What´s Racial Gerrymandering Ethical?

The Equal protection clause forbids states from engaging in “racial gerrymandering.” Racial gerrymandering occurs when a state relies on race to draw up boundaries of one or more specific electoral districts. Such gerrymandering is impermissible because it harms an individual, who is subjected to a racial classification, and the individual’s legislator, who believes his primary obligation is to represent only a specific racial group. The Supreme Court views racial gerrymandering as so egregious that states cannot escape an equal protection challenge by drawing up some districts based on race but not others. As the Supreme Court clarified in Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015), the fact that some districts are not racially motivated does not defeat a claim that other districts were.

In considering whether race is a predominant factor, one must consider to what extent was the legislator motivated by individuals’ race rather than “traditional race-neutral districting principles” (i.e. compactness, contiguity, respect for political subdivisions, incumbency protection, and communities’ political affiliations). Thus, if a legislature was primarily motivated by the traditional race-neutral districting principles, an equal protection clause challenge fails. When a state draws election districts for the purpose of scattering a racial or ethnic minority among several districts in order to prevent the minority from exercising its voting strength, the state's action is a violation of the Equal Protection