Sued If You Do, Sued If You Don't: Section 2 of the Voting Rights Act as a Defense to Race-Conscious Districting
Suppose that you work on a state legislative committee charged with drafting maps of your state’s electoral districts. Recently, constituents have contacted their representatives in the legislature to complain that the current district lines significantly dilute the influence of minority votes in some areas of the state. The constituents demand a change and warn that, in the event that no change is made, they will bring a lawsuit against the state under § 2 of the Voting Rights Act of 1965. After studying the relevant law, your committee agrees that the current district plan may contravene § 2, which prohibits states from adopting plans that result in minority-vote dilution. To avoid litigation, your committee decides to draft a new district plan to remedy the § 2 violation. In choosing a strategy for drafting the remedial plan, your committee decides that it must account for racial demographics. After all, a strictly race-neutral methodology might fail to effectively correct the § 2 violation, or it might inadvertently give rise to a separate § 2 violation in another part of the state.
But pursuing a race-conscious approach may be no better than jumping out of the frying pan and into the fire. The problem is that while race-conscious remedial districting may avert litigation over a § 2 violation, it simultaneously opens the door to a lawsuit in which the remedial plan may be challenged as an unconstitutional racial classification under the Fourteenth Amendment’s Equal Protection Clause. A state that finds itself potentially in violation of § 2 is thus placed in a seemingly “impossible position.” Whether it decides to forgo or pursue raceconscious remedial districting, the state leaves itself exposed to liability for violating either § 2 of the Voting Rights Act or the Equal Protection Clause, respectively.
In an effort to resolve this predicament, a few states have responded to equal protection racial gerrymandering challenges by arguing that compliance with § 2 constitutes an affirmative defense against claims of race-conscious districting. Whether such a § 2 defense is legally cognizable, however, is a question that remains unresolved. The issue of the defense’s viability has been raised twice before the United States Supreme Court, but both times the justices have expressly declined to address it. As a result, state governments—as well as courts and districting litigation plaintiffs—have been left without answers to critical questions about the extent to which § 2 requires, justifies, or forbids the incorporation of race-conscious principles in the design of electoral districts. Thus, on the question whether § 2 necessitates or permits race-conscious districting, Alabama Solicitor General Andrew Brasher spoke for many when he confessed during oral argument in a recent racial gerrymandering case: “I really honestly do not know how Section 2 would necessarily apply.”
Given the frequency of districting litigation, questions about the proper application of § 2 demand resolution. This Comment endeavors to answer those questions.