Reviving the Right to Vote

Abstract

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly racialize fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. This Essay argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well have salutary effects. The focus is on the Supreme Court's recent decision in LULAC v. Perry, the most recent example of the sort of judicial decision about which election law scholars fret. Unable to articulate any constitutional problem with a blatant partisan gerrymander in Texas, the Supreme Court found traction under the Voting Rights Act and held that a portion of that gerrymander diluted minority voting strength in the southwest portion of the State. A close reading of that holding as well as the Court's refusal to provide relief on a related claim brought by African-American voters in Fort Worth reveals that the race-based injuries presented in LULAC were hardly an ancillary distraction obscuring the core dispute, but instead, a predictable consequence of the gerrymander itself. As important, the surprising manner in which the Court resolved the VRA claims suggests a nascent conception of political harm experienced by all voters when system is rigged to block competition. In other words, LULAC suggests that Justice Kennedy may find within the Voting Rights Act itself the standard he has been seeking for managing claims of partisan gerrymandering.