I. INTRODUCTION: A GEORGIA BULLDOG CHASES ITS TAIL: ONE STATE'S DISTRICTING DILEMMA
When it comes to legislative reapportionment, the Peach State is in a pickle. Consider this: the results of the 1990 census entitled Georgia to an additional representative in the United States Congress, bringing the state's total number of seats to eleven.1 In order to comply with the Voting Rights Act of 1965 (the "Voting Rights Act"),2 the state's legislative district map was redrawn three times during the 1990s before the legal battle over redistricting finally ground to a halt in 1997.3 Barely giving the state's General Assembly and the federal courts a chance to catch their collective breath, the 2000 census revealed that Georgia's population had again increased-this time enough for two additional congressional seats.4 Many of the questions raised by the redistricting litigation of the 1990s have not been answered, including the problems presented by the non-retrogression principle of the Voting Rights Act.5
States such as Georgia, which are subject to U.S. Department of Justice preclearance for their redistricting plans,6 are faced with a dizzying dilemma. On the one hand, refusal to draw majority-minority districts? provides states with near-certain assurance that the Justice Department will find them in violation of section 5 of the Voting Rights Act, and thus, refuse preclearance. On the IMAGE FORMULA5
other hand, drafting a plan that includes one or more majorityminority districts exposes states to lawsuits by majority white voters on the basis that such districts violate the Equal Protection Clause of the Fourteenth Amendment.8 States' high-wire balancing act has become even more shaky in light of certain Supreme Court language and the language of the Voting Rights Act, which indicates that preclearance will not necessarily insulate a state from an equal protection claim.9
In a nutshell, the problem that a state faces in redrawing its congressional districts is this: in order to avoid suits alleging equal protection violations, the state must prove that race was not a predominant factor in sketching district boundaries.10 For a state to overcome the preclearance hurdle, however, it has to prove that its new plan complies with the section 5 non-retrogression principle, which almost always requires race-conscious districting.
The states' dilemma is caused by two overlapping concerns. The first problem is the way in which the Court has failed to precisely define "race-conscious districting."11 The cases brought after the 1990 census largely involved racial gerrymandering of congressional districts.12 Generally, the Court has held that the drawing of racially gerrymandered districts violates the Equal Protection Clause of the Constitution.13 Throughout the 1990s, the Court made clear that a district's irregular shape may play a role in determining whether the district was drawn by impermissibly using race as IMAGE FORMULA8
the dominant factor. 14 Yet, the Court has not clearly articulated what constitutes an irregular shape. Moreover, it is unclear if a threshold showing of irregularity is necessary, or simply sufficient, to sustain an equal protection claim.15 A plaintiff alleging an equal protection violation because of racial gerrymandering will have great difficulty in proving that race was impermissibly used as a factor in congressional reapportionment if irregular shape is not sufficient to sustain such a claim.16
The second problem is the non-retrogression principle, which has a murky history in the legal system.17 The non-retrogression principle requires that a state's proposed congressional reapportionment plan not give minority voters less opportunity to elect the candidate of their choice than the state's current plan. In other words, a new plan may not dilute the voting power of minority voters. …