Felicia Ellsworth: Welcome to “In the Public Interest” from WilmerHale, an international law firm at the intersection of government, technology and business. Thank you for joining us. I’m Felicia Ellsworth.
Michael Dawson: And I’m Michael Dawson. Today’s episode is the latest installment in our second annual Supreme Court miniseries, where we dive into the most hotly contested decisions coming out of the Supreme Court this term and discuss the implications of the Court’s rulings going forward.
Felicia Ellsworth: For today’s episode, we will be discussing the Court’s recent decision in Alexander v. South Carolina State Conference of the NAACP, which concerns how courts should distinguish between the use of race and party affiliation in redistricting when there is a close correlation between the two. Joining me to discuss this case is Adriel Cepeda Derieux, who serves as deputy director for the ACLU’s Voting Rights Project, where he plans, manages, and helps direct the ACLU’s national voting rights litigation efforts and strategy, and we are very proud to call him a WilmerHale alum. Adriel was Supreme Court counsel of record and the ACLU’s lead on the case since the case was filed in the fall of 2021. Thank you so much, Adriel, for joining us on this episode of our Supreme Court miniseries.
Adriel Cepeda Derieux: Thank you, Felicia. It’s wonderful to be here with you today.
Felicia Ellsworth: If you could start us off by walking through what happened in South Carolina that led to the challenge to the congressional map that was the subject of, ultimately, the Supreme Court case.
Adriel Cepeda Derieux: Of course. So, this case was a challenge to the congressional map that the state legislature drew after the 2020 census. Once census numbers come in, the state has to redraw its congressional map to account for changes in population. In South Carolina’s case, each of the state’s seven congressional districts had to have exactly 731,204 people after the 2020 census. So, one thing that was immediately clear once these numbers were in was that Congressional District 1—which I’ll call CD1, and which borders the state’s coasts—it had considerably grown since 2010. It was overpopulated by almost 90,000 people, so it had 90,000 people past that 730,000 number. By contrast, Congressional District 6—which I’ll call CD6, and which stretches from the center of the state all the way to border CD1 at the southern edge of the state—CD6 had lost a lot of people. It was underpopulated by about 90,000 people, so it had lost about the same number of people as CD1 had picked up in the past 10 years. Importantly, CD6 has, for almost three decades now, been a majority Black district and has voted for a Democratic congressman. It is currently represented by Representative Jim Clyburn. CD1, by contrast, has historically voted Republican. It’s currently represented by Congresswoman Nancy Mace, but did, in 2018 for one term, briefly flip to be a Democrat-held seat. So, one thing that everyone who was looking at this process was expecting was for the Republican-led legislature to try to shore up CD1 for a Republican incumbent to make it more Republican leaning. And an important part of what led to this case is how the legislature would, and how it eventually did, go about doing that. It’s generally understood that legislatures can consider voters’ partisanship when they redistrict. They can look at a map and say, “well, here there’s Republicans, here there’s Democrats. We would rather have these voters, not those other voters, in this district.” But it’s still pretty well settled that legislatures can’t use race the same way. Legislatures can’t move voters around predominantly because of their race. That’s what’s known as racial gerrymandering, and the Supreme Court has said that it violates the 14th Amendment’s equal protection component. So, what we and grassroots groups looking at the state’s maps saw when the enacted map took shape and eventually passed was that a considerable number of Black voters were moved from CD1 to CD6. In the Charleston area, as many as 30,000 Black voters were moved from one district into the other, and the case really turned on whether the legislature moved these voters because they were Democrats or because they were Black. We represented Mr. Ty Scott, an individual Black voter who lives in CD1, and the state conference of the NAACP. And we argued in court that the map disproportionately targeted Black voters for movement into another district, and that partisanship could not explain those movements—it was race.
Felicia Ellsworth: Thank you for that, Adriel. That’s super useful. Let me just make sure I understand the question as you said was whether it was race or party affiliation that was the basis for the map because of course, party affiliation is a permissible basis for a legislature to redraw a map. What did the South Carolina legislature say about why they had redrawn the districts in the way they did?
Adriel Cepeda Derieux: Well, at trial, in essence, South Carolina’s defense was that the state had really followed the traditional redistricting principles that it needed to follow: That it needed to bring all the districts into compliance with one person, one vote, that it had to hit that number, that it needed to make everything contiguous, and that any effect that you could see and how voters were moved around in lines was a byproduct of that. At the Supreme Court, the main defense was that this was all politics, as you suggested, that the reason the state did what it did was because it wanted to shore up CD1. There’s no partisan gerrymandering claim in federal court, so the legislature essentially focused on that idea that it was politics, not race, that drew the map.
Felicia Ellsworth: And so given that it’s got a long history of this case, and there were maybe changing explanations, what factual development was done in the case? How did you get involved and how did the Supreme Court treat the factual record?
Adriel Cepeda Derieux: So, this wasn’t a case necessarily where we had a smoking gun. We had the burden of showing that it was race, not party, that drove the map. In the Court’s nomenclature, we had to disentangle race from party, and the state argued that while racial data was available to its demographers and cartographers, they argued that they didn’t use it. They said that they only relied on other demographics and political data. At trial, our goal was to dismantle that defense, and we tried to do that mainly through expert evidence. The trial court credited that evidence, and that’s essentially what we relied on at the Supreme Court. And, the trial court, with that evidence, essentially found that it was incredibly unlikely for the racial makeup of CD1 to have remained as stable as it did without some work going into it—that it was really unlikely for the map to look the way it did without race being a factor. Our experts were looking meticulously at the movement of voters between precincts and showing that, as one of them testified, that heavily Black precincts were seven times more likely to be moved into another district than predominantly White precincts, and so on and so forth. The trial court didn’t buy the state’s defense that this was all merely by coincidence. Going into redistricting, CD1 had a Black voting population of 17%. Now the legislature moved around 160,000 people between districts. It shifted lines, it split counties in new places, and at the end of the day, that number was still 17%. So, the trial court’s findings essentially didn’t buy that it was a coincidence. And the quote that made it into a lot of the briefing, one of the judges joked that “when you see a turtle on a fence post, you know someone put it there. It didn’t get there on its own.” So, a lot of it turned on what kind of circumstantial evidence was sufficient to prove that the state had used race predominantly to redistrict, and not partisanship.
Felicia Ellsworth: I like that saying. I’m going to start using it myself. The Supreme Court found in favor of the legislature and found that race was not the predominant factor in redistricting and therefore there was no racial gerrymander. So, curious for your perspective on this: Were you surprised by the Court’s ruling here? Were you surprised by the outcome?
Adriel Cepeda Derieux: Well, Felicia, it likely wouldn’t come as a surprise to you that folks who do voting work are a little wary of the Court in its current composition, so maybe “surprised” isn’t the word. I will say that we felt, leaving oral argument, that we had more of a fighting chance than the eventual opinion suggests. That fighting chance may be largely boiled down to the standard of review. The case here, because it was brought before a three-judge panel—there’s a federal statute that says that challenges to congressional apportionment have to be brought before three-judge panels—the Supreme Court reviews the findings of the trial court for what’s called clear error. Now, that’s understood to be an exceedingly deferential level of review, and we understood that for the Supreme Court to reverse the trial court’s findings, it would have to look under the hood, so to speak, and unwind a lot of those very detailed and meticulous factual findings that the trial court had done. That is, in essence, what the Supreme Court did. So, we were wrong on that score. I would say we were also somewhat surprised or maybe did not expect for the Court to go as far as it did on some of the legal conclusions that it made. I’ll focus on a few and if some advocacy gets sprinkled in, I apologize, but I think the main takeaway from this decision may be that when race and partisanship overlap almost completely—what we call racial polarization, and by that I just mean that Black voters in South Carolina overwhelmingly vote Democratic—the Court said that legislatures will get a huge benefit of the doubt that they are doing something for political reasons, even if the line drawing may look to have a racial intent. As a line drawing looks racial, but politics can explain the line drawing, then, Justice Alito wrote federal courts should assume that it was politics that drove the map, short of, again, something resembling a smoking gun piece of evidence. A tie will almost always break in the legislature’s favor.
Felicia Ellsworth: Yeah, one thing we’re seeing, I think in a lot of the Supreme Court cases that we’re covering in the miniseries this year is this willingness to look at the trial court record with a very skeptical eye on the part of the Supreme Court. And as you say, in voting rights cases, it goes directly to the Supreme Court. But even in cases where there’s been an intermediate appellate court that also has agreed with fact-finding, we do see the Supreme Court really diving into the facts and sometimes, at least in some people’s view, not actually getting the facts all that correct. So, it’s an interesting phenomenon, to be sure.
Adriel Cepeda Derieux: Yeah, yeah. I mentioned the clear error standard. I think the second big legal move that the Court did hear, or that Justice Alito’s opinion does, is make clear that at least in redistricting cases, clear error review will be something less than the deferential standard that it had been to date. The opinion explained that racial gerrymandering cases have what justice Alito called a very substantial legal component, and that the Court will take “special care” in reviewing the relevant findings of fact. So that does seem to cut into that very deferential framework that the Court’s previous cases—as recently as 2017 in a case we relied on quite a great deal named Cooper v. Harris—that the court will walk away from that framework, at least in gerrymandering cases.
Felicia Ellsworth: Let’s talk about a few of the other opinions. You mentioned Justice Alito’s opinion a few times. Justice Thomas concurred with the majority but wrote separately to emphasize what he described as the need for the Court to get out of the business of refereeing political redistricting disputes. And, of course, we’ve seen Justice Thomas’ separate opinions have sometimes evolved into majority opinions over time. Do you have any prediction as to whether this might be a candidate to be one of them?
Adriel Cepeda Derieux: I would only say that I really hope it isn’t. Justice Thomas’ opinion was unfortunate, in part because in the past Justice Thomas had been willing to go along with challengers in racial gerrymandering cases. The notion that race shouldn’t play an outsized role in redistricting seems pretty in the vein of his jurisprudence, after all. But what Justice Thomas’ concurrence in Alexander does is, as you say, suggests that the Court should take the same view towards a lot of its redistricting case law that it already has with claims of partisan gerrymandering, and here I’m referring specifically to the Rucho decision in 2019, where the Court said we’re not going to touch this, this is essentially too political of an issue and the Court should stay out. The problem with that is that voters who are victims to unfair redistricting on the basis of race are by nature locked out of power. That’s really what underlines the cases of the 1960s, this so-called redistricting revolution—the idea that the reconstruction amendments are strong enough to unlock those political lockouts. So, I see Justice Thomas’ concurrence as a dangerous one that I hope doesn’t take much hold. There have to be safeguards to the political branches’ distribution of power via redistricting, and the 13th, 14th and 15th Amendments have provided those safeguards at least since the 1960s, and I hope they hold, and I hope they remain strong enough to provide those safeguards.
Felicia Ellsworth: One other opinion I wanted to ask you about was Justice Kagan’s dissent. She says a lot in that dissent, but one of the things that she mentions, an argument on which the majority relied, which is that the challengers didn’t present an alternative map that would have accomplished the political aims of the legislature while also being race neutral, but that effectively the standard that was being imposed was overly burdensome and would make challenges to racial gerrymanders nigh impossible. Do you have a view on Justice Kagan’s concerns? Do you share those concerns as to what this means for the doctrine?
Adriel Cepeda Derieux: I do share those concerns. Justice Kagan rightly pointed out that the Court had never to date elevated a single piece of evidence in an equal protection case to this level of silver bullet. They had never micromanaged the plaintiff’s case as closely as it does, I believe, is what she said. And in fact, she’s again right that the one time this idea had come up before was in Justice Alito’s dissent in Cooper v. Harris. So, it had not been a part of the law, it now is that will make racial gerrymandering cases more difficult to prove, at least where there are high rates of racial polarization, because, again, a map that discriminates against Black voters in these jurisdictions can be masked as being just one that discriminates against Democratic voters. That is, unfortunately, the case in much of the South. For example, in states like South Carolina, we see very high rates of racial polarization.
Felicia Ellsworth: So, Adriel, we’re recording this in July of 2024. There have been a lot of litigations and challenges that have preceded our recording to voting maps and to redistricting, etcetera. But at this point, most of them have been decided or any of those that will be decided before the fall elections have been. What do you see as the state of voting rights in 2024 in America?
Adriel Cepeda Derieux: First of all, I wish that were true. I think there’s still a lot to come. There are still some redistricting cases out there that will likely reach the Court, but the dust has settled on many of them. I’d say the landscape is still very fluid. We’ve seen in the last couple of years the Supreme Court reaffirm the Voting Rights Act in what is by any means a landmark decision, Allen v. Milligan, that came out the previous term in 2023. And the Court there rejected the notion that redistricting had to be race neutral. Essentially, the flip side of the racial gerrymandering doctrine, the Voting Rights Act, says that legislatures should look to racial demographics to determine whether certain minority communities need to be protected from having their votes diluted. Race can’t predominate, but certainly the legislature can look to race to protect minorities in voting. That Allen decision has resulted in wins in Alabama and Louisiana, most notably where there will be new majority Black districts going into these upcoming elections. I’d say that’s the biggest takeaway, but we’ve certainly seen losses as this case, Alexander, suggests. And we’ve also seen very aggressive litigation challenging the foundations of the Voting Rights Act in the lower courts. The Eighth Circuit, for example, recently ruled in another of our cases that Section 2 of the VRA does not have a private right of action for private plaintiffs to sue or to bring cases. And that position has thankfully been rejected by every other court that’s considered it, and there are other vehicles for cases to be brought, even if Section 2 does not have a private right of action, specifically Section 1983. But this is all to say that there are challenges that are making their way up, so the landscape is continually moving. It is not a boring job at the moment.
Felicia Ellsworth: Well, certainly a fascinating conversation. Thank you, Adriel, so much for joining us and for sharing some of your thoughts about this important decision and about voting rights more broadly. We really appreciate your time. So, thanks so much for joining the podcast.
Adriel Cepeda Derieux: Thank you so much for having me.
Felicia Ellsworth: Thank you, everyone listening, for tuning in to this episode of “In the Public Interest.” We hope you’ll join us for our next episode. If you enjoyed this podcast, please take a minute to share with a friend and subscribe, rate, and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please email them to us at [email protected].
Michael Dawson: For our WilmerHale alumni in the audience, thank you for listening. We are really proud of our extended community, including alumni in government, the nonprofit space, academia, other firms, and leadership positions in corporations around the world. If you haven’t already, please join our recently launched Alumni Center at alumni.wilmerhale.com so we can stay better connected. Our show today was produced by Kaylene Khosla with additional support from Duncan Reid, sound engineering and editing by Bryan Benenati, marketing by Emily Freeman and her team, all under the leadership of executive producers Sydney Warren and Jake Brownell. Thank you for listening.
Felicia Ellsworth: See you next time on “In the Public Interest.”
