ESSAY: THE RIDDLE OF RACE-BASED REDISTRICTING

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality. To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause did not apply to political rights. Indeed, the Fifteenth Amendment enfranchised Black men nationwide. The Reconstruction Framers debated whether the Fifteenth Amendment also protected the right to hold office, but they barely discussed redistricting. This Essay then turns to postratification evidence. The Enforcement Acts did not regulate the use of race during redistricting. During the 1870 and 1880 redistricting cycles, Republican Southern states empowered Black voters whereas Democratic Southern states packed and cracked them. This Essay argues that, from an originalist perspective, the competing doctrines of vote dilution and racial gerrymandering are improperly grounded in the Equal Protection Clause. This Essay further claims that, under the Fifteenth Amendment, there is some historical evidence in favor of vote dilution doctrine but virtually no historical support for racial gerrymandering doctrine. The upshot is that Section 2 is valid legislation under Congress’s Fifteenth Amendment enforcement authority to protect the rights to vote and hold office.