cause in that case and technically, it holds that partisan gerrymandering claims are non-justiciable in federal courts).  But if the SC moved voters predominantly by race – even if used race as a proxy for likely partisan voting patterns – that would violate the Constitution here.

            But there’s something puzzling about the context of this case.  In the racial gerrymandering cases from the 2010 round of redistricting, the plans were drawn before the Supreme Court had decided Rucho.  Legislatures were reluctant to argue that their plans were permissible partisan gerrymanders, rather than racial ones, because Supreme Court doctrine at the time held that partisan gerrymandering could violate the Constitution (though the Court had never struck down a plan as a partisan gerrymander).  Instead, legislatures argued that the Voting Rights Act required them to use race to draw the districts being challenged.

            But by the time South Carolina drew its districts after the 2020 Census, Rucho had been decided.  South Carolina therefore knew it would not run into federal constitutional problems if used only political data to achieve its political goal of making CD 1 a safer Republican seat.  But if the lower court is right, South Carolina instead used race as a proxy for partisan voting patterns.  Why would the State, I wondered, have done that, when it could have easily gotten to the same end point through the use of non-racial, political data?

            One possible answer comes from the record in the case.  For whatever reasons, it might be that the only election data the re-districters had came from the 2020 presidential election.  The record suggests that possibility.  And voting patterns in presidential elections are not necessarily the same in congressional (or state) elections, particularly in mid-terms when turnout is much lower and demographically different than in presidential elections.  Absent other data on voting patterns from other elections, the redistricters might have concluded race was the best proxy for congressional voting patterns for elections outside the presidential context.

             The Court might reject the lower court’s finding that race predominated.  But if it affirms that finding, the explanation for why the legislature used race rather than political data could well be the reason I’ve noted.  Of course, it’s also possible the South Carolina legislature simply did not understand, or was not well advised, about the permissible v. impermissible ways of achieving its partisan objective.