| Summary: | "To avoid liability for vote dilution in violation of [Section] 2 of the Voting Rights Act, states officials sometimes engage in race-conscious remedial legislative districting. However, race-conscious remedial districting, while averting litigation over a [Section] 2 violation, simultaneously opens the door to a lawsuit in which an electoral district plan may be challenged as an unconstitutional racial classification under the Fourteenth Amendment's Equal Protection Clause. A state that finds itself in potential violation of [Section] 2 is thus placed in a seemingly "impossible position." Whether it decides to forgo or pursue race-conscious remedial districting, the state leaves itself exposed to liability for violating either [Section] 2 of the Voting Rights Act or the Equal Protection Clause, respectively. In an effort to resolve this predicament, a few states have responded to equal protection racial-gerrymandering challenges by arguing that compliance with [Section] 2 constitutes an affirmative defense against claims of race-conscious districting. Whether such a [Section] 2 defense is legally cognizable, however, is a question that remains unresolved. Both times that the issue of the defense's viability has been raised before the US Supreme Court, the justices have expressly declined to address it. As a result, state governments - as well as courts and districting-litigation plaintiffs - have been left without answers to critical questions about the extent to which [Section] 2 requires, justifies, or forbids the incorporation of race-conscious principles in the design of electoral districts. This Comment endeavors to address those questions. Part I canvasses the legislative history of [Section] 2 and overviews the doctrinal frameworks governing federal claims of vote dilution and racial gerrymandering. Part II examines the various attempts that states have made to raise the [Section] 2 defense in response to racial-gerrymandering and state-constitutional claims. Finally, Part III argues that [Section] 2 indeed offers a legally cognizable defense against claims of racial districting for doctrinal and normative reasons. It then envisages how courts could apply the [Section] 2 defense in a way that would benefit states raising the defense in good faith but filter out states merely seeking to evade liability for unjustifiable race-based action. In light of the defense's application in both the vote-dilution and racial-gerrymandering contexts, Part III also explains that states might avoid violations of both [Section] 2 and the Equal Protection Clause by creating racially integrated coalitional districts."
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