Pub L No 89-110, 79 Stat 437, codified as amended at 42 U.S.C. § 1971 et seq. 138 

^ Pub L No 89-110, 79 Stat 437, codified as amended at 42 U.S.C. § 1971 et seq.

138 ^ See, most recently, Harris v. Arizona Independent Redistricting Comm'n, 136 S.Ct. 1301 (2016) (sustaining the packing of districts with minority voters when done in a good faith effort to comply with the Voting Rights Act of 1965). What seems to be blocking judicial review now is not the “political questions” doctrine as such, or a lack of manageable standards, but an inability of the Court to distinguish racial gerrymandering from political gerrymandering. See Oral Argument, Wittman v. Personhuballah, No. 14-1504, 2016 WL 1090257, at *6 (S.Ct. 2016) (question by Chief Justice Roberts). That being so, in due course it may be necessary for the Court to begin to recognize the entrenchment problem inherent in all gerrymandering. If the Court is correct that partisan entrenchment is just politics as usual, then politics as usual is incompatible with voters’ rights.

139 ^ See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959); Colegrove v. Green, 328 U.S. 549 (1946 ); Wood v. Broom, 287 U.S. 1 (1932); Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932); Hawke v. Smith, 253 U.S. 221 (1920); Davis v. Hildebrant, 241 U.S. 565 (1916); Swafford v. Templeton, 185 U.S. 487 (1802).

140 ^ Shelby County v. Holder, 133 S. Ct. 2612 (2013).

141 ^ Baker, 369 U.S., at 220.

142 ^ 369 u.s., at 246.

143 ^ Justice Douglas, concurring, thought this a distinction that made little difference, although he acknowledged that equal protection seemed to make a challenge to political malapportionment more a question of individual right than a public action. At the same time, he saw that the problem remained the same as the problem in Luther; the question was whether one man’s vote should weigh more than another’s. Id., at 297-98. In this connection, see, e.g., Patrick A. Withers, Pouring New Wine into Old Wineskins: The Guaranty Clause and a Federalist Jurisprudence of Voting Rights, 10 Geo. J. L. & Pub. Pol'y 185, 194 (2012) (arguing that both Luther and Baker attempted to fit a square peg into a round hole by using individual rights rhetoric to protect competing conceptions of rights that are inherently group rights).

144 ^ Baker, at 223.

145 ^ Id., at 214. The obscuring quality of this designation, and its casual placement amidst others, suggests that Justice Brennan did not want this item to be particularly noticed — for the same reason that he had included it.

146 ^ Act of Mar. 2, 1867, ch. 153, 14 Stat. 428; Act of Mar. 23, 1867, ch. 6, 15 Stat. 2 [“Military Reconstruction Acts”].

147 ^ See John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 426 (2001) (connecting this reservation in Baker with the need to legitimize the Reconstruction Amendments); the point was first raised, apparently, in Louise Weinberg, Political Questions and the Guarantee Clause, 65 U. Colo. L. Rev. 887, 921-22 (1994).

148 ^ For interesting recent discussion of the equal protection problem inherent in intentional political gerrymandering, see, e.g., Gabriel J. Chin, Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule, 94 B.U. L. Rev. 15541 (2014).

149 ^ Id., at 259.

150 ^ See Reynolds v. Sims, 377 US 533 (1964) (announcing the optimistic rule of “one person, one vote”); Shaw v. Reno, 509 US 630 (1993) (sustaining the Voting Rights Act’s requirement of minority-majority districts under the Equal Protection Clause); Harris v. Arizona Independent Redistricting Comm'n, 136 S.Ct. 1301, 1310 (2016) (stating that redistricting deviations of less than ten percent would rarely present a prima facie violation of the Equal Protection Clause). On the current problems of political gerrymandering, see supra note 136.

151 ^ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (Marshall, C.J.).

152 ^ For a survey of these and other examples, see Louise Weinberg, “Of Theory and Theodicy: The Problem of Immoral Law,” in Law and Justice in a Multistate World: A Tribute to Arthur T. von Mehren, 473-502 (Symeon Symeonides, ed. 2002) (also available on SSRN).

153 ^ See generally Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (1996).

154 ^ See, e.g., Neal v. Farmer, 9 Ga. 555, 582-83 (1851) (holding it not a felony to kill a slave).

155 ^ U.S. Const. art. I, sec. 2, cl. 3: “Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, . . . three fifths of all other Persons.” [Nullified by the Fourteenth Amendment.] The enumerated exceptions were for apprentices and Indians living within a tribe. The count was to be accomplished by decennial census.

156 ^ Nothing in Luther was needed to protect the three-fifths of slaves added to the voting strength of slave states by the Constitution itself, U.S. Const. art. I § 2, clearly another pillar of slave-state power in Washington, D.C.

157 ^ For recent discussion, see generally Congress and the Emergence of Sectionalism: From the Missouri Compromise to the Age of Jackson (Paul Finkelman & Donald R. Kennon, eds., 2008); Paul Finkelman, States' Rights, Southern Hypocrisy, and the Crisis of the Union, 45 Akron L. Rev. 449 (2011-2012) and works of Professor Finkelman there cited.

158 ^ Cf. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 574 (1857) (Curtis, J., dissenting) (pointing out that black persons had an early right to vote in New York and New Jersey, and at the time of decision in Dred Scott, had the right to vote in New Hampshire, and Massachusetts, with the implication that black freedmen lacked the right to vote elsewhere or in other times).

159 ^ See, e.g., John B. Boles, A Companion to the American South (2004), at 151 (taking the view that planter hegemony is widely acknowledged but not explained).

160 ^ John E. Cairnes, The Slave Power (John G. Sproat & Mark M. Smith ed., 2004).

161 ^ Eugene D. Genovese, T he Political Economy of Slavery: Studies in the Economy and Society (1989), at 191.

162 ^ See, e.g., Anthony E. Kaye, Joining Places: Slave Neighborhoods in the Old South (2007), at 11.

163 ^ See generally, e.g. James Benson Sellers, Slavery in Alabama (1994).

164 ^ U.S. Const. Art. I § 2, cl. 3: “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” Of course judicial review was irrelevant to the Three-Fifths Clause, since, until it was rendered nugatory by the Reconstruction Amendments, it was part of the Constitution itself.

165 ^ U.S. Const. Art. I: “The Senate of the United States shall be composed of two Senators from each State. . ., .”; U/.S. Const. art. VI: “Provided that . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”.

166 ^ See Louise Weinberg, Dred Scott and the Crisis of 1860, 82 Chi-Kent L. Rev. 97 (2007) (arguing that slavery in the South determined the preference of immigrants to settle in the North, and seeing the consequent growth of Northern population as posing a threat to Southern political power in Washington, culminating in the South’s delusional struggle in the 1850s for new slave states to be carved out of the territories, and, in the last agony of the crisis, in the South’s inability to prevent the election of Abraham Lincoln).

167 ^ See, generally, Leonard L. Richards, The Slave Power: The Free North and Southern Domination, 1780-1860 (2000); Henry Wilson, History of the Rise and Fall of the Slave Power in America (3 vols. 1872).

168 ^ See Richards, The Slave Power, supra note 165 (studying the phenomenon of planter hegemony); David Brion Davis, The Slave Power: Conspiracy and the Paranoid Style (1970) (taking the view that “the slave power” was a myth); Henry Wilson, History of the Rise and Fall of the Slave Power in America (vol. 1, 1872; vol. 2, 1874) (identifying and decrying planter hegemony in national politics).

169 ^ See, most recently, Jacob Lawrence The Great Migration: An American Story (1995); Nicholas Lemann, The Promised Land: The Great Black Migration and How It Changed America (1992); Jonathan Scott, The Great Migration (1989); “Great Migration”, http://www.history.com/topics/black-history/great-migration.

170 ^ Pub L No 89-110, 79 Stat 437, codified as amended at 42 U.S.C. § 1971 et seq.

171 ^ See, e.g., Veasey v. Perry, 135 S.Ct. 9 (2014) (declining to overturn a stay of an injunction against Texas's newly restrictive "voter ID" law); Shelby County v. Holder, 133 S.Ct. 2612 (2013) (striking down § 4 of the Voting Rights Act of 1965); Dale E. Ho, “Virginia’s Racist Voting Law,” New York Times, (July 19, 2016), at A27; Jon C. Rogowski & Cathy J. Cohen, “Black and Latino Youth Disproportionately Affected by Voter Identification Laws in the 2012 Election, Black Youth Project 1-7,” at http://www.blackyouthproject.com/wp-content/uploads/2015/11/voter_id_effect_2012
.pdf.

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