SOMETHING OLD, SOMETHING NEW, OR SOMETHING REALLY OLD'? SECOND GENERATION RACIAL GERRYMANDERING LITIGATION AS INTENTIONAL RACIAL DISCRIMINATION CASES.

• Author: Ho, Dale E.
• Position: Special Issue on Gerrymandering

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. Obviously, partisan gerrymandering itself is not something "new"--it has existed perhaps since the founding. (13) But, from this perspective, race and partisanship have aligned in a new way in contemporary politics, and the second-generation racial gerrymandering cases really represent a new way to attack a fundamentally partisan, rather than racial, harm.

Something Really Old: Intentional Racial Discrimination. A third way of understanding these cases is that they are fundamentally about state action arising from racially (rather than partisan-based) discriminatory intent. In this sense, the harm that the second-generation racial gerrymandering cases seek to address is something "really" old: the precise injury that the Fourteenth and Fifteenth Amendments were adopted to prohibit, namely, intentional statesponsored racial discrimination. (14)

Each of these ways of understanding the second-generation racial gerrymandering cases implies a prescription. If these cases are just more of the same, then they can and should be litigated in basically the same way that the "old" racial gerrymandering cases were. (15) If instead these are cases "really" about partisanship, then perhaps they should be litigated as such, under "new" legal theories premised on a requirement of partisan fairness. (16) From this perspective, doing so might be simpler and perhaps more honest than using race as a proxy for party. Or, if these cases are fundamentally about intentional racial discrimination, then perhaps we need to litigate them as such, using "really old" legal claims based simply on discriminatory intent. (17)

None of these frames provides a complete answer. But in my view, as a purely descriptive matter, contemporary redistricting battles, and voting rights disputes in general, cannot be understood fully in purely nonracial partisan terms. It is far too simple to say that these cases are about party rather than race, which ahistorically suggests that politics in America can be boiled down to an essential deracinated form. Race has always been, and remains, a highly salient factor in voting rights disputes, which cannot be fully appreciated through a purely partisan lens. (18)

That observation counsels against not only a primarily partisanbased understanding of the recent racial gerrymandering cases, but also a framework that views these cases as simply newer versions of Shaw I. Rather than acknowledging the continuing role that race plays in American politics, the first-generation racial gerrymandering cases treated the mere consideration of race as a constitutional evil in itself. (19) The second-generation racial gerrymandering cases, however, are different. Although they employ the color-blind language of Shaw I, they arise from disputes about alleged "packing" of Black voters into as few districts as possible, and a recognition that such packing diminishes the political influence of Black voters in neighboring majority-white districts, and thus, across a state as a whole. (20) That is, while the Court premised Shaw Ion the notion that racial considerations, when predominant, are suspect, and sought to turn the redistricting process away from race, (21) the second-generation racial gerrymandering cases arguably do something different. They express a demand for more finely tuned calibration of racial considerations, rather than a suspicion of race as an appropriate redistricting criterion altogether. (22)

That is because these cases--or at least, the plaintiffs' animating concerns in these cases--are fundamentally not about instantiating colorblindness as a procedural goal, but rather addressing the substantive goal of reversing the deleterious effects that post-2010 redistricting plans have had on the political influence of communities of color in many places. Instead of efforts to stamp out racial considerations, these cases are better understood as attempts to remediate purposeful efforts to cabin the influence of minority voters. In other words, these cases seek to root out intentional efforts to discriminate on the basis of race. (23)

What does this mean as a prescriptive matter? Here I am more equivocal. The second-generation racial gerrymandering cases have been extremely successful, and I am not suggesting abandoning them. (24) Meanwhile, with respect to partisan-centric strategies, I agree that civil rights advocates should explore and develop nonrace-based legal theories. Nonetheless, I suggest that we consider bringing intentional racial discrimination claims more frequently, or at least recasting the racial predominance inquiry in intent-based terms. (25) Below, I will attempt to sketch out some preliminary thoughts as to what such claims might look like in practice. (26) Bringing such claims may be difficult, because they require additional evidence of intent that is not typically necessary for Shaw I claims. But retraining these cases around intentional discrimination rather than racial predominance would be more broadly consistent with how the civil rights community understands these particular redistricting battles, and racial justice disputes more generally. (27)

1. SOMETHING OLD: EXCESSIVE RACE CONSCIOUSNESS?

   The first way of understanding the recent wave of racial gerrymandering cases is to conceptualize them as just another set of racial gerrymandering cases akin to Shaw I. The story goes something like this: whereas conservatives developed the racial gerrymandering cause of action to challenge redistricting plans featuring majority-minority districts as relying excessively on race, (28) now it is conservatives who are drawing majority-minority districts and, in so doing, are improperly employing racial considerations. (29) And they must be held to the same standards proscribing excessive racial considerations in the redistricting process. The identity of the perpetrators has changed but the basic harm is essentially the same.

   There is both a descriptive claim here (that the new racial gerrymandering cases are, in essence...