The final version of Justin Levitt’s must read piece on the relationship between the VRA’s districting requirements and racial gerrymandering claims is now out from the FSU Law Review and available at SSRN. It is just in time as the Supreme Court gears up to hear two racial gerrymandering cases in the next term. Here is the abstract:
The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and reappears with dogged consistency on the docket of the Supreme Court. Most recently, the Court resolved a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the Court correctly decided the narrow issue before it, the litigation posture of the case hid the fact that Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act — substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands.
This short and timely Article is the first to survey the ways in which multiple jurisdictions in this redistricting cycle have substituted a rough sketch of the Voting Rights Act for the real thing. It argues that while the actual statute is tailored and nuanced, appropriately calibrated for a millennial approach to race relations, the demographic shorthand has at its heart a profound and pernicious racial essentialism. Replacing the real statute with the imagined one has a detrimental policy impact — but perhaps more sinister, it also creates unnecessary constitutional danger for the Voting Rights Act as a whole. Courts must see the cartoon for what it is.