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.

To make out a racial gerrymandering claim a plaintiff must show that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within a specific district.

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

Clause.

    Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor historically disenfranchised groups. The state can use traditional factors—such as compactness, contiguity, or honoring political subdivisions—as the bases for the district, and it may only consider race if it does not predominate over other considerations. A district's bizarre shape can be used as evidence that race was a predominating factor, but such a shape is not necessary for a finding of racial gerrymandering. The Voting Rights Act (42 U.S.C. § 1973 et seq.) requires racial gerrymandering to ensure minority success in elections by creating majority-minority districts (i.e., affirmative gerrymandering).

Until recently, the Act required federal pre-clearance for changes in voting rules, including redistricting, for specific southern states and a few other local governmental units. However, the formula used as a basis for subjecting jurisdictions to preclearance has been declared unconstitutional because it no longer reflects current conditions; therefore, it can no longer be used. Receiving federal pre-clearance for a redistricting plan does not ensure that plan will avoid conflicting with the Equal Protection Clause. Partisan political gerrymandering may violate the Equal Protection Clause if the challenger can show "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." However, lack of comprehensive and neutral principles for drawing electoral boundaries as well as the absence of rules to confine judicial intervention can prevent adjudication of political gerrymandering claims.