Daniel P. Tokaji, The Story of Shaw v. Reno: Representation and Raceblindness (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=8965.
Abstract: In Shaw v. Reno, the United States Supreme Court imported the qualified colorblindness principle from its affirmative action cases, allowing white North Carolinians to challenge majority-black districts created under pressure from the U.S. Department of Justice. This chapter in the forthcoming Race Law Stories volume tells the story behind the Shaw case.
The chapter starts by reviewing the history of racial politics in North Carolina and other southern states, a critical part of Shaw’s story, though one almost entirely omitted from the Supreme Court’s opinion. Before enactment of the Voting Rights Act of 1965, blacks were largely prevented from voting or even registering throughout the South. Even after formal barriers to participation were eliminated in the 1960s and 1970s, relatively few African Americans were elected to Congress from southern states. That changed in the 1990s, partly due to the Justice Department’s exercise of its preclearance power under Section 5 of the Voting Rights Act. The Justice Department’s efforts to increase safe minority seats led to the litigation in North Carolina and, eventually, to the Shaw v. Reno opinion.
Drawing on the papers of the late Justice Harry Blackmun, the chapter examines the Supreme Court’s internal deliberations over the case, as well as the still-unresolved tension between race-blind and race-conscious redistricting evident in its final opinion. That opinion led some commentators and advocates to fear a reversal of the gains in minority representation that had been made through enforcement of the Voting Rights Act. But the story does not end there. North Carolina’s 1990s redistricting plans resulted in three more trips to the Supreme Court and a voting rights jurisprudence that can best be described as muddled. The uncertain status of Shaw’s legacy is compounded the changing composition of the Court, marked by the death of Chief Justice Rehnquist and the retirement of Justice O’Connor, the swing vote in the Shaw and key voting rights cases that followed. Thus, like so many stories in the area of race law, the story of Shaw v. Reno does not have an ending. If the Roberts Court is as ambivalent in its conception of meaningful representation as the Rehnquist Court, this story will remain incomplete – and Shaw’s legacy will remain vigorously contested.
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