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Court’s reasoning odd in S.C. challenge

South Carolina has prevailed in the Equal Protection Clause challenge to the Palmetto State’s congressional-redistricting plan after the 2020 census.

There can be no dissecting of the whole U.S. Supreme Court in one column. Yet it’s possible to look at part of it.

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The challenge largely involves two South Carolina congressional districts in Charleston and the surrounding region: Districts 1 and 6.

Under Supreme Court case law, congressional districts within a state must have equal populations.

As of 2020, District 1 as drawn after the 2010 census was overpopulated by a margin of 87,689, while District 6 was underpopulated by a margin of 84,741. Thus, the state legislature had to redraw the lines for both.

Afterward, the challengers alleged South Carolina had drawn the lines on the basis of race in a way that violated the Fourteenth Amendment’s Equal Protection Clause.

Legislative leaders denied that allegation and said they instead drew the lines to achieve partisan advantage.

To see why that’s particularly significant here, one need not read past the first page of the court’s opinion: “(A)s far as the (f)ederal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting. By contrast, if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected to strict scrutiny and may be held unconstitutional.

“These doctrinal lines collide when race and partisan preference are highly correlated.”

Which they are in Districts 1 and 6.

The court continues on page 5: “To prevail, a plaintiff must ‘disentangle race from politics’ by proving ‘that the former drove a district’s lines.’ That means, among other things, ruling out the competing explanation that political considerations dominated the legislature’s redistricting efforts. If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.”

In short, the court held that the challengers in South Carolina had not cleared their bar.

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In so doing, however, the court held that in redistricting challenges, “we start with a presumption that the legislature acted in good faith.”

Whether you agree or disagree that South Carolina should have prevailed, there’s something odd about this presumption.

As the court’s opinion notes, “the Fourteenth Amendment was designed to eradicate race-based state action.” The United States adopted the Equal Protection Clause partly because government had egregiously engaged in “race-based state action.” How does one get from there to presuming in redistricting challenges that government acts in good faith, especially when such challenges are based on race?

Furthermore, one would think fans of big government would tend to be inclined to start an analysis with a presumption of good faith, especially when it comes to the administrative state, while fans of limited government wouldn’t be so inclined.

In this opinion, though, the relatively conservative justices start with such a presumption, and the relatively liberal justices don’t.

What makes this presumption even odder is that the court could have reached the same result without this presumption.

That is, without starting with the presumption that South Carolina had acted in good faith, the court could still have reached its conclusion: That the challengers “provided no direct evidence of a racial gerrymander, and their circumstantial evidence is very weak.”

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So why start with this presumption?

Please read the court’s reasons, think them through, and ask yourself whether the first, second, or third statement, although true, supports the good-faith presumption: “First, this presumption reflects the (f)ederal (j)udiciary’s due respect for the judgment of state legislators, who are similarly bound by an oath to follow the Constitution. Second, when a federal court finds that race drove a legislature’s districting decisions, it is declaring that the legislature engaged in ‘offensive and demeaning’ conduct that ‘bears an uncomfortable resemblance to political apartheid.’ We should not be quick to hurl such accusations at the political branches. Third, we must be wary of plaintiffs who seek to transform federal courts into ‘weapons of political warfare’ that will deliver victories that eluded them ‘in the political arena.’ The presumption of good faith furthers each of these constitutional interests. It also explains why we have held that the plaintiff ‘s evidentiary burden in these cases is especially stringent.”

Randy Elf encourages you, faithful reader of this column, to decide for yourself.

(c) 2024 BY RANDY ELF

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