RACE AND REPRESENTATION REVISITED: THE NEW RACIAL GERRYMANDERING CASES AND SECTION 2 OF THE VRA.

AuthorCharles, Guy-Uriel E.
PositionVoting Rights Act of 1965 - Special Issue on Gerrymandering

TABLE OF CONTENTS INTRODUCTION 1560 I. THE EARLY RACIAL GERRYMANDERING CASES AND 1567 CONSTITUTIONAL EQUALITY: ANTICLASSIFICATION AND ANTISUBORDINATION II. DESCRIPTIVE REPRESENTATION 1579 III. BACK TO THE FUTURE: THE NEW RACIAL GERRYMANDERING 1585 CASES IV. THE END OF SECTION 2? 1593 CONCLUSION 1599 INTRODUCTION

When the Supreme Court decided Shaw v. Reno (Shaw I) (1) in 1993, the civil rights community reacted to the opinion with shock, dismay, anger, confusion, and fear. (2) By contrast, conservatives were elated and hopeful. (3) The plaintiffs in Shaw challenged a North Carolina redistricting plan drawn by the State's Democrats, (4) who were in control of the redistricting process. (5) The Democrats wanted to maximize both partisan and racial advantage. Ideally, they preferred to create only one majority-Black district, and that is precisely what they did initially. (6) Their redistricting plan contained only one such district, District 1, located in the northeastern corner of the state. (7) Their attempt to satisfy partisan goals while seeming to placate the political preferences of the African American community resulted in a district with a "contorted" shape. (8)

However, the districting plan was subject to the requirements of the Voting Rights Act (VRA) of 1965, which obligated the State to submit voting changes to either the Department of Justice (DOJ) or the United States District Court for the District of Columbia. (9) The State submitted its plan to the DOJ, which refused to preclear the plan because it contained just one majority-minority district. (10) The DOJ demanded a second majority-Black district in another part of the state. (11) Thus, to satisfy the DOJ while trying to maximize partisan advantage, the legislature added a second and equally contorted majority-Black district. (12) While the first district was centered in the northeast part of the state, this second district was located in the north-central part of the state. (13) These two districts attempted to unite the State's relatively far-flung African American populations.

In Pope v. Blue, a group of plaintiffs filed a lawsuit against the plan. (14) They argued that it was an unconstitutional political gerrymander. (15) They lost on a motion to dismiss, for failure to state a claim. (16) The lower court claimed that political gerrymandering claims were not justiciable. (17) Another group of plaintiffs, not unrelated to the first group, filed a second lawsuit, in the case that became known as Shaw I.

The Shaw plaintiffs argued that racial gerrymandering, understood as the intentional creation of race-based districts, violated the Equal Protection Clause. (18) The plaintiffs maintained that they had a right to a color-blind voting process, which was violated when the State took race into account in constructing the redistricting plan. (19) The trial court ruled against the plaintiffs and the case eventually came before the Supreme Court. (20) The question before the Court was whether this kind of racial gerrymandering claim was cognizable, a question that the Court resolved in favor of the plaintiffs. (21)

The Shaw decision appeared to present an existential threat to the VRA. However, as it turned out, the threat was more phantasmal than actual. Though it was not quite as apparent at the time that Shaw was decided, Justice Sandra Day O'Connor, writing for the Court, seemed to be fully committed to two principles of racial equality. On one hand, she was committed to colorblindness as an aspirational ideal. (22) Indeed, the very point of Shaw was to bring voting rights within the ambit of the Court's standard equal protection doctrine, which applied an anticlassification framework when the government uses race in its decision-making processes. (23) On the other hand, Justice O'Connor also seemed to be committed to an understanding of the Equal Protection Clause that allowed sufficient room for race consciousness as a necessary remedy for past and present structural racial discrimination in voting. (24) From that perspective, which reflects an antisubordination approach to understanding racial equality, racial equality required some modicum of race consciousness as an antidote to racial discrimination. (25) Though these dual commitments created an evident tension in Shaw, Justice O'Connor saw the value of both race consciousness and race blindness, and she was dedicated to giving effect to both commitments even though these twin commitments pulled the Court's jurisprudence in opposing directions. (26)

Less apparent than the Court's dual commitments to both anti-classification and antisubordination, or to both colorblindness and race consciousness, was the Court's conflicted intuitions about representation in the domain of race and redistricting. One goal of the state redistricting plans that gave rise to the Shaw line of cases was to provide descriptive representation for voters of color, specifically African American or Latino voters. (27) This goal reflected the ideals of the VRA, particularly section 2 of the Act as interpreted by the Court in Thornburg v. Gingles. (28) The districts at issue in the Shaw line of cases represented the State's struggle to balance competing objectives, including substantive representation, while attempting to provide descriptive representation, which they maintained was mandated by the VRA. (29) Faced with the stark cartographical evidence of the State's attempt to effectuate descriptive representation under the ostensible guise of the VRA, the Court recoiled. (50)

Though the Shaw majority was hostile to the manner in which the states chose to provide descriptive representation in the Shaw cases, the Shaw majority was not hostile to the states' pursuit of descriptive representation as such, if done in a less ostentatious manner. (31) Notwithstanding the majority's expressed concerns about the essentialist assumptions that undergird descriptive representation, and notwithstanding the majority's preference for substantive representation over descriptive representation, the Shaw majority was never prepared to forbid the states from pursuing descriptive representation as a legitimate end. (32) In fact, to the extent that Justice O'Connor represented the Shaw majority's views, she, and by extension the Shaw majority, believed that the state was required, under some circumstances, to pursue descriptive representation. (33)

Correspondingly, the Court's invocation of the anticlassification doctrine, which often strongly signals the Court's intent to strike down a state's use of race, signaled something else in the Shaw cases. It was intended to discipline what the Court viewed as the state's unrestrained impulse to effectuate descriptive representation no matter the costs, instead of making the difficult trade-offs often required when designing structures of representation. Anticlassification functioned as a thumb on the scale to favor substantive over descriptive representation, or at the very least to cabin descriptive representation. Conversely, the Court deployed the antisubordination framework to allow the state space for properly deploying descriptive representation. Thus, the antisubordination/anticlassification tension mapped perfectly onto the descriptive/substantive representation considerations.

While the Shaw doctrine pulled the Court in opposing directions, the Court did its best to manage the tension for almost a decade. During that time, it was not clear whether the Court would strike down sections 2 and 5 of the VRA or whether the Court's standard equal protection jurisprudence would be applied in a way that accommodated voting rights as an exception to the color-blindness and anticlassification ideal. The cases seesawed between the two poles until the Court sounded the call to retreat in the 2001 case of Easley v. Cromartie (Cromartie II). (34)

In Cromartie II, Justice O'Connor joined the Court's liberals as they reversed the decision of a lower court that struck down one of the North Carolina districts at issue in the first Shaw case. (35) Cromartie II essentially put an end to Shaw claims. The Court sent a clear message to legislatures drawing majority-minority districts that they would have a safe harbor from such claims so long as they could plausibly claim they were motivated by political considerations as opposed to racial considerations when they drew the district lines. (36) Given the relationship between political and racial identity, it was not hard for state legislatures to plausibly claim that their redistricting lines were motivated by politics and not race.

The civil rights bar breathed a sigh of relief. Notwithstanding the application of the anticlassification doctrine in other domains, voting rights had survived largely unscathed. And section 2 of the VRA, which seemed particularly vulnerable to Shaw claims, remained a robust provision of the statute. As importantly, states were free to pursue descriptive representation unburdened by strict judicial supervision.

Shaw claims remained buried for well over a decade, until the Court decided Alabama Legislative Black Caucus v. Alabama, in 2015. (37) In Alabama Legislative Black Caucus, the plaintiffs challenged the State of Alabama's legislative redistricting plan on the ground that the plan was a racial gerrymander. (38) The plaintiffs lost in the lower court on numerous grounds, including the failure to prove that race predominated in the way the State drew the district lines. (39) In an opinion authored by Justice Stephen Breyer and joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Anthony Kennedy, the Court reversed the lower court and signaled the revivification of the Shaw doctrine. (40)

To the extent that there were any doubts about the return of Shaw, those doubts were erased two years later when the Court decided two more racial gerrymandering cases, Bethune-Hill v. Virginia State Board...

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