22 Pages Posted: 3 May 2015 Last revised: 8 Feb 2016

Date Written: May 8, 2015

Abstract

Like history, the racial gerrymandering cause of action has repeated itself, the first time as tragedy, the second time as farce.

In the 1990s, conservative members of the Supreme Court recognized a new cause of action, grounded in the Fourteenth Amendment’s Equal Protection Clause, of an “unconstitutional racial gerrymander.” The claim was not one, long recognized, for the intentional dilution of black votes through the manipulative drawing of district lines. Instead, it was a shaky, ephemeral claim based solely on appearances. Racial gerrymandering is an “expressive harm,” aimed at preventing jurisdictions from sending an impermissible “message” by separating voters on the basis of race without adequate justification. In practice, the cause of action helped limit attempts by the U.S. Department of Justice to force jurisdictions then covered by Section 5 of the Voting Rights Act to create more majority-minority voting districts which tended to vote Democratic. Sometimes doing so helped Democrats; at other times the concentration of reliable Democratic voters helped Republicans. Within a decade, however, racial gerrymandering claims seemed to wither away, as the Court used other methods to stop the Department from reading the Act too broadly.

In 2015, the Supreme Court revived racial gerrymandering claims. In Alabama Legislative Black Caucus v. Alabama, the four liberals on the Court and Justice Kennedy agreed with Democrats and minority voters that the state of Alabama engaged in an unconstitutional racial gerrymander when it passed a legislative districting plan which over-concentrated black voters in majority-minority districts in ostensible compliance with the Voting Rights Act. There was great irony in the use of the racial gerrymandering cause of action by minority voters who had rejected it in the 1990s, in its acceptance by liberal justices, and in the defense of race-based redistricting by Alabama Republicans and some conservative Supreme Court justices. While racial gerrymandering has for now become a useful tool for Democrats and minority plaintiffs to fight certain Republican gerrymanders, it is no more coherent or justified now than it was the first time the Court recognized it in the 1990s.

This Essay, written for an Alabama Law Review symposium on the 50th anniversary of the Voting Rights Act, proceeds in three parts. Part I briefly describes the emergence of the racial gerrymandering cause of action in the 1990s and the critiques made of it. Part II briefly describes the circumstances leading up to the 2015 Alabama case and Court’s questionable revival of the racial gerrymandering claim. Part III argues that the racial gerrymandering claim is no more defensible when used by Democrats or minority voters than by conservatives or Republicans. No doubt the Alabama legislature used compliance with the Voting Rights Act as a pretext to pack more reliable Democratic voters into a smaller number of districts to help Republicans in the state overall. But that behavior should be policed as either a form of impermissible racial vote dilution or as inappropriate partisan behavior. In the end, the Supreme Court has relied upon the incoherent racial gerrymandering claim because lacks the right tools to police certain political conduct which might be impermissibly racist, partisan, or both. Liberal and conservative scholars have long recognized that the Voting Rights Act’s enforcement and interpretation can have partisan implications and motivations. The same is now true for racial gerrymandering claims, especially given the great overlap of race and party categories in the South.