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RACE-CONSCIOUS DISTRICTING: WHY IT'S NEEDED, WHY IT WORKS
Reaffirmation or Requiem for the Voting Rights Act?
Copyright 1996, The American Civil Liberties Union
In a perfect world, remedial race-conscious districting would not be necessary. We would all prefer to live in the color-blind society hypothesized by Justice O'Connor in Shaw, but that is simply not reality. To claim otherwise willfully disregards the fact that race has always mattered in this society. Up until the middle of this century, African Americans were locked out of the political process and rendered second-class citizens solely because of their color. While literacy tests and poll taxes may have passed into history, at-large election schemes, racial polarization and bloc voting remain facts of life. And race-based problems require race-based solutions.
Like all such remedies for past discrimination, race-conscious districting has always been controversial. Critics, including some people of color, charge that it promotes racial polarization, reinforces stereotypes and confers special status on minorities. These charges do not stand up to scrutiny. The reality is that race-conscious districting works and is the single most effective means of remediating the terrible legacy of discrimination against minorities. Districts with predominantly minority populations increase minority voter participation, lead to the election of minority officials and force government to pay attention to the needs of previously ignored communities.
But minorities are not the only beneficiaries of such districts. In the long run, this remedial strategy has been shown to break down racial boundaries, foster diversity in government, benefit communities of all colors and strengthen our democracy. The bottom line is that, without these districts, the nation would beat a hasty retreat back to the days of all-white government.
Districting is political. Districting is political, by its very nature. As the Supreme Court said in a 1973 decision, "[t]he reality is that districting has and is intended to have substantial political consequences." Districts have always been drawn to consolidate communities of shared values or heritage -- such as communities of Irish or Polish Americans -- to protect incumbents' territory, or to accommodate the personal needs of the legislators who do the districting.
In the South, districts were a direct product of Jim Crow laws and racial gerrymandering. If the Voting Rights Act did not compel the creation of predominantly minority districts, white incumbent legislators would simply continue to manipulate district lines to maintain their power base and keep minorities out.
Predominantly minority districts that are oddly shaped -- often reflecting the irregularities of city boundaries -- are in keeping with, not divergent from, tradition. Historically, the courts have approved all kinds of districts that were drawn in odd shapes for partisan reasons. Thus, to call predominantly minority districts "apartheid," as the Supreme Court did in Shaw, while accepting without question districts drawn to accommodate, say, Irish or Polish Americans, is to apply a discriminatory double standard in redistricting.
The challenged districting plans have no victims. One of the primary criticisms of the race-conscious remedies mandated under the Voting Rights Act is that they violate the rights of white voters. But the plaintiffs in Shaw and subsequent cases did not allege that the remedies violated their personal rights in any way. Instead, they claimed an abstract injury of being "stigmatized" by the fact that whites do not have a right to vote in majority/white districts, and to elect white representatives.
In a 1977 decision, the Supreme Court said that as long as whites "as a group, [are] provided with fair representation, we cannot conclude that there was a cognizable discrimination against whites or an abridgement of their right to vote." And representation has always been more than fair: Whites make up 70 percent of the population nationwide but dominate 83 percent of the Congressional districts. Congress is just over 7 percent black while the general population is 12 percent black. Where is the discrimination against whites?
Another common criticism is that predominantly minority districts are counter-productive because they consolidate and reinforce white, conservative voting strength in other districts. Southern Republicans have at times supported redistricting for that very reason. Most recently, the 1990 Congressional reapportionment has been blamed (or credited, depending on one's perspective) for the Republican sweep in 1994. But the statistics prove otherwise.
For one thing, districts did not change between 1992, when Democrats gained a 41-seat majority, and 1994 when they lost it. Second, in the nine states that drew new predominantly minority districts after the 1990 census, Democrats lost 19 percent of their seats in '94; in the 41 other states, they lost 21 percent. Even if the Democrats had retained every one of their House seats in those nine states -- completely bucking the national trend -- the Republicans would still have gained control of the House. What is true is that as blacks have started to play a more active role in the political process, and specifically in the Democratic Party, whites have responded by defecting to the Republican side. That development cannot, however, be a reason to abandon remedial efforts to achieve equal opportunity in voting.
Finally, there is no evidence that race-conscious districting fosters racial polarization. On the contrary, it fosters the gradual breakdown of racial barriers -- in voting and in society. For cross-racial coalitions to develop within government, there must first be minority officials. And the creation of an environment in which minorities can be elected will ultimately encourage the formation of cross-racial coalitions outside of government as well.
There are numerous examples of such change in the making. To name just one: When a new black district was created in the Mississippi Delta, Mike Espy became the first African American elected to Congress from that state since Reconstruction. In the 1986 election, he got 10 percent of the white vote and 52 percent overall. In 1988, he won re-election with 40 percent of the white vote and 66 percent overall. This record of minority achievement bodes well for the future, notwithstanding Mr. Espy's current troubles.
Nonetheless, it will be a long time before color barriers come tumbling down. Our nation is still taking only the first steps toward integrating government, and remedial race-conscious districting mandated by the Voting Rights Act is still an indispensable tool for dismantling the structures of discrimination.
A race-based solution to a race-based problem. At this point, predominantly minority districts are virtually the only ones that elect minority representatives, owing to the general disinclination of whites to support minority candidates. Of the 17 African Americans elected to Congress from the South in 1992 and 1994, all represent predominantly minority districts. Only two blacks have ever been elected from Southern majority/white districts, and three elsewhere in the country. The same pattern holds true in state legislatures in the South, where some 90 percent of African Americans elected during the 1980s came from majority/black districts.
That is not to say that predominantly minority districts guarantee the election of minorities. In Georgia, for example, in the 1992 House and Senate elections such districts chose white candidates to represent them by 25.9 percent. The point is that, historically, white elected officials have often betrayed the interests of minorities and some have been the architects of virulent forms of official discrimination. Justice O'Connor once wrote, "[t]he exclusion of minorities from government not only promotes ignorance of minority problems ... but also creates mistrust and alienation, and all too often, hostility toward the entire process of government."
No completely accurate measure is available to assess the impact of empowering minorities in the electoral process, and of having committed minority advocates in office. But evidence does exist to show that while minority voting strength most directly benefits minority communities, all Americans benefit from the diversity that predominantly minority districts produce.
The "Profiles" at the end of this report testify dramatically to the productive potential of minority electoral empowerment. Keysville, Georgia; Edgefield County, South Carolina, and Georgia's 11th Congressional district, in which minority officials were elected, all exemplify the profound changes and benefits that predominantly minority districting can bring to both black and white communities -- street lights, water supplies, municipal employment, fire protection, health care and better schools. And all these areas have seen the development of meaningful communication between whites and blacks, where before there was distance, suspicion and hostility.
Further evidence of positive results comes from academic studies. One study of 10 California cities found that the mere presence of minority council members tended to break down polarization and racial stereotyping, and has "increased minority access to councils and changed decisionmaking processes." The report also stated that minority political participation was "associated with important changes in urban policy," including the creation of police review boards, the appointment of more minorities to commissions, more jobs for minority contractors, and a general increase in the number of programs oriented to minorities. Studies in at least four other states, cited in the Vanderbilt Law Review, came up with similar results.
Increased minority voter influence has also had a positive impact on the voting patterns of white officials. In 1975, for the first time since Reconstruction, a majority of the white southern members of Congress voted for a major civil rights bill when they supported amendments to the Voting Rights Act. That pattern has continued. For example, three Southern senators who owed their election in large part to black voters were instrumental in defeating Robert Bork's nomination to the Supreme Court.
Other remedies. While controversy has raged over race-conscious districting in the wake of Shaw, alternative remedies have also received some recent attention -- particularly after Lani Guinier's nomination for U.S. Attorney General was derailed as a result of her writings on the subject.
One discrimination remedy explored by Guinier is the cumulative system, whereby voters are allowed a fixed number of votes that they can choose to either give to one candidate or distribute among several candidates. Another proposed remedy is limited voting, whereby each voter is allowed to vote for, say, 3 out of 5 candidates. Both of these proposals are intended to foster the pooling of minority votes behind a single candidate and might prove useful in certain circumstances, such as in local elections where the minority population is so dispersed that it cannot be consolidated in a single district. However, an act of Congress would be required to permit the use of cumulative systems in Congressional elections.
One very successful new tool now being used to remediate discrimination is the National Voter Registration Act -- the so-called "Motor Voter" law -- which requires states to allow voter registration at motor vehicle bureaus, welfare offices and other government agencies, and by mail. At the time the Act was passed, an incredible 37 percent of eligible U.S. citizens -- more than 70 million people -- was unregistered, two-thirds of that group in low income households.
Since the law took effect on January 1, 1995, after an intensive lobbying effort by the ACLU and other civil rights groups, registration rates have soared. In Kentucky, for example, 10,000 voters registered in 10 days, as compared to 55,000 throughout 1994. In Georgia, where 85,000 people registered in all of 1994, more than 128,000 had registered by mid-March.
Unfortunately, considerable resistance to voting reform of all kinds is prevalent not only in the South, but throughout the country: 11 states have refused to comply with the "Motor Voter" law, and lawsuits have been filed by the Justice Department and ACLU voting rights advocates in those states. Six bills calling for repeal or suspension of the law are before Congress.