Academic journal article William and Mary Law Review

Race and Representation Revisited: The New Racial Gerrymandering Cases and Section 2 of the Vra

Academic journal article William and Mary Law Review

Race and Representation Revisited: The New Racial Gerrymandering Cases and Section 2 of the Vra

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                            1560 I. THE EARLY RACIAL GERRYMANDERING CASES AND            1567    CONSTITUTIONAL EQUALITY: ANTICLASSIFICATION AND    ANTISUBORDINATION II. DESCRIPTIVE REPRESENTATION                          1579 III. BACK TO THE FUTURE: THE NEW RACIAL GERRYMANDERING  1585     CASES IV. THE END OF SECTION 2?                               1593 CONCLUSION                                              1599 

INTRODUCTION

When the Supreme Court decided Shaw v. Reno (Shaw I) (1) in 1993, the civil rights community reacted to the opinion with shock, dismay, anger, confusion, and fear. (2) By contrast, conservatives were elated and hopeful. (3) The plaintiffs in Shaw challenged a North Carolina redistricting plan drawn by the State's Democrats, (4) who were in control of the redistricting process. (5) The Democrats wanted to maximize both partisan and racial advantage. Ideally, they preferred to create only one majority-Black district, and that is precisely what they did initially. (6) Their redistricting plan contained only one such district, District 1, located in the northeastern corner of the state. (7) Their attempt to satisfy partisan goals while seeming to placate the political preferences of the African American community resulted in a district with a "contorted" shape. (8)

However, the districting plan was subject to the requirements of the Voting Rights Act (VRA) of 1965, which obligated the State to submit voting changes to either the Department of Justice (DOJ) or the United States District Court for the District of Columbia. (9) The State submitted its plan to the DOJ, which refused to preclear the plan because it contained just one majority-minority district. (10) The DOJ demanded a second majority-Black district in another part of the state. (11) Thus, to satisfy the DOJ while trying to maximize partisan advantage, the legislature added a second and equally contorted majority-Black district. (12) While the first district was centered in the northeast part of the state, this second district was located in the north-central part of the state. (13) These two districts attempted to unite the State's relatively far-flung African American populations.

In Pope v. Blue, a group of plaintiffs filed a lawsuit against the plan. (14) They argued that it was an unconstitutional political gerrymander. (15) They lost on a motion to dismiss, for failure to state a claim. (16) The lower court claimed that political gerrymandering claims were not justiciable. (17) Another group of plaintiffs, not unrelated to the first group, filed a second lawsuit, in the case that became known as Shaw I.

The Shaw plaintiffs argued that racial gerrymandering, understood as the intentional creation of race-based districts, violated the Equal Protection Clause. (18) The plaintiffs maintained that they had a right to a color-blind voting process, which was violated when the State took race into account in constructing the redistricting plan. (19) The trial court ruled against the plaintiffs and the case eventually came before the Supreme Court. (20) The question before the Court was whether this kind of racial gerrymandering claim was cognizable, a question that the Court resolved in favor of the plaintiffs. (21)

The Shaw decision appeared to present an existential threat to the VRA. However, as it turned out, the threat was more phantasmal than actual. Though it was not quite as apparent at the time that Shaw was decided, Justice Sandra Day O'Connor, writing for the Court, seemed to be fully committed to two principles of racial equality. On one hand, she was committed to colorblindness as an aspirational ideal. (22) Indeed, the very point of Shaw was to bring voting rights within the ambit of the Court's standard equal protection doctrine, which applied an anticlassification framework when the government uses race in its decision-making processes. …

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