Enfranchisement or Political Apartheid
By Maraleen D. Shields
Race has been an issue in the United States since its founding. Whether it was Native Americans being moved from their land or Africans being forced to live and work on this land as slaves, race has always been a volatile issue in this country. While race relations between blacks and whites in particular have improved from the master-slave relationship of the seventeen and eighteen hundreds, many still believe that blacks continue to suffer injustices in the United States. Specifically, some believe that black representation in the government is still unsatisfactory.
For years blacks were denied voting rights in this country. Once blacks finally gained the right to vote in 1870, whites, especially in the south, created new barriers to ensure that blacks could not exercise their right to vote. Many blacks at that time could not read or write and literacy tests were implemented. Property requirements were put in place to keep poor blacks from voting. Even districting, which is now used to enfranchise black voters, was once used to dilute the black vote. Cracking, packing and stacking are three methods of districting that can be used to dilute the black vote. Cracking involves taking a large group of black voters and splitting them between several majority-white districts. Packing occurs when a large number of blacks are placed in a small number of districts. While blacks will have political success in a small number of districts, they will have lost political influence in the state at large. Finally, stacking involves placing black population in a majority-white district. Whites who still did not want blacks to vote were able to find loopholes in the system to ensure that blacks could not exercise their right to vote.
As a result of this continued defiance of the law, the Voting Rights Act of 1965 was passed. The Voting Rights Act of 1965 and the subsequent amendments of 1970, 1975, and 1982 were passed to help enfranchise minorities into the congressional electoral process. Literacy and property requirements were just two of the many hurdles placed in front of minorities to make the voting process more difficult if not impossible. Section 2 of the Voting Rights Act (as amended in 1982) states that, "no voting qualification or prerequisite to voting or standard, practice or procedure shall be imposed or applied by any State or political subdivision in a manner which will result in a denial or abridgement [sic] of the right of any citizen of the United States to vote on account of race or color [emphasis added]." 42 U.S.C. 1973. It is important to note the emphasis in the amended version of the Voting Rights Amendment (as amended in 1982). While the original version of the Voting Rights Amendment required that one prove discriminatory intent, the subsequent 1982 amendment was only concerned with results. That is, "a challenged voting plan is unlawful if, based on the totality of circumstances, minority voters have less opportunity than other members of the electorate to participate in the political process and to elect the representative of their choice" (qtd. in Terrell). It is not necessary for complainants to prove that the voting plan was created with the intent of discriminating against minorities, only that the voting plan did discriminate against minorities.
Today, the major issue does not concern black suffrage, but that even with the right to vote blacks are not able to ensure adequate representation. Block voting from blacks in most districts will not even ensure that blacks receive a representative of their choice. To guarantee some type of representation for blacks as well as other minorities, legislatures began to deliberately create majority-minority districts. This controversial method of districting has received a great deal of attention as a result of the Supreme Court case of Shaw v. Reno.
Two major strains of thought have emerged from this often-heated debate. On one hand, some argue that the electoral system that we currently have in the United States is not only the best available, but above that, unlikely to change. Others like Lani Guinier suggest that the time has come to discard the district system altogether and move into a proportional representation system much like that of our European counterparts. There seems to be merit to this latter view. Advocates for the current system all seem to believe that there are tremendous advantages to be gained from keeping our current electoral system, but these reasons, in my view, after close scrutiny do not seem great enough to warrant keeping the current electoral system in America.
Where Things Began
The election of representatives was not always done via the district system that we know so well today. No where in the Constitution did our founders articulate a manner in which representatives were to be chosen. In some ways this explains the roots of the controversy today. Each state receives a number of seats in the House of Representatives based solely upon the increase or decrease of the states population. This is called apportionment and occurs every ten years after a Federal census is taken. Until the inception of the Apportionment Act of 1842, states elected representatives in at-large (statewide) elections. However, this process was deemed unfair to some the losing party as the winning party was able to control the whole state leaving the losing party with no recourse. For example, take a historically republican state. In an at-large election democrats (up to 49 percent) could potentially not be represented in the legislature.
In effect the Apportionment Act of 1842 had the same goal as the creation of majority-minority districts today, greater representation. The Apportionment Act required states to divide the state into districts equal in number to seats in the house the state is given, thus allowing an opportunity for more than one party to have control in the state. The district system that stems from the Apportionment Act was put in place solely to increase representation of minority views. Majority-minority districts, which are now at issue, are also aimed at increased representation and protection of minority interests. Tyranny of the majority or having a ruling group that is able to make decisions for the whole was as much an issue in 1842 as it is in 1998.
What the Courts Have Said
The courts have required strict scrutiny when creating majority-minority districts. In the Supreme Court case of Shaw v. Reno, the courts made a clear stance again majority-minority districts. The case concerned a controversial district in North Carolina that stretched along Interstate 85 for approximately 160 miles. This district was created to comply with the Attorney Generals wish that a second majority-black district be created to increase blacks voting strength. Five North Carolina residents, who filed this complaint, argued that this controversial district was created with no regard for issues of compactness, geographical boundaries, political affiliations, or contiguousness (the generally accepted considerations). These standards were generally used to ensure that districts were created fairly.
The courts found the underlying idea behind majority-minority districts, namely that blacks can be identified as a constituency based solely upon race, violates the Equal Protection Clause. Race cannot be the main factor when creating a district. Nor is racial gerrymandering acceptable because it favors minorities. The Equal Protection Clause, "is not dependent on the race of those burdened or benefited by a particular classification," according to the courts in Shaw v. Reno, 509 U.S. 630 (1993). The Equal Protection Clause prohibits the classification of people according to race, which is exactly what racial gerrymandering does Justice Sandra Day OConnor stated in the majority opinion:
A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who have little in common with another but the color of their skins, bears and uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group regardless of their age, education, economic status, or the community in which they live think alike, share the same political interests, and prefer the same candidates at the polls. 509 U.S. 630 (1993)
The district plan in North Carolina ignored the general guidelines set in place to guard against gerrymandering claims. The I-85 district was not compact and showed no regard for geographical boundaries or political subdivisions.
The courts also passed a "strict scrutiny" test. According to the courts, "state legislation that expressly distinguishes among citizens on account of race whether it contains an explicit distinction or is unexplainable on grounds other than race, must be narrowly tailored to further a compelling governmental interest" 509 U.S. 630 (1993). A state cannot generally say that it wants to correct past racial discrimination and create majority-minority districts because gerrymandering, in this case, is not advancing a "compelling state interest."
Legally it is clear that racial gerrymandering solely based on race is unconstitutional, but what case is there to be made for racial gerrymandering. Could it be possible that unconstitutional means are needed to rectify inequities in the electoral system?
The Debate over Majority-Minority Districts
Most who argue racial gerrymandering believe that the single-member district system is the best possible system for our country. Within this system, however, there are those who argue for and against majority-minority districts. While a vast majority of black politicians feel that majority-minority are the best way to erase years of racial oppression ands minority voter disenfranchisement, Abigail Thernstrom and Carol Swain are not so convinced that majority-minority districting is a needed or a viable solution.
It is clear to most people in this country that blacks and other minorities have suffer tremendously because of past racism in our country. Minority voter disenfranchisement is just one of the many effects that past discrimination of had. Blacks in particular suffer from higher unemployment rates than whites and have lower average incomes than whites. The effects for many of past discrimination are still being felt. However, it is not the case that minorities and blacks in particular are owed any type of compensation for past wrong done. While history is the cause of the disenfranchisement, majority-minority districts are aimed at guarding against tyranny of the majority. Majority-minority districts are aimed at making sure that the pattern of under-representation is stopped and going no further than this.
One approach taken in an attempt to increase black representation in congress is majority-minority districting or racial gerrymandering. As Roland Terrell Program Associate of the National Coalition on Black Voter Participation notes, "historically, redistricting has been used to deny Black citizens an equal opportunity to participate in the election of representatives to the U.S. Congress and state and local governing boards. The most often used tool to effectively block full political participation by African-Americans is racial gerrymandering" (Terrell, par. 2). This method which was once used to dilute the minority vote would now be used to ensure a fair level of minority representation.
Arguments for Racial Gerrymandering
Many black politicians argue that majority-minority district are needed for three main reasons. The three main arguments are articulated as such:
Each of these arguments is quite controversial and requires closer scrutiny.
First, many advocates for racial gerrymandering believe that whites will not vote for blacks. While blacks have made significant strides as a result of the civil rights movement, white and blacks still vote along racial lines. For example, as of 1993, "only 1 percent of majority-white districts have African-American representatives (Swain 207-208)." Majority-white districts are not voting for black candidates. This is a bleak number by anyones count.
However, a question should naturally follow a finding such as this. Why do blacks and whites continue to vote along racial lines? Does this happen as a result of racism that continues to exist in America or do whites and blacks have different ideological beliefs? Gary King, John Bruce, and Andrew Gelman in their article "Racial Fairness in Legislative Redistricting" suggest the very proposition that blacks are simply an ideological minority. Polls and surveys in the area support the view that ideological beliefs, not racism, explain the voting patterns of whites. In the book Divided By Color, Donald Kinder and Lynn Sanders uncover some of the differences. For example, a National Election Study in 1986 points to some vast differences between white and black voters. 89.8 % of blacks as opposed to 46.2% of whites believe the government should ensure fair treatment of blacks. 82.9% of blacks as opposed to 35.6% of whites believe the government should see to school desegregation. 49.3% of blacks as opposed to 4.9% of whites favor strongly preferential hiring and promotion of blacks. Surveys do effectively demonstrate a difference in blacks and white voting patterns. But, I question, where these differences come from?
King, Bruce, and Gelman are correct in their belief that blacks are ideological minorities, but it seems to me that the reason for the difference is just as clear. Because of past discrimination I believe blacks feel the government owes them. The government had a large part in facilitating discrimination against blacks and for this reason, should make reparations, in the eyes of many blacks. So, yes blacks are an ideological minority, but only because of their history in this country. Ultimately the differences are still rooted in race and past discrimination.
However, this argument looses weight in light of Lani Guiniers observations of American democracy. Guinier like King, Bruce, and Gelman allows that blacks are an ideological minority. As such King, Bruce, and Gelman suggest that because blacks as a group are ideological minorities they will necessarily have less representation in the legislature. That is simply how the democratic system works. There are majorities and minorities, winners and losers. Guinier takes issue with the current state of our democratic system. Lani Guinier, offers that simply because a group may win the majority, or worse yet a plurality, of the votes that this does not entitle them to have all of the power. Legislation effects all citizens should not be decided by the majority only. One would only agree to a winner take all system of democracy if they felt that at some point they would also have the power.
Second, descriptive representation will result from the creation of majority-minority districts. Descriptive representation for blacks entails simply having a black representative regardless of their ideology. The effect of descriptive representation is that blacks will see other blacks succeeding in our society; they will be role model to the black youth of the nation. Blacks need to know that blacks can and do achieve positions of power and prestige in American society. In short they need to know that this is not a "White Mans World."
However, some see descriptive representation as being a double-edged sword. While young blacks will see blacks in a position of power, an altogether different message could be sent. The message being that blacks will only succeed if they are given special favors by whites. Blacks will believe they cannot achieve greatness on their own merits. Another effect of this could be that whites would resent blacks themselves believing that blacks are incapable of attaining the same level of prestige. In short, blacks will never be allowed to achieve as whites do. This is view of a black person needing special favors undermines the role model argument of those for majority-minority districts. This same argument is used against affirmative action. Skewing the rules in favor of blacks can be seen as contributing to the "ghettoization" of blacks.
Third, black politicians feel that the creation of majority-minority districts will increase substantive representation for blacks. Substantive representation results when black interests, which are significantly more liberal than the general population, are represented in congress. The political stance of blacks is directly affected by not only past discrimination, as mentioned earlier, but also by their current position in society. For example, blacks are disproportionately affected by unemployment. As a result 74.6% of blacks as opposed to 17.6% of whites favor increased federal spending on programs that assist blacks. Assuming these polls to be accurate, it would be safe to assume that a black legislature would be more likely to support more liberal legislation than a white legislature. Thus, majority-minority districts are more likely to substantively represent their district.
I believe, however, that it is wrong and dangerous to assume that if one elects a black representative that they will represent the interests of blacks at large. No one would presume that simply because a white person is elected that the representative is conservative or represents the interests of all whites. A white representative can represent the views of blacks as effectively as a black representative can. That being said, it is only more likely that a black will support the policies the black population endorses, but electing a black representative is no guarantee of substantive representation. Descriptive representation does not guarantee substantive representation.
It will be surprising to many to find that often the biggest supporters of racial gerrymandering are Republicans. The answer is simple.
To the extent that the black Democrats are concentrated in legislative districts, it is easier for Republican candidates to win more seats overall. The creation of a newly black district is likely to drain black voters from other districts, many of them represented by white Democrats. The more "lily-white" the districts so drained become, the easier it is for Republicans to win them. In short, buy adopting such a redistricting strategy, Republicans give African Americans the opportunity to increase their descriptive representation but, quite possibly, at the expense of their substantive representation. (Swain 205)
Racial gerrymandering has once again become a political tool. In this case, racial gerrymandering is being used to ensure political victory for Republicans. This is not to say that the problems in the electoral system today are on par with those of the past. Yet, these are problems that need to be address all the same.
It is important to note that most who endorse majority-minority district truly want to see an increase in minority representation in the legislature. However, even with the well-meaning intentions of most, I cannot endorse majority-minority districts as a viable solution. Each of the three arguments I have come upon has serious flaws. The problem of whites not voting for blacks is not a problem of racism, and even if it was I would not even venture a guess as how to fix it. Whites and blacks as groups want different policies implemented. It certainly is not wrong for groups to hold differing political opinions. Descriptive representation much like affirmative action leads to "ghettoization." Whites begin to believe that blacks cant perform and blacks soon believe the same about themselves. Finally, majority-minority districts cannot possibly guarantee substantive representation. Even if I could come up with some argument for majority-minority districts, I dont think that I would want to as ultimately blacks as a group loose substantive representation in the big picture. For these reasons, I cannot endorse the practice of creating majority-minority districts.
Arguments against Racial Gerrymandering
On the other side of the debate, there are those including Abigail Thernstrom, Carol Swain and Craig Washington who are against the creation of majority-minority districts. Thernstrom cites the tremendous strides blacks have made in our society serve as proof that majority-minority district are unnecessary. Carol Swain shares Thernstroms optimism and suggests that the efficacy of racial gerrymandering is ending.
Thernstrom is a strong believer that majority-minority districts are no longer needed because blacks have made vast improvements in American society. The strides blacks have made in American society are greater than any other minority group in this country according to Thernstrom. She also admits that black had the furthest to go. Thernstrom does allow that blacks still occupy a lower socioeconomic position in society, but chooses to focus on the improvements blacks have made.
Those arguing for majority-minority districts believe that because of continued racism whites will not vote for blacks. Thernstrom cites the gubernatorial victory of L. Douglas Wilder in Virginia as proof that whites in fact are willing to and do vote for blacks. According to Thernstrom, L. Douglas Wilder, in his successful gubernatorial run in 1989, got an estimated 40 to 43 percent of Virginias white vote. Thernstrom said, "Sceptics [sic] will say that figure still represents only a minority of the white electorate, but Charles Robb, the white Democratic governor who preceded Wilder, did only a shade better: 45 percent" (118).
The next logical question in light of what Abigail Thernstrom says is what is the problem? What is the complaint? The problem is that things are not as good as Thernstrom would have you believe. According to the article "The Supreme Court, The Voting Rights Act, and Minority Representation" by Bernard Grofman, "In Virginia, the only black ever elected to the state legislature from a white majority district was Douglas Wilder and his election (with a plurality) was made possible only because a half dozen white candidates in the Democratic primary split the white vote and Virginia does not have a majority vote requirement" (196). The election of Wilder only proves that in the event of a party split in an election that does not require a majority vote, a black candidate can win.
Thernstrom does correctly point out that those candidates with drastically liberal view, be they black or white, will rarely be elected to office in the south. Again the argument here is that blacks constitute an ideological minority and this explains their inability to be elected in the south. When blacks are elected in the south it is often because they are conservative. As Thernstrom notes, "J.C. Watts, a black republican, would not have been elected in Oklahoma had he run as a liberal Democrat" (119).
Finally, Thernstrom agrees that the creation of majority-minority districts unfairly stigmatizes blacks as noted earlier. Blacks are relegated to a position of helplessness in our society. They can get no where in society unless they are given special favors from whites. Further, underlying the creation of majority-minority districts is the premise that race is the most important factor when choosing representatives. Creating districts categorizes people in terms of race that is a dangerous practice. The entire goal of the civil rights movement was to stop viewing people in terms of race and to start viewing people in terms of individuals and the majority-minority districting system does just that.
Ultimately, Abigail Thernstroms argument against majority-minority districts amount to little more than a statement of look how far they have come. I would certainly agree that blacks have come further than any other racial group in the country, but one must also admit that no other racial group has endured as many years of slavery and discriminatory policy. Blacks are still no where near where they should be. It is still too early to sit back and say the job is done look how well we have done. Blacks as a group still occupy a lower socioeconomic level that whites as a group. Blacks are still less educated than whites as a group. In short, there are still tremendous strides to be made.
Further, Thernstrom makes some startling observations concerning recent elections that seem to drive her point home. But, after looking at the circumstances surrounding the actual elections the elections do not look nearly so good. It is still the case that extraordinary circumstances are necessary for blacks to be elected. In the end it does not seem that blacks have come so far as to not require legislation that will level the playing field.
Carol Swain, an assistant professor of politics and public affairs at Princeton University, also disagrees with the use of majority-minority districts. She argues that despite the fact that blacks are in general more liberal, majority-minority districts are not necessary for blacks to win elections. Those supporting racial gerrymandering commonly believe that 65 percent of a district must be black to ensure a black representative will be elected. However, a number of blacks have been elected in districts in which less that 50 percent of the districts population was black. Swain concludes, " that districts with black majorities are clearly not the black politicians only route to Congress route to Congress refutes the logic behind that a minority must constitute at least 65 percent of the population to guarantee descriptive representation" (199). Swains research discovered that, as of 1990, 40 percent of the black members in Congress did not come from majority-black districts. These findings serve to weaken the argument for majority-minority districts.
Again as with Thernstroms findings, a closer examination uncovers less optimistic numbers:
There were 25 black members of Congress elected in 1990. Of the 10 elected from districts that are not majority black, six are elected from districts that are majority black plus Hispanic. That leaves only four black congressmen elected from districts where non-Hispanic whites are in the majority. Of the four black members of Congress who are elected from such districts, one (Rep. Franks, Conn.) was a Republican conservative who almost certainly was elected over the opposition of the black members of his district; one (Rep. Jefferson, Louisiana) is in a district that was 44.5% black and 49% minority using 1980 population figures but is now 66% black according to 1990 population figures and he wasnt elected until 1990; one (Rep. Wheat, Missouri) runs with the advantage of incumbency in a district where he won the Democratic primary which first selected him as the Democratic nominee with only 32% of the vote a primary where he received almost no white support and which he won only because whites had divided their vote among seven white candidates; and the last (Rep. Dellums, California) was elected from perhaps the most liberal district in the nation (combining blacks in Oakland with the ultra-liberal city of Berkeley). (Grofman 198)
Looking at the election results in this way Swain s argument looses some weight and it no longer seems that whites are as eager to elect black representatives. It still requires exceptional circumstances for blacks to be elected in majority-white districts.
Swain also believes that interests are not linked to race. In other words, a white person can represent the interest of blacks just as a black can represent the interests of whites. This is because interests can not be identified solely on the basis of race. Swain puts forth that substantive representation is more important that descriptive representation. Descriptive representation has no bearing on substantive representation. As previously stated, there is no guarantee that a black official will support the same policies as most blacks do. Electing a black representative that does not support policies of blacks in general would be counterproductive if the goal is to increase minority representation.
Swain suggests that gerrymandering is becoming an ineffective method of ensuring minority representation. When majority-minority districts are created first a pocket of blacks must be target. Swain suggests that we are running out of areas to target and create into majority-minority districts. "In years to some, we can expect severe limitations on what can be achieved by relying on the creation of black districts to ensure the election of black politicians" (200). At some point there will be no more room for any more majority-minority districts. Further, gains in black representation are needed most in the south, but the opportunity is just not there. Swain points out that, "most black representatives are elected from large cities in which the black population is 300,000 or more (the setting most feasible to create black districts), but there are few southern cities that match this criterion" (201).
Overall, Swain seems to dislike the idea of majority-minority districts. They are harmful to blacks and should be done away with if for no other reason that the fact that majority-minority districting will no longer work. But, she does not deal with the ramifications of removing majority-minority districts. Would blacks once again be relegated to the position of "losers" in American democracy? Have these measures been enough to secure blacks a fair amount of representation? Swain leaves a number of important questions unanswered. Her single biggest claim, one that is crucial to her argument, is that blacks can and are elected by whites, but close examination of voting practices does not support this claim.
Yet another argument made by some conservatives is that special measures are not needed to ensure minority representation because of virtual representation. Virtual representation is the belief that, "winners will represent the losers interests or that losers may experience defeat in one district but will be represented by winners in another district (36)." Both of these definitions of virtual representation, for Lani Guinier, oppose voter empowerment. The entire process is out of the hands of the voter. As Guinier describes the districting process, " [it] is one dominated by incumbent self-interest and court-appointed experts with no particular grass-roots concerns (36)." The legislators interests not the voters interests are at issue when districting takes place.
I find the ideal of virtual representation again to be faulty in two manners. First, there is no guarantee that a representative will represent the interests of the losers. What incentive is there for a representative to represent the interests of those who did not vote for him/her? A representative constituency consists of those who helped him/her get elected. (This situation is heightened when a representative wins by a large percentage of votes.) When reelection comes along, that representative has no motivation to modify his/her views. As long as the representative represents his constituency, reelection will not require the "loser" votes.
Second, if a politician were to modify their views to be more inclusive of minority opinions, that politician may in fact alienate his/her constituency and lose their votes. No politician would do something that will lessen his or her chance for re-election. For example, a 1986 National Election Survey put forth the following statement. Irish, Italian, Jewish and many other minorities overcame prejudice and worked their way up. Blacks should do the same without any special favors. 66.6% of white Americans agreed with that statement. There does not seem to be much tolerance among whites for policies that favor blacks. Now imagine an election in which the winner gained 70% of the total votes and 15% of the black vote. Assume that 50% of whites that voted for this candidate do not support preferential treatment for blacks. It would seem unwise for a politician that relies heavily on the white vote in this case to modify his/her views.
Overall the arguments made by Abigail Thernstrom and Carol Swain against majority-minority districts are no convincing. This is not to say that we as a country should endorse majority-minority districts because ultimately this stance is problematic. Both Swain and Thernstrom argue for the complete removal of majority-minority districts without exploring the ramifications of such a decision. It is clear that we are not yet at a point in America where all men are treated as equals. We need to examine first, if such equality is a possibility and what steps are necessary to achieve it. I am doubtful that preferential treatment is the answer. Preferential treatment seems to only widen the gap between the races and create a permanent lower class. Second, if fairness is not a possibility under the current electoral system because America is forever tied in some way to its racist beginnings, we need to accept this and move on from this point. A different electoral system may be the only way that we can ensure fairness in representation.
A Call for Change
Lani Guinier is different from others who debate on the issue of congressional districting in that she is argues for a complete change in the winner-take-all majority rule system this country commonly employs. Instead Guinier endorses a proportional representation system that she feels would be more representative and in turn more democratic. Under the current electoral system it is doubtful that minorities will ever have a chance to have their voices heard.
What is meant by underrepresented and what would constitute fair representation? According to the old-style civil rights way of thinking, fair representation constitutes a certain percentage. If blacks make up 20% of the population then by that token they should make up 20% of the legislature. This is "fair representation." However, neither Guinier nor I endorse this standard.
The idea that blacks should be proportionally represented in the legislature has the same underlying beliefs as majority-minority districts. The belief is that ones beliefs can be clearly identified simply by examining ones race. The ultimate goal should be increasing representation of all Americans, not simply blacks. More ideologies should be represented in the legislature; these ideologies are not based on skin color. By simply allowing 20% of the legislature to be occupied by blacks, descriptive representation, we have in no way guaranteed any increase in the representation of minority interests. As previously stated, a black representative could support Republican ideologies and their election would do little for the many black liberals.
Guinier begins her argument for proportional representation by first explaining the major shortcomings of the current system. Districting was first implemented, as noted previously, as a means to achieve a more democratic government. The district system allowed voters to better identify with their representative. Instead of representing an entire state, a single representative was solely responsible for a smaller district whose interests were often easier to identify.
Some would argue that this is definition of majority rule. There are winners and loser and we accept this to some extent whenever we vote. And this is true, to some extent. I believe there is an understanding underlying majority rule that sometimes each of us will be a winner and other times will be losers. Because we expect natural shifts in power will occur, we ultimately agree to this system. However, what if you never win? What motivation or incentive is there to "keep playing the game?" Minorities feel as though they have not "had their turn." The criticism is not that there must be winners and losers so much as a lack of shift in power.
Guinier believes this district system may take power away from all voters, not just the minority. The districting system currently used is totally out of the hands of the voter. Legislatures are given few guidelines by which they have to follow. The only guidelines set forth is that the districts must be as equal in population as practicable and contiguous. These guidelines leave a great deal of discretion to the legislature. The courts have offered that district boundaries should follow residential boundaries such as county or borough as much as possible. As Guinier notes, "voters interests are presumed to be represented by their indirect, preexisting choice of residence (36)."
I find this thinking is faulty in two ways. First, most people do not choose a residence based on what district they will live in. Factors such as the type of neighborhood, tax rates, location relative to a job, and even school district are much more important to those choosing a place to live. A large percentage of the population does not even know what district they live in. Second, district boundaries can change every ten years. Residents are informed of this change only after the change has been made in many cases. Further, even if residents were warned ahead of time, they still have no recourse to block such a change. Once residents know of the change, few will change their place of residence simply to reside in another district.
In the end, districting based on location is just as wrong as creating majority-minority districts. When majority-black districts are created the assumption is that all blacks in this district have common interests based upon their skin color. The same is being done when districts are created with residential factors in mind. Districting as a practice stifles the voters ability to create their own associations that are important for them.
This is the major goal of the semi-proportional multimember-district system. Allow people to make all associations for themselves and you will have a more democratic system than we live under currently. Guinier explains the system she endorses:
Under cumulative voting, voters cast multiple votes up to the number of open seats. Votes may choose to express the intensity of their preferences by aggregating all of their votes for a single candidate. If voting is polarized along racial lines, as voting rights litigation cases hypothesize, semi-proportional systems of representation, such as cumulative voting, generally operate to provide at least a minimal level of minority representation. Unlike districting, however, they allow minority group members to self-identify their allegiance and their preferences based on their strategic use of multiple voting possibilities. In this sense, they allow voluntary interest constituencies to form at each election. Voters "district" themselves every election. (42)
This system is designed to empower the voter and to a large extent put the electoral system back into the hands of the people and out of the hands of politicians.
Contra Guinier, it could be argued that Guiniers system still suffers from the same difficulty of districting. Districts will still need to be drawn every ten years and racial gerrymandering can still occur. This argument has some merit, but I dont believe that this harms Guiniers system in any serious way. The goal of this system is to make districting less political and that it does. It will be much more difficult for a legislature to shape a larger multimember district in such a way to dilute the minority vote. A more extreme version of Guiniers system would move towards statewide elections that would allow for no districting to be done by legislatures. Either way the impact of politicians on the voting system is decreased substantially.
Guinier also argues that the district system does not, "foster genuine, accountable debate about issues (36)." The easiest way to attract more votes is to be moderate and never really offend anyone. As Guinier notes, "positions on controversial issues are often eschewed for palliatives designed to offend no one (36)." Gary King, John Bruce, and Andrew Gelman offer a different spin on this situation. They argue that because of politicians willingness to modify their views minorities are actually represented in some sense. The presence of minorities in a district causes the politician to move their position to accommodate more people. Minority influence serves to make the politicians political stance more liberal than it would have been if the minorities were not in that district. This idea is somewhat like virtual representation. As with the case of virtual representation, there is no incentive for representatives to modify their views to accommodate minorities in their district.
Under Guiniers proposed electoral system, those with less popular views will still have the ability to have their voice heard in the legislature and inspire debate on issues. Some detractors argue that by allowing more views to be expressed will slow the electoral system down even more. A dictatorship would be more efficient yet I do not believe anyone would suggest that as an alternative. There is tug-of-war of sorts between efficiency and allowing more views. If the goal of our country is a truly democratic society then we will sacrifice some efficiency to achieve a more democratic society.
Finally, Guinier believes that the winner-take-all districting system causes votes to be wasted. People are not empowered to vote how they feel because of the current winner-take-all system. If they vote for the candidate that is truly closest to their own personal views, they will feel as though they are wasting their vote. They must instead endorse a lesser candidate who may not support many of their own views, but who has a chance at victory.
A semi-proportional system will allow people to vote how they really want. The semi-proportional system will allow for more interests to be represented. Critics believe that this system will allow undesirable parties and interests groups to gain power. What Guinier suggests that a threshold of exclusion be put into place to decrease the likelihood of undesirable groups taking control. This means that all candidates receiving a certain percentage of votes and above will receive representation in the legislature. For Guinier, representation is both electoral control and legislative influence. Simply exercising ones right to vote does not guarantee representation.
A Future for Voting Rights
It is clear that there are no easy answers to the question of racial gerrymandering. What constitutes "fair" representation for minorities? Why should any measure be taken at all to ensure minority representation? It seems that if we can answer these questions that we will have a better idea of where we would like to be.
I think by asking what constitutes "fair" representation for minorities is the wrong question to begin with. What is "fair" representation? Many of the arguments surrounding racial gerrymandering focus on whether it is right or fair or constitutional to treat minorities differently. How should any persons views be represented fairly in a democracy? As previously noted majority rule society, if there is a shift in power there is no problem with a majority having control of the power. In time, the minority will exercise that same amount of control. However, we are not seeing this same shift in power with respect to minority interests. Therefore, the majority rule system is not the best for ensuring representation of the greatest number of the population possible. We must look towards a new and better system.
I believe that the semi-proportional system with cumulative voting endorsed by Lani Guinier will increase democracy in this country. Gary King, John Bruce, and Andrew Gelman argue that by giving up the district system in favor of a proportional system we give up the a more important type of representation based on geography. They state that, "meeting a proportionality standard would be easy if we were willing to give up district-based electoral systems and move to some for of national- (or state-) level party list or single transferable vote system" (92). However, it is not clear that geographical representation is guaranteed with the district system. It is almost impossible for to ensure that districts follow geographical boundaries. Even if these geographical boundaries could be respected in the districting process, there is no guarantee that people from the same geographical area vote alike. As previously noted, the belief that people from the same county or borough vote similarly is just as wrong as the belief that people from the same race vote alike. The semi-proportional cumulative voting system allows people to make their own associations.
No matter how districts are formed they will be unfair to some segment of the population. One could imagine a scenario in which depending on how district boundaries are drawn, a person could have a greater or lesser chance of electing the representative of their choice. Place a very conservative republican in a highly liberal district and it is unlikely that a legislature of their choice will ever represent them. Yet, if the district lines are drawn a bit differently, that conservative could easily be part of a majority that elects conservative representatives while liberals go without represented. No matter how one constructs a district this scenario will happen. If you add politics to situation, the situation only becomes worse. Political gerrymandering, however unfair to the voter, "is a fact of life in redistricting that the district lines are always going to be drawn by the majority in power, and that the majority will always be tempted to draw the lines in such a way as to enhance their prospects for victory at the next election," according to Peter S Wattson a member of the senate council in Minnesota (Wattson, par. 4). Why should politicians be able to manipulate the vote of the people for their personal gain? There is no answer for this in a country where the government is supposed to be for and by the people.
Fair representation is not to be found in any percentage or number. Fair representation entails empowering the voter and giving them control of the government. If all politics, or politicians, are removed from the electoral system and voters are enabled to make their own associations. The outcomes of the elections will be more legitimate, unencumbered by politics. The playing field will truly be leveled.
Is it the case that blacks are owed representation as a result of past discrimination? No. We must separate ourselves from the belief that talk of majority-minority districts is necessarily linked to issues of compensation. Yes, if this country did not have the history of violence and discrimination against blacks and was more inclusive of other views and ideas, these types of measures might not be necessary. This point is no really worth arguing. Most importantly there are groups in this country that are not being fairly represented in the government that is supposed to represent all people. I dont see proportional representation as being simply about race. The problem of representation is larger than a racial issue. It is about the fact that change can not occur within our current electoral system. Never taking determinate stands on issues, the democratic and republican parties are all but indistinguishable from each other. We must create a forum for possible political change and progress.
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