William & Mary Law Review


Megan B. Kelly


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. On the other hand, the VRA suggests, and in fact requires, line-drawers keep at least one eye on race when drawing lines.

These opposing rights create a tension, which is enhanced by the tests and standards that courts have implemented to enforce both rights. 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. 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. 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. In practice, this looks like line-drawers creating a district in which there are “too many” voters of color.2 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).

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.