Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well have salutary effects. The argument is premised both on the belief that the Court was right to reject the recent challenges to partisan gerrymandering as well as the conviction that a workable principle to restrain the practice awaits implementation. This Article focuses on LULAC v. Perry, the most recent example of the sort of judicial decision about which election law scholars fret. Unable to articulate any constitutional problem with a blatant partisan gerrymander in Texas, the Supreme Court found traction under the Voting Rights Act (VRA) and held that a portion of that gerrymander diluted minority voting strength in the southwest portion of the state. More specifically, the Court 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.
Katz, Ellen D. "Reviving the Right to Vote." Ohio St. L. J. 68, no. 4 (2007): 1163-84.