The Supreme Court’s opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them. In other words, the courthouse doors are open, but until some plaintiff advances a novel theory persuasive to five justices, no claims will succeed. On the other hand, few expected the Court to make any major changes to doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC did. One change, in fact, may have far-reaching consequences. In an unexpected turn, the Court adopted a new requirement—cultural compactness— under Section 2 of the Voting Rights Act. This requirement reflects a theoretical perspective that many progressive theorists of race and gender have long advocated: anti-essentialism. That, by itself, is surprising. In what follows, I lay out how LULAC developed this requirement and what it may mean to voting rights law and to antidiscrimination law more generally. If it is taken seriously, the lesson may be bittersweet: be careful what you wish for.
Daniel R. Oritz,
Mich. L. Rev. First Impressions
Available at: http://repository.law.umich.edu/mlr_fi/vol105/iss1/19