Something Old, Something New, or Something Really Old'? Second Generation Racial Gerrymandering Litigation as Intentional Racial Discrimination Cases

By Ho, Dale E. | William and Mary Law Review, April 2018 | Go to article overview

Something Old, Something New, or Something Really Old'? Second Generation Racial Gerrymandering Litigation as Intentional Racial Discrimination Cases


Ho, Dale E., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                       1888   I. SOMETHING OLD: EXCESSIVE RACE CONSCIOUSNESS?  1893  II. SOMETHING NEW: "PARTY ALL THE TIME?"          1903 III. SOMETHING .REALLY OLD: INTENTIONAL RACIAL      DISCRIMINATION                                1911 CONCLUSION                                         1918 

INTRODUCTION

In four out of four opportunities during the current round of redistricting litigation, the Supreme Court sided with plaintiffs challenging redistricting plans adopted by Republican-controlled state legislatures as unconstitutional racial gerrymanders. (1) These challenges arose in response to the Republican post-2010 census redistricting "playbook" in numerous states, a strategy "of packing as many black voters into black districts so that the surrounding districts would be [more] white," and thus, more conservative. (2) In each case, legislatures "hid[ ] behind the public cover of [a] cartoon of the Voting Rights Act [(VRA)]," using it as an "excuse to overpack a district with cohesive minority voters, well beyond the level needed to actually comply with the Act's mandates," and thus "bleaching the perceived threat of minority voting power in neighboring areas." (3) In each case, the plaintiffs successfully argued that the districts at issue were (or could be understood as) unconstitutional racial gerrymanders, whose contours were not compelled by the VRA. (4)

This is a somewhat unexpected state of affairs, in several respects. First, the fact that racial gerrymandering claims are now being brought primarily by liberal plaintiffs is a surprising development. Voting rights advocates were often harsh critics of the Supreme Court's decisions in the 1990s, beginning with Shaw u. Reno (Shaw I), which established racial gerrymandering as a cause of action. (5) These cases, which I will refer to as the "first-generation" of racial gerrymandering cases, were generally brought by conservatives challenging districts that had been created for the purpose of enhancing minority representation. (6) But now, the charge of racial gerrymandering is being deployed more frequently by minority voting rights advocates. (7)

Second, the fact that these cases are being won before the Roberts Court--which liberals have frequently characterized as hostile to voting rights, (8) particularly in the wake of its decision invalidating a key provision of the VRA in Shelby County u. Holder (9)--is probably not something that most practitioners in this space would have predicted at the beginning of this redistricting cycle. But the plaintiffs in these cases are 4-for-4 thus far. (10)

Trying to understand these developments is complicated by the fact that they have unfolded in an era of "conjoined polarization," that is, an alignment of political contestation along racial lines mapping onto partisan divisions. (11) That adds a layer of complexity in attempting to analyze what I will call, for the purposes of this Article, the "second-generation" of racial gerrymandering cases. Are these second-generation racial gerrymandering cases about race? Are they about party? Some new mixture of the two?

In these brief comments, I will describe and assess three different ways of understanding these second-generation racial gerrymandering cases.

Something Old: Excessive Race Consciousness. Perhaps the easiest way to understand these cases is that they are simply what the plaintiffs and the Court have said they are: just another iteration of racial gerrymandering cases, premised on the notion that excessive race consciousness in redistricting violates the Constitution. (12) As I explain below, this approach understands these cases as fundamentally about process--in other words, how and to what extent officials may consider race when redistricting.

Something New: Partisan Gerrymandering. Another way of understanding these cases is that they represent something "new"--a novel way of getting at what is best understood as a partisan harm, but framed in the legally cognizable language of race. …

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