Legal Docket: Flawed maps

JENNY ROUGH, HOST: It’s Monday October 30th. You’re listening to The World and Everything in It. We’re so glad you’ve joined us today. Mary Reichard is taking a well-deserved break this week. Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

I know you and Mary look forward to October for professional reasons. The court is back in session, but it’s just such a pleasant time of year with the fall colors peaking about now where you are in D.C.!

ROUGH: Oh, you know it. It’s beautiful right now in Washington and has been for the last week or so.

Y’know, one of my favorite places, about 70 miles west of the Supreme Court building, the Shenandoah National Park. The leaves are vibrant red, yellow, orange.

Just gorgeous.

And to make a Supreme Court connection, I can report last week I hiked Mount Marshall Loop.

EICHER: As in Justice Marshall, that’s the connection!

ROUGH: Yes, Justice John Marshall. He was a Founding Father and the fourth chief justice of the U.S. Supreme Court.

He was a legal giant. I read him in law school and law students today still study his opinions, because they were written in the formative age of constitutional history.

EICHER: Marshall served three decades on the high court, 1801 to 1835. And one of his most important decisions was Marbury v. Madison. I know it’s big for lawyers, but it’s just a pivotal piece of U.S. history:

Marbury v. Madison held that an act of Congress conflicted with the Constitution, and so it nullified the act for the first time, an act of Congress found unconstitutional.

The case would later become widely cited as the one that established the doctrine of judicial review.

So I’m sure you meditated on this lofty topic during your hike!

ROUGH: Yes, I’m that much of a nerd. And a nature nerd, too. You can really see why Chief Justice Marshall loved the foothills of Virginia’s Blue Ridge Mountains where he lived for a time.

But to this day, if you look at a topographic map, you’ll be able to see the hiking trail that bears his name.

EICHER: Well that transitions nicely into our case for today, not hiking trails, but maps, and voting maps specifically.

Today’s case turns on a battle over a congressional map enacted by the South Carolina legislature.

Every 10 years following the census, congressional maps have to be redrawn to reflect population changes. In South Carolina, the redraw would take place among the same number of congressional seats, seven, but after the 2020 census, it became clear that District 1—largely Republican—was overpopulated. But District 6 next door and largely Democrat was underpopulated.

So the state drew a new map that shifted the boundaries.

ROUGH: But the South Carolina NAACP sued state officials. It argued the new map violated the equal protection clause of the 14th Amendment.

So this isn’t a Voting Rights Act case like the Alabama one last year. This case involves different facts and different law.

And relevant to this case, the Supreme Court has held the 14th Amendment prohibits racial gerrymandering, using race as a predominant motivating factor to come up with a state’s new districts.

EICHER: But South Carolina claimed it was aiming for a partisan gerrymander. And the state claims a map drawn for partisan reasons is permissible.

South Carolina’s case was heard before a 3-judge panel.

At trial, the person who drew the map testified that he relied strictly on partisan leanings to favor a Republican tilt in District 1. He further testified that although he was aware of racial data and examined it. He didn’t deliberately consider race when drawing the map.

ROUGH: Well, the lower court didn’t believe him. It said the state had to redraw the map. And couldn’t rely on it for the upcoming 2024 elections.

But instead of doing that, the state appealed to the United States Supreme Court. That right to a direct appeal. Skipping over the middle court level and going straight to the high court is allowed here.

And the legal standard is clear error. That means the Supreme Court must respectfully yield to the lower court’s factual findings.

At oral argument, Justice Ketanji Brown Jackson outlined the clear error standard this way:

JUSTICE BROWN: The clear error standard is a highly deferential standard that the court may not reverse just because it would have decided the matter differently.

EICHER: The lower court did commit a series of errors, said attorney John Gore. He argued on behalf of South Carolina and said the lower court embraced a racial target theory that was simply wrong. Instead, the legislature pursued a political goal.

GORE: It achieved that goal by moving Republicans into the district and Democrats out of the district. All of the direct evidence confirms that it used political data, not racial data to identify Republicans and Democrats.

ROUGH: Justice Elena Kagan did not see it that way. She pointed to two experts who testified for the NAACP at trial.

JUSTICE KAGAN: And what the two of them do is that they show that black Democrats are excluded from District 1 at a far greater percentage than white Democrats are. Both experts essentially said, look, we've done these regressions. And we can show you that black Democrats and white Democrats are not being treated the same way.

EICHER: Gore argued that both of those NAACP experts made serious flaws in their reports.

And he pointed out another legal standard: The legislature gets a presumption of good faith here. Yet he said the three-judge district court didn’t give it that. Instead, the court overlooked evidence that proved the state relied on data from the 2020 presidential election.

ROUGH: Justice Neil Gorsuch asked about that election data. Because the map maker only relied on results from one election. Strong enough?

JUSTICE GORSUCH: We've been kind of dancing around the big question, which I think is, to my mind, the district court's finding that your clients had to have looked at race data rather than politics data because the politics data wasn't robust enough.

GORE: Even though 2020 is a presidential election year, it's also a congressional election year, and it was the most recent congressional election that was available to the map-drawer. It's not uncommon for map drawers to use one year's worth of election data and to have it be the most recent year.

Leah Aden argued on behalf of the NAACP:

ADEN: Race cannot predominate in line drawing, even as a means to achieve a partisan goal. Here, the panel properly concluded that race predominated over partisanship in CD1's design based on strong factual findings.

The NAACP doesn’t have to point to a smoking gun here … such as an email explicitly saying, hey, let’s use race, not partisanship, to draw the lines.

But Chief Justice John Roberts acknowledged that intent can be hard to discern when all the evidence is circumstantial.

JUSTICE ROBERTS: We've never had a case where there's been no direct evidence, no map, no strangely configured districts. Very large amount of political evidence, whether the district court chose to credit it or not, and instead it all resting on circumstantial evidence. I'm not saying you can't get there. But it does seem that this would be breaking new ground in our voting rights jurisprudence.

EICHER: Justice Samuel Alito noted an alternative map with a Republican advantage was missing from the record. He wanted to know why the NAACP’s experts at trial didn’t present one.

JUSTICE ALITO: Is there any reason why one or more of them could not have drawn up an alternative map that met the legislature's stated partisan goal, but had a different effect on the racial composition?

Aden said it was because South Carolina swapped justifications. First it claimed its map was okay because it relied on traditional redistricting principles. But then changed its reasoning late in the game at trial.

Experts did create computer simulated maps that showed the districts would look differently if race isn't considered. But none of those maps achieved South Carolina’s political goals.

Caroline Flynn, assistant to the solicitor general, argued as a friend of the court. And she said that the map drawing was racially motivated.

But Justice Gorsuch also questioned her about the alternative map.

JUSTICE GORSUCH: How do you prove that they are acting in bad faith without showing that they could achieve their objective some different way? I could have achieved the same partisan objective 15 different ways. And with map drawing technology, and computers, they spit out maps by the 1,000s these days. I would have thought that would have been a relatively modest burden.

ROUGH: But the law doesn’t require the NAACP to submit an alternative map as proof to win. Reliable expert testimony is enough.

This case also involves a second claim of intentional race dilution. But only one question on that at oral argument.

Overall, this case could help determine who controls the house in 2024. A decision is expected by the end of the year. That will give South Carolina time to redraw a map before the election, if necessary.

And that’s this week’s Legal Docket!

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