Document Type

Commentary

Publication Date

2006

Abstract

LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, has identified a Section 2 violation in a merits case since Congress amended the statute in 1982. In so doing, Justice Kennedy posits a distinct conception of the role of race in the districting process, one that prohibits districts drawn to construct racially-defined political communities as well as districts that impair the political power of existing communities. This approach neither removes race from the decision-making calculus nor tempers its prominence, but instead channels its use to designated ends. The approach differs from that taken by the Chief Justice, who lamented this “sordid business, this divvying us by race,” but would have done nothing to restrain the institutions most responsible for doing so. Justice Kennedy’s opinion also demonstrates both how partisan gerrymandering shapes claims under the Voting Rights Act, and how the Act may provide a meaningful curb on such gerrymandering. LULAC specifically restrains the use of incumbency protection as a districting principle, at least insofar as its application dilutes the voting strength of a racial minority. More generally, LULAC ’s identification of racial vote dilution in Laredo but not in Fort Worth suggests a nascent conception of political harm to voters regardless of race when a political 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.