ACS Supreme Court Review (Symposium), Forthcoming
18 Pages Posted: 14 Jun 2017 Last revised: 10 Sep 2017
Date Written: June 13, 2017
The United States Supreme Court, like the Lord, sometimes works in mysterious ways.
Back in the 1990s, a group of conservative activists convinced a majority of conservative Justices on the United States Supreme Court to create a new cause of action under the Fourteenth Amendment’s Equal Protection Clause for “racial gerrymandering.” Unlike claims of “vote dilution” — where redistricting authorities draw lines for electing members of Congress, or state or local legislators to order to diminish someone’s political power — “racial gerrymandering” was said to be about an “expressive harm,” or the message sent by government action. In the 1993 case, Shaw v. Reno, the Court held that the “bizarre” shape of two North Carolina congressional districts sent a message to the public that the government was separating voters on the basis of race without adequate justification. The Court later refined the claim to focus less on a district’s shape and more on a legislature’s “predominant motive” in taking race into account in constructing districts. Some liberals and others objected that the racial gerrymandering claim made no sense either as an empirical matter, because people did not get any “message” from the shape of district lines in these racially integrated districts, or normatively, because “expressive harms” were not real harms. For a variety of reasons, racial gerrymandering claims mostly disappeared after the early 2000s.
More than two decades after Shaw, the racial gerrymandering claim has been resurrected, but in a form almost beyond recognition. By the 2016 Supreme Court term, minority voters and Democrats regularly used the racial gerrymandering cause of action to attack Republican gerrymanders in states with large minority populations. It had become another tool for voting rights activists. The transformation became complete in the Supreme Court case of Cooper v. Harris, where the Court recognized that a state’s strong use of race in districting to achieve partisan ends or suppress minority voters’ power violated the Constitution.
Harris reveals the malleability of Supreme Court constitutional doctrine, especially in the area of election law. But again, like the Lord, what the Supreme Court giveth, it could also taketh away, and it would not be surprising to see a new, more conservative Supreme Court revert to its original treatment of the gerrymandering claim as a tool to limit minority voting power.
Keywords: Racial Gerrymandering, Voting Rights Act, Shaw v. Reno, Cooper v. Harris, Equal Protection Clause
Suggested Citation: Suggested Citation
Hasen, Richard L., Resurrection: Cooper v. Harris and the Transformation of Racial Gerrymandering into a Voting Rights Tool (June 13, 2017). ACS Supreme Court Review (Symposium), Forthcoming; UC Irvine School of Law Research Paper No. 2017-32. Available at SSRN: https://ssrn.com/abstract=2985755