♪ opening music ♪ ♪ Welcome to This Week in South Carolina special report.

I'm Gavin Jackson in Washington outside the U.S. Supreme Court, where this week justices heard the case involving the first congressional district map that has been described as racially gerrymandered by a lower federal court.

We have analysis on this case, but first, we look at how we got here.

The United States is broken into 435 congressional districts, each with a population of 710,000 residents.

Every ten years, congressional district maps across the country are redrawn proportionally based off of new census data that shows which areas are growing or shrinking, and following the 2020 census, the seven districts in South Carolina were no different.

The state saw substantial growth from the previous census, especially in the 1st Congressional District to the tune of 88,000 folks.

The old first Congressional district runs down the coast from Charleston County to Beaufort County and includes parts of Berkeley and Dorchester counties as well.

The district has been represented by a Republican, Nancy Mace, since she defeated Democrat Joe Cunningham in 2020 by 1.3% under the old map in 2022.

Under the new map, Mace won a primary challenge by far right Republican Katie Arrington and defeated Democrat Dr. Annie Andrews by 14% in the midterm election.

Meanwhile, the nearby 6th Congressional District, represented by Democrat Jim Clyburn, which also includes portions of the Lowcountry and Midlands, shrunk by 85,000 people.

So, state lawmakers and staff got to work to even out the districts during the redistricting process in 2021 and 2022.

Despite a similar population mismatch between the two districts, mapmakers moved 53,000 residents from District six to District one and then moved 140,000 other residents from District one into District six.

This changed district once boundaries to include all of Beaufort and Berkley counties and more of Dorchester County.

Precincts in Charleston County were also moved to make District one a stronger Republican district.

The governor signed the new maps into law in January 2022, and shortly thereafter, the South Carolina State Conference of the NAACP and a Black voter in the 1st Congressional District sued, stating that the map was unconstitutionally racially gerrymandered to dilute Black voting strength.

In January 2023, a three judge panel in the Federal District Court of South Carolina agreed, prompting the state to appeal this decision directly to the U.S. Supreme Court, which heard the case on October 11th.

We were inside the courtroom here at the U.S. Supreme Court, but since we can't bring cameras in there, we have audio instead.

So, take a listen from some of those proceedings.

>> Justice Kavanaugh, I want to make sure you have a chance to summarize the evidence as you see it, of why Charleston County was split the way it was split.

<John Gore> Thank you, Justice Kavanaugh.

So, first of all.

It was done for political reasons because, of course, it was part and parcel of achieving the district, the goal, the political goal district wide.

The big, the most significant move that the enacted plan made was in Charleston County.

It moved the West Ashley neighborhood, from District one to District six.

That was over 80,000 of the 140,000 people that were moved from District one to District six.

West Ashley is a closed in suburb of Charleston.

It is majority Democratic, but also predominantly White.

We've given the figures in our brief that show that, that move in particular had a much greater impact on the political composition of District one than its racial composition.

So, that move, which is over half of the people involved, is itself more easily explained by politics than by race.

<Samuel Alito> When race and when race and partisanship are so closely aligned as they are, in fact, why is it surprising that a legislature that is pursuing a partisan goal would favor a map that turns out consistently to have the same BVAP?

<Leah Aden> Because if they're using race as the means to get there, this court last term said that a legitimate interest can not be achieved illegitimately <Samuel Alito> If they're, if that's what they're using, but if they are disregarding race entirely and looking only at politics, where race and politics are so closely aligned, it isn't surprising that when you want to get a district that has a certain Republican percentage, you're going to get a district that has a a steady BVAP.

<Leah Aden> Two responses to that, even if the map maker wasn't just looking at race in the actual documents, the court credited that it was in his mind and that all the evidence reflects that they were looking at race, the fact that they were trying to keep it at 17% reflects that it had worked at 17% prior to 2018.

It worked at 17% after 2018.

They were defending this map as being least changed, a map that had pre-cleared the Department of Justice, that had survived a constitutional challenge, and again, the lead sponsor said we only wanted to make this a little bit more Republican leaning at trial.

So, they served their purpose, but at the heart of this, they serve their purpose by focusing on the, of the precincts with the highest BVAPs, leaving alone White precincts with, in Charleston and moving out Black precincts <Justice Kavanaugh> What about West Ashley, that your opposing counsel mentioned?

West...Ashley was moved out, so just give you a chance to respond to that.

<Leah Aden> West Ashley is cited by the court.

This is a historic community that has a lot of mixed precincts, but what we see is that the entirety of.

<Justice Kavanaugh> It's predominantly White, isn't it?

<Leah Aden> It's predominantly White but that precinct with the highest and most significant Black populations, those were targeted for movement, and the court recognized that, yes, White voters may be overall impacted by this map, but because there is a White versus register reality on the ground look, by this three judge panel, they recognized that there were some mixed precincts.

There were White voters impacted, but the unrebutted expert evidence is that race was a better predictor for movement and that Black Democrat, Black voters were significantly and disproportionately targeted for movement, and that is unrebutted by the state.

The district court says they cannot explain the 30,000 Charlestonians moved out of CD1.

They've never been able to explain that.

<Gavin> For analysis of that Supreme Court case that we heard argued this week.

I spoke with Kareem Crayton.

He is a director of voting rights at the Brennan Center for Justice.

Kareem, thanks for joining us.

<Kareem> Glad to be with you.

<Gavin> So, Kareem, tell us a little bit about what you saw today at the Supreme Court, a general overview of this case and how you see it when it comes to voting rights.

<Kareem> Sure.

Well, in this post-COVID world, I listen to the case as it was argued in live streaming and what you definitely noticed from at least the audio version was the justices were very active were very interested in getting responses from both sides.

I think really wanted to probe from the state whether or not they'd really taking account of what was the difference between fact and law in their presentation, and I think they pressed pretty hard on the matter of whether or not it really made sense to sort of frame the state's argument that the district court had aired on the notion that, you know, it was just a matter of law, and in fact, one of the most I think the earliest question came from maybe a surprising quarter to some, Justice Thomas.

He had in many, in fact, of the justices, he was the only one around during the 1990s that really helped develop racial gerrymandering law so in many ways, he is the sort of, if you will, authority or one of them on the bench talking about this, and so, the state had something of a time trying to distinguish it, and of course, you saw many of the Democratic appointed justices, Sotomayor and Justice Jackson in particular, press hard on that matter.

So, really the question really is whether or not the district court's decision ought to be respected.

Generally, it's more difficult to overturn those decisions when they're based on facts because they saw the testimony and looked at the record closely.

Less so on law, and it sounds like the court seems maybe challenged to understand the state's distinction.

I can say more about the...challenges.

<Gavin> Yeah, please.

Okay.

I was going to say, when it comes along to some of the lines of questioning that we heard, we heard Chief Justice John Roberts constantly saying there's no evidence here.

There's no map.

There's no smoking gun.

Does there have to be a smoking gun when it comes to a situation like this, or can it be as simple as showing how folks are moved around in these districts?

<Kareem> Right.

If you look back at the cases going back to the 90s in which racial gerrymandering cases sort of were developed, the court used a lot of different kinds of evidence and including circumstantial evidence to try to get at whether or not the state was really at least trying to avoid the thing that they actually did without saying it.

So, you know, that's the smoking gun that you rarely get legislators saying on the record, particularly after the court has told you it's illegal, but the experience has been you kind of look around the corners to see, well, what are they not telling you?

In the whole, can you look at their proposals to try to intuit what it was that was motivating them, and really, that's what the district court did.

It said, look, it seems as though there was a particular maximum percentage of African-Americans that the legislature wanted in the districts, and it looked at a lot of evidence to show the narrative kind of fits that strategy.

There was no district map produced that exceeded 17% that the Republicans had drawn, and so it inferred from that and a number of other items that it had come that way.

So, an alternative map can be used.

It's not clear from the case law, as I've read it, that it must be used, and I think you can see in a lot of cases out of Georgia, out of North Carolina, where the state that tried to evade a racial gerrymandering claim got into trouble based on circumstantial evidence that didn't include an alternate map, <Gavin>- Kareem when you look at the Supreme Court right now, when we look at Alabama decision, we look at where we are as a country.

What's your take on how the Supreme Court is treating redistricting now in 2023, how you see it?

...some people were surprised by the Alabama decision.

They might be surprised if they do something similar with the South Carolina case.

We don't know yet, but how do you read the court right now as it stands?

Well, I think the court is figuring itself out.

I think it's the first state to mention, because, really this is a group that really hasn't had a lot of prior cases working with each other on Section two analysis.

What I think is fair to say is we now have a pretty good clue at least that they're not ready to radically overturn 40 years of precedent.

You see some grumblings by certain justices still notwithstanding that decision to say, well, we've got some misgivings and maybe we'll revisit them later, but not right now.

I think the other thing to think about is how the procedure gets used in these cases.

Everybody knows in Washington, D.C., where we are now.

There's a very tight division between Democrats and Republicans in the House of Representatives, and you saw the effects of that tight margin last week.

Every decision has political consequences.

Some people are more sensitive to those than others.

My simple point is that when the Supreme Court makes a procedural decision whether to even hear a case or whether to stay a decision in the district court that's been made, South Carolina and Alabama both had decisions that favored the plaintiffs but were stayed by the Supreme Court.

There's a period of time where the existing map stays unchanged, and that has political consequences.

I think as we see more and more of these cases come up and you get finally an answer from the Supreme Court, there are going to be some instances where maybe justices step back and think about the weight that voters had to endure until they got a final answer.

I think these are the features, too, that are going to influence how in the going to come, and by the way, there are several other states that are involved with redistricting as well for different issues, but likely, maybe finding at least a few of them their way to the Supreme Court.

These are things that I think the court's going to be addressing as well.

So, its procedural management of these cases, as much as it's substantive interpretation of existing law.

<Gavin> - and when we look at how the Supreme Court rules on this decision, should we have to revisit this map and redraw the map, it's also going to be an election year in 2024, and if it's going to - this happens in the spring or, you know, in June, you're pushing up on primaries already in South Carolina.

So, are we going to be operating under the current map, a future map, or the prior map?

Do you understand?

<Kareem> - and the question is, the question is always, it depends.

<Gavin> Yeah.

>> We have a governing principle under current case law, the principle that as we get closer and closer to an election, it for prudential reasons, the court has told us, is unwise to overturn an existing map for reasons of certainty.

What the state of play is and what the current map is, as we get closer to whatever that cutoff date is in every state will matter, and so when the Supreme Court issues a decision here in either way, in either respect, it may influence what opportunities to get a new map are available.

There hasn't, as far as I know, been a remedial map suggested so there would need to be a process if the plaintiffs were to prevail at the Supreme Court, and so a lot of that will be as much about timing when the decision happens as what the decision is, <Gavin> - and then last question.

any read on how you saw those Supreme Court arguments go down today?

Anything you heard from the justices that make you think it might go one way or the other?

Can you deduce any of that?

<Kareem> Well, I cannot.

I would say, as I said, the court has been more active in its questioning.

I think there were people because there were arguments that were offered from maybe not expected quarters.

Justice Thomas may be pushing the state of South Carolina.

On the other hand, the chief justice pushing on the plaintiffs.

I think it's hard to see where the five votes end up lining up.

It'll probably be a close vote would be my guess, but I think that, this is a question as much about the substance of what racial gerrymandering means in this context, where party is at play as it is I think how the Supreme Court is looking at the district court's decisions.

I see all of these cases as part of a piece about the sort of management of the federal judiciary as an institution.

There are, as I said earlier, in a space where they're making decisions that have political consequences.

Now, you can be as sensitive to those.

You have your favorite party or not, but I think at the same time, the court's got to be sort of tending to its own respect and credibility, and as the Supreme Court, of course, is dealing with a swirl of its own challenges involving ethical allegations of impropriety, I think it's got to be thinking about whether or not as much as they may be thinking about the law, how its decisions are going to be perceived as being overly or or not politically sensitive enough by different quarters.

<Gavin> Kareem Crayton, thank you so much.

<Kareem> Pleasure to be with you.

Thank you.

<Gavin>-and we'll bring you analysis of that court decision in the future when it's made by the US Supreme Court, but before we left town, we spoke with Scott Huffmon.

He's a political science professor at Winthrop University.

He's also the director of the Winthrop Poll.

We talked about some of the results from his latest poll.

Scott, thanks for joining us.

<Scott Huffmon> Pleasure.

<Gavin> So, Scott, you brought us a new poll.

There's a lot to talk about.

Let's start off with who South Carolina Republican voters are excited about some four months before the presidential primary here in South Carolina.

>> Well, the biggest elephant in the room is still Donald Trump.

Donald Trump has, you know, 51% of the support from Republicans who are registered to vote.

Right at 50% of support, if you include leaners, independents who lean Republican.

So, he's still the the biggest candidate out there.

He's got the most momentum.

We've seen some changes down in the second tier, but Donald Trump.

It's still his to lose.

<Gavin> Yeah.

Does that surprise you, Scott, with everything that's going on with him?

I mean, with this trial going on.

We have all these indictments.

He remains more popular than ever.

It seems like he's not budging in our polls, Your polls statewide, You know, in early voting states nationally.

I mean, it's quite something.

<Scott> Yeah, it's you know, people have joked about the Teflon Don and well, you know, he seems to have nothing to stick to them.

The more he's attacked, the more he's seen as a victim by his, you know, supporters, and they just will pour out for him, and none of the criminal cases, none of the civil cases seem to be dragging his support down at all.

<Gavin> Mm hmm.

So, Scott, let's talk about those second tier candidates with Nikki Haley, the former governor, former U.S. ambassador to the United Nations.

She's really maintaining her momentum in your polling and other polls as well.

Kind of talk to us about that and what you're seeing both with your poll, what you're seeing on her, you know, on the campaign trail as well.

<Scott> She turned in some good performances in the debate, and she you know, she looked like the adult in the room a couple of times during the debate, although the spat between her and Tim Scott didn't play too terribly well.

It didn't, wasn't South Carolina's greatest moment, but she came across very well in the debates, and I think that has boosted her profile nationally here in South Carolina.

They're, you know, having to choose between a favorite daughter and a favored son if they're looking for somebody other than Trump, and right now she has the momentum.

She has surpassed DeSantis.

DeSantis is sliding nationally.

He continues to slide in South Carolina.

He is now in third place, and Nikki Haley, although it's just 17% support, she's in second place, but it is a distant second.

<Gavin> Mm hmm.

Is that surprising for DeSantis?

I mean, it looks like his race that, over the summer there was a lot of talk of him having to reboot his campaign, shake it up, you know, worrying about some funding as well.

It's not a good sign when we continue to see this slide for DeSantis.

<Scott> No, he was trying to build, as Trump, without the baggage, but it turns out he's just very poor in messaging or he has been poor messaging.

He did try the reboot this summer, and that doesn't seem to have kick started his campaign back into gear.

So, this slide is, you know, becomes inevitable when, you know, the person who was seen as the torchbearer, perhaps the next one isn't able to live up to the hype.

<Gavin> Do you think Haley is really filling that void?

I know we're talking about debate performances.

She's showing that she's not a flash in the pan that a lot of people are maybe concerned about.

She's getting some of these big donors to take a second look at her.

Is she really doing what she needs to do to fill that void that DeSantis is sliding out of?

<Scott> I think she is.

She's...I think, moving up in a lot of people's attention.

She is beginning to take in some of the oxygen in the room that was just being ripped out completely by DeSantis and Trump leaving everybody else lucky if they had, you know, single digits above two, and now she's, you know, in the double digits.

She still has a long way to go, but I think she's getting attention.

This is definitely going to help her funding.

She definitely needs to have a good showing in South Carolina, and the more she continues to gain momentum, I think the more donors will look at her and the more voters in New Hampshire and Iowa will look at her as well.

<Gavin> So, you think it's advantageous, Scott, when we look at these debates.

We've had two so far, for them not to have Donald Trump on the stage.

Obviously, they don't attack him as much as they probably should since he is such a dominant frontrunner, but it seems like it gives them more time to get their message out to show who they are versus having Donald Trump on stage who, you know, really is a commanding presence.

<Scott> Yeah, they would be... fighting for attention from Trump.

So, I think, especially Nikki Haley seems to have benefited from not having Trump on stage with her.

Chris Christie has taken over the role of, you know, the main attacker against Trump in the debates, and the people would not be listening for the messages of most of the other people on stage if Donald Trump were up there.

He would be commanding the debate.

He would be driving the discussion the entire time.

<Gavin> Scott, your point is consistent with what we've seen from folks at Fox News, The Washington Post, etc., but one of Desantis' supporters the other day said that your poll oversamples for Democrats and that isn't the most accurate poll.

How do you respond to those kind of, you know, questions of the validity of your polling?

Well, we've never been wrong when we've called an election.

We have, we sometimes were not the closest, but we've never been wrong, as opposed to some, and it's hard to oversample Democrats when we're looking at just the Republicans, and so when we're... looking at a subsample of the overall registered voters of just Republicans when we're talking about the Republican presidential primary race.

<Gavin> Scott, before I ask you about some other candidates, you just tell us about how hard it is to poll these days.

...I get some messages on my phone.

I don't respond to them if I don't know who's calling me, etc.

like, how do you... get through?

How do you get to folks who actually are engaged and want to know?

<Scott> The absolute only way is through multi-mode.

So, right now we're using online panels curated by Dynata.

So we're getting some online on cell phone.

We're using some landline and some cell phone, some randomized cell phone, randomized landline, and the response rates on those are getting lower and lower.

We are getting the majority of our completions via online, via cell phone now and it is just tough to get people to talk on the phone or respond to a poll, but very importantly, Pew has done some research on this.

The type of people who refuse to respond to polls are not politically that different from the type of people who are willing to respond to polls.

If we had non-response bias, meaning the people who refused to respond to polls were fundamentally in some way different from those who responded to polls, that's when we're going to have to have a reset.

The latest reset is multi-mode.

Every pollster out there now is having to do multi-mode in order to get a reasonable sample.

<Gavin> Gotcha.

Some good insight there.

Going back to what you found in that poll, it's kind of surprising that Senator Tim Scott, who has always been very popular among South Carolinians, is still stuck in a distant fourth when it comes to the presidential race.

What can you deduce from that?

What are your thoughts on that?

<Scott> Well, his approval rating is quite high.

So, South Carolinians approve of the job he's doing, but, you know, they're having to just make their decision between favorite son and favorite daughter, and right now, Nikki Haley has the momentum.

Tim Scott is kind of still lingering in the single digits.

When he first jumped in, he jumped in long after Haley had been in and he was tied with her essentially in the early polls.

So, he got a lot of that early attention, but it was still in the single digits, and while she has moved ahead, he seems to have, you know, hit a little place of stagnancy.

He seems to have leveled out.

He's going to have to pull some attention away from Vivek Ramaswamy, you know, some Asa Hutchinson.

A lot of people are going to have to start looking at Tim Scott for him to start picking up momentum, because in South Carolina, Nikki Haley has grabbed that momentum so far... <Gavin> We have about... <Scott> of the non-Trump candidates.

<Gavin> Yeah, Yeah, of course.

Right, He's still, like you said, the elephant in the room.

He's still leading all these guys.

They're fighting for second, but what do you expect to see this this field really start to shrink?

I mean, we're seeing the debate stage shrink slowly.

When are we going to start seeing folks drop out?

When's the writing be on the wall for some of these guys?

<Scott> It's going to be fundraising, especially as debate performances, you know, continue to either raise excitement or turn people off.

The ability or inability to raise funds is going to be key.

A couple of people can sell funds so they have a chance of staying in a lot longer, but momentum means dollars and dollars are what keeps the campaign going.

<Gavin> Switching gears from the presidential campaign trail to again, our state, Senator Lindsey Graham, unlike Senator Tim Scott, is very unpopular here in this state.

This is not surprising.

This is something you found throughout your polling over the years, but he also you know, he's up for reelection in 2026.

There's talk about challengers like Congressman Ralph Norman.

Where do you see Lindsey Graham in terms of popularity?

He's getting booed at Trump rallies even when Trump is mentioning him, bringing him on stage.

How does this mesh with you, Scott?

Is he still going to survive like he always seems to?

>> Lindsey Graham is the ultimate survivor.

You know, whichever way the winds of power blowing, he's able to set his sail that way.

So, he may be flagging now, but do not count Lindsey Graham out.

He's got a long time until he faces re-election.

So, you know, the whole, the winds of the entire thing could change, but right now, you're absolutely right.

He is not particularly popular among all respondents, that includes Democrats and Republicans and independents.

His approval rating is on par with Joe Biden in South Carolina.

So, it is that low.

His approval rating is just a hair below 50% among his Republican base, and that's, of course, what's driving his overall lower approval rating, is he doesn't have the sky high approval among his base like somebody, like Henry McMaster or Tim Scott have, but do not count Lindsey Graham out this far from reelection.

He has always found a way to survive and come through in the end, even when others are dropping like flies.

<Gavin> Yeah, that's again three years away.

So, a lot can happen during that time, but that's Scott Huffmon.

He's a Winthrop University, Winthrop University Political Science professor.

Scott Huffmon, thank you so much for joining us, as always, Scott.

<Scott> My pleasure.

Thank you.

<Gavin> To stay up to date with the latest news throughout the week, check out the South Carolina Lede.

It's a podcast I host on Tuesdays and Saturdays that you can find on South Carolina Public Radio.org or wherever you find podcasts.

For South Carolina ETV, I'm Gavin Jackson in Washington.

Be well, South Carolina.

♪ closing music ♪ ♪ ♪ ♪ ♪