Threading the Needle: Resolving the Impasse between Equal Protection and Section 5 of the Voting Rights Act

By Errickson, Lindsay Ryan | Vanderbilt Law Review, October 2001 | Go to article overview

Threading the Needle: Resolving the Impasse between Equal Protection and Section 5 of the Voting Rights Act


Errickson, Lindsay Ryan, Vanderbilt Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Threading the Needle: Resolving the Impasse between Equal Protection and Section 5 of the Voting Rights Act
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.