by Marilyn W. Thompson
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With the Republicans holding just a two-vote majority in the House of Representatives, voters will go to the polls in November in at least two congressional districts that have been challenged as discriminatory against people of color.
After months of delays and appeals, courts have decided in the last two weeks that the maps in South Carolina and Florida will stand, giving Republican incumbents an advantage.
Last month, the U.S. Supreme Court declined to take action on South Carolina’s 1st Congressional District. In January 2023, a three-judge federal panel had declared it an illegal racial gerrymander that must be redrawn before another election was held. In Florida, the congressional map has faced long-running discrimination lawsuits in both state and federal courts, with one state judge ruling that a district near Jacksonville disadvantaged voters of color. A higher court overturned that judgment, but an appeal from voting rights and civil rights groups is still pending before the state Supreme Court, which has said it could be months before it rules.
A decision about another contested district in Utah is pending with the state Supreme Court and seems unlikely to be resolved before the elections, according to Mark Gaber of the Campaign Legal Center, who represents plaintiffs in a partisan gerrymandering lawsuit.
Put in place in 2021 after the last federal census, the controversial maps were used in multiple elections during the 2022 election cycle.
“The long, extended delays are a real problem, for voting rights and particularly for Black voters,” Gaber said.
The cases illustrate how difficult it is to reverse gerrymandered voting maps. Even when lower courts find election maps illegal and give state legislatures months to make corrections, appeals and other delaying tactics can run out the clock as elections near.
Federal courts have been reluctant to make mapping changes too close to elections because of a vague legal idea known as the Purcell principle, based on a 2006 court case from Arizona that found that voters may be confused by late changes in polling places or election procedures.
The U.S. Supreme Court cited Purcell in 2022 when it left an illegal congressional map in place in Alabama for midterm elections while it considered a Republican appeal. Black voters cast their ballots under a discriminatory map, and when the Supreme Court finally decided the case in 2023, it reaffirmed that Alabama’s map violated Section 2 of the Voting Rights Act and must be redrawn. A new map is now in place for 2024, which could result in the election of a second Democratic representative for the state in November.
The Supreme Court made a similar call in 2022 in a Louisiana redistricting case after a federal court struck down the state’s congressional map. Voters cast ballots in 2022 under the challenged map. Since then, the state Legislature has redrawn the map and created a second majority-Black district that could help Democrats gain another seat in Congress.
The exact cutoff for applying the Purcell principle has not been defined, but conservative Supreme Court Justice Brett Kavanaugh, who has cited it in his opinions, has said the principle reflects a “bedrock tenet of election law.”
The delayed rulings and actions in Alabama and Louisiana and a ruling this week in Washington state have favored Democrats. On Tuesday, the Supreme Court declined to stop a new state legislative map from going into effect in Washington, where a lower court had found discrimination against Latinos in the Yakima Valley. Republicans had filed an emergency appeal since the new map disrupts four legislative seats currently held by the GOP.
In South Carolina in early 2023, a three-judge federal panel unanimously found that the GOP-controlled state Legislature drew an illegal racial gerrymander in the 1st District near Charleston, discriminating against 30,000 Black residents who were moved out of the district.
Republican lawmakers have acknowledged they wanted to maintain firm GOP control of a swing district, currently held by Rep. Nancy Mace. But they have denied discriminatory intent. ProPublica reported that Democratic Rep. James Clyburn, the state’s most influential Black elected official, gave detailed confidential input through one of his aides during the creation of the state’s maps.
Clyburn offered Republicans a draft map that included his recommendations for how to add voters to his largely rural 6th District, which had lost a significant Black population, and move unpredictable pockets of white voters out of his district.
On NBC’s “Meet the Press” on Sunday, Clyburn denied playing a significant role in a Republican gerrymander.
“When someone picks up the phone and asks you, ‘What are your suggestions as we’re about to get these lines drawn?’ I offered my suggestions,” Clyburn said.
Adam Kincaid, the director of the National Republican Redistricting Trust, said Clyburn’s comments suggest he is “trying to get in front of” a Supreme Court decision that will uphold the Legislature’s maps. “I think Mr. Clyburn believes South Carolina is going to ultimately win,” he said.
The case is now at the Supreme Court. The court heard oral arguments on Oct. 11, then went silent as South Carolina’s filing deadline for June primary elections loomed.
In recent months, lawyers for GOP legislators asked the Supreme Court to abide by the Purcell principle and allow the challenged map to stand for 2024. Lawyers for the South Carolina NAACP argued there was plenty of time to implement a corrective map.
After waiting for the Supreme Court to act, the same lower court that found the district discriminatory ruled that the map would have to remain in place after all, saying it wanted to avoid voter confusion. “The ideal must bend to the practical,” the court said.
The South Carolina case shows how the Supreme Court’s “inaction can be as consequential as an adverse action,” said Wilfred Codrington III, an associate professor at Brooklyn Law School who has written on the Purcell principle and its impact on voting rights.
Civil rights advocates condemned the court’s unwillingness to make a timely decision, which by default gives a competitive election advantage to Mace. “No one believes they were just too busy to rule in time. It’s an intentional partisan maneuver,” tweeted Lynn Teague, vice president of the League of Women Voters of South Carolina, which has been active in the redistricting case.
In the Florida case, a federal three-judge panel on March 27 upheld an election map pushed through the Legislature by Gov. Ron DeSantis. The decision allows elections to proceed this year while a separate state case awaits resolution.
The federal panel said plaintiffs failed to prove that the state Legislature was motivated by race when it approved a DeSantis-engineered plan moving Black voters in the 5th District into four majority-white districts. The 5th District seat is currently held by Republican Rep. John Rutherford, who has no Democratic opposition.
DeSantis’ redistricting plan has been mired in controversy since 2022, when he vetoed the Republican Legislature’s plan and redrew the map with advice from national Republican consultants. A key feature of the DeSantis plan was redrawing the majority-Black 5th District near Jacksonville.
A state judge previously struck down his map as a violation of the constitution, which provides additional protections for voters of color. An appeals court overturned the judge’s ruling, but the Florida Supreme Court has agreed to hear the case.
The Utah case involves a challenge to the state’s Republican Legislature for repealing a voter-passed initiative setting up an independent redistricting commission and then passing a partisan gerrymander that splits up communities around Salt Lake City. Utah has four congressional seats, all held by Republicans.
“We’re still waiting to hear from the court whether the claims that we raised are viable, and we're hopeful,” Gaber said. “But I do not think there’s a likely chance of a decision that would affect this year’s elections.”
Kincaid, who coordinates national Republican redistricting strategy, said it’s unclear whether court decisions to use contested districts will allow the GOP to maintain its narrow control of the House.
“Democrats and their liberal allies have spent hundreds of millions of dollars to try to sue their way into congressional and legislative majorities,” Kincaid said. When the House majority is decided in November, he said. “I would rather it be us than them.”
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