In addition, the Supreme Court often has the option of making a Democratic gerrymander become justiciable by characterizing it as racial rather than partisan in nature. In cases like Shaw, where white electoral strength is reduced through the creation of majority-minority voting districts, the Court intervenes to hold those districts unconstitutional, finding them to be justiciable because they are racial gerrymanders. True, the Court will uphold some racial gerrymanders that benefit minorities, and invalidate some that benefit whites. But on balance, whites will derive a net benefit from treating racial gerrymanders as justiciable. And by gerrymandering the line that separates justiciable from nonjusticiable claims, the Supreme Court will have succeeded in helping whites to preserve the political advantage that they have over racial minorities.

Part I of this Article describes the Supreme Court’s current justiciability rules for gerrymandering claims. Section I.A explains how the Court finds partisan gerrymandering claims to be nonjusticiable political questions. Section I.B explains how the Court finds racial gerrymandering claims to be justiciable. Part II inverts the Court’s justiciability rules, showing how they can be applied in a way that produces the opposite of the results that the Court found them to produce. Section II.A explains how partisan gerrymandering claims can be found justiciable. Section II.B explains how racial gerrymandering claims can be found nonjusticiable. Part III argues that the Court’s gerrymandered justiciability decisions create a sphere of unconstrained judicial discretion that the Court will end up exercising in a way that protects white electoral advantage from the threat of equalization through either partisan or racial gerrymandering. Section III.A argues that the Court’s decisions have the effect of diluting minority votes and reducing minority voting strength. Section III.B argues that such protection of white interests is consistent with the role that the Supreme Court has played throughout the history of race relations in the United States. The Article concludes that neither political nor judicial efforts are likely to secure electoral equality for either political or racial minorities, because the Supreme Court will not compel the mathematical proportionality that offers the only realistic hope of ever achieving the equality needed for genuine democratic self-governance.

Continue reading Gerrymandering Justiciability.