Underruling Voting Rights

Abstract

An “underrule” occurs when the Supreme Court renders a decision diametrically opposed to a prior case without explicitly overruling the prior case. With the decision in Alexander v. South Carolina State Conference NAACP in 2024, the Court has now issued two underrules during the development of its racial gerrymandering jurisprudence. These underrules, particularly in a politically sensitive area such as racial gerrymandering, undermine confidence in the judiciary. But underrules are nothing new to doctrinal development in the realm of race and redistricting. The Court also issued two underrules as it developed vote dilution jurisprudence during the mid-1970s to the early 1980s. Congress, though, intervened to solve the problem of vote dilution underrules by amending Section 2 of the Voting Rights Act in 1982. This article explores the racial gerrymandering underrules, puts them in appropriate historical context given what occurred with vote dilution doctrine, and relies on that history to explore avenues that could be pursued to end the cycle of underrules that have come to plague racial gerrymandering doctrine.