Amicus Curiae Brief — Thomas C. Alexander, in His Official Capacity as President of the South Carolina Senate, et al., Appellants v. The South Carolina State Conference of the NAACP, et al.

Supreme Court briefJul 14, 2023

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No. 22-807

In the Supreme Court of the United States

THOMAS C. ALEXANDER, in His Official Capacity

as President of the South Carolina Senate, et al.,

Appellants,

THE SOUTH CAROLINA STATE CONFERENCE

OF THE NAACP, et al.,

Appellees.

____________________

On Appeal from the

United States District Court

for the ____________________

District of South Carolina

BRIEF OF AMICUS CURIAE

GOVERNOR HENRY MCMASTER

IN SUPPORT OF APPELLANTS

Thomas A. Limehouse, Jr.

Chief Legal Counsel

Wm. Grayson Lambert

Senior Litigation Counsel

Counsel of Record

OFFICE OF THE GOVERNOR

South Carolina State House

1100 Gervais Street

Columbia, SC 29201

(803) 734-2100

glambert@governor.sc.gov

July 14, 2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

II.

The district court’s conclusion that the First

District is racially gerrymandered is illogical ... 4

South Carolina had no incentive or need to

use race in redistricting .............................. 4

Appellees’ failure to produce an alternative

map should be dispositive .......................... 6

The Court should put an end to abusive redistricting litigation ................................................. 9

Appellees had no legitimate reason to name

the Governor as a defendant .................... 10

This case is not an outlier ......................... 19

CONCLUSION.......................................................... 23

TABLE OF AUTHORITIES

CASES

Allen v. Milligan,

143 S. Ct. 1487 (2023) ..............................................9

Allied World Surplus Lines Ins. Co. v. Blue Cross &

Blue Shield of S.C.,

No. 3:17-cv-903-RMG, 2017 WL 3328230 (D.S.C.

Aug. 3, 2017) ...........................................................12

Andino v. Middleton,

141 S. Ct. 9 (2020) ..................................................22

Bagley v. Blagojevich,

646 F.3d 378 (7th Cir. 2011) ..................................17

Berger v. N.C. State Conf. of the NAACP,

142 S. Ct. 2191 (2022) ............................................19

Blue v. U.S. Dep’t of Army,

914 F.2d 525 (4th Cir. 1990) ....................................7

Bogan v. Scott-Harris,

523 U.S. 44 (1998) ..................................................17

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021) ..............................................7

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) ..................................................5

Buchanan v. Warley,

245 U.S. 60 (1917) ....................................................5

iii

California v. Texas,

141 S. Ct. 2104 (2021) ............................................18

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ..................................................4

Cooper v. Harris,

581 U.S. 285 (2017) ...................................... 2, 4, 7, 9

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) ................................................12

Disability Rts. S.C. v. McMaster,

24 F.4th 893 (4th Cir. 2022) ..................................17

Easley v. Cromartie,

532 U.S. 234 (2001) ..................................................7

Ex parte Young,

209 U.S. 123 (1908) ..........................................17, 20

Karcher v. Daggett,

462 U.S. 725 (1983) ..................................................5

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ..................................23

McConnell v. Haley,

711 S.E.2d 886 (S.C. 2011) .....................................19

Middleton v. Andino,

488 F. Supp. 3d 261 (D.S.C. 2020) .........................22

Miller v. Johnson,

515 U.S. 900 (1995) ..............................................4, 6

Order, Common Cause Fla. v. Lee,

No. 5:22-cv-59 (N.D. Fla. Nov. 8, 2022), ECF No.

115...........................................................................20

Palmore v. Sidoti,

466 U.S. 429 (1984) ..................................................5

Plessy v. Ferguson,

163 U.S. 537 (1896) ..................................................4

Rose v. Mitchell,

443 U.S. 545 (1979) ..................................................4

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ..............................................5

Sansotta v. Town of Nags Head,

724 F.3d 533 (4th Cir. 2013) ..................................12

Simpson v. Hutchinson,

___ F. Supp. 3d ___, No. 4:22-CV-213, 2022 WL

14068633 (E.D. Ark. Oct. 24, 2022) .......................20

Smiley v. Holm,

285 U.S. 355 (1932) ................................................17

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll.,

No. 20-1199, 2023 WL 4239254 (U.S. June 29,

2023) .........................................................................4

Torres Rivera v. Calderon Serra,

412 F.3d 205 (1st Cir. 2005)...................................17

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ............................................18

Wainwright v. Goode,

464 U.S. 78 (1983) ..................................................19

Wesch v. Hunt,

785 F. Supp. 1491 (S.D. Ala. 1992) ........................21

White v. Weiser,

412 U.S. 783 (1973) ................................................21

Whole Women’s Health v. Jackson,

142 S. Ct. 522 (2021) ..............................................17

Wisc. Legislature v. Wisc. Elections Comm’n,

142 S. Ct. 1245 (2022) ..............................................4

Women’s Emergency Network v. Bush,

323 F.3d 937 (11th Cir. 2003) ................................17

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) ..................................................5

CONSTITUTIONAL PROVISIONS

S.C. Const. art. IV, §15 ................................................1

S.C. Const. art. IV, §19 ..............................................19

S.C. Const. art. IV, §21 ..........................................8, 15

S.C. Const. art. VI, §5 ..................................................1

STATUTES

Ala. Code §17-14-70 ...................................................21

S.C. Code Ann. §24-21-10(B) .......................................2

S.C. Code Ann. §40-47-10(A)(1) ..................................1

S.C. Code Ann. §57-1-310(A) .......................................1

OTHER AUTHORITIES

Civil Rights Groups File Amended Complaint in

South Carolina Redistricting Case, NAACP Legal

Defense Fund (Feb. 2, 2022) ..................................14

Civil Rights Groups File Federal Lawsuit Over South

Carolina Redistricting Failures, NAACP Legal

Defense Fund (Oct. 12, 2021).................................11

Federal Judge Says You Won’t Need a Witness

Signature for Your Absentee Ballot This November,

WIS-TV (Sept. 21, 2020) ........................................22

Joshua Chaffin, New York’s Democrats Rue Losses

that Cost Their Party the House, Financial Times

(Nov. 16, 2022)..........................................................9

Meeting Information, S.C. Redistricting 2021, Senate

Judiciary Comm. ....................................................10

vii

LEGISLATIVE ACTS

2021 S.C. Acts No. 117 ..............................................12

2022 S.C. Acts No. 118 ..............................................14

2022 S.C. Acts No. 226 ..............................................15

Alabama Act 2021-555 ..............................................21

STATEMENT OF INTEREST

Henry McMaster is Governor of the State of

South Carolina.1 He has at least three distinct interests in this case. First, he has sworn to “preserve, protect, and defend” both the South Carolina Constitution and the United States Constitution, S.C. Const.

art. VI, §5, and to “take care that the laws be faithfully

executed,” id. art. IV, §15. He therefore has a strong

interest in ensuring that all of South Carolina’s laws

are constitutional and duly enforced.

Second, Governor McMaster was originally

named as the lead defendant in this litigation, before

Appellees dropped him as a party without ever having

to respond to the merits of his arguments or answer

for why they named him as a defendant in the first

place. The Governor’s unnecessarily frustrating experience in this case provides him valuable insight to

share with the Court regarding abuses in reapportionment litigation.

Third, Governor McMaster appoints members of

40 state boards and commissions based on congressional districts. As just a few examples, these boards

include the State Board of Medical Examiners, S.C.

Code Ann. §40-47-10(A)(1), the Commission of the Department of Transportation, id. §57-1-310(A), and the

Pursuant to Supreme Court Rule 37.6, amicus curiae

states that no counsel for any party authored this brief in whole

or in part, and no entity or person, aside from amicus curiae and

his counsel, made any monetary contribution toward the preparation or submission of this brief.

Board of Probation, Parole and Pardon Services, id.

§24-21-10(B).

SUMMARY OF ARGUMENT

This case is yet another lawsuit brought by the

“losers in the redistricting process” who seek to “transform[]” the courts “into weapons of political warfare”

and “obtain in court what they could not achieve in the

political arena.” Cooper v. Harris, 581 U.S. 285, 335

(2017) (Alito, J., dissenting in part). The district court

unfortunately obliged, holding that South Carolina’s

First Congressional District is racially gerrymandered.

That conclusion is illogical. South Carolina legislators openly acknowledged their goal of making the

First District more Republican, and they had detailed

data (down to the block-by-block level) about partisanship. They therefore had no need to use race as a proxy

for party, nor was there any incentive to do so, particularly in light of this Court’s repeated admonitions to

the contrary. Moreover, Appellees’ failure to offer an

alternative map showing how the General Assembly

could have achieved its goal in a different way undermines not only the district court’s conclusion that the

First District is racially gerrymandered but also

demonstrates why such a map must be offered as evidence in a case like this one.

Beyond these flaws in the district court’s order,

this case is a posterchild for abusive redistricting litigation. Presumably hoping to make a splash with

their lawsuit, Appellees named the Governor as their

lead defendant. Yet beyond deciding whether to sign

or veto the legislation that reapportions the State’s

congressional and legislative districts, the Governor

does not have a role in South Carolina’s redistricting

or map-drawing process. Of course, it’s black-letter

law that a governor enjoys legislative immunity for

his decision to sign or veto legislation. That left Appellees with a standing problem and an Ex parte Young

problem: There was nothing the district court could

mandate the Governor to do or prohibit him from doing that would remedy anything about which Appellees complained or have any impact on the redistricting process.

The Governor pointed this out to the district

court. And pointed it out again. And again. But Appellees never had to justify their decision to sue the Governor. Instead, after making headlines, the district

court let them quietly drop the Governor as a defendant when they amended their complaint the second

time, despite the fact that Appellants had refused to

disclaim that the Governor might, in their view, be

necessary later in the litigation.

Sadly, such groundless litigation tactics and illogical claims aren’t unique to this case. Redistricting

cases across the country (indeed, voting cases generally) see plaintiffs assert flimsy arguments and take

baseless positions that, in other, more run-of-the-mill

cases, would never escape the threshold jurisdictional

evaluation without judicial condemnation. But when

the stakes are as high as they are in redistricting

cases, the ultimate focus of the case often allows plaintiffs to evade having to account for their actions. This

Court should make sure that lower courts do not let

these shenanigans continue unchecked.

ARGUMENT

The district court’s conclusion that the

First District is racially gerrymandered is

illogical.

A. South Carolina had no incentive or need

to use race in redistricting.

This Court has strictly limited the use of race in

redistricting. See, e.g., Wisc. Legislature v. Wisc. Elections Comm’n, 142 S. Ct. 1245, 1248 (2022) (per curiam) (“Under the Equal Protection Clause, districting

maps that sort voters on the basis of race are by their

very nature odious.” (cleaned up)); Cooper, 581 U.S. at

291 (majority op.) (“The Equal Protection Clause of

the Fourteenth Amendment limits racial gerrymanders in legislative districting plans.”).

For good reason. After all, “[o]ur constitution is

color-blind,” Plessy v. Ferguson, 163 U.S. 537, 559

(1896) (Harlan, J., dissenting), and “[d]iscrimination

on the basis of race” is “odious in all aspects,” Rose v.

Mitchell, 443 U.S. 545, 555 (1979). That is why the

Equal Protection Clause’s “central mandate is racial

neutrality in governmental decisionmaking.” Miller v.

Johnson, 515 U.S. 900, 904 (1995). And that is why

this Court has consistently rejected government attempts to use race to advance various policy goals. See,

e.g., Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll., No. 20-1199, 2023 WL

4239254, at *23 (U.S. June 29, 2023) (in college admissions, “the student must be treated based on his or her

experiences as an individual—not on the basis of

race”); City of Richmond v. J.A. Croson Co., 488 U.S.

469, 476–77 (1989) (“minority set-aside program” for

city contracts “to ameliorate the effects of past discrimination”); Wygant v. Jackson Bd. of Educ., 476

U.S. 267, 272 (1986) (“providing ‘role models’ for minority schoolchildren”); Palmore v. Sidoti, 466 U.S.

429, 432–34 (1984) (best interest of the child in childcustody decisions); Brown v. Bd. of Educ., 347 U.S.

483, 493 (1954) (public schools); Buchanan v. Warley,

245 U.S. 60, 70 (1917) (ordinance preventing minorities from living on majority-white blocks “to prevent

conflict and ill-feeling between the white and colored

races in the city of Louisville”).

Although racial gerrymandering is unconstitutional, partisan gerrymandering does not give rise to

a cognizable legal claim. Partisan gerrymandering

claims “present political questions beyond the reach of

the federal courts,” so this Court has “never struck

down a partisan gerrymander as unconstitutional.”

Rucho v. Common Cause, 139 S. Ct. 2484, 2506–07

(2019) (emphasis added); cf. Karcher v. Daggett, 462

U.S. 725, 753 (1983) (Stevens, J., concurring) (“it is

unrealistic to attempt to proscribe all political considerations in the essentially political process of redistricting”).

Against this legal backdrop, legislators acknowledged that one of their goals in this reapportionment

cycle, along with employing other traditional districting principles, was to make the First District more Republican. See, e.g., Juris. Stat. App. (“JSA”).21a–22a.

To achieve this goal, the General Assembly had ample

data about partisanship, broken down all the way to

the level of individual street blocks for both the 2016

and 2020 elections. See, e.g., JSA.93a–94a.

Armed with this data, the General Assembly had

no incentive to use race when redrawing the State’s

seven congressional districts. Nor would it have made

sense for the General Assembly to do so. One, the Constitution prohibits the “use of race as a proxy.” Miller,

515 U.S. at 914. Using race to draw districts would

have only invited a justified finding (unlike the finding in this case) of racial gerrymandering.

Two, using race was unnecessary because the

partisanship data provided exactly what the General

Assembly needed to advance any of its political goals.

There was, in other words, no need for a proxy. And

every witness who was asked about whether there

was a “racial target” specifically denied there was any

such metric. E.g., JSA.93a, 130a, 144a, 346a. That

lack of evidence is fatal to the district court’s conclusion that there was “a target of 17% African American

population” for the First District. JSA.23a.

Put simply, why would the General Assembly

have used race as a proxy for party when (1) party was

what the General Assembly admittedly considered

and (2) the General Assembly had detailed partisanship data? The district court’s conclusion that the

First District is racially gerrymandered is illogical.

B. Appellees’ failure to produce an alternative map should be dispositive.

Based its reading of Cooper, the district court did

not require Appellees to provide “an alternative map

that provides a remedy” to the supposed racial gerrymandering. JSA.46a.

As more than just a remedial matter, the Cooper

dissent made the more compelling argument about alternative maps, and this Court should now recognize

as much. Requiring a plaintiff to produce an alternative map is the only realistic way to prove that race,

rather than politics, drove a decision “when race and

political party preference closely correlate.” Cooper,

581 U.S. at 334 (Alito, J., dissenting in part); see also

Easley v. Cromartie, 532 U.S. 234, 242 (2001) (“Caution is especially appropriate in this case, where the

State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are

highly correlated.”). An alternative map is a critical

piece of evidence that can distinguish between race

and party. Indeed, without such a map and in light of

the fact that a “‘smoking gun’ is often not to be found

in a discrimination suit,” Blue v. U.S. Dep’t of Army,

914 F.2d 525, 544 (4th Cir. 1990) (Wilkinson, J.), a

claim of racial gerrymandering amounts to little more

than “we think legislators had improper motives, even

though the map they adopted could have been based

on party instead of race,” cf. Brnovich v. Democratic

Nat’l Comm., 141 S. Ct. 2321, 2349 (2021) (“partisan

motives are not the same as racial motives”).

Requiring a map in every racial gerrymandering

case would also avoid entangling courts in the task of

attempting to answer questions regarding the

strength of a plaintiff’s speculative racial-gerrymandering evidence. The Court in Cooper observed that a

map would be necessary when a plaintiff had only

“meager direct evidence of a racial gerrymander.”

Cooper, 581 U.S. at 322 (majority op.). That standard

merely invites debate over whether the evidence was

meager or plentiful and forces courts to try to distinguish why the evidence in one case did demand an alternative map but the evidence in another case did

not—all on already difficult question “of distinguishing between racial and political motivations in the redistricting context.” Id. at 331 (Alito, J., dissenting in

part).

Applying these principles to this case, consider

the inference that can be drawn from the fact that Appellees didn’t offer an alternative map as evidence, especially if, as the district court put it, that map could

be drawn “without undue difficulty.” JSA.46a; see also

JSA.5a (reemphasizing this point in denying Appellants’ motion to stay).2 If that’s the case, Appellees

surely would have made that map their first exhibit

at trial. Appellees’ failure to produce an alternative

map strongly undermines not only the district court’s

conclusion that such a map is easy to draw but also

the district court’s conclusion that race, not politics,

drove the General Assembly to adopt the map it did.

Moreover, this Court implicitly made the value of

alternative maps clear just a month ago in Allen v.

2 In denying the motion to stay, the district court explained

in more detail its intention that “the legislature should be given

a reasonable opportunity to recommend for consideration a remedial plan that meets constitutional standards.” JSA.2a–3a. It

is unclear whether the district court envisioned the Governor

having any role, but the South Carolina Constitution is clear: All

legislation must be “presented to the Governor” for his signature

or veto. S.C. Const. art. IV, §21. Any attempt by the district court

to redline S.C. Code Ann. §7-19-45 (which establishes the congressional districts following the 2020 census) without having

legislation presented to the Governor would be an afront to South

Carolina’s sovereignty and the Governor’s authority under the

State’s Constitution.

Milligan, 143 S. Ct. 1487 (2023). After explaining the

Gingles framework, the first place the Court looked to

analyze whether the plaintiffs there had met their

burden was to the “eleven illustrative maps” that included “two majority-black districts” and “comported

with traditional districting criteria.” Id. at 1504.

Between the detailed partisanship data available

now and this Court’s clear instruction not to racially

gerrymander, it is unlikely (to put it mildly) that legislators would use race as a proxy, rather than party

itself, when redrawing districts. Imposing an alternative-map requirement would serve to protect federal

courts from being “transformed into weapons of political warfare” by minority parties who were “losers in

the redistricting process” merely “seek[ing] to obtain

in court what they could not achieve in the political

arena.” Cooper, 581 U.S. at 335 (Alito, J., dissenting

in part). In this case, that means Appellees should not

be permitted to use the courts as a forum simply to air

grievances and invite federal judges to redraw the

First District in a way that would suit their political

preferences, which was always their underlying goal

in bringing this case.

II.

The Court should put an end to abusive redistricting litigation.

The stakes in redistricting litigation are high.

Control of Congress may turn on which congressional

map a single State adopts. See, e.g., Joshua Chaffin,

New York’s Democrats Rue Losses that Cost Their

Party the House, Financial Times (Nov. 16, 2022),

https://tinyurl.com/ycyt647u (calling a “bungled

redistricting effort” one of the “culprits” for Republican gains in New York in the 2022 midterm election).

With so much on the line, litigants have every incentive to pull out all the proverbial stops when bringing

redistricting cases.

Too often, litigants go too far in framing their

challenges and litigating these cases, doing things

that black-letter law does not permit. They frequently

attempt to proceed against improper defendants in an

effort to score political points without making legal

ones.

A. Appellees had no legitimate reason to

name the Governor as a defendant.

This case is a textbook example of abusive redistricting litigation. To understand why, it’s necessary

to review the case’s early procedural history in some

detail.

The 2020 census data was released later than

usual due to delays associated with COVID-19, so, in

turn, redistricting began later than usual. South Carolina began its redistricting process in July 2021. See

Meeting Information, S.C. Redistricting 2021, Senate

Judiciary Comm. (last visited May 16, 2023),

https://tinyurl.com/5dedpv7u (providing information

about the timing of the redistricting process).

Appellees originally filed this lawsuit in October

2021, before South Carolina had even enacted new

maps for state legislative or congressional districts.

See ECF No. 1.3 The NAACP issued a press release

3 ECF citations are to the district court’s record, when those

trumpeting its lawsuit the same day the lawsuit was

filed. See Civil Rights Groups File Federal Lawsuit

Over South Carolina Redistricting Failures, NAACP

Legal Defense Fund (Oct. 12, 2021), https://tinyurl.com/272vpvax (last visited May 16, 2023).

In that original complaint, Governor McMaster

was the lead defendant. ECF No. 1, at 1. The complaint alleged that the Governor was a “proper defendant” based on his “authority to sign or veto any redistricting plan passed by the Legislature” and his authority “to convene the General Assembly for extra

sessions.” Id. at 11. Appellees asserted claims that the

State’s districts were malapportioned in light of the

2020 census. Id. at 24–27. After inexplicably waiting

four weeks, Appellees eventually moved for a preliminary injunction, asking the district court to impose a

deadline by which the State must enact new maps. See

ECF No. 59. (Never mind that the General Assembly

was already in the midst of the redistricting process

and had even taken public testimony by that point.)

The same day that preliminary injunction motion

was filed, Governor McMaster moved to dismiss. See

ECF No. 61. Among other arguments directed at the

complaint generally, the Governor explained that Appellees lacked standing to sue him based on his authority to sign or veto legislation. See id. at 7.

Just three days after the Governor moved to dismiss the complaint, before Appellees responded to the

motion, and without ruling on that motion, the district

court stayed the case for about two months “to give the

Legislature the opportunity to timely perform its

documents do not appear in an appendix filed with this Court.

redistricting duties.”4 ECF No. 63, at 9. About a month

into this stay, the General Assembly adopted new

state legislative districts. See 2021 S.C. Acts No. 117.

This prompted an amended complaint from Appellees. See ECF No. 84. Governor McMaster remained the lead defendant. Id. at 1. The only allegations related to the Governor in the amended complaint were that he signed Act No. 117 into law, id. at

2, 11, 29, had the authority to sign or veto redistricting

legislation for the congressional districts, id. at 9, and

had the authority to call the legislature into special

session, id. at 20. Appellees asserted racial gerrymandering, intentional discrimination, and First Amendment claims. Id. at 51–54.

Governor McMaster again moved to dismiss. See

ECF No. 94. He pointed out that being the State’s

chief executive is not a sufficient basis to sue him, id.

at 9, the South Carolina Constitution gives him sole

discretion to determine whether to call the legislature

4 This move by the district court was all the more puzzling—and inappropriate—because the district court actually

“conclude[d] that [Appellees’] claims are not yet ripe,” ECF No.

63, at 9; see also id. at 12, yet stayed the case anyway. Federal

courts may not “park” an unripe case via a stay to see if it eventually becomes ripe. See Allied World Surplus Lines Ins. Co. v.

Blue Cross & Blue Shield of S.C., No. 3:17-cv-903-RMG, 2017 WL

3328230, at *2 (D.S.C. Aug. 3, 2017) (“Because ripeness is a question of subject matter jurisdiction, an action that is not ripe for

judicial review must be dismissed. The Court cannot stay . . . an

action that is not ripe.” (citing Sansotta v. Town of Nags Head,

724 F.3d 533, 548 (4th Cir. 2013))); cf. DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 341 (2006) (“no principle is more fundamental to the judiciary’s proper role in our system of government

than the constitutional limitation of federal-court jurisdiction to

actual cases or controversies” (cleaned up)).

into an extra session, id. at 9–10, he enjoys legislative

immunity for the decision to sign or veto any legislation, id. at 11–12, and Appellees could not meet the

traceability and redressability prongs of standing to

assert any claims against him, id. at 12–14.

Shortly after moving to dismiss, Governor

McMaster served five targeted interrogatories to confirm that Appellees had no basis for suing him. See

ECF No. 115-1. The first interrogatory asked what

“facts related to Governor McMaster” other than those

in the amended complaint were relevant to the lawsuit. Id. at 5–6. Appellees, largely drawing from the

amended complaint, stated only that the Governor

signed into law the legislation creating the new state

legislative districts, had a duty to take care that the

laws be faithfully executed, did not call the General

Assembly back into session during the fall of 2021,

“would likely be involved in the compliance with and

enforcement of any remedial map,” and had “the authority under the South Carolina Constitution to sign

or veto” the new congressional map. Id. at 6–7.

The second and third interrogatories asked Appellees to identify what provisions of state and federal

law they contended imposed a duty on the Governor

“regarding the holding and conduct of elections” for

state legislative and congressional seats. Id. at 7, 8.

Appellees proffered boilerplate objections and refused

to answer. Id. at 7–9.

The fourth and fifth interrogatories focused on

the “precise” declaratory and injunctive relief Appellees sought “against Governor McMaster specifically.”

Id. at 9, 10. After more boilerplate objections,

Appellees did little more than point back to their

amended complaint. Id.

Both before and after serving these interrogatory

responses, Appellees received an extension of time to

respond to the Governor’s motion to dismiss the

amended complaint. See ECF Nos. 107, 112. While

this motion to dismiss was pending, the General Assembly enacted a new congressional map. See 2022

S.C. Acts No. 118. This prompted Appellees to seek

leave to file another amended complaint, but in this

one, they wanted to drop the Governor as a defendant,

without ever having to answer for why they named

him as a defendant in the first two complaints.5 See

ECF No. 116.

After Appellees needlessly named the Governor

for publicity purposes, the Governor opposed their effort to strategically, and unilaterally, sideline him to

avoid having to respond to the merits of his arguments. See ECF No. 117. Appellees tried to characterize the Governor’s opposition to being silently dropped

as a defendant as “obstructionist.” ECF No. 116, at 3.

They were—and remain—wrong. The Governor

wanted a definitive answer on the issues raised in his

motion to dismiss for two reasons. One, Appellees had

5 When Appellees sought leave to file the second amended

complaint, a press release was (of course) issued about the new

filing. See Civil Rights Groups File Amended Complaint in South

Carolina Redistricting Case, NAACP Legal Defense Fund (Feb.

2, 2022), https://tinyurl.com/3pjxcn6n (last visited May 16, 2023).

But nowhere in that release did Appellees mention they wanted

to drop the Governor as a defendant. In fact, the press release

still called the case South Carolina Conference of the NAACP v.

McMaster.

consistently taken the position that the Governor was

necessary for them to obtain the relief they sought.6

Id. at 2–4. And two, the condensed schedule of the case

ahead of the 2022 elections warranted resolving any

questions related to the Governor sooner rather than

later, as Appellees had steadfastly refused to disavow

any intention to try to add the Governor back as a defendant in this litigation. Id. at 4–6.

To try to force Appellees to address the fact that

they had named the Governor as the lead defendant,

the Governor moved for summary judgment shortly

before Appellees sought leave to amend the second

time. See ECF No. 115. That motion raised three arguments specific to the Governor as a defendant, in

light of the threadbare allegations against him in the

amended complaint. First, he was protected by legislative immunity. Id. at 8–10. Second, he could not be

sued simply because he was the Governor. Id. at 10–

11. Third, Appellees lacked standing to sue him. Id. at

11–13.

Before the district court ruled on Appellees’ request for leave to amend their complaint a second

time, the district court’s local rules forced Appellees to

respond to both the motion to dismiss and the motion

for summary judgment. See ECF Nos. 125, 142. On the

6 The Governor’s concern here was prescient. When Appellees agreed to settle their claims over the new map for the South

Carolina House of Representatives, the district court initially rejected the settlement because Appellants had not presented any

evidence that the Governor—by then a nonparty—had consented

to the settlement. See ECF No. 236. Eventually, this settlement

was achieved by enacting legislation to amend these maps, see

2022 S.C. Acts No. 226, which the Governor signed into law, see

S.C. Const. art. IV, §21.

motion to dismiss, Appellees tried to avoid responding

to the Governor’s arguments directly by contending

the motion to dismiss was “prudentially moot.” ECF

No. 125, at 2. They doubled down on this strategy in

responding to the motion for summary judgment, although they still wouldn’t disclaim “again seek[ing] to

name Governor McMaster as a defendant.” ECF No.

142, at 4. (To that end, they never even sought to

amend their interrogatory response that they had

sued the Governor because he “would likely be involved in the compliance with and enforcement of any

remedial map.” ECF No. 115-1, at 7.)

Governor McMaster replied promptly to both of

Appellees’ attempts to avoid responding to the substance of his argument. See ECF Nos. 127, 146. He detailed how this Court’s cases make clear that mootness is an Article III doctrine, so the old Fourth Circuit cases on which Appellees relied were inapposite.

ECF No. 127, at 2–4. He went on to show how, even if

the doctrine was still viable, it did not apply here. Id.

at 4–7.

Ultimately, the district court did not force Appellees to address the merits of the Governor’s arguments. Instead, the district court granted them leave

to amend their complaint and drop the Governor as a

defendant. ECF No. 152, at 3.

Appellees therefore never had to answer why

they named the Governor as the lead defendant in this

case. For example, they sued the Governor because he

had “the authority to sign . . . or veto any redistricting

plan.” ECF No. 84, at 9. But this Court has explained

that a governor’s signing or vetoing of a bill constitutes part of the legislative process, see Smiley v.

Holm, 285 U.S. 355, 372–73 (1932), and “[a]bsolute

legislative immunity attaches to all actions taken in

the sphere of legitimate legislative activity,” Bogan v.

Scott-Harris, 523 U.S. 44, 54 (1998) (cleaned up); see

also, e.g., Bagley v. Blagojevich, 646 F.3d 378, 393 (7th

Cir. 2011) (“Without a doubt, the act of vetoing a line

item in a bill constitutes an integral step in Illinois’s

legislative process.” (cleaned up)); Torres Rivera v.

Calderon Serra, 412 F.3d 205, 213 (1st Cir. 2005) (“a

governor who signs into law or vetoes legislation

passed by the legislature is also entitled to absolute

immunity for that act”); Women’s Emergency Network

v. Bush, 323 F.3d 937, 950 (11th Cir. 2003) (“Under

the doctrine of absolute legislative immunity, a governor cannot be sued for signing a bill into law.”).

Nor did Appellees have to justify naming the

Governor as a defendant in light of Ex parte Young,

209 U.S. 123 (1908). Under that century-old rule, only

when an official has “some connection with the enforcement of the act” is there an exception to sovereign

immunity that permits a federal court to enjoin that

state official. Id. at 157. This Court just reaffirmed

this principle. See Whole Women’s Health v. Jackson,

142 S. Ct. 522, 534–35 (2021) (refusing to permit injunctive relief against the state attorney general who

was not charged with enforcing Texas’s new abortion

statute). And, if that were (somehow) not enough, so

has the Fourth Circuit—in a case involving the Governor, no less. See Disability Rts. S.C. v. McMaster, 24

F.4th 893, 901 (4th Cir. 2022) (“As we have made clear

in the Eleventh Amendment context, however, the

mere fact that a governor is under a general duty to

enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a

state statute.” (cleaned up)). Despite this law, Appellees never attempted (or were required) to explain

what unique “connection” Governor McMaster has to

redistricting or conducting elections that would have

permitted a federal court to enjoin him in any way. Cf.

ECF No. 115-1, at 7–9 (Appellees’ interrogatory responses refusing to identify what obligations state or

federal law imposed specifically on the Governor regarding “holding and conducting elections”).

In the same way, Appellees avoided having to explain how they had standing to sue Governor McMaster. Standing requires a plaintiff to show “(i) that he

suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was

likely caused by the defendant; and (iii) that the injury

would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). This

last prong “consider[s] the relationship between ‘the

judicial relief requested’ and the ‘injury’ suffered.”

California v. Texas, 141 S. Ct. 2104, 2115 (2021). Yet

Appellees never offered (and couldn’t have offered)

any retort for what relief they could have obtained

specifically against the Governor. They pointed to

nothing in Title 7 of the South Carolina Code or in federal law that the Governor could have been ordered to

do or not to do that would have provided them any relief on their claims about the state legislative and congressional maps. Because “[r]emedies . . . ordinarily

operate with respect to specific parties,” id., the failure to identify any relief against the Governor in particular should have been fatal to Appellees’ attempt to

assert claims against him.

The fact that the General Assembly returned to

pass new state legislative and congressional maps

saved Appellees from having to respond to yet another

reason they say that they named the Governor as a

defendant: his authority “to convene the General Assembly for extra sessions.” ECF No. 1, at 11; see also

ECF No. 84, at 20. The South Carolina Supreme Court

has held that, because “what constitutes an ‘extraordinary occasion’” is not defined by the constitution, deciding what is an “extraordinary occasion” “must be

left to the discretion of the Governor,” free from any

judicial review. McConnell v. Haley, 711 S.E.2d 886,

887 (S.C. 2011) (discussing S.C. Const. art. IV, §19).

Of course, the South Carolina Supreme Court’s decision on this question of state law is “binding on the

federal courts.” Wainwright v. Goode, 464 U.S. 78, 84

(1983).

For at least these four reasons, Appellees had no

justification whatsoever for naming Governor McMaster as the lead defendant in this lawsuit. Yet they did.

And they happily broadcasted that they did to anyone

who would listen. Put another way, Appellees were allowed to make bigger headlines by having the Governor be the first name on the right side of the “v.” in

their press release, but they never had to account for

their sandy foundation for haling the Governor into

federal court. The Court should not condone this legally lacking “strategic choice[]” about which state official to name as a defendant. Berger v. N.C. State

Conf. of the NAACP, 142 S. Ct. 2191, 2201 (2022).

B. This case is not an outlier.

this

To be sure, litigation games are not limited to

particular case. Plaintiffs unhappy with

Arkansas’s new maps pulled the same stunt of trying

to sue the governor there, making him (like Governor

McMaster) the lead defendant. See Compl., Simpson

v. Hutchinson, No. 4:22-cv-213 (E.D. Ark. Mar. 7,

2022), ECF No. 1. At least the district court there

didn’t let those plaintiffs quietly drop Governor

Hutchinson. That court granted a motion to dismiss

him, declaring the court could not “allow Governor

Hutchinson to remain in the case based on little more

than a general duty to enforce the law” when he lacked

“any ‘special’ role in elections.” Simpson v.

Hutchinson, ___ F. Supp. 3d ___, No. 4:22-CV-213,

2022 WL 14068633, at *7 (E.D. Ark. Oct. 24, 2022)

(quoting Ex parte Young, 209 U.S. at 157).

In Florida, Governor DeSantis avoided being

named as the lead defendant, but he was still sued in

Florida’s redistricting litigation. See Compl., Common

Cause Fla. v. Lee, No. 5:22-cv-59 (N.D. Fla. Mar. 11,

2022), ECF No. 1. The district court in that case

reached the same conclusion as the Arkansas court. It

dismissed Governor DeSantis because “the plaintiffs

have not pointed to any provision of Florida law which

gives the Governor authority to carry out, or direct the

carrying out, of elections,” as Ex parte Young requires.

Order 8, Common Cause Fla. v. Lee, No. 5:22-cv-59

(N.D. Fla. Nov. 8, 2022), ECF No. 115.

Plaintiffs are doing more than just naming governors as defendants in search of headlines. Take, for

example, an Alabama case from this redistricting cycle. One of the redistricting guidelines Alabama

adopted was that the legislature “shall try to preserve

the cores of existing districts.” Reapportionment Committee Redistricting Guidelines, II(j)(v), available at

Singleton v. Merrill, No. 2:21-cv-1291 (N.D. Ala.), ECF

No. 57-4, at 4. That guideline is unsurprising in light

of this Court’s explanation that “maintaining existing

relationships between incumbent congressmen and

their constituents” “promote[s] ‘constituency-representative relations.’” White v. Weiser, 412 U.S. 783,

791 (1973). As a member of the reapportionment committee, Senator Singleton in the Alabama legislature

voted to approve these guidelines. See Permanent

Legislative Committee on Reapportionment, Motion

to Adopt Guidelines (May 5, 2021), available at Singleton v. Merrill, No. 2:21-cv-1291 (N.D. Ala.), ECF

No. 68-8, at 2.

District 7 in Alabama was first drawn as a majority-minority district in 1992. See Wesch v. Hunt,

785 F. Supp. 1491, 1498–99 (S.D. Ala. 1992) (discussing the creation of this district). It has been a majority-minority district in western Alabama ever since. It

remains that way under Alabama’s most recently enacted congressional districts. See Ala. Code §17-14-70

(as amended by Alabama Act 2021-555, §2).

Yet in Singleton v. Merrill, Senator Singleton, as

a plaintiff, alleged that Alabama’s District 7 violated

the Fourteenth Amendment because it “has been expressly designed to perpetuate the racial gerrymander

first created in 1992.” Compl. ¶57, No. 2:21-cv-1291

(N.D. Ala.). In other words, the Senator and his coplaintiffs complain that the Alabama map follows the

very criteria that the Senator voted to adopt.

Such litigation shenanigans are not exclusive to

redistricting cases. They appear in myriad voting-related matters. The Court need look no further than

Andino v. Middleton, in which the District of South

Carolina “defied . . . this Court’s precedents” by enjoining South Carolina’s absentee-ballot witness-signature requirement on the eve of the 2020 general

election. 141 S. Ct. 9, 10 (2020) (Kavanaugh, J., concurring). In that litigation, one plaintiff challenged

the witness-signature requirement as imposing a burden on her right to vote because she “live[d] alone” and

would have “to unnecessarily risk exposure to COVID19” to have someone witness her absentee ballot. Am.

Compl. ¶17, Middleton v. Andino, No. 3:20-cv-1730

(D.S.C. July 21, 2020), ECF No. 69. Yet just three days

after the district court enjoined the witness-signature

requirement, see Middleton v. Andino, 488 F. Supp. 3d

261 (D.S.C. 2020), this plaintiff did a television interview about the case, while sitting (unmasked, no less)

on a sofa next to her son, see Federal Judge Says You

Won’t Need a Witness Signature for Your Absentee

Ballot This November, WIS-TV (Sept. 21, 2020),

https://tinyurl.com/52ys2u25 (clips in video between

0:30 and 1:45). As state officials pointed out to this

Court in that litigation, if this plaintiff could sit beside

her son for a television interview, could she also not

sit beside him while he witnessed her absentee ballot?

Implausible claims like this challenge to the witnesssignature requirement are littered across voting litigation.

All of these cases show the lengths to which

plaintiffs in redistricting cases (and voting cases generally) will go to achieve their desired result. Given

the stakes, perhaps such efforts shouldn’t be a surprise. Nevertheless, they cannot be justified or condoned. This Court should use this case as an

opportunity to rein in these efforts. Litigants should

be held to account for their litigation decisions, and

the same rules that apply in every case should apply

in redistricting cases. A “government of laws” demands no less. Marbury v. Madison, 5 U.S. (1 Cranch)

137, 163 (1803).

CONCLUSION

For these reasons, the Court should reverse the

judgment of the district court.

Respectfully submitted,