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Excerpted from: L. Darnell Weeden, Equal Voting Rights Require Removing Race and Partisan Discrimination from Elections and Legislative Gerrymandering, 79 Louisiana Law Review 781 (Spring, 2019) (197 Footnotes) (Full Document)

Judge Mark Walker ruled on February 1, 2018 that Florida's vote-restoration process had wrongly impacted 1.5 million Floridians' right to vote. A Republican-led clemency board implemented this process, headed by Governor Rick Scott. being criticized for violating the Fourteenth Amendment of the United States Constitution, Governor Scott joined other Republican state politicians facing legal backlash from laws that courts have determined legislators intentionally enacted to discriminate against African-Americans attempting to participate in the political process or vote. the past two years, courts have held that Texas, North Carolina, and Ohio practiced racial gerrymandering in an unlawful attempt to disenfranchise African-American voters.

Civil rights experts contend the verdict against Florida's vote-restoration process may refocus the nation's eyes on the connections between voting rights, race, and Republican politics. Walker viewed the arbitrary nature of the Florida voter-restoration scheme as part of an expanding trend in which Republican partisans--because of the U.S. Supreme Court's rollback of federal voting protections for racial minorities--are now trying to utilize voter identification and legislative gerrymandering to create a permanent electoral advantage. Judge Walker stated, “This court is not blind to nationwide trends in which the spigot to access the United States' most 'precious' and 'fundamental’ right, the right to vote, depends on who controls the levers of power.” Judge Walker declared in his order, “[t]hat spigot is turned on or off depending on whether politicians perceive they will benefit from the expansion or contraction of the electorate.” Walker's opinion sends the message that the right to vote is so precious that the government should protect it regardless of which political party has access to power.

Part I of this Article challenges the United States to reevaluate and protect the fundamental right to vote against racial targeting.

Part II contends that the U.S. Supreme Court should reject the belief that race could be justified as a factor in legislative gerrymandering because race is too sensitive a factor to be considered when gerrymandering. Part II also argues that any consideration of race taints the equality principle, and the Court should reverse its 2001 holding in Easley v. Cromartie. II also discusses Cooper v. Harris, the Court decided 16 years after Easley. Cooper reveals how the Court repeated its failure in Easley by holding that reapportioning congressional districts required racial neutrality to promote nondiscrimination in an electoral democracy.

Part III argues that the Court should reject partisan gerrymandering because partisanship has evolved into a proxy for maximizing racial bloc voting patterns. Part IV concludes with a practical solution for courts to handle gerrymandering cases by respecting conformity with traditional districting principles, such as compactness and respect for county lines, as long as those districts are established free of any partisan or racial considerations.

[. . .]

Determining whether the design of a congressional district is motivated by either a racial or partisan reason poses a virtually impossible challenge for a federal court. If the U.S. Supreme Court continues to allow fake partisan political advantage to be a factor in deciding redistricting cases alleging a real racial gerrymander, virtually everyone will raise the fake-partisan-politics defense. The prestige of the Supreme Court is at risk if it is perceived as endorsing either a fake-partisan-politics claim to provide cover for racial targeting in redistricting or permitting partisan political advantage to exist at the expense of fair representation in the nation's congressional districts.

The most practical way for the Supreme Court to make progress in situations involving redistricting is by respecting conformity to traditional districting principles, such as compactness and respect for county lines as long as those districts are established free of partisan politics or racial considerations. The government should delete race and partisan politics from redistricting because political and racial reasons are capable of yielding similar oddities that block a district's ability to produce fair representation within its boundaries. The similar results, which block the goal of fair representation in our democracy, exist because racial identification is interrelated to political involvement. As a result of these highly correlated redistricting realities, the Supreme Court has a formidable task of instructing lower courts in gerrymandering cases to engage in “a sensitive inquiry” into all “circumstantial and direct evidence of intent” to assess whether the plaintiff can simply prove that either race or partisanship was a factor in establishing a district's lines. As soon as possible, the Court should prohibit the use of race and partisan politics as factors in redistricting because the secondary effects produced by both unnecessarily obstruct the democratic goal of fair representation in Congress and state legislative houses.

Associate Dean for Faculty Development and Research, Roberson King Professor, Thurgood Marshall School of Law, Texas Southern University; B.A., J.D., University of Mississippi.