The Gerrymander of District One - Mac Deford

Grace: 00:00:00

Hi, it's Grace Cowan, and this is Frogmore Stew. The Supreme Court is currently deciding on a case called Alexander versus South Carolina State Conference of the NAACP. It's a case about South Carolina's District 1 and what the NAACP says is a full-on gerrymander, and we'll likely hear the Supreme Court's decision this month. Mac DeFord is a practicing attorney and was at the Supreme Court when they heard the case. We're going to do a deep dive with him to get a better understanding of the case and its potential outcomes. Mac, welcome to Frogmore Stew.

Mac: 00:00:49

Hi, Grace. Thank you for having me.

Grace: 00:00:50

You are one of two Democrats running in the 2024 primary election against Nancy Mays. It's for District 1, the U. S. House of Representatives. And that district covers Beaufort, Charleston, Berkeley, Dorchester counties, just over about 760, 000 people.

able solid red district until: 2018

And then in 2020, Nancy Mace beat Cunningham by 5, 500 votes. That meant, though, that the district was then truly a swing seat. 2020 Census happened. Redistricting. Essentially, the legislature took 30, 000 Black voters, which is, as we know, about 60 percent of South Carolina's Democratic Party is made up of Black voters and moved them out of District 1 into District 6, which is Jim Clyburn's district, over 100 miles away from North Charleston, basically packing more Democrat voters into his already deep blue district, our only House seat in the state that's blue. Full on gerrymander.

election after redistricting,: 2022

NAACP sued. And in January of: 2023

Mac: 00:02:51

Yeah. So the, the South Carolina case, Alexander v. South Carolina State Conference of the NAACP was brought under the 14th and 15th Amendment. They're equal protection challenges. They're making the argument that The state of South Carolina used race as a proxy to draw the legislative districts, particularly for the first congressional district, which is illegal.

Grace: 00:03:13

And so this case is different than some of the other cases that are out there right now. There actually are a lot of cases out there doing post redistricting. But it's different because many of those cases are suing under the Voting Rights Act of 1965. But this case is a little bit different. It's the 14th and 15th Amendment of the Constitution versus the Voting Rights Act. Is that right?

Mac: 00:03:39

Yes, that's correct. So the Voting Rights Act that was established in 1965, uh, is designed to enforce the voting rights that are guaranteed by the 14th and 15th. Amendments and you had really three main sections of the Voting Rights Act. Section two, which is in full force and in effect today primarily used as the basis for most voting rights lawsuits. It prohibits any voting procedure that discriminates on the basis of race.

Grace: 00:04:05

That actually was undone a little bit because there was a lower court rule that you can no longer sue as an individual, it has to be the Department of Justice that sues.

Mac: 00:04:16

That's right, yes, so the 8th Circuit Court of Appeals held that private litigants can no longer bring lawsuits under Section 2 of the Voting Rights Act. And that will very likely make its way to the U. S. Supreme Court. So currently that ruling is only applicable to those states that are in the Eighth Circuit.

So Arkansas, Iowa, Minnesota, Missouri, Nebraska, North and South Dakota. And as it makes its way to the U. S. Supreme Court, we'll see whether that applicability is expanded or not. Also, a three judge panel for the Fifth Circuit Court of Appeals did hold that there is a private right of action under Section 2, which is completely opposite of the ruling out of the Eighth Circuit.

So, we will see that get resolved as the Eighth Circuit case makes its way to the U. S. Supreme Court.

Grace: 00:05:02

So, back to the Voting Rights Act of 1965, there are three parts that you were going into.

Mac: 00:05:08

Yeah, so some of them are in effect currently. Some others have been ruled unconstitutional. So Section 2, again, is the key provision that, that most voting rights lawsuits are brought today, which prohibits, you know, voting practices that discriminate on the basis of race.

by the U. S. Supreme Court in: 2013

So it's unfortunate that Section 4b and 5 have been rendered ineffective in, in light of that. And I think especially in light of what we continue to see happening here in the state of South Carolina as it pertains to voting and, uh, discrimination.

Grace: 00:06:04

There's actually a great quote in the dissent from Ruth Bader Ginsburg, where she says, throwing out preclearance when it's worked and is continuing to work is like throwing away your umbrella in a rainstorm because you're not getting wet.

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Mac: 00:06:43

There was a three judge district court panel at the beginning of this year. They found that the claims for District 1 were the only ones that survived, that the first district was racially gerrymandered. Just to give it some background, after the 2020 census, the Republican controlled state legislator, really led by State Senator Chip Campson, sought to bring in all of Berkeley and Beaufort counties into the first district, along with a pretty significant portion of Dorchester County.

ing district, which it was in: 2018

ty portion of black voters in: 2011

They excluded 30, 000 African American voters out of the Charleston County portion and put them into Congressional District 6.

Grace: 00:08:12

This is the Constitution 14th and 15th Amendment. That says that the right to vote cannot be denied because of race. But in the state of South Carolina, 60 percent of our Democrat voters are Black voters. How do you distinguish between Someone who's a Democrat and someone who is a black voter. Where is the line draw?

Mac: 00:08:35

That's a great question, Grace. And I think that's what the conservative block of the Supreme Court when I was up there, you know, watching, for example, Justice Alito, was having a difficult time. His position was that the whole case for South Carolina's first district is about disentangling race and politics. And so the states being able to gerrymander based on partisan politics, that was all made possible by the Supreme Court's decision in 2019. That was a case called, uh, Rucho versus Common Cause.

The court there ruled that didn't have the authority to resolve partisan gerrymandering claims, which really paved the way for states to just blatantly gerrymander their congressional maps to favor one party over another.

Grace: 00:09:17

And that's happened in blue and red states.

Mac: 00:09:20

Yes, it's happening all over. And the issue becomes then if you use race as a predominant factor, afoul with the Equal Protection Clause of the 14th Amendment. That's when it becomes illegal.

Grace: 00:09:32

But whenever the dominant party is in the state legislature at the time of the census is who determines the redistricting, right? And so, you know, New York, California, they have pretty extreme blue maps, but then South Carolina, Texas, Florida, they have pretty extreme red maps. But some states like Michigan just passed a referendum that said they needed to implement a nonpartisan committee to redistrict. That seems like actually the best way to do it. But of course, none of the legislatures that are in power are ever going to agree to that. It's going to have to go to a referendum.

Mac: 00:10:09

In my judgment, I would like to see us start moving that way, but I think that's going to be a tough one, like you said, without some sort of referendum.

Grace: 00:10:17

So you went to the Supreme Court during the hearing, during the case being presented. What did you get from them in their reactions?

Mac: 00:10:27

There were really two issues that I think got a lot of attention. And the first was this concept of an alternative map that really came up a lot throughout the oral argument. You know, South Carolina, the attorney for the state, asserted that the district court panel, the three judge panel, they erred by failing to enforce an alternative map requirement.

Grace: 00:10:47

When you say alternative maps, what does that mean? Because I do know there were alternative maps. It's done. I think the League of Women Voters produced one. Who is it that's supposed to produce that map?

Mac: 00:10:59

So, there were other maps that were produced at trial. Again, the League of Women Voters, I think, uh, State Senator Dick Harpootlian also submitted some alternative maps. But under the alternative map requirement, it would require, in this case, the NAACP to produce an alternative map. To demonstrate that the state legislator could have achieved its political aims of having that Republican tilt without using race as a predominant factor. The disagreement here is that we saw some of the more liberal justices, Justice Kagan, kind of reject that and saying the alternative map requirement doesn't exist here. The task here that the NAACP had was really to just persuade the trial court without any sort of, you know, special evidentiary issues like producing an alternative map, that race and not the partisan political aim was the predominant consideration.

And so that's kind of what this case hinges on. The state is saying, well, You know, they had access to the data that showed a lower percentage of the Charleston County portion of SC1 would result in that Republican tilt. But they're asserting that even though we had that information, that wasn't the predominant factor in us drawing this map and ultimately accepting it and the NAACP has argued, well, you know, that's what the analysis showed is that in order to achieve that tilt. You had to reduce the African American population of the Charleston County portion. So that's really what it hinges on.

Grace: 00:12:32

The, the legislature is, is arguing that we should presume they're good faith. And even though I feel like pulling 30, 000 Black voters out of a district and moving them into one a hundred miles away seems I don't know, pretty spot on of exactly what they did.

Grace: 00:12:51

And so depending on how this case comes out, if they rule for in favor of the NAACP, that it was in fact gerrymandered based on race, what comes next?

Mac: 00:13:02

The Supreme Court has three options to choose from. Essentially, the first is that they could reverse the lower court's ruling. And in order to do that, they would have to find that the three judge district court panel committed a clear legal error. That's really the crux of this case because the state is arguing that the district court failed to consider certain evidentiary matters.

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Grace: 00:14:43

So hopefully they follow through with that. And if they affirm the lower courts decision, then the district court Would issue an order giving the state X days, probably 30 to 45 days or so to submit new maps. And then if those maps were acceptable, those would be the new maps. That would be the new first district.

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Grace: 00:15:19

The three panel court understands the urgency of this, right? Because it really does make a big difference. Right now, nearly half of the state are Democrats. Out of our seven U. S. House members, one is a Democrat.

Mac: 00:15:35

Let's say the Supreme Court does affirm the lower court's decision and we get new maps for 24. I don't think those maps are gonna be a democratic tilt. I think that it's just going to make this a purple district or a swing district. And I think that's an important distinction to make because we hear a lot of folks, including Representative Mace, and even some other people say that the first district is a swing district.

Grace: 00:15:57

I mean, you can look at the numbers. 2018, Joe Cunningham won by 4, 000 votes, 2020, Nancy Mace won by 5, 500 votes, and then they redistricted it. And Nancy Mace won by 3, 000. 37, 000 votes. I don't think that in two years' time, her maverick legislating went over 32, 000 votes from the last election.

Mac: 00:16:20

You were just discussing sort of the, how the numbers have shifted. I mean, you take those 30, 000 black voters that were cut out of the first district, simply because of the color of their skin. That really picks up that difference and takes away That narrow margin that existed in 2018 and 2020. And that's what gives her such a large advantage now.

Grace: 00:16:41

I think too, back to the point of how do you distinguish between a partisan gerrymander and a racial gerrymander is that it's really presumptive to assume that all 30, 000 black voters are Democrat voters, right?

Mac: 00:16:56

And I think it's important to understand that there were a lot of people moved in and out of the first district with this redistricting. I mean, over 193, 000 people were moved in and out of the first district. And I think that where this case really boils down to, and Justice Jackson really did a good job really kind of reaffirming this and getting people to maybe step out of the weeds a little bit and see the big picture is that the studies that were commissioned showed that the Republicans needed a 17 percent black voting age population within the district in order to achieve that Republican tilt. It was about 19 or 20 percent That was the only way that they were going to get there and their studies showed that.

We see that play out where 30, 000 individuals because of the color of their skin were disenfranchised from our democracy and they were put into another district where the same representative that represents parts of Columbia also representing them down here in the lowcountry.

Grace: 00:17:55

And it's sort of interesting too, the decision on the Shelby case, it was John Roberts that wrote the court's decision. He basically said that racial disparities do not exist any longer in voting. Because there are poll taxes and literacy tests, but if the partisans redistricting are still using race as a basis to ensure that their candidate wins, then that's the same thing, isn't it? I mean, what's the difference?

Mac: 00:18:23

There's actually a book called "The Past That Would Not Die." It's about Mississippi and that title really describes this whole issue. It's a past that won't die. And, you know, just because the state of South Carolina or other states are not using hourly blatant forms of discrimination, like literacy tests and. And poll taxes, they're just getting more sophisticated in how they employ their voter discrimination strategies. This is one of them. It's a gross injustice to say that the first district was not racially gerrymandered. The evidence very clearly shows that that 30, 000 of our citizens, our fellow citizens were put out of the district solely because of the color of their skin.

Grace: 00:19:04

And it feels like gaslighting, you know, where they're like, no, no, that's not what we did. We did this other thing. In the end, the courts really don't have the final say on the matter. I mean, Congress has specific authority under the 15th amendment to craft legislation to safeguard the right to vote. But Who knows when that's going to happen or will ever happen, but really, that could solve all of these problems and all of these gerrymanders on blue and red states.

Mac: 00:19:36

Some sections of the Voting Rights Act were never meant to be permanent. And we've seen that because we've seen several amendments and extensions. I mean, just, just in 2006. There's a reauthorization of the key provisions of the Voting Rights Act for another 25 years. And so I do think it is past time that Congress needs to evaluate how voter discrimination is occurring in our country in a modern world and figure out the best way to tackle that and perhaps establish new legislation that protects the right to vote so that people aren't discriminated on the basis of race or, or any other category.

Grace: 00:20:12

And it does seem like it should be a bipartisan effort, like almost an easy bipartisan effort, right? Because it happens both in blue states and red states. You would think we'd be able to get enough votes in the House and Senate to pass that through. But it may not be the right time.

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Mac: 00:20:40

Anyone is welcome to sit in on an oral argument. It is very formal. It's a beautiful building on the inside. It's very heavy security as you can imagine. The room itself is, it's not the biggest courtroom I've ever been in, but it is very impressive. And when I was there, you had the main gallery for, I guess, spectators, people that are there to observe. And then you have area in between that gallery and the dais where the lawyers and the legal team will be sitting.

Grace: 00:21:10

Mac, I cannot tell you how thankful I am to have you on to explain all of this to us. And I do hope that when they come out with their judgment, you'll come back so we can talk about it more.

Mac: 00:21:22

I'd love to come back. It's an exciting time, but I'm going to remain optimistic that hopefully the court will, see this for what it is and the majority will decide that they're going to affirm the lower court's decision and that will hopefully give us new maps for next year.

Grace: 00:21:36

Again, so good to have you and we'll talk to you soon.

Mac: 00:21:39

All right. Take care. Thank you.

Grace: 00:21:41

Bye bye. That's all the Stew for today. Talk to you next week.

Credits: 00:21:55

The Frogmore Stew podcast with Grace Cowan is produced and directed By TJ Phillips with the Podcast Solutions Network.