YOU CAN'T HAVE YOUR VOTE AND DILUTE IT TOO: CLOSING THE VOTING RIGHTS ACT LOOPHOLE IN GERRYMANDERING CLAIMS.

INTRODUCTION

Imagine sitting down with a blank page, extensive instructions on what to draw, and thousands of potential ways to draw the picture. You are told that there is no objectively correct way to draw the picture, but there could very well be an incorrect way. Nonetheless, you receive countless and conflicting versions of the correct way to approach this task. More importantly, if you draw incorrectly, your decision could detrimentally impact tens of thousands of lives. You have fewer than 100 days to complete the job. (1) This is the process of legislative redistricting.

Every ten years, the United States becomes a canvas. At the turn of each decade, legislators and commissions gather in various forms to redraw the legislative districts in America. (2) This is an arduous and daunting task that has significant ramifications. The factors that these line-drawers (3) must, should, and do consider are numerous. (4) At the start, a handful of "traditional redistricting principles" inform the drawing of lines." These principles include compactness, contiguity, preserving communities of interest, and adhering to existing political boundaries. (6) Simply adhering to the traditional factors can create significant challenges. And the challenges do not stop at basic policy choices; they extend deep into the legal realm.

In drawing legislative lines, significant legal obligations bind linedrawers, and line-drawers can suffer repercussions for drawing districts improperly.' As a baseline consideration, each district must have substantially the same number of voters. (8) Additionally, although redistricting is a delicate and demanding task, line-drawers must conform district lines to equal protection standards. (9) In 1965, Congress added yet another layer to these legal obligations by passing the Voting Rights Act of 1965 (VRA). (10) The Act aimed to provide specific protections to voters so that they would not be discriminated against in the voting process "on account of race or color." (11) Should the line-drawers fall short of upholding these obligations, courts can find the bounds unconstitutional, sometimes forcing the line-drawers to begin the process all over again. (12)

The task of balancing competing interests--including policy goals, traditional considerations, and legal obligations--places linedrawers in tricky situations. If the line-drawers strike an imbalance, litigation often follows. (13) And although courts had long hesitated to wander into the "political thicket," they are now deeply entrenched in adjudicating redistricting controversies. (14) As courts aim to interpret and enforce the legal obligations inherent in redistricting, they begin to encounter a particularly thorny thicket. In racial gerrymandering cases that involve compliance with VRA section 2, many of these thorns are the Supreme Court's and Congress's own making. (15)

The problem with creating and enforcing redistricting standards arises poignantly in racial gerrymandering cases that involve VRA section 2 compliance. In many ways, the rights that the Equal Protection Clause seeks to protect are at odds with the rights that section 2 seeks to protect. On the one hand, equal protection asserts a certain color-blindness, an interest in minimizing the focus on race and, in doing so, maximizing equality for all. (16) On the other hand, the VRA suggests, and in fact requires, line-drawers keep at least one eye on race when drawing lines. (17)

These opposing rights create a tension, which is enhanced by the tests and standards that courts have implemented to enforce both rights. (18) Consistent with the color-blind aims of equal protection, in gerrymandering claims, a court's first inquiry is into race predominance--the extent to which it appears that line-drawers primarily considered race in their drawing of the lines. (19) In addressing section 2 claims, on the other hand, a court's primary inquiry is into the outcomes and effects of the district on racial minorities. (20) Put simply, equal protection demands that line-drawers do not pay attention to race; the VRA demands that they do. This tension creates a potential loophole--a situation in which line-drawers can assert compliance with section 2, but in fact dilute the minority vote by drawing a racial gerrymander. (21) In practice, this looks like linedrawers creating a district in which there are "too many" voters of color. (22) In creating the district, the line-drawers may assert that they were forced to draw the lines as they did to comply with the VRA's requirements. In reality, they may have intentionally or inadvertently "diluted" minority voting strength by "packing" voters of color in one district (thereby robbing the voters of the opportunity to make their voices heard across the state). (23)

This Note analyzes the loophole as a consequence of courts enforcing the "competing" rights that the Equal Protection Clause and the VRA protect. It contemplates the problems that these consequences pose and proposes a new framework for courts to use when they approach these cases. Part I provides a background as to how the Supreme Court arrived at each of the relevant standards: the race predominance test for racial gerrymandering cases and the "effects test" for VRA cases. Next, Part II discusses the problems that these tests create when they interact, specifically how the tests can create an avenue for line-drawers to discriminate based on race or dilute minority votes, whether intentionally or inadvertently.

Part III proposes a framework to address these concerns that considers the broader realities and impacts of the two tests. That Part argues that courts should establish a presumption of race predominance for racial gerrymandering cases in which section 2 compliance serves as the government's compelling interest. Further, when evaluating narrow tailoring, courts should analyze whether the district, as drawn, has in fact diluted minority votes by asking whether the line-drawers included more voters of color in the district than reasonably necessary to comply with the VRA. If so, courts should find that the district is not narrowly tailored to the state's interest in complying with the VRA. Lastly, Part IV addresses potential critiques of this framework, including the Court's over-involvement in the "political thicket," concerns that this Note's proposal could work against the interests of the VRA, and questions as to the usefulness of this framework, especially if the Supreme Court were to strike down section 2 in the coming years. (24)

1. INTO AND AROUND THE THICKET: HOW GERRYMANDERING AND VOTING RIGHTS ACT STANDARDS EMERGED

   Although line-drawers have been drawing legislative districts in the United States for centuries, racial gerrymandering claims did not emerge until the late 1950s, and VRA claims emerged over a decade later. (25) There are obvious reasons for this emergence--namely, the abolition of slavery, the passage of the Fifteenth Amendment, and the continued increase in Black civic participation from the late nineteenth century into the early twentieth century. (26)

   This Part outlines the emergence of both racial gerrymandering and section 2 claims by describing the fundamental statutes and cases that formed today's standards. Section A reviews the historical and social conditions that led to the quintessential gerrymandering case, Gomillion v. Lightfoot, and how that case established the initial racial gerrymandering principles. (27) Next, Section B outlines the events leading to the passage of the VRA and the back-and-forth creation of standards between the Supreme Court and Congress in their aftermath. Finally, Section C addresses the current standards that have been refined by decades of case law and the loophole that those standards have created.

   1. The Emergence of Racial Gerrymandering Claims

      Although the term "gerrymandering" was recognized in the United States as early as 1812, (28) the racial gerrymander did not make its way into the courts until 1960 in Gomillion. (29) In the aftermath of World War II and the Civil Rights Act of 1957, activists were registering a significant number of Black voters in Tuskegee, Alabama. (30) The increase in Black voter registration began to drastically change the makeup of the predominantly white electorate. (31) In light of these social movements toward equality, a state senator introduced legislation to redraw the boundaries of the county more favorably for white voters. (32) The Act created an "uncouth twenty-eight-sided figure" that removed over 400 Black voters from the district, leaving merely four or five Black voters inside the district. (33) The Supreme Court struck down the map as a racial gerrymander. (34) Finding that the State asserted no compelling interest to combat the allegations of race discrimination, but instead asserted unbridled power in political decision-making, the Court held that the State's actions amounted to a violation of equal protection. (35) Thus, it became clear that states could violate an individual's equal protection rights by drawing legislative districts in an overtly discriminatory manner. (36) And so the racial gerrymander was born.

   2. The Emergence of the Voting Rights Act

      Shortly after Gomillion, in 1965, Congress passed the historic VRA, aimed at strengthening protections for minority voters. (37) In section 2 of the Act, Congress enacted the broad provision that "[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed... to deny or abridge the right of any citizen of the United States to vote on account of race or color." (38) This provision was quite unique and would ultimately come to cast a much wider net than the Gomillion Court intended the Equal Protection Clause to cover in this context. (39) Section 2 would not only be used to invalidate practices that overtly denied minority voters the right to vote, but it...