The Unwelcome Judicial Obligation to Respect Politics in Racial Gerrymandering Remedies

Authors

Jeffrey L. Fisher, University of Michigan Law SchoolFollow

Abstract

Like it or not, the attack on "bizarrely" shaped majority-minority electoral districts is now firmly underway. Nearly four years have passed since the Supreme Court first announced in Shaw v. Reno that a state's redistricting plan that is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting" may violate the Equal Protection Clause. Such a district, the Court held, reinforces racial stereotypes, carries us further from the goal of a political system in which race no longer matters, and "threatens to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole." The Court shows no signs of reconsidering this stance. Yet Shaw's constitutional harm is still often misunderstood. Shaw claims are not reverse discrimination claims. In fact, the Shaw Court took pains to emphasize that the harm caused by racially gerrymandered districts was "analytically distinct" from the previously recognized harms of vote dilution and malapportioned districts. Even when a Shaw violation occurs, each citizen's vote is still worth the same amount as every other citizen's; white voters do not suffer because the district unfairly prevents them from electing the representative of their choice. In other words, plaintiffs in Shaw claims do not suffer any cognizable harm tied to election results, but rather feel only the "expressive" injury of being subjected to a racial classification in and of itself.

Recommended Citation

Jeffrey L. Fisher, The Unwelcome Judicial Obligation to Respect Politics in Racial Gerrymandering Remedies, 95 Mich. L. Rev. 1404 (1997).
Available at: https://repository.law.umich.edu/mlr/vol95/iss5/5