A review of the actions on behalf of Congress, the Justice Department, and the covered jurisdictions in the years following the introduction of the Shaw/Miller doctrine indicate that entities appear to have internalized full compliance with that line of decisions. First, an entire redistricting cycle has been completed following the 2000 Census, during which there was not one instance in which a court found that a jurisdiction covered under Section 5 was compelled, in its efforts to comply with the provision, to violate the racial gerrymandering restriction of the Equal Protection Clause. Second, the above review of the changes to Section 5 during the 2006 reauthorization process indicates that none of the substantive amendments to the provision stand to threaten the synergy between the two provisions. All indications are that covered jurisdictions have fully adapted to the requirements of Shaw and Miller, and there is little evidence that the recent changes to Section 5 will compel jurisdictions alter their already internalized compliance with the Constitution.
As a result, the concerns raised in Justice Kennedy's concurrence in Georgia v. Ashcroft have indeed been addressed in both the judicial and legislative cabining of the Justice Department's enforcement of Section 5 and covered jurisdictions' own efforts to comply with the requirements of the Equal Protection Clause. The "fundamental flaw" that Kennedy refers to in Georgia v. Ashcroft is a flaw no longer. When it comes to redistricting plans, Section 5 and the Equal Protection Clause are able to enjoy a shared existence.
Jocelyn F. Benson,
A Shared Existence: The Current Compatibility of the Equal Protection Clause and Section 5 of the Voting Rights Act,
88 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol88/iss1/3