For a generation, state and local governments have faced a Goldilocks problem when they redistrict. Courts require them to use race to design districts in order to comply with Section 2 of the Voting Rights Act, but they invalidate maps under the 14th Amendment to the U.S. Constitution when racial considerations “predominated” in the drawing of districts. Seemingly every approach state and local governments have taken to try to draw districts that would comply with these dueling requirements leaves them in the crosshairs of plaintiffs and the federal judiciary: ignoring race entirely, following bright-line concentration rules established by Supreme Court precedents to assure protected classes’ voting power, deferring to the requests presented by representatives of protected classes, deferring to the decisions of nominally non-partisan redistricting panels, and more. There is also an obvious disconnect between voting reformers’ complaints about our current redistricting systems and those reformers’ proposed solutions. Almost no proposal on offer would solve these problems, and almost every proposal on the table would actually make them worse. Indeed, even the remedies imposed by courts have been attacked in later litigation as violating one or both of Goldilocks’ warring demands.
But there is a solution to the Goldilocks problem. State and local governments can avoid further redistricting litigation under both the Constitution and Section 2 by simply getting out of the game and drawing no districts whatsoever.
This piece originally ran, along with a response from Kevin St. John and a reply from the author, in The Federalist Society Review, Vol. 21.