An “underrule” occurs when the Supreme Court renders a decision diametrically opposed to a prior case without explicitly overruling the prior case. With the decision in Alexander v. South Carolina State Conference NAACP (2024), the Court has now issued two underrules during the development of its racial gerrymandering jurisprudence. These underrules, particularly in a politically sensitive area such as racial gerrymandering, undermine confidence in the judiciary. But underrules are nothing new to doctrinal development in the realm of race and redistricting. The Court also issued two underrules as it developed vote dilution jurisprudence during the mid-1970s to the early 1980s. Congress, though, intervened to solve the problem of vote dilution underrules by amending Section 2 of the Voting Rights Act in 1982. This Article explores the racial gerrymandering underrules, puts them in appropriate historical context given what occurred with vote dilution doctrine, and relies on that history to explore avenues that could be pursued to end the cycle of underrules that have come to plague racial gerrymandering doctrine.
Re-Legislating Section 2 of the Voting Rights Act:
Allen v. Milligan (2023), a challenge to Alabama’s congressional districts that invoked the results standard from Section 2 of the Voting Rights Act, was a surprising decision because many thought a conservative majority of the Supreme Court might completely unravel the statute. Instead, a five-Justice majority used the same standard for Section 2 vote-dilution claims that has been used since the results standard was first enacted in 1982. However, the key fifth vote in Allen came from Justice Kavanaugh who indicated that vote-dilution doctrine could not go on forever. Moreover, much has changed since Congress first enacted the results standard, including, among other things, shifts in the predominant type of challenge brought from at-large/multimember electoral structures to single-member districts, the advent of racial gerrymandering doctrine, and the embrace of textualism by the federal judiciary. Given the shaky ground on which Section 2 vote-dilution doctrine appears to stand and given all the changes that have occurred since the creation of that doctrine, this Article advocates that the time has come for Congress to revisit the statute. After making the case for a congressional revisit, the Article proposes some concrete revisions. Important, in proposing such revisions, the Article seeks to find a middle ground that retains important aspects of vote-dilution doctrine while simultaneously attempting to make the statute palatable to conservative politicians and Justices.