Over the next week or so, I plan to highlight some interesting but less obvious points about the Supreme Court’s decision in the Shelby County case. I briefly mention these points in my just-posted APSA draft, Shelby County and the Illusion of Minimalism. Today’s post concerns something odd I saw in Justice Ginsburg’s dissent. From my draft at fn. 140:
The dissenting opinion also contains a major irony. Justice Ginsburg explains that with “first generation barriers” to the right to vote (such as literacy tests) eliminated, Section 5 now protects against “second generation barriers,” such as the use of at-large elections rather than legislative districts to dilute minority voting strengths. Yet the first of these second-generation barriers Justice Ginsburg lists is “racial gerrymandering.” Shelby County, at *22 (dissenting opinion) (“Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an ‘effort to segregate the races for purposes of voting.’”). Shaw v. Reno, 509 US 630 (1993) first recognized the racial gerrymander cause of action as an equal protection claim distinct from a vote dilution claim. Justice Ginsburg and the other liberals dissented in Shaw, and they have continued to dissent from this line of cases. Adding to the irony, in these cases it appears that covered jurisdictions drew lines which constituted “racial gerrymanders” precisely to comply with the Department of Justice’s objections under a strong reading of section 5 of the VRA. See Daniel Hays Lowenstein, You Don’t Have to Be a Liberal to Hate the Racial Gerrymandering Cases, 50 Stan L Rev 779 (1998). Whatever one can say of the merits of Section 5, it is hard to believe that its continuation would minimize the number of successful racial gerrymandering claims.