Given America’s history of racial oppression, addressing racial discrimination has been the Court’s most transformative engagement with democracy. The Reconstruction Amendments’ prohibition of racial discrimination explicitly legitimizes judicial advancement of racial equity in elections. Relying on this mandate during the Civil Rights era, the Court struck down explicitly discriminatory laws (and permitted robust congressional action) with little controversy. However, in recent decades the Court has been fiercely divided over the substance of racial equity. Conservatives have argued that racial equity requires only ensuring formal equality in terms of race. Progressives have argued for a substantive constitutional conception of racial equity that would permit laws and rulings that benefit disadvantaged minorities and afford them substantive political power. The chapter first observes the unity of this debate across applying Equal Protection Clause to districting, Section 2 of the Voting Rights Act, and the preclearance requirement of the Voting Rights Act. It then analogizes the struggle on the bench to Rawls’s and Nozick’s famous debate over the fair allocation of resources.

Shortly after the adoption of the Voting Rights Act of 1965, progressive reformers recognized new threats to minority representation that went beyond minority disenfranchisement and included efforts to dilute minority representation. Progressive justices aligned with the Democratic Party helped to refashion election law to address these evolving shortcomings by reinterpreting the statute as well as the Fourteenth and Fifteenth Amendments. Conservative justices countered by proposing new, restrictive doctrinal positions. But when those positions deviated from the wishes of elected Republicans, they capitulated and instead developed a new right discouraging racial gerrymandering. The pattern of evolving doctrinal positions is best described by the deliberative partnership thesis.