Affirmative Action and Representation: Shaw vs. Reno and the Future of Voting Rights

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Overview

The Supreme Court's 1993 decision, Shaw v. Reno, was a bellwether in equal protection litigation, marking a significant turn away from earlier voting rights jurisprudence. Did Shaw, and subsequent Supreme Court cases reaffirming its holding, signal the end to affirmative action in redistricting, the beginning of a wholesale re-examination of the Voting Rights Act of 1965? The essays in this collection address this question, and related issues, with a view to assessing the implications of the Supreme Court's 1990s voting rights law. Balancing contributions from advocates and critics of affirmative action in voting rights, the book focuses on three issues that have emerged as determinative in 1990s voting rights litigation: (1) the significance of Shaw and post-Shaw jurisprudence; (2) alternative models of representation that have become increasingly important as the Supreme Court has intensified its scrutiny of race-conscious districting; and (3) the applicability of the Voting Rights Act to judicial elections, an issue left unaffected by Shaw. A postscript examining the Supreme Court's 1996 decisions, Bush v. Vera and Shaw v. Hunt, is also provided.
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Editorial Reviews

Donald J. Farole
Gazing out my office window across the parking lot (I’m untenured), over railroad tracks, through the trees, I can, on a clear day, just about see the road that leads to Interstate 85 (I-85). I-85, of course, is the backbone of North Carolina’s now defunct Twelfth Congressional District, which snaked for 160 miles from Durham to Greensboro to Winston-Salem to Charlotte. The district has become a symbol in the constitutional and political debate over voting rights and, specifically, the creation of "majority-minority" districts: legislative districts drawn to ensure that racial and ethnic minorities (African-Americans and Hispanics) comprise a numerical majority that can, presumably, elect representatives sympathetic to their interests. The cover of Anthony Peacock’s edited volume, AFFIRMATIVE ACTION AND REPRESENTATION, features a map of North Carolina highlighting the Twelfth District. The book is a rather eclectic collection of essays addressing the contemporary debate over racial redistricting. Much attention is paid to SHAW V. RENO (1993), where the U.S. Supreme Court first recognized that congressional districts created to maximize minority representation may under some circumstances be unconstitutional. However, the book’s scope is not limited to SHAW and its progeny. Peacock raises fundamental questions about the nature of representation in American law and politics: "how is a group model of equality, which focuses on race, to be reconciled with an individualist model, which proscribes considerations of race except in increasingly rare circumstances? … How is a concept of representation that concentrates on the distribution of political power between racial groups to be reconciled with a concept of representation that divides the electorate territorially?" (p. 7) The essays in this collection explicitly or implicitly address these questions, with varying success. Following Peacock’s introductory essay, which outlines debate over affirmative action (his words) in voting rights and the relevant litigation in the 1990s, the book is divided in three main parts: "SHAW V. RENO and Its Legacy," "Alternative Systems of Representation," and "Judicial Elections and the Voting Rights Act." The first of these sections consists of six essays that examine the Court’s voting rights jurisprudence in some degree of detail. They are written for an audience reasonably familiar with constitutional law. I would not assign most of the readings to my undergraduates. Common to the essays are the authors' perspectives as to whether majority-minority districts are necessary (is racism still a problem?) and whether and to what extent race-based districting is constitutionally permissible. Not surprisingly, authors opposed to race-based districting as a matter of public policy also find it constitutionally impermissible; advocates of such districting schemes find support for them in the Constitution. Mark Rush is generally supportive of the Court’s direction in voting rights litigation (limiting the acceptability of race-based districting), but argues that SHAW is a confusing decision that did not deal sufficiently with several vital issues. Among these is how far states can go to comply with the requirements of the Voting Rights Act of 1965, which, as amended in 1982, has been generally interpreted to require states to create majority-minority districts whenever possible. Further, according to Rush, the SHAW Court did not resolve the tensions between individual and group-based theories of voting rights that have been at the heart of constitutional disputes over majority-minority districts. Timothy O’Rourke picks up on this theme, suggesting that SHAW is consistent with voting rights precedent in that it emphasizes voting as an individual, not group-based, right. Further, the Justice Department was wrong to require states to create legislative districts that gave little or no regard to traditional districting criteria. These districts result from, among other things, the requirement of nearly perfect population equality across districts and technological changes that allowed states to take into account block-by-block and street-by-street differences when drawing district lines. This gave state the tools to disregard traditional districting criteria, such as county lines, to ensure the creation of majority-minority districts. The two articles by Abigail Thernstrom and Anthony Peacock are the most probing pieces in the first section. Both do an excellent job of explicitly and thoughtfully recognizing that the Court’s voting rights doctrine, at its heart, involves "opposing sides [with] radically different views of American society and the place of blacks and Hispanics in it." (p. 97) To what extent is racism still a problem in American society? To Thernstrom, "African Americans … are no longer a people apart in the way that they arguably were as recently as the early 1960s … they have become part of the American mainstream." (pp. 122-123). Peacock holds a similar view, contending that racial discrimination "can only seriously be contended to exist at the periphery of American society." (p. 171) Must we (can we) take account of race in order to get beyond racism? This question, which both authors answer in the negative, reveals the intimate connection between the politics of racial redistricting and of affirmative action more generally. While all would agree that the authors raise important questions, the answers are not likely to receive such universal support. Peacock, for example, equates the "racial and ethnic balkanization" of majority-minority districts with the "factious division" (p. 169) that Madison warned against in FEDERALIST 10. This connection is, arguably, misplaced since Madison’s primary concern was with majority factions trampling minority rights. From this perspective, race-based districting as a structural mechanism aimed at securing representation for numerical minorities is not necessarily inconsistent with the Madisonian concern for the tyranny of factions. The final two essays in this section present the other side of the coin. For Bernard Grofman and Samuel Issacharoff, race-based districting is still necessary because race-conscious voting continues. Majority-minority districts are essential if legislatures are to become more integrated. SHAW is inconsistent with the Court’s voting rights jurisprudence in that it rejects the idea that race-conscious state action can be taken to benefit disadvantaged groups. Both authors also raise concerns, similar to Rush’s, about the lack of clarity of SHAW and other cases. While debate over racial districting will continue as the Supreme Court addresses a variety of issues left unclear by earlier cases, the bottom line is that this Court is reluctant to endorse many districts drawn to enhance minority representation. Such reluctance raises another set of questions, addressed in the next section of the book, concerning alternative systems of representation. Public choice scholars are well aware that there is more than one way to aggregate votes. Single member, geographic districts are not required; other methods of vote counting may enhance minority representation without running afoul of the limits imposed in the districting decisions. Thus, the redistricting litigation is only a starting point for the next two articles, which directly grapple with fundamental questions about voting and representation in American politics. Those interested in these issues and not wishing to delve into the finer points of judicial doctrine will find this section especially useful. Lani Guinier, who wants to put the "equal" in "equal protection," argues in favor of a non-territorial, proportional representation system. There are limits to geographic representation, since people often do not choose where to live and cultural and political communities extend beyond geographic boundaries. Further, the winner-take-all system maximizes the political power of majority groups; others’ votes are wasted. For Guinier, then, the problem is not race-based districting; it is districting itself. She proposes a "one-vote, one-value" scheme in which each vote counts toward someone’s election. This is a system of proportion representation that does away with votes that would be wasted under a winner-take-all system. While space does not permit extended discussion, it is important to note that Guinier’s system recognizes a voting right with both individual and group-based elements. Richard Engstrom, Jason Kirksey and Edward Still authored what I found to be the most interesting study in the volume. They examine the effects of cumulative voting for the Board of Commissioners in Chilton County, Alabama. Under cumulative voting, voters have as many votes as there are seats in the election. They may cast more than one vote for favored candidates or go so far as to "plump"– casting all their votes for one candidate. Cumulative voting, the authors contend, may be able to prevent minority vote dilution and, since it is not a race-based strategy, evades constitutional pitfalls in the wake of SHAW and its progeny. On the basis of exit polls in the November 1992 election, the authors find that black voters were much more likely than white voters to aggregate and plump votes. This accounts for the reelection of the only black commissioner who, according to the authors, was unlikely to win without cumulative voting. Perhaps the most interesting aspect of the Chilton County experience is that cumulative voting was established as part of the settlement of a vote dilution suit brought by African Americans against the previous at-large electoral system. While majority-minority districts may run into trouble in the courts, vote dilution suits may still play an important if indirect role in helping to bring about creativity and experiment in representational politics, particularly at the local level. The final section of the book consists of two articles presenting opposing views on the application of the Voting Right Act’s 1982 amendments to state judicial elections. In CHISOM V. ROEMER (1991), the Supreme Court held that the amendment prohibiting any "standard, practice, or procedure" that would dilute minority voting strength did apply to contests for state judiciaries. Ralph Rossum argues that the Court made the incorrect decision; Frederick Slabach disagrees. Although the scope of the authors’ analyses differs (Rossum examines only the application of the 1982 amendments while Slabach argues that both sections 2 and 5 of the act apply to judicial elections), a central point on which they diverge is whether state judges are "representatives" within the meaning of section 2. AFFIRMATIVE ACTION AND REPRESENTATION provides an interesting profile of constitutional and normative debates over racial districting, voting rights, and minority representation. The debates addressed in this book can benefit greatly from insights gained through empirical research. Cameron, Epstein and O’Halloran (1996) show that while majority-minority districts may increase the number of minority officeholders, they may dilute minority influence in surrounding districts and diminish the substantive policy goals of minority constituents. Evidence of a tradeoff between substantive and descriptive representation has profound consequences for whether minority communities ought to fight for majority-minority districts. If more minority legislators comes at the cost of policy influence, then normative debate should not necessarily be predicated on the assumption that fewer minority members means less minority representation. At the very least, our debate must acknowledge the complex and ambiguous stakes involved in disputes over racial districting. The tradeoff between substantive and descriptive representation raises a provocative question: will SHAW and its progeny actually increase policy representation of minority interests? (I will not even try to answer that one.) Readers seeking a book that raises important questions about racial districting and representation will find AFFIRMATIVE ACTION AND REPRESENTATION useful. It covers little new ground–most of the arguments can be found elsewhere and four of the twelve chapters are previously published–but is a handy single source. Be aware too that this area of law is in flux. Peacock suggests in a postscript that elements of the Court’s holdings during this past term, notably Justice O’Connor’s contention that states have a compelling interest in complying with section 2 of the Voting Rights Act, are not necessarily compatible with earlier equal protection decisions. Stay tuned. REFERENCES Cameron, Charles, David Epstein and Sharyn O’Halloran. 1996. "Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?" AMERICAN POLITICAL SCIENCE REVIEW 90: 794-812. CHISOM V. ROEMER, 501 U.S. 380 (1991) SHAW V. RENO, 509 U.S. 630 (1993)
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Product Details

  • ISBN-13: 9780890898833
  • Publisher: Carolina Academic Press
  • Publication date: 1/28/1997
  • Pages: 428

Table of Contents

Acknowledgments
Notes on Contributors
1 Voting Rights, Representations, and the Problem of Equality 5
2 The Price of Unclear Precedents: Shaw v. Reno and the Evolution of Voting Rights Jurisprudence 25
3 Shaw v. Reno: The Shape of Things to Come 43
4 More Notes from a Political Thicket 97
5 Shaw v. Reno and the Voting Rights Conundrum: Equality, The Public Interest, and the Politics of Representation 127
6 The Supreme Court, The Voting Rights Act, and Minority Representation 173
7 The Redistricting Morass 201
8 Groups, Representation, and Race-Conscious Districting: A Case of the Emperor's Clothes 223
9 One Person, Seven Votes: The Cumulative Voting Experience in Chilton Country, Alabama 285
10 Applying the Voting Rights Act to Judicial Elections: The Supreme Court's Misconstruction of Section 2 and Misconception of the Judicial Role 317
11 Equal Justice: Applying the Voting Rights Act to Judicial Elections 343
12 The Supreme Court and the Future of Voting Rights 407
Table of Cases 411
Index 413
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