Threading the Needle: Resolving the Impasse Between Equal Protection and Section 5 of the Voting Rights Act

When it comes to legislative reapportionment, the Peach State is in a pickle. Consider this: the results of the 1990 census entitled Georgia to an additional representative in the United States Congress, bringing the state\u27s total number of seats to eleven.\u27 In order to comply with the Voting Rights Act of 1965 (the Voting Rights Act ), the state\u27s legislative district map was re- drawn three times during the 1990s before the legal battle over redistricting finally ground to a halt in 1997. Barely giving the state\u27s General Assembly and the federal courts a chance to catch their collective breath, the 2000 census revealed that Georgia\u27s population had again increased-this time enough for two additional congressional seats. Many of the questions raised by the redistricting litigation of the 1990s have not been answered, including the problems presented by the non-retrogression principle of the Voting Rights Act. States such as Georgia, which are subject to U.S. Department of Justice preclearance for their redistricting plans, are faced with a dizzying dilemma. On the one hand, refusal to draw majority-minority districts provides states with near-certain assurance that the Justice Department will find them in violation of section 5 of the Voting Rights Act, and thus, refuse preclearance. On the other hand, drafting a plan that includes one or more majority- minority districts exposes states to lawsuits by majority white voters on the basis that such districts violate the Equal Protection Clause of the Fourteenth Amendment. States\u27 high-wire balancing act has become even more shaky in light of certain Supreme Court language and the language of the Voting Rights Act, which indicates that preclearance will not necessarily insulate a state from an equal protection claim. In a nutshell, the problem that a state faces in redrawing its congressional districts is this: in order to avoid suits alleging equal protection violations, the state must prove that race was not a predominant factor in sketching district boundaries.\u27 For a state to overcome the preclearance hurdle, however, it has to prove that its new plan complies with the section 5 non-retrogression principle, which almost always requires race-conscious districting. The states\u27 dilemma is caused by two overlapping concerns. The first problem is the way in which the Court has failed to pre- cisely define race-conscious districting. The cases brought after the 1990 census largely involved racial gerrymandering of congressional districts. Generally, the Court has held that the drawing of racially gerrymandered districts violates the Equal Protection Clause of the Constitution. Throughout the 1990s, the Court made clear that a district\u27s irregular shape may play a role in determining whether the district was drawn by impermissibly using race as the dominant factor. Yet, the Court has not clearly articulated what constitutes an irregular shape. Moreover, it is unclear if a threshold showing of irregularity is necessary, or simply sufficient, to sustain an equal protection claim. A plaintiff alleging an equal protection violation because of racial gerrymandering will have great difficulty in proving that race was impermissibly used as a factor in congressional reapportionment if irregular shape is not sufficient to sustain such a claim