The Appearance of Equality: Racial Gerrymandering, Redistricting, and the Supreme Court:

JurisdictionUnited States,Federal
Publication year2021
CitationVol. 74 Pg. 430
Pages430
Connecticut Bar Journal
Volume 74.

74 CBJ 430. THE APPEARANCE OF EQUALITY: RACIAL GERRYMANDERING, REDISTRICTING, AND THE SUPREME COURT:




430


THE APPEARANCE OF EQUALITY: RACIAL GERRYMANDERING REDISTRICTING, AND THE SUPREME COURT

BOOK REVIEW


By Christopher M. Burke, Assistant Attorney General in the State of Wisconsin Department of Justice. Greenwood Press (Westport, Connecticut, 1999). 212 pages

What does fair representation mean? Don't ask Christopher Burke. Although his book explores this issue in great depth, he makes no pretense of offering an answer to this question. Nor does he pretend to know how to measure fair representation or provide a remedy if it is lacking. Instead, Burke provides a scholarly analysis of the Voting Rights Act, which increasingly is running afoul of the Fourteenth Amendment equal protection clause insofar as the Act requires covered states to create so-called majorityminority voting districts to increase the number of minority representatives.

Burke analyzes this issue by exploring the tension between philosophical liberal theory and practices and communitarian theory and practices as they apply to congressional redistricting. Stated very broadly, liberal theory focuses on individual rights and takes a skeptical view of creating so-called majority-minority districts where members of a particular race are grouped together in the hopes of increasing the number of minorities in legislative bodies. Communitarians, on the other hand, argue that because our society views individuals as members of certain racial groups, the concerns of these racial groups (and therefore the individuals in such groups) will not be addressed unless sufficient minorities participate in the law-making process as legislators.

Burke examines the Superior Court jurisprudence on voting rights and redistricting through these two philosophies, providing a useful paradigm for tackling this thorny issue. In doing so, he observes that politically conservative justices and politically liberal justices employ both liberal and communitarian rhetoric when it suits their purposes, making the analysis that much more complicated. For example, in Reynolds v. Sims,(fn1) which established the one-




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person, one-vote standard, the Court focused on the rights of the individual (liberal theory) to reach a politically liberal result (increasing the political power of urban residents). Justice Harlan...

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