AILSA CHANG, HOST:
As they do every 10 years after the census, states are now busy proposing new voting district maps to reflect shifts into their populations. Some of these changes that we've told you about, like in Texas, come with accusations of being unfair and diluting the voting power of a growing number of Black and Latinx voters. But in South Carolina, there is a slightly different complaint - that the state hasn't taken up any changes to its voting map so far, despite how much its population has changed.
The American Civil Liberties Union is suing South Carolina over this, and we're going to talk about that lawsuit with two people - attorney Somil Trivedi of the ACLU and Mark Joseph Stern, who's written about this for Slate magazine. Welcome to both of you.
MARK JOSEPH STERN: Thanks so much for having me on.
SOMIL TRIVEDI: Thank you.
CHANG: So, Mark, I want to start with you because you wrote that South Carolina's current maps are, quote, "worse than gerrymandered. They are malapportioned." Can you just first break down - exactly what does malapportionment mean and why, as you put it, is it so dangerous?
STERN: Yeah. So today, when we talk about gerrymandering, we're usually talking about lawmakers drawing lines that favor their party by packing in a bunch of voters who will support them into as many districts as possible. Sometimes they do this along racial lines, sometimes partisan lines, sometimes both. But with malapportionment, you can have districts of extreme, varying size. Some districts in a state might have 30 people, others might have 30,000.
And that means that the folks who are living in those underpopulated districts have more voting power than the people who are living in overpopulated districts. They are essentially casting multiple ballots because of the way their districts are drawn. This has been prohibited by the Supreme Court since 1964.
CHANG: Right, in a case called Reynolds v. Sims, which gave us the one-person-one-vote rule, right?
STERN: Yes. That's right.
CHANG: OK. So, Mark, if these maps in South Carolina end up not changing very much, can you just spell out what could that mean for voters in the state, especially for voters who live in more populated cities now?
STERN: Yeah. So it will mean that voters in overpopulated districts will have less of a say over their representatives in the House and also their representatives in the state legislature. There are currently legislative districts in South Carolina that have twice as many people in them as others. That is a reflection of the shift in population over the last 10 years in South Carolina, which is largely made up of a growing number of racial minorities and a growing number of city dwellers. Malapportionment has traditionally disfavored urban voters, giving them less power over their representatives and shifting political representation toward predominantly white rural areas.
CHANG: And let's talk about this lawsuit now. Somil, the ACLU, along with the NAACP Legal Defense Fund, you guys are suing South Carolina officials. You're claiming that they are dragging their feet in trying these new maps. Can you explain? Why is time such an important factor here?
TRIVEDI: What's happening here is that South Carolina legislators have gone home for the fall. And here's the problem. Election dates in 2022 are still set where they were before the pandemic and before we got census results back, right? So candidates in South Carolina have to file their intention to run for office by March 30. And yet, sitting here on October 26, we still don't even have maps, so they don't even know where they're going to run. And their voters don't even know who they're going to vote for, right? So that's the problem.
Worse yet, this is compounded by a thing in constitutional law called the Purcell principle that says that we shouldn't make changes to electoral rules too close to an election because it might confuse people. In this case, it's true. If we don't have new, valid constitutional maps in place by the time folks need to file their candidacy for office, we really won't know where they're running and where their voters need to vote. And if they don't pass maps soon, they could have an argument that the malapportioned maps currently in existence have to stay in place. That would be such a perverse result.
CHANG: Well, let's talk about what the other side is saying. Late last week, attorneys for the state House speaker said that your lawsuit is premature, that any delays are due to factors completely beyond their control, like the pandemic having held up the Census Bureau data that forms the basis to draw these new maps. What is the ACLU's response to that?
TRIVEDI: That argument would hold water if they were in session right now, drawing maps, but they're not. They have adjourned and have not indicated that they are going to reconvene for a special session. Every day, they're not in session, their argument holds less water and ours holds more.
CHANG: Well, when it comes to the speed in redrawing maps, I'm curious, Mark, how does South Carolina's timeline in putting these new maps together compare to other states this year?
STERN: South Carolina is very obviously lagging behind, and anyone who pays attention to the news can see that because in most states, we're seeing redistricting battles play out right now, places like Texas, Illinois. We're seeing legislators brawl over new maps. And South Carolina, meanwhile, hasn't even really begun the formal process of drawing new maps, which, when done by the legislature, always takes months. It can extend even farther. And in South Carolina, for the last 50 years, there has been litigation following redistricting that goes on for months or years. And so if there were any state where a legislature would want to get those new maps in order pretty early, it would be South Carolina, a state with a pretty dark history of successful lawsuits against new districts that discriminate on the basis of race or partisanship.
CHANG: Well, I just want to take a step back for a moment and just note that, you know, both Republicans and Democrats have engaged in partisan gerrymandering as well as malapportionment. I mean, South Carolina's legislature is Republican controlled, but Mark, are there any Democratic-led states right now where we could be seeing malapportionment happen?
STERN: No. We are seeing Democratic-led states engaging in partisan gerrymandering. In places like Illinois and New York, they are scrambling to carve up districts that benefit them and entrench their power. We aren't seeing Democrats engage in malapportionment today, though certainly we did in the past. A lot of the Supreme Court cases that involved malapportionment that ultimately established the principle of one person one vote did involve Democratic-led legislatures. So it's not as if this is an entirely one-sided issue throughout history. It's just that today we only see Republicans toying with the idea in South Carolina.
CHANG: And, Somil, I want to give you the last word because, you know, practically speaking, if time is already running out in South Carolina, what is the outcome that the ACLU and the NAACP Legal Defense Fund - what is it that you are ultimately aiming to achieve with this lawsuit?
TRIVEDI: We want fair maps, and so we want legislators to come back and draw them for us. Fair maps determine the rest of our politics. They determine criminal justice policy. They determine reproductive rights. They determine our immigration policies. Everything stems from how we draw our maps right now, so we want South Carolina legislators to take it as seriously as the rest of us are.
CHANG: Somil Trivedi, attorney with the American Civil Liberties Union, and Mark Joseph Stern, staff writer for Slate, thank you so much to both of you.
TRIVEDI: Thank you.
STERN: Thank you. Transcript provided by NPR, Copyright NPR.