studying the relevant law, your committee agrees that the cur­ rent district plan may contravene §2, which prohibits states from adopting plans that result in minority-vote dilution.2To avoid litigation, your committee decides to draft a new district plan to remedy the § 2 violation. In choosing a strategy for draft­ ing the remedial plan, your committee decides that it must ac­ count for racial demographics. After all, a strictly race-neutral problem is that while race-conscious remedial districting may avert litigation over a § 2 violation, it simultaneously opens the door to a lawsuit in which the remedial plan may be challenged as an unconstitutional racial classification under the Fourteenth Amendment’s Equal Protection Clause.*5A state that finds itself potentially in violation of § 2 is thus placed in a seemingly “im­ possible position. 6Whether it decides to forgo or pursue race­ conscious remedial districting, the state leaves itself exposed to liability for violating either § 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 § 2 constitutes an affirmative defense against claims of race-conscious districting. Whether such a § 2 defense is legally cognizable, however, is a question that remains unresolved. The issue of the defense’s viability has been raised twice before the United States Supreme Court, but both times the justices have expressly declined to address it.7As a result, state governments—as well as courts8and districting-

litigation plaintiffs9—have been left without answers to critical questions about the extent to which §2 requires, justifies, or forbids the incorporation of race-conscious principles in the de­ sign of electoral districts. Thus, on the question whether § 2 ne­ cessitates or permits race-conscious districting, Alabama Solici­ tor General Andrew Brasher spoke for many when he confessed during oral argument in a recent racial gerrymandering case: “I When a court strikes down a state s district plan, it may become responsible for redrawing that state’s district lines by judicial order. In fulfilling that responsibility, courts have a direct interest in knowing the extent to which § 2 requires or permits race­ conscious districting because courts too must avoid redistricting in a manner that vio­ lates the Voting Rights Act or the Equal Protection Clause. See Abrams v Johnson, 521 US 74, 79 (1997), citing Upham v Seamon, 456 US 37, 43 (1982).

9 Districting-litigation plaintiffs sometimes propose remedial district plans for adoption by judicial order; thus, they also have an interest in the resolution of these is­ sues. See, for example, Georgia State Conference of the NAACP v Fayette County Board of Commissioners, 950 F Supp 2d 1294, 1303 (ND Ga 2013) (questioning the extent to which the plaintiffs proposed remedial district plan could permissibly account for race).

2015] Sued If You Do, Sued If You Don’t 1661 really honestly do not know how Section 2 would necessarily 

a p p l y . ” 10
Given the frequency of districting litigation,*11 questions

about the proper application of §2 demand resolution. This Comment endeavors to answer those questions. Part I canvasses the legislative history of § 2 and provides an overview of the doc­ trinal frameworks governing federal claims of vote dilution and racial gerrymandering. Part II examines the various attempts that states have made to raise the § 2 defense in response to ra­ cial gerrymandering and state constitutional claims. Finally, Part III argues that § 2 indeed offers a legally cognizable de­ fense against claims of racial districting, for both doctrinal and normative reasons. It then envisages how courts could apply the

§2 defense in a way that would benefit states raising the de­ fense in good faith but filter out states merely seeking to evade liability for unjustifiable race-based action. In light of the de­ fense’s application in the contexts of vote dilution and racial ger­ rymandering, Part III also explains that states might avoid vio­ lations of both § 2 and the Equal Protection Clause by creating racially integrated coalitional districts.”  

Gerrymandering is a tool for the elite and for the majority to allow incumbents to continually succeed, and allow minority votes to be worthless. Wong explores the exploitation of a minority’s right, by identifying Gerrymandering as a tool for a dominant ideology/person/political party to continue to get a say and not be challenged.

(1)”History Of Federal Voting Rights Laws.” History Of Federal Voting Rights Laws. N.p., n.d. Web. 20 Nov. 2015.