Redistricting and Discriminatory Purpose

State and local governments covered by the preclearance provision in Section 5 of the Voting Rights Act will soon be submitting their redistricting plans to the federal government (most often the United States Attorney General) for approval. The Attorney General can deny preclearance to a redistricting plan by finding that the plan violates Section 5’s discriminatory purpose standard. Currently, no detailed framework has been developed for determining when a redistricting plan fails to satisfy the discriminatory purpose standard. This Article fills that void by proposing such a framework - one built from judicial opinions, statutory language, legislative history, executive branch enforcement, and “politics as markets” theory.

In addition, this Article argues that development of a manageable framework for enforcing the discriminatory purpose standard in the redistricting context is necessary in order to satisfy a Supreme Court that in Northwest Austin Municipal Utility District No. 1 v. Holder (2009) expressed deep skepticism about the future constitutional viability of Section 5.