A History of One-Winner Districts for Congress
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by Nicolas Flores
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Preface
I have been fascinated by racial redistricting for quite some time now. The topic encompasses three issues—law, race, and politics—which together serve as the cornerstone of my Political Science major here at Stanford University. When I first saw how effective the practice has been at increasing the number of racial minorities in Congress, I figured it was a progressive endeavor that was in the best interests of the African-American and Latino communities. However, as I began to read the critical reviews authored by Abigail Thernstrom, Carol Swain, and most importantly, the Supreme Court, I was left to wonder about the relative merits of race-conscious districting.
Originally, I thought this thesis should attempt to answer the overarching question of whether the creation of majority-minority districts should continue. I told myself to pick one side of the debate, pick apart the other side, and arrive at a simple conclusion. But I struggled mightily in my efforts to wholeheartedly support either of these two sides. I was left in a sort of academic stupor, unsure of which direction my project should take.
Early on, I read that alternative voting systems, based on proportional representation, might do a better job of providing racial minorities with adequate political influence. Yet like so many others have done, I ignored and quickly discarded this idea. After all, wasn’t proportional representation the same electoral system that often paralyzed the Italian government? Didn’t proportional representation lead to beer-drinking political parties in the emerging Russian democracy? Certainly these alternative voting procedures could have no place within the American polity…could they?
With a little more research, I slowly began to realize that there was a third framework to what I previously thought was only a two-dimensional dispute. It just so happened that PR voting procedures were not really that bizarre, had been endorsed by a number of academics, and had actually been used in various parts of this country. Most importantly, they could be particularly useful to those state legislatures that had to deal with the racial redistricting dilemma. By providing racial minorities the capability to elect a representative of their choice, without the special protection of a majority-minority district, these novel voting methods appeared to constitute a panacea to this confounding controversy.
However, Congress’ historic preference for single-member plurality districts currently precludes implementation of these systems. This legal norm did not originate in 1787 though. The Framers may have indicated their preference for district elections, but the Constitution does not expressly require any particular electoral system. Rather, the history of district mandates begins with the 1842 Apportionment Act, the first law to prescribe the manner in which House members would be elected. Congress waited until 1862 to pass the next districting provisions, but subsequently reaffirmed this legislation every decade up to the 1920s. Curiously, over forty years passed before another single-member district mandate passed through the federal Legislature. Yet it is this law, enacted in 1967, that unfortunately prohibits any usage of PR voting procedures today.
Before I could abandon my belief in these different voting methods though, I had to consider the fundamental principles underlying this historic preference for district elections. I also needed to explore the two most important districting mandates, the first from 1842 and the last from 1967, and determine what motivated these two different Congress’ to demand electoral uniformity. After all, as Richard Pildes and Kristen Donoghue wrote in 1995,
We might explore the ideas and values that motivated the original American choice for a system of territorial districts with winner-take-all rules…At the least, this kind of historical analysis can deflate any sense that districting with winner-take-all voting rules reflected a deliberate choice to reject alternative voting systems. Beyond that, such analysis might reveal that the aims thought best served in 1789 or 1842 by traditional electoral structures are better served today by more sophisticated structures not conceived of or widely understood then.
I had finally found my own niche within this extensively covered debate. My project would then gain a heightened degree of pertinence when, on March 17 of this year, Representative Melvin L. Watt introduced the States’ Choice of Voting Systems Act. If passed, the bill would repeal the 1967 district mandate, allowing states to experiment with these alternative voting systems. This Act would help the nation maintain its admirable gains in racial minority representation, but without the “political affirmative action” techniques that have been so widely scorned. Consequently, I felt the need to explore this bill, along with the districting mandates it would repudiate, more closely.
First and foremost, I would like to thank Kareem Crayton for the valuable insight, time, and effort he contributed to my research. Without his help, this thesis may not have been possible. I would also like to thank Rob Richie of the Center for Voting and Democracy, as well as Professors Pamela Karlan and Jack Rakove, for their helpful thoughts on my research. Finally, I’d like to thank Professor Jerome Maddox for supervising this project.
Chapter 1: Introduction
Today there is a raging controversy over how best to effectuate racial minorities’ political representation, particularly within a polarized environment.[1] As we inch ever closer to the next millennium, in which a new census will be taken and Congressional districts will be redrawn, the race-conscious districting that has helped elect so many African-Americans and Latinos to Congress is becoming increasingly untenable.[2] Several recent decisions by the Supreme Court have cast an ominous cloud over the practice, with the Court harshly disapproving of the manner in which majority-minority districts were created by several state legislatures.[3]
Other critics of race-conscious districting abound, and object for a number of different reasons. Some feel it represents a sort of political affirmative action in which racial minority candidates are afforded unnecessary special protection.[4] Others denounce the racial classification of voters this practice entails, arguing that it is a divisive approach to electoral politics that can only lead to balkanized ethnic enclaves.[5] Finally, there are those that feel this approach does not go far enough, reasoning that it only provides token representatives whom exercise a marginal role in the decision-making process.[6]
Some people want to reframe the debate entirely. Representative Melvin L. Watt of North Carolina introduced a bill earlier this year, the States’ Choice of Voting Systems Act,[7] that not only would help states deal more effectively with this controversy, but also could one day be hailed as the necessary stepping stone towards a more inclusive American democracy. By overturning a 1967 law that mandates single-member districts for the House of Representatives,[8] the bill would allow states to implement multimember districts using alternative voting procedures based on various types of proportional representation (PR). This bill would thus give state legislatures a much wider array of options with which to confront their vexing districting dilemmas, providing them with more alternatives to an increasingly precarious problem.
Of course, Rep. Watt’s home state of North Carolina has been subjected to the vagaries of the racial gerrymandering debate more than any other state. Its Congressional boundaries have been adjudicated in front of the Supreme Court three times this decade, costing its taxpayers millions of dollars.[9] Nine years after the 1990 census, North Carolina’s districting plan still has not been resolved and the state is just two years away from having to do it all over again.[10] Other states will once again be compelled to create these majority-minority districts,[11] so this bill seeks to preempt some of the litigation that will undoubtedly follow the redistricting process in 2001.
Yet another impetus behind this bill is the heightened attention being given to these alternative voting systems.[12] Many have recognized one of the most pragmatic features of PR vis-á-vis race-conscious districting: it can ensure minorities the capability to elect a representative of their choice without resorting to flagrant, potentially divisive racial classifications. But this attention comes not only in response to the purported pitfalls of racial redistricting. PR voting procedures have a number of other possible advantages, such as: elevated electoral competition;[13] the elimination of all gerrymandering;[14] increased voter turnout;[15] amplified representativeness in the legislature;[16] and perhaps most important, an enhanced perception of legitimacy for our nation’s policies.[17] These and many other potential benefits would represent a breath of fresh air to a democracy currently plagued by noncompetitive elections, abysmally low voter turnout, sordid political campaigns, and serious questions about its political fairness.
Still, single-member plurality districts are firmly rooted in our nation’s history, as they have long been thought to be the most ideal means of representation. James Madison declared in Number 56 of the Federalist papers, “Divide the largest state into ten or twelve districts and it will be found that there will be no peculiar local interests in either which will not be within the knowledge of the Representative of the district.”[18] The driving force behind districts has been that geographic subdivisions will reflect a common group identity, with representation directly tied to shared territory. Dividing the states up into districts was sufficient and practical, since this process acknowledged the rights of most regional minority groups. Representation was considered thorough, with the local interests of every section of the country gaining cognizance in Congress.[19]
Hence, the debate over minority representation is not really new in American political discourse. Rather, the concept is inherently tied to larger considerations of electoral practices that date all the way back to the Founding Fathers. The debates surrounding the two most important districting laws, the first one ever adopted in 1842 and the current statute that was passed in 1967,[20] serve as excellent examples of episodes where Congress reconsidered its ideas on representation. In 1842, states either elected their Representatives by districts, or at-large, in which the entire state would vote on all candidates. Since at-large elections usually produced a one-party sweep of all the contested seats, district elections were viewed as the only way in which a state’s partisan or regional minorities could gain adequate representation. This type of legislation was only controlling for ten years though, and would be sporadically renewed every decade until the 1920s. But in 1967 Congress once again decided to pass another single-member district mandate, preventing states, especially in the South, from using at-large elections to dilute the newly enfranchised black voting power. Thus districting legislation has always promoted the values of inclusiveness and minority representation.
Single-member districts and winner-take-all elections have nevertheless become antiquated voting systems, ill-equipped to deal with the abundant diversity in most areas of today’s society. Where a person lives no longer determines their political perspective, as geographical interests have lost a great deal of their relevance.[21] Yet Congressional communities continue to be contrived, regardless of the fact that today’s most salient groups socioeconomic, partisan, racial, religious cannot always be divvied up into districts. Districting has therefore become an ineffective and outmoded means of providing various state interests with the type of Congressional representation they have long been thought to deserve. As a result, it is time for our country to adopt a flexible electoral system that can accommodate these groups without having to balkanize them.
The purpose of this thesis is to show that the States’ Choice of Voting Systems Act would invigorate our degenerating democracy, providing states the capability to implement voting schemes consistent with the Constitution and better suited to meet the representative ideals of past districting legislation. This bill would permit states to creatively provide racial minorities with the potential to elect a representative of their choice, while avoiding the polarizing practice of racial redistricting. Hence, it represents a rather simple solution the bill would not require change, but only allow for it to an intractable problem. But since it would additionally foster the likely implementation of PR on a federal level, this bill also signifies continued electoral progress towards a more inclusive form of American democracy.
The first chapter provides a general background of these electoral systems. I start by describing the differences between at-large and district both multimember and single-member elections. I then explore the historical background behind these systems to show that in the beginning, states were intended to choose for themselves how they would elect their Representatives. This power has wavered throughout history, but I will argue that the States’ Choice Act would properly return to the states a right that had been theirs for the first fifty years of the Republic.
The second chapter discusses the voluminous Congressional testimony behind the first districting law, the 1842 Apportionment Act. The debates over the districting provision of this bill were quite heated, as many Congressmen vehemently defended the state legislatures’ traditional right to choose how their Representatives would be elected. The opposition framed this bill as a federal encroachment on states’ rights, while the majority of Congress saw an overwhelming need to prevent the electoral injustices inherently tied to at-large elections. Ultimately, the need to preserve minority representation may have prevailed, but the important lesson from this bill is that both principles state choice and minority representation were considered extremely important. Thus, it is striking how perfectly the States’ Choice Act would have satisfied both sides’ main objectives.
The third chapter of this thesis then examines the controlling 1967 district mandate. Here the debates may not have been as extensive or antagonistic, but the political context to which this law responded emphasizes Congress’ changing ideas about representation. An investigation of the history surrounding this district mandate once again conclusively proves that Congress acted in an effort to protect the voting power of minorities this time of the racial character from the dilutive impact of at-large elections. So while the States’ Choice Act may overturn the 1967 law, it ironically still preserves the main purpose of the law.
The fourth chapter attempts to establish the current context in which the States’ Choice Act must operate. I start by recounting the efforts made to effectuate racial minority representation within the single-member district paradigm, specifically through the creation of majority-minority districts. I briefly outline the history behind racial redistricting, describing the Supreme Court cases which initially allowed for the practice, as well as the recent decisions which have threatened its future. I go on to consider the various implications of the States’ Choice Act, and show that the electoral arrangements it would permit not only avoid the purported problems of race-conscious districting, but also provide racial minorities with the equal capability to elect a representative of their choice. Since majority-minority districts have been so Constitutionally imperiled, I conclude that the Act may serve as the only available conduit for the preservation of minority representation.
It is my belief that in order to fully appreciate the States’ Choice of Voting Systems Act, one must understand the historical aims of the Constitution as well as past federal district mandates. This thesis demonstrates two things. First, that decisions over electoral matters were considered by the Framers of the Constitution to be best left with each state legislature, since they were more in tune with the needs of their respective constituencies. Second, that Rep. Watt’s bill would repudiate the two most important districting laws’ provisions while still maintaining their ultimate objectives. Overall then, it appears that history may provide the most compelling support for this bill. For the States’ Choice Act represents genuine electoral improvement, bringing our millennium-bound democracy closer to the representative ideals of the past.
Chapter 1 notes
[1] The concept of minority representation has long been a troubling one within a democracy founded on majority rule. Throughout this thesis, I will repeatedly refer to minority rights, interests, and representation. It is important to keep in mind, however, that I will use this term broadly to include all types of minorities geographical, partisan, religious, etc. In the instances when I do discuss solely minorities of the racial character, I will make this distinction clear.
[2] This is a practice in which district lines are intentionally contorted so as to create subdivisions, called majority-minority districts, in which racial minorities comprise a majority of the population. The result is that these minorities thereby have “the capability to elect a representative of their choice,” a requirement of the Voting Rights Act. Public Law Number 97-205, 96 Statute 131 (1982), codified at 42 U.S.C. section 1973 (1988). Throughout this thesis, I use the terms race-conscious districting, racial redistricting, and racial gerrymandering interchangeably.
[3] Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995).
[4] See James F. Blumstein, “Defining and Proving Race Discrimination Perspectives on the Purpose vs. Results Approach from the Voting Rights Act,” 69 Virginia Law Review 633, 636 (1983); Michael Rosenfeld, “Affirmative Action, Justice, and Equalities: A Philosophical and Constitutional Appraisal,” 46 Ohio State Law Journal 845, 912 (1985); Brian K. Landsberg, “Race and the Rehnquist Court,” 66 Tulane Law Review 1267, 1305 (1992). Taken from Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy 273-74, n51, 52 (Martin Kessler Books, 1994) [hereinafter Guinier, Tyranny].
[5] “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer mattersÛa goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.” Shaw, supra note 3, at 657.
[6] See Lani Guinier, “The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success,” 89 Michigan Law Review 1077 (1991).
[7] The States’ Choice of Voting Systems Act, 106th Congress, 1st Session, H.R. 1173, introduced March 17, 1999.
[8] 2 U.S.C. ş 2(c) (1994).
[9] Shaw, supra note 3; Shaw v. Hunt, 517 U.S. 899 (1996) [Shaw II]; Hunt v. Cromartie (1999).
[10] Mel Watt, in the “Dear Colleague” letter accompanying his proposed bill. On file at the Center for Voting and Democracy.
[11] These states include Alabama, Florida, Georgia, South Carolina, Texas, Virginia, and any other state that will have a large, compact population of racial minorities when districts are redrawn in 2001. Of course, there is no law that expressly orders states to create majority-minority districts. Instead, states are indirectly urged to do so by two sections of the Voting Rights Act. Section 5 directs covered jurisdictions to submit their districting plans to the Justice Department for preclearance. If a state fails to adequately take into account the racial minorities present in a region, the Justice Department can invalidate the plan and make the state draw up a new one. Then there is Section 2, a law that holds that racial minorities must be given the equal opportunity to elect a candidate of their choice. This makes any state with a significant racial minority population susceptible to lawsuits. Thus it is the threat of litigation, in cooperation with the preclearance provisions of section 5, that effectively forces states to employ the practice of racial gerrymandering.
[12] This attention has come from a variety of different sources. Major newspapers, for example, Editorial, “A Route to Fairer Voting,” USA Today 12A (June 30, 1995); William Raspberry, “The Balkanization of America,” The Washington Post A21 (July 7, 1995); and Peter Applebome, “Guinier Ideas, Once Seen as Odd, Now Get Serious Study,” The New York Times 5 (April 3, 1994). Magazines, e.g., David Van Biema, “One Person, Seven Votes,” Time 42 (April 25, 1994); John Anderson, “A Better Approach to Boosting Minority Representation?” The Christian Science Monitor 18 (July 6, 1993); and Hendrik Hertzberg, “Along Racial Lines,” The New Yorker 7 (April 4, 1994). Also in numerous law reviews, many of which will be cited below. Finally, and perhaps most importantly, alternative systems have begun to garner significant judicial attention. In Maryland, a federal district court judge imposed one of these schemes in response to a vote dilution case, arguing that it would be “less likely to increase polarization between different interests since no group receives special treatment at the expense of others as would occur in a single-member district with one black majority district.” See Cane v. Worcester County, 847 F. Supp. 369, 373 (D. Md. 1994). Then, while concurring in Holder v. Hall, 114 S. Ct. 2581, 2601-02 (1994), Justice Clarence Thomas stated “In principle, cumulative voting and other non-district-based methods of effecting proportional representation are simply more efficient and straightforward mechanisms for achieving what has already become our tacit objective: roughly proportional allocation of political power according to race.”
[13] Guinier, Tyranny 16; Richard H. Pildes and Kristen A. Donoghue, “Cumulative Voting in the United States,” 1995 University of Chicago Legal Forum 241, 256 (1995).
[14] Guinier, Tyranny 16, 152; Douglas Amy, Real Choices, New Voices 42-54 (Columbia University Press, 1993) [hereinafter Amy, Real Choices].
[15] Guinier, Tyranny 58, 99; Douglas Amy, “Proportional Representation: A New Option for Local Elections,” National Civic Review 275, 279 (Summer 1993); Amy, Real Choices 140-152.
[16] Amy, Real Choices 99-139.
[17] For discussion of political legitimacy, see Lani Guinier, “The Representation of Minority Interests: The Question of Single-Member Districts,” 14 Cardozo Law Review 1135, 1138-43 (1993) [hereinafter Guinier, Representation].
[18] “Federalist Number 56” (James Madison), in Isaac Kramnick, ed., The Federalist Papers 340 (Penguin Books, 1987) [hereinafter Kramnick, Federalist].
[19] Of course, this heightened representativeness was relative, as women and racial minorities were not given access to the franchise. Yet districts would help many geographic minorities overcome their statewide, numerical disadvantage. By making them a majority within their own smaller subdivision, districting increased the chances for these citizens to elect a representative sympathetic to their needs.
[20] Apportionment Act of 1842, chapter 47, section 2, 5 Statute 491 (1842), and 2 U.S.C. ş 2(c) (1994), respectively.[21] Stephen Hill, “A Voting Rights Act at War with Itself,” Boston Review (March/April 1998, http://www-polisci.mit.edu/bostonreview/BR23.1/); Pamela Karlan, “A Bigger Picture,” ibid (http://bostonreview.mit.edu/BR23.1/Karlan.html). Both claim that geographic representation made much more sense back in the nineteenth century, when communities were connected by slow transportation and communication. But today, society is much more mobile and multicultural. As a result, Karlan argues, “many citizens most pressing interests, particularly at the federal level, are not primarily defined by where they live.”
Chapter 2: A historical background
Racial gerrymandering has drawn a great deal of criticism from both sides of the political spectrum, as politicians, judges, and academics all struggle with the perplexing question of how racial minority representation can be preserved within our single-member district plurality system. Curiously, as divisive and balkanizing as this practice allegedly is, it certainly raises very little alarm among voters. While occupational and educational affirmative action is overwhelmingly opposed by white citizens,[1] public opinion surveys simply have not identified a tide of popular resentment against electoral benefits for racial minorities.[2]
There is a simple reason for this: the general public is simply aloof to the design of electoral districts, not to mention wholly unconcerned with the overall structure our current voting system.[3] It has been written that ěElection procedures seem about as important to the understanding of American politics as accounting procedures are to the understanding of American business.[4] From this observation, it would be surprising if a majority of Americans grasped the influence an electoral system can have on their vote.
The importance of the procedures with which any level of government chooses to elect its officeholders cannot be underestimated, for the type of electoral system significantly affects who ultimately gets elected. The composition of Congress would be markedly different if every state elected its Representatives at-large, or from multimember districts utilizing alternative voting procedures. Election results, meaning who actually wins the contested seats, are quite dependent on the type of voting scheme that is used. It follows that electoral laws are thus of special importance to every group and individual in society, because they help to decide who makes the other laws.[5]
In this chapter I will start by describing the various differences between at-large, multimember, and single-member district elections. I will then show that although many of the Framers may have preferred districts, the Constitution still fails to mandate any particular system for Congressional elections. As a matter of fact, the Constitutional Convention reached a general consensus that state legislatures should be allowed to choose their own electoral system, since they would be best acquainted with the needs of their constituents. While Article I, Section 4 of the Constitution grants concurrent jurisdiction over this matter to Congress, its power was originally meant to be exercised only in times of emergency. Hence, my main argument here is that there was a great deal of ambiguity about who retained ultimate authority over elections, as Congressí power was left quite unclear.
This historical background will therefore highlight two points. First, that past Congresses may not have been using their electoral authority in the intended context when enacting districting laws. And second, that Rep. Watt has a valid claim in seeking to reestablish statesí ability to select their own voting systems.
A brief overview of electoral systems
In order to fully understand the ensuing discussion, it is necessary to distinguish between the different electoral systems that currently exist within todayís American democratic practice.[6] In the next several pages I will briefly summarize at-large, multimember district, and single-member district elections. But it is important to keep in mind that these descriptions assume the use of plurality voting procedures. For as I will show much later in this thesis, the use of PR voting schemes within at-large and multimember districts would drastically alter the idiosyncrasies described below.
Although the Statesí Choice of Voting Systems Act would allow states to decide how their Representatives would be elected, not all of the following structures represent available options. This is because at-large and multimember district elections, when used with plurality voting, have a dilutionary impact on minoritiesí voting strength within polarized communities.[7] Thus many states, especially in the South, would likely avoid the plurality version of these systems out of fear of potential litigation.[8]
At-large
Also commonly referred to as the general ticket, at-large elections are held statewide, meaning that the state’s entire Congressional delegation is voted on by all of its eligible voters. For example, if there are seven seats up for election, then a voter may vote once for seven different candidates. Inherent to this system is a notorious sweep effect that can cause gross deficiencies in representation when used with plurality voting procedures. Any party that can muster a bare plurality of the vote will tend to win all or most of the seats up for election.[9] Minority interests, be they geographic, partisan, or racial, that are not in political agreement with the statewide majority can easily have their political power diluted, and worse, be left without any representation. These flaws are hardly inconspicuous, and have left many at-large systems, on numerous levels of government, vulnerable to attack on constitutional grounds.[10]
There are two benefits that may come from this system though. First and most significant is that at-large elections avert the need to create districts, majority-minority or otherwise, and are therefore much more efficient for state legislatures. Politicians are not permitted to choose the voters, and the evils of gerrymandering are conveniently avoided. Second is that candidates elected at-large tend to more represent the interests of the whole state rather than the narrow, parochial interests to which district Representatives are perceived as being more susceptible.[11] Related to this argument is that voters in at-large elections are not limited to the choice of only one candidate, but instead can have an impact on all of the Congressmen elected from their home state.
Single- and Multimember Districts
Districting is a task that requires state legislatures to partition their states into smaller subdivisions from which Representatives can be elected. There are two types of district elections: single-member, where voters are only allowed to elect one candidate to Congress; and multimember, in which two or more Representatives are elected from a single district. Although the distinction is obvious, the critical difference between the two may not be.
Simply put, multimember districts, even when fairly drawn, can still dilute minority voting strength. This is due to the fact that a bare plurality could potentially determine the gamut of Representatives for the region, gaining a disproportionate share of political power. Minorities may once again be left without representation, especially when their interests differ sharply from the majority. Therefore, multimember systems can be strikingly similar to at-large elections, as both share the same unsatisfactory sweep tendency.
Yet if a state were to choose between district and at-large plurality elections, districting, especially that of the single-member variety, could usually be considered the more inclusive option for minorities. This practice requires legislatures to divide up their population, dispersing the state’s majority throughout a number of different regions. There exists within these smaller districts a higher probability that the minority group will be able to win at least one seat.[12] With the majority unevenly splintered, those in the statewide minority should now be able to overcome their numerical disadvantage in order to elect a Representative of their choice. As a result, single-member districts have long been praised for their ability to improve minority representation within the American winner-take-all paradigm.[13]
Another proverbial merit of districting is that the practice is believed to bring the voters closer to their Representative, not only geographically, but also in terms of social distance and interest.[14] Since this country’s inception, a tremendous amount of value has been placed on the proximate connection between Congressperson and citizen. District Representatives are normally required to live amongst their constituents, increasing responsiveness and providing both sides with a sort of spatial bond. In this way, these officeholders are perceived to have their fingers on the pulse and general sentiment of their particular community. And if citizens are displeased in any way with the quality of representation their Congressperson provides, they can respond quickly by voting that person out of office.
The main criticism of districting is that the practice provides those who draw the boundaries an inordinate amount of control over electoral outcomes. The partisan distribution of states, historically never much of a mystery, has always been easily exploitable. (With recent advances in computer technology, mapmakers can currently discern a state’s political composition down to each city block.) Politicians are then conversely choosing voters, with districting representing an attractive way in which election results can nearly be predetermined. The term gerrymandering is used to refer to this type of political manipulation, as it unfairly excludes or disadvantages a distinctive group within the process of drawing district lines.[15]
It has been persuasively argued that all districting is gerrymandering.[16] This is due to the fact that even independent, apolitical districting plans are bound to have harsh political consequences.[17] No matter how these districts are drawn, there will inevitably be some groups that are disadvantaged as a result of these subdivisions.[18] Competition is thereby stifled, with most elections becoming remarkably predictable months before campaigning even begins.
While admittedly brief, this section detailed the most important characteristics of at-large and district electoral systems. Both have their advantages and disadvantages. On one hand, the problems with at-large elections are inherent and unavoidable when used with a plurality voting procedure; the majority will almost always win all of the contested seats. On the other hand, the drawbacks of districting are more of a functional nature, and can be proactively mitigated with a tweaking of boundary lines. Minority representation is augmented by the fact that states are carved up into subdivisions, with every area of the country gaining legislative influence. As I will show in the next section, these were characteristics that motivated the Framers of the Constitution to express a preference for single-member districts.
The Uncommitted Constitution
The Constitution falls surprisingly silent on the subject of how Congressional Representatives should be elected, even though the electoral systems described above have existed from the very beginnings of this country. But while there is no explicit requirement, there is still a great deal of evidence that suggests that district elections were projected.
First, there are the numerous references from James Madison’s contributions to the Federalist papers. In Number 56, he remarked
“Divide the largest state into ten or twelve districts and it will be found that there will be no peculiar local interests in either which will not be within the knowledge of the Representative of the district.”[19]
Later in that same essay, Madison reasoned that
“The Representatives of each state will bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts.”[20]
The final excerpt comes from Number 57, in which he declared that “each Representative of the United States will be elected by five or six thousand citizens.”[21]
As a result, from these arguments it appears that Madison assumed most Representatives would be elected by districts rather than at-large.[22]
There were other indications of this preference as well. George Mason asserted a conception of the House of Representatives during the Constitutional Convention that resonates even today, arguing that it “It ought to know and sympathize with every part of the community, and ought to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it”.[23] Then there was a statement made by Alexander Hamilton at the New York ratifying convention, in which he said that “The natural and proper mode of holding elections will be to divide the state into districts in proportion to the number to be elected.”[24] Consequently, it seems that districts were most likely the true intention of the Framers of the Constitution, with some holding on to this preference well after the Philadelphia Convention.
Yet the delegates to the Constitutional Convention also reached a general consensus that decisions regarding electoral methods were best left to the legislators of each state, since they could decide which plan was most suitable for their constituents.[25] There was very little debate on this topic, as most of the Framers were firm believers in state choice. Madison summarized this sentiment “Whether the electors should vote by ballot, or viva voce, should assemble at this place or that place, should be divided into districts, or all meet at one place, should all vote for all the Representatives, or all in a district vote for a number allotted to the district, these, and many other points, would depend on the legislatures, and might materially affect the appointments.”[26]
So the Founding Fathers preferred district elections, but declined to mandate them within the Constitution because they believed states should have the right to choose for themselves how they would elect their Representatives to Congress. This issue became increasingly unclear when Article I, Section 4 was introduced. It states that “The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such regulations.”[27] This confusing construction granted Congress concurrent jurisdiction over electoral matters, an issue that raised a great deal of controversy. When submitted to public scrutiny, the federal government’s supervisory power was staunchly opposed based on fears that this authority would be abused. Property qualifications, inconvenient times of elections, and all kinds of plots by Congress to continue itself in power were imagined.[28]
Madison tried to explain Congressí capacity in Federalist Number 59. There he claimed
“[The Framers] have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.” [29]
This statement was quite significant, because it articulated the intended context in which Congress should utilize its electoral authorityónamely, only in those times of emergency.
Consequently, eight of the original thirteen states proposed amendments during their ratification conventions that sought explicit restrictions on when this power could be exercised.[30] Three states put forth the same revision which held that “Congress shall not alter, modify, or interfere in, the times, places, or manner of holding elections, except when the Legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same.”[31] Two others widened Congress’ authority to include on that list those situations in which states made “regulations subversive of the rights of the people to a free and equal representation in Congress.”[32] It thus appears that Congress’ electoral authority was widely viewed with suspicion, and probably only to be used in dire circumstances.
Still, the federal Legislatureís power was never placed within bounds. In the first session of the first Congress in 1789, a Representative from South Carolina proposed an amendment that would have limited Congressí authority over elections much like those of the state ratification conventions outlined above. Surprisingly, for reasons other than a condemnation of the principle,[33] the amendment was voted down by a mere five votes.
Nonetheless, the reality remains that a majority of the original thirteen states conceived Congressí authority over lower house elections to be quite limitedóand certainly not to be maintained vis-ý-vis a stateís need to adapt its electoral system to its own regional exigencies. While a decision was eventually reached, it was hardly a settled issue. First, a number of states were clearly unsatisfied with Congressí unchecked authority over statesí electoral decisions. This was evidenced not only in the fact that eight states opposed this federal power, but further, by the close vote on the proposed amendment. Second, the Constitution itself remained equivocal on the issue, as the provision could easily be subject to two different interpretations. Overall, history proves that states were thought best to make their own electoral decisions, while Congressí authority over the matter was as questionable as it was conditional.
Conclusion
The three electoral systems described aboveóat-large, multimember, and single-member districtsócan be thought to exist within a dilutionary hierarchy. Single-member districts constitute the most representative electoral system available within a plurality voting scheme, which is no doubt why so many of the Framers expressed their preference for it. Conversely, at-large elections, because of their unfair sweep effect, exhibit the largest dilutive impact. Multimember districts exist somewhere in between, depending on their size and the number of Representatives they contain.
But while single-member districts do a much better job of ensuring minority inclusiveness, several states did not need this benefit at the inception of the Republic. Their circumstances were different from those of other, larger states: they lacked the diversity of regional and partisan interests, so subdivisions were considered unnecessary. The important point here is that these states were allowed to tailor their own electoral system to their own regional exigencies. As shown above, the Framers of the Constitution wanted states to have this capability, since the states would know their own interests better than any other decision-making body.
Unfortunately, the Framers confused this topic by granting Congress a concurrent jurisdiction over electoral decisions in Article I, Section 4. The situations in which the federal Legislature could use this power were clearly thought to be quite limited, as a significant majority of the original thirteen states responded by proposing amendments seeking to codify permissible preconditions. While none of these revisions were ultimately adopted, the fact remained that states were the only actors who possessed a settled and intended authority to make decisions about electoral matters.
Chapter 2 notes
[1] See Howard Schuman, Charlotte Steeth, Lawrence Bobo, and Maria Krysan, Racial Attitudes in America 170-183 (Harvard University Press, 1997).
[2] Hugh Davis Grahman, Voting Rights and the American Regulatory State,î in Controversies in Minority Voting 177, 193 (Bernard Grofman and Chandler Davidson, eds., The Brookings Institution, 1992) [hereinafter Grofman and Davidson, Controversies].
[3] Timothy G. OíRourke, The 1982 Amendments and the Voting Rights Paradox, in Grofman and Davidson, Controversies 85, 107.
[4] Amy, Real Choices 9.
[5] Douglas W. Rae, The Political Consequences of Electoral Laws 3 (Yale University Press, 1971), taken from Amy, Real Choices 9.
[6] These different structures may be used at any level of government to elect federal Representatives, state legislators, city council members, and even local school boards. However, in the interest of clarity, I will only discuss them in the context of Congressional elections.
[7] Chandler Davidson and Bernard Grofman, Editorsí Introduction,î in Quiet Revolution in the South 3, 7 (Chandler Davidson and Bernard Grofman, eds., Princeton University Press, 1994) [hereinafter Davidson and Grofman, Quiet Revolution].
[8] Laughlin McDonald, The 1982 Amendments of Section 2 and Minority Representation,î in Grofman and Davidson, Controversies 66, 71. Fear of litigation is so pervasive that the threat alone has forced many jurisdictions to change.
[9] Leon Weaver, Semi-Proportional and Proportional Representation Systems in the United States,î in Choosing an Electoral System 191, 193 (Arend Lijphart and Bernard Grofman, eds., Praeger, 1984) [hereinafter Lijphart and Grofman, Choosing].
[10] Ibid, 193.
[11] Ibid, 192.
[12] Ibid, 193.
[13] See Madison, supra note 18.
[14] Weaver, in Lijphart and Grofman, Choosing 193.
[15] Guinier, Tyranny 232, n182.
[16] Robert G. Dixon, Jr., Democratic Representation: Reapportionment in Law and Politics 462 (Oxford University Press, 1968).
[17] Amy, Real Choices 51.
[18] Weaver, in Lijphart and Grofman, Choosing 193.
[19] Madison, in Kramnick, Federalist 340.
[20] Ibid, 341.
[21] Federalist Number 57î (James Madison), in Kramnick, Federalist 346.
[22] Reapportionment and Redistricting,î ed. John Moore, in Congressional Quarterlyís Guide to US Elections 925, 926 (Congressional Quarterly, 1994).
[23] Joel Francis Paschal, The House of Representatives: ëGrand Depository of the Democratic Principleí?î 17 Law and Contemporary Problems 276, 276-77 (Duke University, 1952).
[24] Quoted in Lawrence F. Schmeckebier, Congressional Apportionment 131 (Brookings Institution, 1941).
[25] Rosemarie Zagarri, The Politics of Size 106 (Cornell University Press, 1987). Also see infra note 97.
[26] Ibid, 106.
[27] United States Constitution, Article I, ß4.
[28] Paschal 278.
[29] Federalist Number 59î (James Madison), in Kramnick, Federalist 353.
[30] Paschal 278; Congressional Globe, 27th Congress, Second Session, Volume 11, Part II, Appendix 320-22, 348-49 (1842) [hereinafter 1842 Congressional Globe]. The eight states were Massachusetts, New Hampshire, New York, North Carolina, Pennsylvania , Rhode Island, South Carolina, and Virginia.
[31] They were Virginia, North Carolina, and Rhode Island. Ibid, 321-22.
[32] Massachusetts and New Hampshire. Ibid, 320-21.
[33] See ibid, 349 for an explanation of the history.
Chapter 3: The 1842 Apportionment Act
This chapter will prove that the two fundamental principles of the States’ Choice of Voting Systems Act state choice and minority inclusiveness both were extensively endorsed and perilously protected throughout the 1842 Apportionment Act debates. But while the two ideas are comfortably intertwined in the present Act, they were irreconcilable in 1842. On one hand, the proposed district mandate would increase minority representation from the seven states that had used at-large elections in 1840. On the other, such a law would entail a considerable loss of state sovereignty, as states had always been free to decide for themselves how their Congressional delegation would be elected. Unlike today’s legislators, the Congressmen of that time period unfortunately did not have the luxury of augmenting minority representation alongside state choice.
The perceived loss of state sovereignty provided a resounding sticking point to these debates. Nearly every Congressman preferred single-member district elections in principle, as the inherent improprieties of at-large elections were widely recognized. But while the end enhanced representativeness was agreeable, it was the means to that end which stirred fervent opposition. This law was justifiably viewed as a federal encroachment on the states’ historic right to select their own electoral system. In an era still fearful of an omnipotent central government, these concerns much like those dealing with commerce and slavery were important because they hinged on states’ rights. In the end, the need to protect minority rights prevailed over the desire to preserve state sovereignty albeit by a mere two votes in the House.[55] Still, the controversy this provision raised, both before and after it was passed, is illuminating to any modern discussion of federal electoral legislation.
Initial Impetuses and Ensuing Roadblocks
Since the Constitution does not require any particular electoral procedure, it should come as no surprise that when the first Congress was established in 1789, the voting methods varied widely among the original thirteen states. Only five states elected all of their Congressmen from districts, while six used the at-large system. Georgia and Maryland used a curious combination of districts and at-large voting; each state was separated into subdivisions, yet citizens were able to vote on every Representative.[56]
But the second Congress marked the beginnings of a trend that would hold until 1842: while large states opted for district elections, the small states, in terms of population, consistently chose the at-large system.[57] (see Appendix I) The reasons for this dynamic were simple. The larger states tended to have wide attitudinal variations within their boundaries due to the differences between city and rural interests, so many were compelled to hold district elections. This way, their Representatives could be familiar with the broader range of issues contained within the state. But smaller states lacked the expansive territory as well as the plethora of interests characteristic of the larger states. As a result, they opted for at-large elections since their Congressmen could know and adequately represent the entire state.[58]
Yet as detailed above, at-large elections can cause glaring representational deficiencies due to their sweep effect. The Congressional record from 1789 to 1839 proves the persistence of an unmistakable pattern,[59] in which one party would consistently win a disproportionate share of the state’s political power. Any party that could garner a bare statewide majority would usually win all of the seats in the state’s Congressional delegation. At the same time, a significant portion of the state’s population, consisting of partisan and geographic minorities, would be left without representation in Congress.
These electoral misgivings were not necessarily accidents though. Smaller states remained partial to this unfair voting procedure because its sweep effect enabled these states to send more politically unified delegations to Congress. Although the larger states held a much higher number of seats in the House, their district elections caused their delegations to be divided along party lines. Conversely, at-large elections fostered partisan cohesion that helped the small states overcome their numerical disadvantage. Bloc voting amongst these states was made even easier with the common party affiliation, thereby allowing them to exercise a greater influence within the House of Representatives.[60]
Politicians were hardly unaware of the implications of the at-large system. Rep. Edward Everett of Massachusetts noted the intent of the smaller states when he said that “The general ticket system was adopted by [them], because it gave them political power over the larger.”[61] Others were more concerned about the large number of citizens who cast losing votes, and sought a constitutional amendment. The first proposal was introduced in Congress as early as 1800, with twenty-two states adopting districting resolutions from 1816 to 1826.[62] Then there was Sen. Mahlon Dickerson of New Jersey, who proposed this sort of amendment almost regularly from 1817 to 1826, with it winning Senate approval three times.[63]
All of these efforts were unsuccessful, however, for three reasons.[64] First, the majority of Congress continued to assume that it was each state’s constitutional authority to determine how they would elect their federal Representatives. Second, many felt that the state legislators would have a greater understanding of their state’s political condition. The third and final reason was that as much as thirty-one percent of the total House membership between 1789 and 1842 came from states that elected those Representatives by the at-large method.
This push for nationwide single-member district elections would gain considerable momentum in 1842 though, precipitated by events that took place in the small state of Alabama. This state’s Democrat-controlled legislature switched from district to at-large elections, and as a result, the Democrats won all five of the delegation’s seats in 1841.[65] The losing Whig party argued that this was the first step in a national movement towards at-large elections.[66] Other Representatives began to worry that the large states might begin utilizing this electoral system in an effort to form their own bloc within the House. Several Representatives advocated a districting mandate due to the fear that if the large states did elect by general ticket, they would overwhelm their smaller counterparts.[67] Rep. Garrett Davis of Kentucky even put together a hypothetical situation when he remarked that “Under the proposed ratio, Massachusetts, New York, Pennsylvania, Ohio, and Indiana, by adopting the general ticket system, would have the majority of the house, and would be able to control the legislative power of the Government.”[68]
Only 7 out of the 26 states in the Union still elected their Representatives at-large in 1842,[69] but Congressmen from several of these states were swayed by the Whigs’ arguments.[70] Given that most Congressmen still believed districts to be the most fair electoral procedure,[71] an important amendment was thereby tacked on to the Apportionment Act of 1842. Following the introduction of this districting provision were several months of extensive testimony and heated debate about the principles of federalism and minority representation.
Tremendous Implications?
The Apportionment Act of 1842 started out as a simple reapportionment plan that Congress routinely enacted after every decennial census. But given the widespread controversy surrounding at-large elections, Rep. John Campbell of South Carolina soon introduced the following amendment:
“And be it further enacted, That in every case where a State is entitled to more than one Representative, the number to which each State shall be entitled under this apportionment shall be elected by districts, composed of contiguous territory, equal in number to the number of Representatives to which said State may be entitled; no one district electing more than one Representative.“[72]
At first glance, the Amendment seems relatively minor. After all, it would not even affect a majority of the states. Furthermore, the benefits of single-member districts were openly accepted by nearly everyone in both the House and Senate. This fact prompted Rep. Nathaniel Pendleton of Ohio to remark that “there exists in this House a singular unanimity in favor of electing members of Congress by districts, in preference to a general ticket.”[73] Echoing this feeling was Sen. Jacob Miller of New Jersey, who stated that “Every Senator here is in favor of [district elections] in the abstract.”[74]
Yet this bill was anything but trivial, as many Congressmen considered it to be a bill with tremendous implications on the struggle for power between the states and the federal government. Several legislators thought it was one of the most important questions that had ever been discussed since they took office.[75] Then there were others who voiced their displeasure in dramatic terms. They argued that no proposition had been introduced which was “so odious as this,”[76] declaring that it would “lead to the most disastrous consequences.”[77] Illinois Sen. Samuel McRoberts’ speech provided the most clear manifestation of this opposition when he said “I do not believe there has been a question agitated in my day, nor since the establishment of this Government, that forebodes consequences so evil, and so utterly destructive of all State power and State sovereignty, as this proposition.”[78]
Thus, the districting amendment may not have affected a majority of the states. Nor was the end seriously contested, as most members of Congress were in favor of uniform single-member district elections. In this context, the aforementioned statements seem nothing more than rhetorical embellishments. But this uniform electoral system would come at a heavy cost, for it would require the federal government to intrude upon what had traditionally been the states’ exclusive decision. As a result, this measure was destined to encounter vehement opposition from the numerous states’ rights advocates in Congress.
The Federalism Debate
The fear of an omnipotent federal government remained quite pervasive throughout the nation in 1842. This worry may seem somewhat foreign today, yet many states continued to strongly protect their relative autonomy vis-á-vis federal encroachment. Consequently, to borrow the words of Rep. John G. Floyd of New York, the districting amendment was “not a question between the district system and election by general ticket; but it is a question between the General Government and the State Governments.”[79]
The comments made on this manner ranged from descriptive to predictive, from well-mannered to incendiary. Sen. Arthur Bagby of Alabama used some amusing metaphors, at one point arguing that if this amended bill was passed, “you plant a thorn in the bosom of many of these States that will rankle and fester there until it gangrenes the body politic.”[80] Rep. Nathan Clifford of Maine forecast that “One encroachment will follow another, until the local governments will be stripped of every vestige of authority over all branches of the subject.”[81] In addition, Rep. George Houston of Alabama asked rhetorically, “are we not increasing, and at a rapid and unprecedented ratio, the prospect of collisions between this and the State government?”[82]
Yet without a doubt, the most outspoken critic of the districting clause was Rep. Andrew Kennedy of Indiana. Although his state already elected by districts, he repeatedly vilified the bill in dramatic and even hostile terms. He begged Congress “not to superinduce a struggle for existence between this Government and the States,” reasoning that “If that struggle ever comes, it will be fierce and deadly, and will only end in the destruction of one or the other.”[83] He went on to argue that this sort of Congressional interference would turn “the harmonious action of our States into perfect anarchy leaving all our glory to set in a sea of blood.”[84] And in his most obnoxious quote, he warned:
“But let this body command my State to change her policy, or command her not to change if she chooses to change, and I, for one, if it were the last act of my life, would go home and solicit my neighbors for a seat in my State legislature, that I might there resist and rebuke your impertinent and insolent demand, and, in the name of the people of my State, cast defiance into your teeth.“[85]
Many Congressmen even took the cynical view that the districting mandate was a sly way of subordinating the state governments to Congress, since the federal government was in effect issuing a command to the state legislatures. Rep. Floyd declared that “The States are sovereign and independent in their action and you cannot bring them under a humiliating subjection to the General Governments, by directing them how they shall exercise their sovereign powers.”[86] Similarly, Sen. Leonard Wilcox of New Hampshire stated that “There is nothing in the Constitution which authorizes Congress to assume any such right, or confers upon her any power to prescribe to the State Legislatures what their legislation shall be.”[87]
While some of this commentary could have been overzealous and sensationalistic, many of these arguments were still justified. Since the country’s inception, the states had always decided how they would elect their Representatives exclusive of any federal intervention. Further, this was the original intent of the Framers of the Constitution. So it should not be surprising that in the days when many politicians were suspicious of an aggrandizing federal government, states’ rights advocates were angered by the proposed amendment.
Of course Article I, Section 4 explicitly gave Congress power over electoral regulations.[88] Try as they might, many Congressmen could not overlook this fact. Pointing to that provision of the Constitution, Rep. William Butler of South Carolina posed the question “what plain, unsophisticated man, reading this clause, would for a moment doubt the power of Congress to control the whole subject, whenever, in its discretion, it shall see fit to do so? Could language be more direct, full, and explicit?”[89] Sen. Jabez Huntington of Connecticut felt much the same way, asserting that Congress’ power over the matter “is ample, full, and plenary; and so far as it is exercised, it is supreme, overriding State legislation, and is the paramount law, to be obeyed and enforced.”[90]
These arguments conclusively determined that Congress did indeed have some power over Congressional elections. But in an effort to thwart the usage of this power, Rep. Floyd rightfully argued that “it was only intended to be an ultimate power, for self-preservation, in case the states neglected to exercise it”.[91] Both he and Rep. Clifford revealed proposed amendments from a solid majority of the original thirteen states’ ratification conventions to convincingly prove this point.[92] Virginia, North Carolina and Rhode Island all suggested the same revision before the Constitution was signed:
“That Congress shall not alter, modify, or interfere in, the times, places, or manner of holding elections for Senators and Representatives, or either of them, except when the Legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same.“[93]
Five other states made similar sounding propositions, all of which held that Congress should only use this power as a last resort. This led Sen. Silas Wright of New York to make the valid claim that a majority of the Republic
“at the time of the adoption of the Constitution, contended against the exercise of this power in the manner in which it is now proposed to be exercised making an entire majority of the old thirteen, which either denied the existence of the power itself, or remonstrated against its exercise in this form, and which sought, by all means in their power, short of an actual amendment of the instrument, to guard their people against this encroachment.“[94]
These concerns about Congressional authority were combined with the notion, firmly rooted in the Constitution’s history, that the proper mode of election was a matter best left for the states to decide. Rep. John Pope of Kentucky articulated this sentiment when he maintained that “without hesitation, the [Constitutional] Convention decided that the power should be reserved to the States, as more competent to judge and regulate the elections in their respective States, than Congress could be over this extensive country.”[95] Several other Representatives pointed toward a statement from James Madison in an effort to reaffirm their argument about state choice.[96] While giving his explanation of Article I, Section 4 to the Virginia Convention in 1778, he said
“It was found impossible to fix the time, place, and manner of the election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State governments, as being best acquainted with the situation of the people, subject to the control of the General Government, in order to enable it to produce uniformity, and prevent its own dissolution.“[97]
This statement was momentous, for it was referred to repeatedly by both sides of the debate. It undoubtedly endorsed state choice, not to mention confirmed the aforementioned arguments about the self-preserving nature of Congress’ power. Yet much like Section 4 itself, this quote carries two messages. For the power to “produce uniformity” clearly provided those in favor of the districting clause with a republican onus, straight from one of the Framers himself. Madison’s explanation was arguably more of a justification for the districting bill rather than some sort of necessary catalyst, though. After all, this statement was over fifty years old, thus making it difficult to believe that the sudden calls for uniformity were rooted in some sort of overwhelming democratic exigency.
Nevertheless, the record shows that many of those in favor of the districting amendment advocated the need for uniformity in House elections. Rep. George Summers of Virginia remarked “We have seen that, from the beginning, it was considered extremely important and desirable that the manner of holding elections for Representatives should be uniform throughout the States.”[98] Rep. Butler said “I take it for granted, that uniformity and permanency in the mode of electing Representatives were the intent and design of the Constitution; and that sound policy requires the reform should be adopted.”[99] Finally, Rep. Daniel Barnard of New York reasoned that “A want of uniformity in the manner of conducting the elections in the several States, leading to gross inequality, might and would demand the interposition of this Government.”[100]
However, the suddenness of the desire for uniform Congressional elections did not go unnoticed. Rep. Clifford asked rhetorically “When did this want of uniformity commence, which is so alarming to the majority on this floor? What is the sudden emergency that calls for this new course of legislation?”[101] Rep. Charles Atherton of New Hampshire provided the most critical comment, arguing that
“The want of uniformity in elections has been urged as furnishing the extraordinary emergency which is to justify now the exercise of this power. It is evident that entire uniformity was not contemplated in the Constitution, and that it was the intention of that instrument to respect the habits, usages, and peculiarities of the different States.”[102]
In sum, these debates indicate that while the federal government did indeed have some power over House elections, any Congress that enacts a districting mandate may not be using this power in the intended context. Madison’s statement regarding the power to “produce uniformity ” is insightful and important. But it is no more the word of the Constitution than are the amendments to Section 4 proposed by Massachusetts, New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Virginia. If anything these eight conventions one of which, Virginia, claimed Mr. Madison as a member surely contribute more to the understanding of Section 4’s intent than one lone quote. Moreover, Madison himself had declared earlier that this power should be used only “whenever extraordinary circumstances might render that interposition necessary to its safety.”[103]
The opposition repeatedly argued that Congress was encroaching upon states’ rights in a domain where it did not have the recognized power to do so. Supporters of the mandate could hardly disagree with the first half of this position, since Congress was clearly intruding upon a traditionally exclusive state activity. And while Article I gives the federal government authority over Congressional elections, this power was not well-defined and therefore rather suspect. One can only speculate on the influence these numerous speeches had on any undecided Congressmen, though it appears that a compelling case was made for the rejection of this amendment based on principles of federalism alone. The districting clause nonetheless passed in an era still fearful of an expanding federal government, meaning there must have been a very significant reason so many Congressmen acquiesced to this inroad on state sovereignty.
A Mirror of the People
The drawbacks of at-large voting in statewide elections had been recognized for many years. In 1790, after Pennsylvania’s general ticket elections led to a Federalist sweep of all eight seats, citizens were already denouncing this system. Most of the eight elected Congressmen hailed from the eastern part of that state, so Pennsylvanians soon pressured their legislature to adopt a voting system that would more adequately reflect the state’s regional differentiation.[104] In addition, Congressmen since 1800 had tried to eliminate at-large elections, claiming districts to be more fair and equitable.[105] Much of this criticism stemmed from at-large elections’ sweep effect and the numerous people who were left without representation as a result.
The ills of at-large elections were referred to on numerous occasions. Noting the unstable sweep effect, Rep. Barnard asked “What would become of the interests of minorities in the several States, when each state should send an entire delegation of one or other of the two great parties?”[106] Sen. Isaac Bates of Massachusetts pointed out that “The general ticket system disfranchises the minority in a State, however near it may approach a majority, and in however so many districts it would actually constitute a majority, and be entitled to a representation in Congress.”[107] Rep. Butler went even further still, describing the general ticket method as “a system so unjust, anti-republican, and so outrageous upon the rights of minorities, that it can never prevail in many States of this Union.”[108]
These problems were summarized alongside the well-accepted merits of single-member districts. Rep. John Reynolds of Illinois felt that with districting, “the will and sentiments of the people will be more purely represented than by any other mode.”[109] Similarly, Sen. Huntington asserted that the amendment would
“establish a system uniform, practicable, just, equal giving to every portion of the people its fair and legitimate political influence, and which will send up to the House of Representatives men identified in feeling and interest with those whom they represent.“[110]
It seems that quite a few of these politicians firmly believed that Congress should serve as a mirror of the American population. This idea runs deep in American political thought, dating back to the early days of the Republic.[111] As a matter of fact, John Adams claimed that the federal legislature “should be an exact portrait, in miniature, of the people at large, as it should think, feel, reason, and act like them.”[112] The concept was also expressed at the Constitutional Convention by James Wilson, who stated that “the legislature ought to be the most exact transcript of the whole society the faithful echo of the voices of the people.”[113]
During the debates of 1842, several Congressmen borrowed the portrait analogy to advance their own theories of what Congress should look like. Rep. Reynolds thought that the House of Representatives was meant to be a “kind of facsimile and mirror of the [public]” since it was “the direct offspring of the people, and nearer the people than any other assembly of men.”[114] Rep. Atherton reasoned that “If there be any thing in the theory of representative government, it seems to follow conclusively that the people should have as thorough and extensive a representation as is possible.”[115] Yet it was a senator from New Jersey, a state that elected its House Representatives at-large, that provided the most idealistic commentary about the representativeness of districts. Sen. Miller felt that if this law were passed,
“The local rights and interests of every section of the country will then be fairly represented in the national councils. Every voice will be heard, every right will be seen, and every wrong felt; and then the House of Representatives will become what the Framers of the Constitution intended it should be a bright and honest mirror, reflecting all the lights and shades of the multifarious interests of this mighty people, as they lie spread out over this broad land.”[116]
Yet for Congress to be an accurate portrait of the general voting society, political minorities would clearly require some sort of representation. Accordingly, quite a few Congressmen openly advocated minority rights. Rep. Reynolds “always thought that in the administration, as well as the construction of government, regard should be had to the rights of minorities.”[117] He went on to assert that the “greatest good which a well-regulated Government bestows on those upon whom it operates is that it secures the rights of the weak against the power of the strong.”[118] Likewise, Rep. Pendleton explained that
“One of [the promises of the Constitution], and not the least important, is, that minorities, as well as majorities, shall be represented in the Legislature; so that there should always a voice of remonstrance be heard, and the per contra given, upon every great question and important argument. Majorities certainly must govern, but minorities must be heard.“[119]
Most of these Congressmen saw the districting mandate as the only way in which minorities could be adequately represented. Rep. Pendleton went on to argue that “Without this amendment, the minority may be silenced, as it clearly is in all cases of elections by general ticket.”[120] Sen. Huntington sensed that
“In this form, and this only, will the just and equal rights of minorities in the States be preserved. It needs no argument to prove the importance of minorities to the preservation of public liberty, and the equitable administration of Government. They have rights, too, which ought to be protected. The people ought to be fully represented, and they cannot and will not be so represented, except the election be by districts.“[121]
Yet just like today, not every Congressman was necessarily a firm believer in minority representation. To the contrary, some readily questioned the Constitutional concept. Rep. Houston declared that “The right of a minority is not that it shall elect a member: majorities elect the members; and, to be so entitled, it must become a majority.”[122] Sen. Bagby, one of the most outspoken critics of the districting clause, contended that “Beyond the ballot box, minorities have no rights They have no right to be represented, either in a popular or political point of view, as is clearly demonstrated by the result of every election, from a constable up to the chief magistrate of the union.”[123]
The representational debates make it is obvious that a large majority of the 27th Congress was compelled to remedy electoral flaws. The undeniable fact was that the at-large method of voting drastically underrepresented political minorities. Therefore, numerous politicians, clearly schooled in historical notions of proper representation, articulated the value of minority rights. They detailed a forgotten goal for the House of Representatives, which was that it should directly mirror America’s voting population. They sensed that a fairly organized government required adequate minority representation. Their arguments now are certainly as convincing as they must have been back then, for one should not forget the fears they had to overcome in order to successfully pass this amendment.
The Aftermath
Given the widespread controversy surrounding the 1842 Apportionment Act, several Congressmen frankly alluded to the districting mandate’s potential ineffectiveness. Rep. Clifford stated rather bluntly that “The amendment is in the nature of a Constitutional prohibition; and, as such, is clearly nugatory and void, as no one will pretend that Congress can interfere with any of the reserved rights of the States.”[124] Rep. Kennedy asked the pointed question, “Suppose that New Jersey who now elects by general ticket treats (as she will be very likely to do) your order with silent contempt, and goes on and elects her members as now provided What will you do?”[125] One Congressman, Rep. William Payne of Alabama, openly predicted state defiance:
“Can it be reasonably expected that Georgia, under such circumstances, will quietly submit to your assumption of power, and obey your mandamus? No, sir, never; nor will New Hampshire, Mississippi, or any other State which has heretofore elected her Representatives under the general ticket system. They will rebuke your assumption of power, by treating your mandamus with contempt; and, as heretofore, will elect and send Representatives to Congress. Well, sir, what will you do next?“[126]
Unfortunately, Rep. Payne proved to be an accurate prognosticator. In the elections following passage of the single-member district mandate, New Hampshire, Georgia, Mississippi, and Missouri all continued to elect their Representatives with the at-large system.[127] President John Tyler even played a minor role in this recalcitrance. When he signed the Apportionment Act, he appended a memorandum in which he openly questioned the constitutionality of the districting provisions.[128]
Of course these elections spawned a considerable amount of conflict, which was initially referred to the Committee on Elections. Stephen A. Douglas, then a Representative from Illinois, wrote the majority opinion of this committee, seeking to justify these four states’ elections. In this report he offered the following resolution: “That the second section [of the 1842 Apportionment Act]÷is not a law made in pursuance of the Constitution of the United States, and valid, operative, and binding upon the States.”[129] Douglas added that Congress did not have the “authority to instruct the State Legislatures in respect to the manner in which they shall perform the duties imposed upon them by the Constitution.”[130] The minority opinion, written by Garrett Davis, a Whig from Kentucky, contended that these Representatives were not entitled to their seats since they had not been elected according to the Constitution.[131]
The debate soon shifted to the House floor. However, the Democratic Party outnumbered the Whigs by more than 60 members, with 18 of the 21 contested members being Democrats.[132] So despite Douglas’ opinion, this Democratic majority conceded the general ticket Representatives their seats[133] and effectively invalidated the 1842 Apportionment Act. Although each of these four states elected their Representatives by districts in 1848, the districting provision of the 1842 law was quickly dropped after the 1850 census.[134]
Conclusion
There are two important things that one must take away from the history behind the 1842 single-member district mandate. First is that this law encountered strenuous resistance from nearly half of Congress. This opposition was based on three facts: (1) states had always decided for themselves how they would elect their Representatives; (2) this was the intent of the Framers of the Constitution; and (3) Congress’ power over Congressional electoral matters was suspect, and not meant to be used in such a context. These Congressmen considered it each state’s right to determine its own electoral system, and were thereby appalled at a federal law mandating one particular procedure.
The second important conclusion from this chapter is that nearly all Congressmen were in support of the most inclusive electoral system possible at that time.[135] Minority representation was repeatedly championed throughout these debates, with single-member district elections widely considered to be the only available conduit. Despite the overwhelming tide of well-reasoned, anti-Federalist opposition, it appears that minority rights trumped those of the states’.
Today’s States’ Choice of Voting Systems Act thus seems to be an ironic resolution to the 1842 debates. Back then, the opposition centered on the need to preserve state sovereignty. The rest of Congress simply endeavored to ensure a fair electoral system that increased minority representation. Both sides made vigorous arguments and presented an abundance of evidence in an attempt to strengthen their respective claims. In so doing, they inadvertently made quite a compelling case for the passage of Mel Watt’s bill. For just as his proposal is consistent with the Constitution, it is likewise compatible with the efforts of both sides of the debate which took place over the 1842 district mandate.
Chapter 3 notes
[55] Congressional Globe, 27th Congress, Second Session, Volume 11, Part I 471 (1842). It passed in the Senate by a vote of 25-19. Ibid, 614.
[56] Districts were used by Massachusetts, New York, North Carolina, South Carolina, and Virginia. At-large elections were used by Connecticut, Delaware, New Hampshire, New Jersey, Pennsylvania, and Rhode Island. See Zagarri 107-114, 154.
[57] Congressional Quarterly’s Guide to US Elections 943-974.
[58] Zagarri 109-111, 126.
[59] Ibid, 126, 154-157.
[60] Ibid, 126.
[61] Ibid, 127.
[62] Carolyn Goldinger, ed., Jigsaw Politics: Shaping the House After the 1990 Census 17 (Congressional Quarterly, 1991).
[63] Ibid.
[64] Zagarri 128-129.
[65] Congressional Quarterly’s Guide to US Elections 973.
[66] Zagarri 130.
[67] 1842 Congressional Globe 408.
[68] Ibid, 340.
[69] Congressional Quarterly’s Guide to US Elections 971-74. They were Alabama, Georgia, Mississippi, Missouri, New Hampshire, New Jersey, and Rhode Island. Arkansas, Delaware and Michigan also held their elections at-large, but given that each state was only entitled to one Representative, they were not able to hold district elections.
[70] Zagarri 131. She states that “the support of senators and representatives from small states such as New Hampshire, Georgia, Missouri, and Mississippi, which still had general ticket elections, was crucial to the passage of the bill.”
[71] Infra, notes 73 and 74.
[72] 1842 Congressional Globe 348.
[73] Ibid, 407.
[74] Ibid, 790.
[75] Ibid, 316, 449.
[76] Ibid, 322.
[77] Ibid, 360.
[78] Ibid, 524.
[79] Ibid, 320.
[80] Ibid, 788.
[81] Ibid, 347.
[82] Ibid, 342.
[83] Ibid, 317.
[84] Ibid, 319.
[85] Ibid, 318.
[86] Ibid, 320.
[87] Ibid, 422.
[88] Supra, note 48.
[89] 1842 Congressional Globe 319.
[90] Ibid, 490.
[91] Ibid, 320.
[92] Ibid, 320-322, 348-349. Also see Paschal, supra note 52.
[93] 1842 Congressional Globe 322.
[94] Ibid, 466.
[95] Ibid, 373.
[96] Ibid, 321, 341, 346, and 353.
[97] James Madison, “Power to Regulate Elections,” in The Papers of James Madison 139, 140 (ed. Robert Rutland, 1984) [hereinafter Rutland, Papers].
[98] 1842 Congressional Globe 353.
[99] Ibid, 320.
[100] Ibid, 380.
[101] Ibid, 350.
[102] Ibid, 399.
[103] Supra note 50.
[104] Zagarri 113.
[105] Ibid, 128.
[106] 1842 Congressional Globe 382.
[107] Ibid, 793.
[108] Ibid, 320.
[109] Ibid, 346.
[110] Ibid, 493.
[111] Amy, Real Choices 27.
[112] Hannah Pitkin, The Concept of Representation 60 (University of California Press, 1967), taken from ibid.
[113] Pitkin 61, taken from ibid.
[114] 1842 Congressional Globe 345-346.
[115] Ibid, 350.
[116] Ibid, 790.
[117] Ibid, 354.
[118] Ibid.
[119] Ibid, 409.
[120] Ibid.
[121] Ibid, 493.
[122] Ibid, 343.
[123] Ibid, 584.
[124] Ibid, 348.
[125] Ibid, 317.
[126] Ibid, 360.
[127] Congressional Quarterly’s Guide to US Elections 975-980.
[128] Emanuel Celler, “Congressional Apportionment Past, Present, and Future,” 17 Law and Contemporary Problems 268, 272 (Duke University, 1952); Goldinger 17.
[129] Paschal 283.
[130] Ibid.
[131] Goldinger 18.
[132] Ibid.
[133] Paschal 285.
[134] Goldinger 18.
[135] Proportional representation did not even exist in the early 1840s, and was not widely explored until John Stuart Mill explained its merits in Representative Government (1861). See generally John Stuart Mill, Considerations on Representative Government, (ed. Currin V. Shields, 1958).
Chapter 4: The 1967 Single-Member District Mandate
The 1967 single-member district mandate may have had the same effect as its 1842 counterpart, but the context and testimony surrounding this law differed drastically. First, the 1967 debates lacked the intense conflict characteristic of the 1842 Apportionment Act. Although the states had been able to choose their own method of House elections since 1929, this bill was hardly a novel or controversial concept. After all, districting legislation had been passed every decade from 1862 to 1911. Moreover, this law would only affect Hawaii and New Mexico since they were the only two states, entitled to more than one Representative, which utilized at-large elections.
However the main reason these debates were comparatively mild-mannered is that the concerns over federalism, which had caused so much antagonism in 1842, were conspicuously absent in 1967. Not a single member of Congress pointed out that the states had made this decision for themselves at many points in this nation’s history, or that this was the original intent of the Founding Fathers. Apparently they had all come to believe it was entirely within the authority of the federal Legislature to enact such a provision.
The political context differed in the sense that at-large elections were actually gaining acceptance in 1967. As the Supreme Court began invalidating malapportioned districting schemes, at-large elections were seen as a viable alternative to the increasingly problematic task of creating equipopulous districts. Another factor that added to the popularity of this electoral system was the Voting Rights Act of 1965.[136] No secret was made of the South’s disapproval of racial minority enfranchisement, nor was the dilutionary impact of the general ticket considered confidential.[137] As a result, many Southern states began implementing this system for their own legislative elections in an effort to offset the reestablished black vote.
Still, there was one important similarity between these two mandates: both were premised on the need to preserve minority representation. By 1967, the scope of this objective had broadened to include racial minorities as well. A majority of Congress still believed it imperative to avoid any electoral system that egregiously underrepresented a large number of citizens. It was thought that a single-member district mandate was “the only way effectively in÷that the majority can provide for the protection of the minority voices in the councils of government.”[138] Thus much like the 1842 Apportionment Act, the 1967 law signals a continuing progression towards a more inclusive American democracy.
The Checkered History of Single-Member Congressional Districts
Up until 1967, federal districting legislation had been inconsistently enacted and seldom enforced. Four states blatantly disobeyed the 1842 Apportionment Act’s districting provisions, but were still allowed to seat their at-large elected Representatives. A brief look at the history of district mandates suggests that these four states set an unfortunate precedent, as these laws would continue to be occasionally disregarded.
After the 1842 debacle, Congress waited twenty years to pass another district mandate.[139] But the 1862 law requiring single-member districts elicited comparatively little debate.[140] Surprisingly, there was only one Congressman who openly voiced his misgivings about such a law,[141] despite the overwhelming Constitutional concerns raised in 1842. As a result, the bill passed rather easily through both the House and the Senate.[142]
Subsequent laws not only incorporated the districting requirement, but actually added further stipulations. In 1872, Congress once again mandated districts composed of contiguous territory, but this time declared that they should contain “as nearly as practicable an equal number of inhabitants.”[143] The next two apportionment acts, in 1882 and 1891,[144] reiterated these provisions. As the political landscape began to change, due to increased immigration and a steady population shift to the cities, Congress added another requirement in 1901: this time, it stated that districts must also be composed of “compact territory.”[145] All of these district demands contiguity, equal number of inhabitants, and compactness were then repeated in the 1911 Apportionment Act.[146]
Despite these good-natured and ambitious intentions, these districting provisions were still ineffective. Many states continued to elect their Representatives at-large,[147] while others clearly disregarded the compactness and equal population requirements.[148] Yet Congress continued to sit by passively and allow these electoral injustices, prompting Rep. Emanuel Celler of New York to write in 1952 that “The history of apportionment in the United States, particularly since 1842 when standards were established for Congressional districts, indicates conclusively that the one single factor that has always been lacking has been that of enforcement.”[149] In this respect, it could therefore be argued that the districting legislation from 1842 to 1911 was “null and void” just as Stephen A. Douglas asserted in his report on the 1842 mandate.[150] For exceptions were clearly allowed to swallow the rule, as these federal “laws” served more as informal guides than rigid regulations.
Congress would not pass an apportionment act after the 1920 Census because there were serious concerns about the accuracy of the census figures.[151] The next act wasn’t passed until 1929, a law in which Congress failed to enact any district requirements.[152] This lack of action did not stem from a rejection of these provisions, but actually resulted from the prevailing notion that the 1911 requirements were still applicable. The Supreme Court ruled otherwise in 1932 in Wood v. Broom .[153] In this case, which dealt with the constitutionality of a Mississippi districting law, the Court ruled that since Congress failed to reaffirm the districting provisions in the 1929 Apportionment Act, they could no longer be considered controlling.After this decision, Congress did not pass any districting legislation for the next thirty-five years. Several states subsequently opted for at-large elections,[154] while those that did create districts clearly violated traditional principles of compactness, contiguity, and equal population.[155]Broom would prove to be of great historical significance, as the Court indicated it might begin adjudicating political questions about electoral fairness.
The Judiciary’s Entrance into the “Political Thicket”
Four of the ruling Justices in Broom felt that the Court should not have even heard the case. In their minority opinion, Justices Louis D. Brandeis, Harlan F. Stone, Owen J. Roberts, and Benjamin N. Cardozo stated that they would have dismissed the suit for “want of equity.”[156] This phrase “suggested a policy of judicial self-limitation with respect to the entire question of judicial involvement in essentially Îpolitical’ questions.”[157] These types of questions normally have broad political ramifications, with “the law” offering little guidance as to how they should be solved. As a result, they had historically been avoided by the independent, non-partisan Supreme Court.
The Court would then wait fourteen years to hear another Congressional districting controversy,[158] this time adjudging Illinois’ malapportioned Congressional districts in Colegrove v. Green.[159] Here three voters challenged Illinois’ apportionment plan because several of these subdivisions lacked compactness and approximate equality of population. Yet in this case, a slim 4-3 majority decided to dismiss the suit. In the opinion of the Court, Justice Felix Frankfurter expressed agreement with the minority opinion of Broom , reasoning that “It is hostile to a democratic system to involve the judiciary in the politics of the people.”[160] To this he added the now famous warning: “Courts ought not to enter this political thicket.”[161]
But the Colegrove doctrine drew heightened criticism from law professors, political scientists, and other commentators in the ensuing years.[162] Both state and federal districts continued to have enormous population imbalances, as the smaller regions were drastically overrepresented at the expense of the larger, typically urban districts.[163] The Court could no longer afford to remain inactive, so it decided Baker v. Carr in 1962. This case would signal an unprecedented judicial intervention in the districting controversy, as the Supreme Court ruled in favor of Tennessee city dwellers who lived in grossly malapportioned state legislative districts.[164]
Baker began a volatile odyssey from which the judicial system currently could not extricate itself even if it tried. One year later, in Gray v. Sanders ,[165] the Court confronted Georgia’s system for electing state officials, which intentionally weighted rural votes to give them an advantage in these statewide elections. Declaring that “all who participate in the election are to have an equal vote,”[166] the Court established the prodigious one-person, one-vote principle. This rule held that where districts were created, they must all be approximately equal in population. If not, the plan might violate the Equal Protection clause because one person’s vote would be theoretically worth more than that of another person. The Court then applied this rule to Congressional districts in the 1964 case of Wesberry v. Sanders , holding that these areas must also be substantially equal in population.[167] By the end of the 1960s, these important decisions would force 39 of the 45 states with more than one Representative to redraw their Congressional boundaries,[168] making the judiciary an influential player in the redistricting process.
Congress Fights Back
Needless to say, these Court decisions led to a great deal of political tumult. Most of the state legislatures had to scramble to redraw their boundaries consistent with the one-person, one vote doctrine. For if they did not, they would almost certainly have been subjected to expensive litigation, with the likely result being a court-imposed redistricting plan. These plans were typically frowned upon because the courts purportedly “did not have the equipment or the expertise to be able properly to divide these districts”[169] but also because they jeopardized incumbents’ chances for reelection.
These decisions were additionally quite controversial simply because states were once again having their electoral systems determined by an outside force. Congress had wrested states’ capability to choose how they would elect their federal Representatives in 1842, and now the Supreme Court was imposing its ideas about electoral fairness on the state legislatures. While Congress’ actions were somewhat justifiable under the Constitution, the Court’s intrusion into this political quagmire was dubious. After all, Colegrove had announced judgments about electoral plans to be of a nonjusticiable, political nature. Furthermore, the various judges who would make these decisions were not elected, and therefore not accountable to the general public. Admittedly, there was a glaring need for the judiciary to intervene, especially given the fact that many states were not averse to creating such malapportioned districts. Yet it was difficult to overlook the fact that the Court had indirectly positioned itself as an important participant in the highly politicized electoral process.
Before this judicial revolution even began, House Judiciary Committee Chairman Emanuel Celler had been concerned with the erratic characteristics of Congressional districts. Since 1950, he repeatedly introduced district provisions similar to those of the early 1900s. These efforts were unsuccessful until the districting disorder forced Congress to seriously consider his proposals in 1965.[170] His bill mandated compact districts composed of contiguous territory, just like the 1911 Apportionment Act. But in response to the Wesberry controversy, this measure also set the maximum permissible deviation from a state’s average Congressional district population at fifteen percent, thereby prescribing a helpful standard the Court had avoided enunciating. The House actually approved the bill, based on the desire to protect states against even more rigid criteria the courts might have imposed.[171] However, it languished in the Senate Judiciary Committee, and was not reported before the 88th Congress adjourned.[172]
Celler remained persistent though, and in 1967 introduced yet another districting bill. Once again, he sought to enact strict provisions that would have secured in each state non-gerrymandered districts of close to equal population.[173] But while the House and Senate concurred on a maximum ten percent population variation, they simply could not reach an agreement on how soon to apply such a rule.[174]
But Celler’s efforts did not go entirely unrewarded. The same day the Senate rejected his bill, Sen. Howard Baker of Tennessee tacked on a nongermane amendment a federal ban on at-large elections in all states with more than one Representative to a previously insignificant private bill.[175] This bill would lack the cumbersome contiguity and equal population provisions, aiding its subsequently smooth passage through Congress.
The Congressional testimony behind the 1967 district mandate illustrates the national legislature’s increasing wariness of the judiciary’s newly established political power, and suggests that this factor was a primary motivation driving passage of this law. An overarching concern among many Congressmen was that courts might begin ordering states to elect their Representatives at-large as a result of problems over current districting schemes. Sen. Sam Ervin of North Carolina remarked that if the amendment was not passed, Congress would “create a situation of chaos next fall, because the Supreme Court will require candidates for Congress in states which do not live up to the one-man, one-vote principle on the basis of the 1960 census to run at large.”[176] Sen. Birch Bayh of Indiana was also quite fearful of such a judicial order.
“Why is this [districting amendment] necessary? Well, the reason it is necessary, quite frankly, is the fact that, in some states, a court order has mandated the states to reapportion. There is a great likelihood that, if agreement cannot be reached within a State, the court could well order the entire congress delegation to run at-large. The purpose of this particular bill is to avoid this possibility.”[177]
At the time, Sen. Bayh’s home state of Indiana was under court order to hold at-large elections for all eleven of its Representatives unless the state legislature enacted a constitutional redistricting plan.[178] Although Hawaii was one of the states at which this law was directed since it still elected its two Representatives at-large, Sen. Hiram Fong of Hawaii pointed out the bill’s main beneficiaries. “This bill, as I see it, is framed only for States such as Indiana; under court order to elect their Representatives at-large. This bill would relieve these states of this necessity, so that the bill really is drawn to benefit them, and not the state of Hawaii.”[179]
Thus, it appears that the chief purpose of the 1967 district mandate was to prevent courts from imposing at-large elections that no doubt would have threatened incumbent Representatives. The judiciary’s relatively novel power over the redistricting process finally spurred Congress to reconsider its half-century old indifference to districting legislation. While this was the most explicit motivation, the 1967 districting mandate should also be viewed as a logical extension of the 1965 Voting Rights Act.
The Need to Guard Against Southern Racial Minority Vote Dilution
There are usually two reasons cited for the passage of the 1967 district mandate. I have already detailed the first, which was the fear of judicially imposed at-large electoral procedures. The second, which is referred to repeatedly in several pieces of literature,[180] is the need to offset potential Southern efforts to dilute the newly-enfranchised black vote through at-large or multimember district elections. Yet this latter motivation is never explicitly mentioned in the Congressional testimony surrounding the 1967 law; indeed, there is no evidence of a smoking gun.[181] Instead, one must extrapolate this instrumental factor from the political circumstances of the 1960s.
When redrawing their district lines in response to Wesberry , states were loath to the fact that they had a judicial watchdog overseeing every curve and contour. Carving out districts composed of equal population was an arduous task for the state legislatures; as many were unprepared for such a sudden endeavor, not to mention politically unwilling given the risks to incumbents’ re-election hopes. Since at-large elections would not require states to redistrict, this electoral procedure constituted an effortless solution to the districting dilemma.
Early on, the Supreme Court noted the potential acceptance of this plan. While dissenting in Colegrove , Justice Black argued that the Court did have the authority to invalidate Illinois’ Congressional districting plan. But, he wrote,
“it would leave the State free to elect them from the State at-large, which is a manner authorized by the Constitution. It is said that it would be inconvenient for the State to conduct the election in this manner. But it has an element of virtue that the more convenient method does not have namely, it does not discriminate against some groups to favor others, it gives all the people an equally effective voice in electing their Representatives as is essential under a free government, and it is constitutional.”[182]
Then there is the dissenting opinion in 44th General Assembly of Colorado v. Lucas , decided the same day as Baker . Here Justice Potter Stewart declared that if “the goal is solely that of equally ‘weighted’ votes, I do not understand why the Court’s constitutional rule does not require the abolition of districts and the holding of all elections at-large.”[183] Hence it is clear that the possibility for increased use of at-large elections not only existed, but that states would have actually had some justification for such a move.
This resultant affinity for at-large elections must also be examined alongside widespread Southern efforts to neutralize the voting strength of the few blacks that did have access to a ballot box. One popular tactic was to submerge these voters in dilutionary electoral schemes. Dating back to the Progressive Era of the early 1900s, the proportion of local at-large elections in the nation’s cities and states increased markedly, becoming especially common in the South.[184] As black voter registration drives were beginning in 1962, Mississippi’s state legislature passed a law requiring a large number of municipalities to elect aldermen on an at-large basis.[185] In addition, most Alabama jurisdictions during the early 1960s combined citywide or countywide elections with a “numbered place” requirement in an effort render the black vote ineffective.[186] Politicians all across the Deep South were thus well aware of the fact that at-large elections and multimember districts could be used to prevent racial minorities from electing Representatives of their choice.
Then came the Voting Rights Act of 1965 (VRA), generally regarded as the most successful piece of federal civil rights legislation ever enacted,[187] and considered by Lyndon B. Johnson to be his greatest accomplishment.[188] This forceful law finally entitled millions of racial minorities to the franchise by invalidating all of the sordid maneuvers that had been used to keep blacks away from the ballot box. Yet as Chief Justice Earl Warren noted in Allen v. State Board of Elections , “The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.”[189] As mentioned above, Southern states had already used begun using at-large elections in an effort to negate black voting strength. As a result, in order for the VRA to be effective in Congressional elections, there was an overwhelming need to protect Southern blacks from the increased implementation of this dilutionary voting method.
After all, in response to the VRA, many Southern states had recently stepped up their efforts to dilute the revitalized black vote on the local level. In Georgia, thirteen of the counties with the most significant black populations switched to at-large elections after passage of the VRA.[190] In 1966, North Carolina’s general assembly held a special session to authorize nearly half the state’s counties governing bodies to adopt at-large elections, as well as to mandate the use of this electoral procedure in every school district.[191] Louisiana,[192] Mississippi,[193] and South Carolina[194] all soon experienced similarly massive shifts towards at-large elections for their own respective county or city governments.
Another crucial ingredient to this political context was the Kerner Commission report. The National Advisory Commission on Civil Disorders was established to investigate the causes of the 1967 riots, and subsequently noted the deleterious impact of these at-large systems. The report reasoned that throughout many of America’s cities, black “ghetto residents” did not feel fairly or adequately represented.[195] It went on to make the following recommendation:
To meet this problem, city government and the majority community should revitalize the political system to encourage fuller participation by all segments of the community. Whether this requires adoption of any one system of representation, we are not prepared to say. But it is clear that at-large representation, currently the practice in many American cities, does not five members of the minority community a feeling of involvement or stake in city government. Further, this form of representation dilutes the normal political impact of pressures generated by a particular neighborhood or district.[196]
In retrospect, this particular passage seems quite significant, as a government agency was openly criticizing the use of at-large elections because of their dilutionary impact on racial minorities’ voting strength. It would be presumptuous to assume that this report alone compelled Congress to forbid this condemned voting scheme. Yet the point could certainly be made that the political awareness of this dilutionary electoral system was on the rise, with an acute need to preempt its inexorable implementation for federal elections.
Southern black vote dilution may have never gained explicit recognition in the 1967 testimony, but this trend was cited by Congressional Quarterly as a primary motivation behind the rejection of an amendment proposed to Celler’s districting bill in 1965.[197] That year, Rep. Charles Mathias Jr. of Maryland suggested an amendment which would have permitted a state to elect its Representatives at-large if it could not comply with the stiff redistricting provisions of Celler’s bill.[198] But several Congressmen suspiciously viewed Mathias’ proposal as an “open invitation to State legislatures to require members to run at-large,”[199] and it was consequently rejected 147-255.
Finally, the comments of Tennessee Sen. Howard Baker indicate that the interests of racial minorities were considered vis-a-vis at-large electoral systems. While attempting to justify passage of this law, he argued
“the requirement for single-member districts is in the origins and the beginnings of the Constitution and predicated on the idea that within one State there may be widely divergent interests such as different ethnic groups, different heritage, different religious groups, and the like, and that these minority interests can be adequately represented and heard in the councils only if single-member districts are provided for the representation of the smallest available area within a State.”[200]
Sen. Baker went on to stress that since “an ethnic group concentrated in one area may have no voice at all if the election is on an at-large basis,” single-member districts were therefore a “vital, essential, and integral part of the concept of equality of representation and responsiveness of government in the Federal House of Representatives.”[201]
Rep. Claude Pepper of Florida remarked that “were the Senate amendments not adopted and not to become law, we do not know how many States in the Union would, either by action of their courts or their legislatures, have to have elections of House members at-large.”[202] This excerpt from the Congressional testimony, although admittedly rather vague, concisely expresses the two-fold impetus behind the 1967 ban on at-large elections. The need to preempt court-ordered general ticket elections was a driving force, but one cannot overlook the role Southern vote dilution played in this bill’s passage. Most of these states had already experienced massive shifts to at-large elections on the local level, so there was reason to believe they might do it on a federal level as well. But this law acted in tandem with the 1965 VRA to firmly secure the voting rights of racial minorities in elections for Congressional Representatives.
Overview of the Debate
Quite unlike the 1842 Apportionment Act, the history behind the 1967 district mandate is much more illuminating than the actual debates themselves. After all, the 1967 testimony lacks the heated discussions of federalism, as Congressmen this time were much more willing to allow federal intrusion on a decision the state legislatures had made for over forty years. Furthermore, general ticket elections once again suffered from resounding disapproval. Then-Rep. Gerald Ford stated “I happen to feel that at-large elections are completely the wrong way for the election of Members of this body.”[203] Rep. Andrew Jacobs of Indiana also argued that “I doubt very seriously that there is very much disagreement with the need for a law to prohibit at-large elections, generally, in the United States.”[204] Indeed, no one openly voiced their preference for at-large elections, as the legitimacy of single-member districts once again appeared to be axiomatic.
The only serious point of conflict was whether or not Hawaii and New Mexico should be exempted from the districting legislation for the next Congress, since they had elected their Representatives at-large from the time they were admitted to the Union. The district requirement would have entailed great difficulties for these two states. Sen. Daniel Inouye of Hawaii offered the defense that “It should be noted that because of geographical reasons, it is not very simple to district the State of Hawaii With the adoption of the amendment, an orderly transition will be possible for our State.”[205] Sen. Clinton Anderson of New Mexico argued that his state “has not been redistricted and it would cause a lot of trouble at this late hour to redistrict.”[206]
There were a number of Congressmen opposed to this exemption. Sen. Roman Hruska of Nebraska argued that “The proposal before us will apply to every State in the Union except two. That is not good legislation. It certainly is not good principle.”[207] Others were opposed for selfish reasons, seeing no reason why these two states should be exempted when others were having difficult redrawing districts as well. Sen. Gordon Allott of Colorado declared that “If under a decree of court one State could be required to be redistricted, there is no excuse for one State, two States, or 20 States to be excepted from that which others had to do.”[208]
Despite these seemingly valid claims, Congress would pass the first districting mandate in over fifty years complete with one time exemptions for Hawaii and New Mexico. Given that there was such widespread agreement on the need to ban at-large House elections, it should not be surprising that these “debates” elicited such passive acquiescence. While the exemptions were objected to by some, both the House and Senate would end up passing the district mandate by simple voice votes.
Conclusion
Whereas the 1842 Apportionment Act pitted the federal government against those of the states, the 1967 district mandate was Congress’ defense to the judiciary’s increased involvement in electoral system politics. While the players may have changed over these 125 years, the foundational objective remained constant: to protect minority interests. Much like 1842, Congressmen once again found themselves advocating heightened representativeness in the halls of our nation’s federal Legislature. Sen. Baker summed it up best when he said
“I think it is high time that we look to the principles and requirements that maximum protection of the rights of all people and maximum responsiveness to their needs will be attained in the House of Representatives only by guaranteeing the principle of single-member districts.”[209]
Yet by 1967, the definition of “minorities” had broadened to include blacks and other racial groups that were not even allowed to vote in 1842. Congress had just recently passed the VRA, and the 1967 district mandate would prevent Southern states from circumventing its goals by adopting at-large Congressional elections. Federal voting legislation had finally protected the interests and rights of racial minorities, as American democracy continued its progression towards the representative ideals upon which it rests.
Chapter 4 Notes
[136] Supra note 2.
[137] Robert E. Lane, Political Life: Why People Get Involved in Politics 270 (Free Press of Glencoe, 1959), taken from Davidson and Grofman, in Davidson and Grofman, Quiet Revolution 7.
[138] Congressional Record, 90th Congress, First Session, Volume 113, Part 25, p. 34365 (US Government Printing Office, 1967) [hereinafter 1967 Congressional Record].
[139] Chapter 170, 12 Statute 572 (1862).
[140] See Congressional Globe, 37th Congress, Second Session, Part IV, pp. 2910-2912, 3117-18 (1862).
[141] Representative Charles Wickliffe of Kentucky stated that “It does strike me that it is better to leave this Congressional district question to the State power. Gentlemen, let us not lose sight altogether of the fact that this Union is composed of States, and that the people of these States have certain rights.” Ibid, 2911.
[142] Ibid, 2912, 3280.
[143] Chapter 11, Section 2, 17 Statute 28 (1872).
[144] Chapter 20, Section 3, 22 Statute 5 (1882) and Chapter 116, Section 3, 26 Statute 735 (1891), respectively.
[145] Chapter 93, Section 3, 31 Statute 733 (1901).
[146] Chapter 5, Section 3, 37 Statute 13 (1911).
[147] See generally, Congressional Quarterly’s Guide to US Elections. These states included: Florida (1872); Kansas (1872); Maine (1882); South Dakota (1890-1910); Washington (1892-1906); North Dakota (1902-1910); Idaho (1912-1916); Montana (1912-1916); Utah (1912).
[148] Justice Felix Frankfurter once stated that “Throughout our history, whatever may have been the controlling Apportionment Act, the most glaring disparities have prevailed as to the contours and the population of districts.” Colegrove v. Green, 328 U.S. 549, 555 (1946).
[149] Celler 274-275.
[150] Paschal 285.
[151] Celler 271.
[152] 46 Statute 21.
[153] Wood v. Broom, 287 U.S. 1 (1932).
[154] Congressional Quarterly’s Guide to US Elections, pp. 1170-72. The following states elected their entire delegations using the at-large method in 1932: Missouri (13 seats); Kentucky (9); Virginia (9); Minnesota (9); and North Dakota (2). North Dakota would continue electing its representatives at-large until 1960. Arizona used this system from 1942-46. New Mexico and Hawaii, the only two states affected by the 1967 mandate, began electing their Representatives at-large in 1942 and 1962, respectively. A final noteworthy case was Alabama, which elected all eight of its Representatives at-large in 1962. Ibid, 1244.
[155] See generally, appendices in Colegrove, supra note 148, at 557-63.
[156] Broom, supra note 153, at 9.
[157] Goldinger 19.
[158] In this interim period, however, the Court would begin protecting blacks from exclusionary electoral systems. In Smith v. Allwright, 321 U.S. 649 (1944), the Court invalidated the white Democratic primary. Although blacks were still able to vote in the general election, the Court held that in the dominant party South, the Democratic nomination was tantamount to election. As a result, this electoral rule prohibited blacks from exercising the influence on the electoral process that had been granted to them by the Fifteenth Amendment. See J. Morgan Kousser, Colorblind Injustice 53 (University of North Carolina Press, 1999). After Colegrove, the Court would continue invalidating these types of exclusionary schemes. See, for example, Terry v. Adams, 345 U.S. 461 (1953).
[159] The population of these districts ranged from 112,116 to 914,053Ûa disparity purportedly so unjust that the districting plan was thought to violate the Equal Protection guarantee of the Fourteenth Amendment. Colegrove, supra note 148.
[160] Ibid, at 554.
[161] Ibid, at 556.
[162] Goldinger 21.
[163] By 1960, every state legislative body had at least a 2-to-1 population disparity between the most and the least heavily populated districts. Congressional districts weren’t as bad, but several statesÛTexas, Maryland, Arizona, and OhioÛwere over a 3-to-1 ration. Congressional Quarterly’s Guide to US Elections 934.
[164] Baker v. Carr, 369 U.S. 186 (1962).
[165] Gray v. Sanders, 372 U.S. 368 (1963).
[166] Ibid, at 379.
[167] “While it may not be possible to draw Congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives.” Wesberry v. Sanders, 376 U.S. 1, 18 (1964).
[168] Congressional Quarterly’s Guide to US Elections 937.
[169] Congressional Quarterly Almanac, 89th Congress, 1st Session, 1965, Volume XXI (Congressional Quarterly, 1966) 603, 605 [hereinafter, 1965 Congressional Quarterly Almanac].
[170] Congressional Quarterly Almanac, 90th Congress, 1st Session, 1967, Volume XXIII (Congressional Quarterly, 1968) 550 [hereinafter, 1967 Congressional Quarterly Almanac].
[171] 1965 Congressional Quarterly Almanac 604.
[172] Ibid, 603.
[173] 1967 Congressional Quarterly Almanac, 550.
[174] For detailed summary of action on this bill, see ibid at 550-56.
[175] For the Relief of Dr. Ricardo Vallejo Samala, 90th Congress, 1st Session, HR 2275.
[176] 1967 Congressional Record 34368.
[177] Ibid, 34366.
[178] 1967 Congressional Quarterly Almanac 556.
[179] 1967 Congressional Record 34367.
[180] Pildes and Donoghue 251, n43 [Interestingly, a primary motivation for the 1967 legislation reinstituting the requirement of single-member districts was the VRA of 1965: Congress feared Southern states might resort to multimember Congressional districts to dilute minority (that is, black) voting power.] ; Tory Mast, “History of Single Member Districts for Congress,” http://www.igc.org/cvd/cvd_reports/1995/chp2/mast.html [This law was passed largely because of two factors. The first concern was that, in the wake of the 1965 Voting Rights Act, southern states might resort to winner-take-all at-large elections to dilute the voting strength of newly-enfranchised blacks in the South.]; Cynthia McKinney, “A Democracy Voters Can Be Proud Of,” The Progressive Populist (Vol. 2, No. 4, April 1996) [This law was intended to prevent the use of at-large districts, which were routinely employed in the South to dilute black voting strength.]
[181] Pamela Karlan. Personal interview, March 29, 1999.
[182] Colegrove, supra note 148, at 574.
[183] Lucas v. Forty-forth General Assembly of Colorado, 377 U.S. 713, 750 (1964).
[184] Davidson and Grofman, in Davidson and Grofman, Quiet Revolution 7.
[185] Chandler Davidson, “The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities,” in Davidson and Grofman, Quiet Revolution 26.
[186] Peyton McCrary, Jerome A. Gray, Edward Still, and Huey L. Perry, “Alabama,” in Davidson and Grofman, Quiet Revolution 38, 39.
[187] Drew S. Days III, “Section 5 and the Role of the Justice Department,” in Grofman and Davidson, Controversies 52.
[188] Chandler Davidson, “The Voting Rights Act: A Brief History,” in Grofman and Davidson, Controversies 7.
[189] Allen v. Board of Elections, 393 U.S. 544, 569 (1969).
[190] Laughlin McDonald, Michael B. Binford, and Ken Johnson, “Georgia,” in Davidson and Grofman, Quiet Revolution 67, 82.
[191] Davidson, in Davidson and Grofman, Quiet Revolution 25.
[192] Richard L. Engstrom, Stanley A. Halpin, Jr., Jean A. Hill, and Victoria M. Caridas-Butterworth, “Louisiana,” in Davidson and Grofman, Quiet Revolution 103, 110.
[193] Twenty-two of the twenty-six largest cities in Mississippi had at-large city council elections in 1965. Frank R. Parker, David C. Colby, and Minion K. C. Morrison, “Mississippi,” in Davidson and Grofman, Quiet Revolution 136, 138.
[194] Nineteen counties elected at least some members of their local government by single member districts in 1965. But eight years later, eleven of these counties had switched entirely to at-large elections. Orville Vernon Burton, Terence R. Finnegan, Peyton McCrary, and James W. Loewen, “South Carolina,” in Davidson and Grofman, Quiet Revolution 191, 201.
[195] Andrew Kull, The Color-Blind Constitution 211 (Harvard University Press, 1992).
[196] Ibid.
[197] “One reason cited for opposition to the amendment was that Southern states might use at-large elections to dilute the strength of the Negro vote.” 1965 Congressional Quarterly Almanac 604.
[198] Congressional Record, 89th Congress, First Session, Volume 111, Part 4, p. 5080 (1965).
[199] Ibid, pp. 5081, 5100.
[200] 1967 Congressional Record 34365.
[201] Ibid, 34369.
[202] Ibid, 34037.
[203] Ibid, 34037.
[204] Ibid.
[205] Ibid, 34364.
[206] Ibid, 34365.
[207] Ibid, 34366
[208] Ibid.[209] Ibid.
Chapter 5: The current context
Single-member districts have now become the electoral norm at all levels of government, but this is only due in part to the 1967 Congressional district mandate. More important to the nationwide embrace of this system has been the role of the federal Judiciary. By repeatedly invalidating dilutionary at-large and multimember district systems for local, state, and House elections, the courts have forced the nation to accept the single-member district as the eminent electoral system. This is due to the fact that single-member districts can more ably provide racial minorities with the capability to elect representatives of their choice, so long as they are drawn properly. As a result, the Judiciary has indirectly fostered the practice of racial gerrymandering, a process which involves the intentional creation of districts in which minority groups represent a majority of the population.
Racial redistricting has been tremendously effective at increasing the number of racial minorities elected to Congress. But the Court has lately begun to recognize that the practice is quite difficult to reconcile with the Constitution. For these districting plans require racial classifications, a legislative activity that traditionally warrants an exacting review under the Equal Protection clause of the Fourteenth Amendment.
While majority-minority districts appear increasingly unjustifiable under the rubric of the Court’s recent decisions in Shaw v. Reno and Miller v. Johnson , minority voting rights still need to be preserved. The States’ Choice of Voting Systems Act would allow states to use more effective, less harmful means of ensuring adequate representation for racial minorities. Alternative voting methods, such as the cumulative vote, have proven to be quite capable of providing racial minorities the potential to elect, while concomitantly avoiding the racial classifications so scorned in Shaw and Miller . As a result, this bill represents a preferable replacement to the contentious tool of racial minority empowerment, the creation of majority-minority districts.
Overall, the main goal of this chapter is to clarify the current context in which the States’ Choice Act must operate. Hence, it is divided into three parts. The first explains the evolution of the Voting Rights Act, detailing the cases that have been crucial to the formulation of race-conscious districting. The second section explores not only the Court’s purported problems with this exercise, but also some of the other practical flaws of racial redistricting. The third and final section considers the possibilities of the States’ Choice Act, and speculates on what the legal, political, and racial implications might be if the bill were actually passed.
The Evolution of Sections 2 and 5 of the Voting Rights Act
Section 5 of the VRA requires covered jurisdictions[210] to submit for approval any changes affecting voting[211] to either the attorney general or a federal district court in the District of Columbia. In order to garner preclearance, which is necessary for subsequent implementation of the change,[212] the jurisdiction must prove that these alterations do not have the purpose or effect of “denying or abridging the right to vote on account of race or color.”[213] The Justice Department thus had a great attained unprecedented authority over certain regions’ electoral decisions, an outcome that gained heavy criticism.[214]
Despite this controversy, the Supreme Court quickly enlarged the reach of section 5 in the 1969 Allen v. State Board of Elections ruling.[215] A law from the state of Mississippi allowed elections for local county supervisors to be converted from wards to at-large, essentially in an effort to submerge new black votes in predominantly white constituencies.[216] By invalidating this law, the Court expanded the scope of section 5 violations beyond simple disfranchisement to include those changes that also diluted blacks’ votes.[217] In his majority opinion Chief Justice Warren declared that a change from district to at-large elections could “nullify [blacks’] ability to elect the candidate of their choice just as would prohibiting some of them from voting.”[218] Consequently, section 5 became a weapon to prevent racial minority vote dilution at all levels of government.[219]
The voting rights of racial minorities continued to expand in 1973 when the Court adjudicated White v. Regester , a case involving multimember districts in two Texas counties.[220] In a unanimous decision, the Court explored the discriminatory political history of this region, and concluded that this multimember electoral scheme violated the Equal Protection clause of the Fourteenth Amendment. The Court declared that these electoral systems were unlawful when they denied racial minorities an equal opportunity “to participate in the political processes and to elect legislators of their choice.”[221] Yet the Court listed a hodgepodge of criteria, known as a “totality of circumstances,”[222] that must be satisfied before an electoral system could be determined to be violative of the Constitution.
The Court had effectively provided litigators a roadmap by outlining the conditions that must be present for an electoral system to be found unconstitutional. As a result, the amount of litigation skyrocketed after White as a growing number of minority plaintiffs began to challenge electoral systems, chiefly at-large and multimember schemes, that they claimed diluted the impact of their votes.[223] While satisfying the prerequisite totality of circumstances was an intense process that often required an immense amount of statistical evidence, plaintiffs would have a somewhat easier time because they now had a strategic framework with which they could approach the electoral system in question. Those litigators that were fortunate enough to obtain judicial relief often secured fairly drawn, single-member districts in response to their lawsuits.[224]
The Court would begin shifting sharply to the right during the 1970s though, as President Richard Nixon was able to appoint four new Justices during his tenure. Partly as a result of these changes in judicial personnel, voting rights would suffer a severe setback when the Court handed down its decision in City of Mobile v. Bolden in 1980.[225] Here a plurality of justices announced that racial minority plaintiffs must not only establish the requirements enumerated in White , but in addition, must prove an intent to discriminate on the basis of race in order for an electoral system to be found violative of the Constitution or section 2. This burdensome criterion would be extremely difficult to establish, since politicians rarely exposed their discriminatory proclivities. As a result, litigious challenges to dilutionary electoral schemes quickly dried up as plaintiffs soon realized how inhibiting this requirement was.[226]
But in a direct response to the Court’s decision in Bolden , Congress once again found itself preserving minority representation when the special provisions of the VRA came up for renewal in 1982. Section 2, which applies nationwide, was significantly amended to prohibit all voting practices, procedures, or standards which resulted in electoral discrimination against racial minorities, regardless of intent.[227] This “results test” effectively repudiated Bolden , as Congress had been quite unhappy with the Court’s requirement of discriminatory intent.[228] The federal Legislature felt that the intent standard was “inordinately difficult” and “unnecessarily divisive” since it required plaintiffs to prove that local officials were racists.[229] As a result, Congress reestablished the totality of circumstances found in White , and forced future courts to determine whether racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[230]
Litigation soared in response to the results test, with most plaintiffs winning their cases.[231] Before this amendment, about 150 voting cases were brought in federal court each year. But even with the streamlining and greater predictability of section 2 challenges, the number soon jumped to over 225 a year.[232] What is even more telling is the number of regions, particularly those using at-large elections, that have changed their voting systems in response to this results test. The Department of Justice reported that while less than 600 jurisdictions in the states covered by section 5 changed their method of election in the three years prior to 1982, 1,354 did so in the three years after the amendment was passed.[233] The results test has therefore effectively compelled many state legislatures to opt for district elections, not out of their desire to protect minority interests, but rather out of the more influential need to avoid expensive litigation.
In 1986, the Court interpreted the amended section 2 for the first time in Thornburg v. Gingles .[234] Examining multimember state legislative districts in North Carolina, the Court devised a definitive three-prong test to determine when these systems were violative of the newly established results standard.[235] First, the minority group “must be able to show that it’s politically cohesive.” Second, it “must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.” Third, the group “must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” These three criteria finally explicated a coherent logic of minority vote dilution, rather than a confusing compilation of questionable criteria as in White .[236] By minimizing the importance of historical, social, and economic dynamics, this decision sought to measure vote dilution in an objective, manageable fashion.[237] In so doing, this ruling emphasized how strongly racial minority voting rights had been secured.[238]
Three things thus interactively compelled states to create majority-minority Congressional districts earlier this decade: the 1982 amendments to section 2; compliance with Supreme Court precedents established in White and Gingles ; and perhaps most influential, the threat of costly litigation.[239] The practice of race-conscious districting has consequently helped integrate the legislative halls of our government. Between 1985 and 1992, the number of blacks elected to office nationwide increased by nearly 20 percent, while the corresponding number for Latinos grew by 50 percent.[240] As for Congressional elections, of the 16 new black members elected to Congress in 1992, 13 of them hailed from districts that had been drawn in an effort to create black majorities.[241]
In sum, the scope of the VRA has broadened tremendously, as it now warrants the intentional creation of majority-minority districts. The Congressmen who authored this law in 1965 may not have been able to foresee such an expansive evolution of the simple right to vote. Yet in retrospect, such an outcome should hardly come as a surprise. After all, there is little point in gaining access to the ballot box if that ballot is rendered meaningless by a dilutionary, racially discriminatory electoral system, in which the voter stands no chance of electing a representative of his or her choice. The VRA may have undergone a metamorphosis of sorts, but its adaptability has prevented many states, particularly those in the South, from circumventing its protection of racial minority voting strength.
The Purported and Practical Problems of Race-Conscious Districting
For all of the numerical gains in minority representation that race-conscious districting has helped produce, the practice now appears to be in serious jeopardy. With the addition of conservative Justices Clarence Thomas, Antonin Scalia, and Anthony Kennedy, the future of the majority-minority district and therefore racial minority representation looks grim. This unnerving trend started with Shaw in 1993, when North Carolina’s Congressional districting plan was likened to “political apartheid” by Justice Sandra Day O’Connor.[242] The state legislature had drawn two bare majority-black districts after the Justice Department refused to preclear its first plan, which contained only one. But one of these two new districts was “so irrational on its face that it [could] be understood only as an effort to segregate voters into separate voting districts because of their race.”[243] The Court determined that this type of bizarre racial gerrymander, “even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters.”[244] Accordingly, the case was remanded with the order that the districting plan warranted “close judicial scrutiny.”[245]
Two years later, in Miller , the Court continued to harshly disapprove the role race was playing in the creation of these majority-minority districts. This case considered Georgia’s districting plan, which had created three majority-minority districts after the Justice Department had declined to preclear a scheme with only two. The Court declared that the “central mandate” of the Equal Protection clause was racial neutrality in government decision-making, and applied its strict scrutiny standard since “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.”[246] According to Justice Anthony Kennedy’s majority opinion, Georgia’s state legislature had violated the Fourteenth Amendment by allowing race to be a “predominant factor motivating the drawing [of district lines].”[247]
The districting schemes of Georgia and North Carolina would continue to appear on the Court’s docket throughout the 1990s as these states continued to grapple with this political dilemma. After Shaw was remanded, the District Court in North Carolina held that the state’s creation of two majority-minority districts survived strict scrutiny because the plan was “narrowly tailored to further the State’s compelling interests in complying with 2 and 5 of the VRA of 1965.”[248] But this ruling was quickly overturned in Shaw v. Hunt , as the Court held that the plan violated the Equal Protection Clause because it was not narrowly tailored to serve a compelling state interest.[249] So North Carolina’s state legislature had to draw up another apportionment plan, but this time chose to protect its incumbents. While the districts were more compact on this occasion, the effect was still the same: protecting incumbents would entail the intentional creation of two majority-black districts. One of the original litigants from Shaw I was still unsatisfied, because although these districts were not bizarrely shaped, the plan purportedly still represented a racial gerrymander. As a result, North Carolina’s apportionment plan is once again being adjudicated in front of the Supreme Court.[250]
Georgia would have an equally difficult time meeting the Court’s new strict standards. After the state’s Eleventh District was invalidated by the Supreme Court, upon remand the trial court found that the Second District also of the majority-minority nature was likewise created unconstitutionally.[251] Georgia’s state legislature was unable to reach agreement on a new plan, so the trial court actually ended up drawing new Congressional boundaries.[252] But while the plan at issue in Miller contained three majority-minority districts, the court’s new arrangement only created one. Several voters sued, claiming that the court’s plan did not adequately take into account the interests of Georgia’s black population. But the Supreme Court sided with the trial court, declaring that the lower court “acted well within its discretion in deciding it could not draw two majority-black districts without engaging in racial gerrymandering.”[253]
These two examples demonstrate the tremendous difficulty districting can entail in a racially polarized political environment. North Carolina and Georgia’s apportionment schemes were in judicial limbo throughout much this decade, costing taxpayers in both states an exorbitant amount of money. If districting is supposed to foster a geographical bond between Representative and constituent, the confusion that surrounded these changing Congressional communities certainly undermined this principle. Incumbents running for reelection were suddenly presented with the odd task of campaigning to drastically different constituencies. Unfortunately, the back and forth bandying of boundaries between state legislatures and the judiciary was a chaotic circumstance that will probably be repeated as new district lines are drawn in response to the 2000 Census.
Some states may still try to create majority-minority districts, but Miller continues to cast an ominous shadow over racial gerrymandering, as it has been reaffirmed in several other Court decisions.[254] While Miller did not find all race-conscious districting per se unconstitutional, it certainly raised questions as to how the process can be reconciled with the predominant factor test. Justice O’Connor tried to clear up the confusion in her concurring opinion, declaring that this new standard “does not throw into doubt the vast majority of the Nation’s 435 Congressional districts.”[255] Instead, she felt that strict scrutiny should only be applied to those majority-minority districting schemes that “relied on race in substantial disregard of customary and traditional districting practices.”[256] This distinction is not authoritative since it was only offered in a concurrence, and its subjective nature ultimately obstructs the guidance Justice O’Connor may have been trying to offer. After all, the creation of majority-minority districts, and maybe even districting in general, is inherently preoccupied with race.[257] Under the majority opinion in Miller , then, can there be any majority-minority district that passes the Court’s strict scrutiny standard? For every one of them undoubtedly required the type of racial classifications the Miller Court considered suspect.
Admittedly, race-conscious districting has several negative outcomes that cannot be overlooked, but have unfortunately been overestimated by the Court. First is the fact that this process entrenches racially separate electorates. While the argument that majority-minority districts promote or accentuate racial separation is disputable,[258] they certainly define race as the dominant dimension of electoral politics and then lock in this judgement for the next decade.[259] Justice William Douglas explored the problematic nature of this consequence over thirty years ago in a dissenting opinion:
The principle of equality if at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on..That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense.[260]
A second problem that follows is that race-conscious districting ascribes a political identity to voters based solely on their race. This is an unfortunate result because racial minorities may be intentionally grouped together with other citizens who share the same skin pigmentation, but differ in socioeconomic status and political perspective.[261] The Court overestimates this issue too though when it makes the argument that these districts represent “stereotypical assumptions” that “evaluate [racial minorities’] thoughts and efforts their very worth as citizens according to a criterion barred to the Government by history and the Constitution.”[262] All districting inherently requires generalizations to be made about political identities, based on racial, geographical, socioeconomic, and historical voting tendencies. It would be foolish to expect state legislatures to extract racial evaluations from the political calculus: districting is supposed to create communities of interest, and empirical evidence proves that racial minorities tend to be politically cohesive.[263]
While the Court has focused its attention on these two expressive harms,[264] racial redistricting has three other intrinsic, more practical problems. First is the concern that majority-minority districts minimize the statewide influence of racial minorities by quarantining them in “ghettoized” districts.[265] The creation of majority-minority districts may facilitate the election of black and Latino Representatives, but at the same time, white legislators from other parts of the state now have less incentive to be attentive to the concerns of other racial minorities.[266] As a result, some question whether the descriptive gains are offset by the substantive losses in racial minorities’ overall influence.[267]
A second problem with racial redistricting is that it is constrained by its geographical limitations. In order for majority-minority districts to be created, Gingles held that the racial group must be “geographically compact.”[268] But in those jurisdictions where racial minorities are widely dispersed, as Latinos are in the West and Southwest,[269] this standard can become impossible to satisfy. Race-conscious districting is thereby wholly dependent on residential segregation. For even if a racial minority population possesses the numerical capability to elect a representative of their choice, under the single-member district paradigm, only those that are geographically concentrated in a compact region have the right to a majority-minority district.
A third problem with this districting practice is that it is ill-equipped to deal with racial or ethnic heterogeneity. When two different, significantly sized minority groups overlap in a particular area, it becomes well-nigh impossible for even the most well-intentioned cartographer to ensure that both groups are fairly represented.[270] After all, not all racial minorities possess the same political perspectives, a fact that is well illustrated in Florida where blacks and Cubans disagree on a number of issues. As a result, the state legislature must ultimately decide which group will control the majority-minority district, thereby fostering bitter competition among racial minority groups.[271]
Overall, the drawing of district lines after the year 2000 promises to be controversial, confusing, and contentious. Majority-minority districts have been widely successful at increasing the number of racial minorities in Congress, but they are currently under attack. The Supreme Court’s decisions in Shaw and Miller have left one to wonder how these districts can be constitutionally created and justified. The incentive to maximize the number of majority-minority districts has been supplanted by an incentive to minimize them,[272] and unless something is done, the progressive inclusion of minority interests that has taken place over the last 150 years will unfortunately come to a screeching halt.
An Explanation of the States’ Choice of Voting Systems Act
House Resolution 1173, introduced on March 17 of this year, seeks to permit states to “use redistricting systems for Congressional districts other than single-member districts.”[273] The bill does nothing more than overturn the 1967 single-member district mandate, thereby providing states the opportunity to elect its Representatives from “single-member districts, multi-member districts, or a combination of single-member and multi-member districts.”[274] The bill does not require electoral change, but simply allows it to happen, and even then only for those states that choose it. The bill’s only two requirements are that these systems “meet the constitutional standard that each voter should have equal voting power and [do] not violate the Voting Rights Act of 1965.”[275]
The bill is clearly intended to furnish states like North Carolina and Georgia more options with which to confront the problematic redistricting dilemmas they will face after the next census. Satisfying the democratic imperatives of the VRA namely, providing those sufficiently sized racial minorities with the capability to elect a candidate of their choice is becoming increasingly difficult within a single-member district framework. Shaw and its progeny have placed confusing confines on the practice of race-conscious districting, essentially declaring that it can no longer be too race-conscious. If states are to obey the seemingly dichotomous requirements of the VRA and the Miller decision, they will need the types of alternatives this Act allows.
If states were given the capability to elect Representatives from multimember districts, they could approach the problem of minority vote dilution in an entirely new way. If this bill were passed, states could then use alternative voting methods, based on various types of PR, that have effectively provided minorities the potential to elect Representatives of their choice all across the country.[276] These systems are ideal because they are truly colorblind: they require no racial classifications, and allow voters to determine for themselves how their political identities shall be defined.[277] As a result, minority representation could be maintained without balkanizing the electorate into competing racial factions.
One particular voting method that states might choose to implement would be cumulative voting.[278] With this system, citizens may cast as many votes as there are seats to fill, just as in multimember plurality elections. But the distinguishing feature of cumulative voting is that voters are not restricted from voting more than once for a particular candidate, and may distribute their votes in any way they prefer. For example, if there were three Congressional seats up for election in a multimember district, a citizen would have three total votes. She could give one vote to three different candidates, or if she strongly prefers only one in particular, she may cumulate all three votes on that one candidate. This is the strategy that allows minority groups to overcome the majoritarian bias of traditional winner-take-all elections. If the voters in a sufficiently large minority group concentrate all their votes on the same candidate, they will be capable of electing that candidate regardless of how a majority of other voters cast their ballots.[279]
The critical factor in this system is the threshold of exclusion. This number signifies the percentage of the electorate that a group must exceed in order to elect a candidate of its choice, unmindful of how the rest of the electorate votes.[280] It is calculated using the formula 1/1+(Number of seats) X 100. Once again, lets take a three seat election for example. In this context, even in the face of extensive racially polarized voting, a cohesive minority group that constituted at least 25% of the population would have the capability to elect a representative of its choice.[281] The threshold of exclusion varies inversely with the number of seats to be filled, meaning the more contested seats, the lower the threshold.[282] Hence the size of both the minority population and the multimember delegation play a crucial role in determining whether or not there exists a potential to elect.
Contrary to what many initially may think, the cumulative vote emphatically does not violate the one person, one vote rule. This standard is not concerned with the actual number of votes cast, but instead, focuses on the relative power of each person’s vote. In those elections utilizing the cumulative vote, every individual enters the voting booth with the same cumulative capability, meaning everyone thereby has the same voting power.[283]
A multimember system using a cumulative voting procedure holds one enormous advantage over a majority-minority district: it provides racial minorities the capability to elect a representative of their choice without eliciting the expressive harms enunciated in Shaw and its progeny. First, multimember districts avoid balkanizing the electorate because they would not require blatant racial classifications in order to be drawn. Cartographers would not be nearly as dependent on residential segregation, since the larger size of multimember districts would provide them much more area with which to work. Furthermore, the minimum percentage of racial minorities needed in the district would be much smaller, as they would now have the electoral capability to overcome their numerical disadvantage. A multimember district with a 30% black population would certainly not bespeak a racial classification in the same way that a 70% black single-member district would. Race would undoubtedly still play a role in the districting process, but the flexibility this system provides would allow states to focus on it considerably less than they currently have to when creating majority-minority districts.
Second, these kinds of multimember systems would not make the stereotypical assumptions about racial minorities that so concerned the Court in Shaw and Miller. This system doesn’t ascribe political identities to voters by grouping them with other voters deemed to have similar political interests.[284] Rather, it acknowledges the importance of individual choice in choosing group affiliation, as well as the existence of intra-group differences.[285] As a result, these systems would promote a concept of racial group identity that is interest-based rather than biological.[286]
By helping states to avoid these harms, the States’ Choice Act would probably decrease the number of lawsuits challenging states’ districting plans. Since citizens would not be subject to any sort of egregious racial classification, they would not suffer from any cognizable injury. But one could easily imagine a situation in which a racial minority group sued their state for failing to implement one of these systems. For it is true that within a multimember district using an alternative voting method, racial minorities’ potential to elect increases markedly. The Court would then do one of two things: either decide the claim is a nonjusticiable political question, or perilously bring itself much deeper into the political thicket.
The States’ Choice Act has twelve cosponsors, eleven Democrats and one Independent.[287] Conspicuously absent are the Republicans, among whom the bill figures to find little support. This bill would facilitate increased minority participation, an outcome that rarely is in the interests of the GOP. But it would also benefit partisan minorities, often times at the expense of the Republican party. After all, in 1996, conservatives won all of the contested seats in five states Nebraska, Nevada, New Hampshire, Oklahoma, Utah entitled to more than one Representative, gaining a grossly disproportionate share of power and leaving Democratic voters in these states with no representation. Considering the Democratic party won at least 31% of the vote in each of these states, it would have won at least one seat in each state had cumulative voting been used. This bill thus poses a threat to the GOP’s numerical preponderance, making it difficult to believe a substantial number of Republicans would support it.
While the political implications are pretty clear, the racial ramifications are difficult to speculate on. On one hand, it appears the bill would help aid the election of racial minorities to Congress. Their potential to elect would increase because of the cumulative capability, while the Gingles requirement of geographic compactness would be substantially assuaged by the larger size of multimember districts. On the other hand, the bill might not have any significant racial impact if passed in Congress, considering state legislatures would still have to utilize this newfound electoral leeway. Overall, it is unlikely that those states unfazed by districting litigation or stark partisan imbalances would threaten their incumbents’ chances’ for reelection by implementing one of these new voting schemes.
But there are several state legislatures that might welcome the option to implement multimember, alternative voting procedures. The most obvious are those states that have had their majority-minority districts invalidated by the Supreme Court: namely, North Carolina, Georgia, Texas, and Louisiana. These states, as well as others covered by section 5, would be the principal beneficiaries of this bill because it is meant to provide them with more electoral alternatives. Then there are those states, most notably Massachusetts, with recurring disproportionate partisan outcomes. These legislatures might face heavy pressure from the minority political party to enact a voting plan that more accurately represents the various interests of the state. Illinois is the final state in which change could be considered likely. This is because its lower house elections were conducted using the cumulative vote from 1870 to 1980, so the familiarity with the system is already there. But more importantly, interest in the system is on the rise in Illinois, as the Chicago Tribune declared in an editorial that “[cumulative voting] produced some of the best and brightest in Illinois politics. It’s time for a debate about its possible revival.”[288]
Although there appears to be a somewhat substantial number of states that might prefer the opportunity to alter their electoral systems, the chances this bill will pass through Congress are unfortunately quite small. Two similar bills, both called the Voter’s Choice Act, were introduced by Rep. Cynthia McKinney of Georgia in the two previous Congresses.[289] Both would have allowed states to adopt a PR system, yet neither bill even received a Congressional hearing. These types of bills would allow states to revolutionize their Congressional electoral systems, vitalizing politics while also putting incumbents’ seats in jeopardy. Since political risks are something today’s officeholders are all too inclined to avoid, it is likely that incumbency inertia will unfortunately prevent passage of this bill.
Chapter 5 notes
[210] All of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. There are also various parts of California, Florida, Michigan, North Carolina, New York, and South Dakota that are covered under this provision. 28 C.F.R Chapter 1 (7-1-92 ed.)
[211] For example, when a covered jurisdiction attempts to implement “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” Supra note 2.
[212] Yet it is the covered jurisdictions’ responsibility to submit these changes, as the Justice Department has no policing policies. Accordingly, it also lacks a system to determine whether all changes have been submitted. Davidson, in Grofman and Davidson, Controversies 19.
[213] Supra note 2.
[214] Davidson, in Grofman and Davidson, Controversies 19; Days, in Grofman and Davidson, Controversies 53, 58.
[215] Allen, supra note 189; O’Rourke, in Grofman and Davidson, Controversies 90.
[216] Frank Parker, Black Votes Count: Political Empowerment in Mississippi After 1965 51-54 (University of North Carolina Press, 1990).
[217] Davidson, in Grofman and Davidson, Controversies 28.
[218] Allen, supra note 189, at 569.
[219] Davidson, in Grofman and Davidson, Controversies 28.
[220] White v. Regester, 412 U.S. 755 (1973).
[221] McDonald, in Grofman and Davidson, Controversies 66.
[222] White, supra note 220, at 769-70.
[223] Davidson, in Grofman and Davidson, Controversies 37.
[224] Davidson, in Grofman and Davidson, Controversies 37.
[225] City of Mobile v. Bolden, 446 U.S. 55 (1980).
[226] O’Rourke, in Grofman and Davidson, Controversies 95.
[227] Supra note 2.
[228] McDonald, in Grofman and Davidson, Controversies 68.
[229] McDonald, in Grofman and Davidson, Controversies 68, taken from Voting Rights Act Extension, Report of the Committee on the Judiciary, United States Senate. Senate Report 97-417, 97 Congress, 2nd Session, GPO.
[230] Supra note 2.
[231] O’Rourke, in Grofman and Davidson, Controversies 100.
[232] McDonald, in Grofman and Davidson, Controversies 71.
[233] Ibid. Taken from Department of Justice, Civil Rights Division, 1987. “Voting Rights,” Enforcing the Law 2 (Washington).
[234] Thornburg v. Gingles, 478 U.S. 30 (1986).
[235] Ibid, supra note 234, at 50-51.
[236] Davidson, in Grofman and Davidson, Controversies 32-33, 41-42.
[237] McDonald, in Grofman and Davidson, Controversies 70.
[238] Davidson, in Grofman and Davidson, Controversies 41.
[239] Many states have already changed their own legislative election systems in an effort to preclude litigation. Ibid, 42, n114; supra note 29.
[240] E. Joshua Rosenkranz, “Solving the Race Problem,” Boston Review (March/April 1998, http://www-polisci.mit.edu/bostonreview/BR23.1/).
[241] Ibid.
[242] Shaw, supra note 3, at 647.
[243] Ibid, at 658.
[244] Ibid, at 657.
[245] Ibid.
[246] Miller, supra note 3, at 904.
[247] Ibid, at 917.
[248] Shaw v. Reno, 861 F. Supp. 408, 474 (1994).
[249] Shaw II, supra note 9, at 902.
[250] Hunt v. Cromartie (1999).
[251] Johnson v. Miller, 922 F. Supp. 1552 (1995).
[252] Johnson v. Miller, 922 F. Supp. 1556 (1995).
[253] Abrams v. Johnson, 521 U.S. 74, 79 (1997).
[254] Bush v. Vera, 517 U.S. 952 (1996); Shaw II, supra note 9; Lawyer v. Department of Justice, 117 S. Ct. 2186 (1997).
[255] Miller, supra note 3, at 928.
[256] Ibid.
[257] The Shaw opinion even concedes this: “redistricting differs from other kinds of state decision-making in that the legislature always is aware of race when it draws district lines.” Shaw, supra note 3, at 646. Also see Kousser, 270. He writes that “Formally or informally, precisely or approximately, redistricting authorities will always be conscious of racial cleavages, because they are the single most salient social and political facts in contemporary America, as they have been in much of the nation’s past.”
[258] These majority-minority districts are created only where racially polarized bloc voting is pervasive, a requirement established by Gingles. As a result, it is difficult to imagine that these districts deepen racial divisions, considering the racial divide is already quite stark. As Kousser writes, “There was not much room left for exacerbation.” Ibid, 273.
[259] Pildes and Donoghue 256.
[260] Wright v. Rockefeller, 376 U.S. 52, 66 (1964).
[261] Lani Guinier has written that “Subdistricting simply assumes a linkage between interest and residence that is not necessarily as fixed as racial segregation patterns might otherwise suggest.” Tyranny 84.
[262] Miller, supra note 3, at 912.
[263] Guinier, Tyranny 98.
[264] See Richard H. Pildes and Richard G. Niemi, “Expressive Harms, ÎBizarre Districts,’ and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno,” 92 Michigan Law Review 483 (1993).
[265] Guinier, Representation 1162-63.
[266] Richard Briffault, “Book Review: Lani Guinier and the Dilemmas of American Democracy,” 95 Columbia Law Review 418, 430 (1995).
[267] See Abigail Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights 7 (Harvard University Press, 1987) and more generally, Carol M. Swain, Black Faces, Black Interests: The Representation of African-Americans in Congress (Harvard University Press, 1993). This was an argument put forth by those Congressional opponents to the 1982 amendments. See Senate Report No. 417, 97th Congress, Second Session 103, taken from Guinier, Tyranny 232, n184.
[268] Gingles, supra note 234.
[269] Amy, Real Choices 277.
[270] Ibid, 127.
[271] Guinier, Representation 1159. See more generally, Judith Reed, “Of Boroughs, Boundaries and Bullwinkles: The Limitations of Single-Member Districts in a Multiracial Context, 19 Fordham Urban Law Journal 759 (1992).
[272] Kousser 451-52.
[273] Supra note 7.
[274] Ibid.
[275] Ibid. Initially, it might appear that this bill would allow states to return to the dilutionary days of winner-take-all, multimember district elections. But while the proposal may permit states to hold these types of elections, it is doubtful any states would adopt multimember districts in an effort to dilute the voting strength of racial minorities. The threat of imminent litigation, as well as the Justice Department’s preclearance provision for covered jurisdictions, would effectively preclude the implementation of such a scheme. See supra notes 2, 29.
[276] The two most notable systems are cumulative voting and the single-transferable vote. Cumulative voting has been used in Chilton County, Alabama (see Pildes and Donoghue, supra note 13); over 25 communities in Texas (see Robert Brischetto, “Cumulative Voting as an Alternative to Districting: An Exit Survey of Sixteen Texas Communities,” National Civic Review 347 (Fall-Winter, 1995)); Alamogordo, New Mexico (see Richard L. Engstrom, Delbert A. Taebel, and Richard L. Cole, “Cumulative Voting as a Remedy for Minority Vote Dilution: The Case of Alamogordo, New Mexico,” 5 Journal of Law and Politics 469 (1989)); Peoria, Illinois (see Larry T. Aspin and William K. Hall, “Cumulative Voting and Minority Candidates: An Analysis of the 1991 Peoria City Council Elections,” 17 American Review Policy 225 (1996)); and in Sisseton, South Dakota (see Richard Engstrom and Charles Barrilleaux, “Native Americans and Cumulative Voting: The Sisseton-Wahpeton Sioux,” 72 Social Science Quarterly 388 (June, 1991)). Another system, the single-transferable vote, has been used in Cambridge, Massachusetts for over fifty years (see George Pillsbury, “P.R. and Vote Turnout: The Case of Cambridge, Massachusetts” National Civic Review 164 (Spring, 1995)), as well as in New York City for school board elections (see Leon Weaver and Judith Baum, “Proportional Representation on New York City Community School Boards,” in United States Electoral Systems: Their Impact on Women and Minorities (Wilma Rule and Joseph Zimmerman, eds., Greenwood Press, 1993)).
[277] Pildes and Donoghue 255-56.
[278] For discussion of the single-transferable vote, see Richard L. Engstrom, “The Single Transferable Vote: An Alternative Remedy for Minority Vote Dilution,” 27 University of San Francisco Law Review 781 (1993). The single-transferable vote wastes fewer votes, and as a result, elicits more proportionate results. For discussions of why it is preferable to cumulative voting, see Briffault, supra note 255, at 435-441; and Rob Richie, “Preference Voting vs. Cumulative Voting: Preference Voting is the Better System for Local Government,” http://www.mtholyoke.edu/acad/polit/damy/rich.htm. I have chosen to focus on cumulative voting because it has been used more often in this country, and also because the single-transferable vote can be quite complicated. As Pildes and Donoghue write, “This is a serious drawback in a democratic society where voting rules should be transparent and readily understood.” Pildes and Donoghue 254, n50.
[279] Pildes and Donoghue 254.
[280] Engstrom, Taebel, and Cole 478.
[281] This assumes that the minority group concentrates all of its votes on one candidate.
[282] Engstrom 479.
[283] Engstrom 478.
[284] Pildes and Donoghue 255-56.
[285] Guinier, Tyranny 97-98.
[286] Ibid, 123.
[287] They are Eva Clayton (D-NC), James Clyburn (D-SC), Bernie Sanders (I-VT), Elijah Cummings (D-MD), Stephanie Tubbs Jones (D-OH), Robert Scott (D-VA), Barney Frank (D-MA), Barbara Lee (D-CA), Bennie Thompson (D-MS), George Brown (D-CA), Alcee Hastings (D-FL), and Danny Davis (D-IL).
[288] Editorial, “Better Politics from an Old Idea,” Chicago Tribune (May 30, 1995).
[289] Voter’s Choice Act, 104th Congress, 1st Session, H.R. 2545, introduced October 26, 1995 and Voter’s Choice Act, 105th Congress, 1st Session, H.R. 3068, introduced November 13, 1997.
Chapter 6: Conclusion
From the very beginnings of the Republic, two bedrock principles of American democracy have been in constant tension with each other: minority representation and majority rule. Reconciling these two seemingly dissonant values has been problematic throughout much of this nation’s history, especially within the confines of our winner-take-all voting system. I will begin this last chapter by rehashing the ongoing efforts that have been made to preserve minority representation within our majoritarian system, efforts that have produced commendable progress in the area of Congressional elections. However, the course of minority representation has been placed at a calamitous crossroads due to two recent Supreme Court rulings. As a result, I come to the final conclusion that if Congress hopes to continue these extraordinary advancements, it will need to pass the States’ Choice of Voting Systems Act.
Of course, it was James Madison who initiated much of this electoral progress. He was preeminently preoccupied with the potential subjugation of minority interests, warning that “If a majority be united by a common interest, the rights of the minority will be insecure.” He sensed that it was in society’s best interests to guard against the dangers of a majority, protecting “one part of the society against the injustice of the other part.” Since the majority will not always represent the minority in an adequate fashion, his general feeling was that the majority had to be disaggregated into smaller, more fluid interests.[290]
So during the Constitutional Convention, explored in Chapter 2, Madison declared that the only way the rights of minorities could be protected was to
“divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moments to have a common interest separate from that of the whole or of the minority; and in the second place, that in the case they should have such an interest, they may not be apt to unite in the pursuit of it.”[291]
This statement comports with other remarks made by the Framers of the Constitution that also advocated the practice of districting.[292] District elections were not only capable of constraining potentially tyrannical state majorities, but correspondingly did a praiseworthy job of providing various regional and partisan minority groups with representation. There was a general feeling that the House of Representatives was supposed to serve as an exact mirror or transcript of the whole society,[293] sympathizing with every part of the community.[294] So in retrospect, it made sense that the Framers intended the House to be elected by districts, since this was the most inclusive system available at the time.[295]
But this preference for district elections, while readily apparent from the Convention, was not expressly mentioned anywhere in the Constitution. This is because the Framers were not willing to impose a requirement on the states that did not allow them to adjust their electoral systems to their own particular needs. Instead, Article I, Section 4, explicitly provided states the discretion to choose for themselves how they would elect their Representatives to Congress. Admittedly, the same provision granted the federal Legislature the concurrent authority to prescribe the times, places, and manner of House elections. However, another important point raised in the second chapter was that there was a great deal of ambiguity as to when Congress could utilize this power.
Chapter 3 next explored the 1842 Apportionment Act, which contained the first ever single-member district mandate. As the smaller states remained partial to their dilutionary at-large elections throughout the early 1800s, Congress was compelled to intervene on behalf of those minority voters who were consistently left without federal representation. So it was in 1842 that the federal Legislature chose to maintain the Founding Fathers’ focus on minority rights by introducing the districting amendment. While the purpose of this bill was to achieve greater electoral fairness an abstract belief to which most Congressmen of that time period subscribed there were numerous legislators who fought very hard to retain states’ traditional authority over their elections. These opponents argued that such a law represented a federal encroachment on state sovereignty, another principle that was fiercely protected during this era. Yet Congress passed this districting bill in spite of the pervasive fears of an omnipotent federal government, an outcome that lucidly illustrates how important the concept of minority representation continued to be in 1842.
Congress would pass a number of other districting mandates, but none were as notable as the 1967 law that is examined in Chapter 4. By this time, the definition of “minority” had undergone an expansive transformation to include those of the racial variety. Only two years earlier, the 1965 Voting Rights Act had finally provided African-Americans and Latinos access to the franchise, signaling Congress’ heightened emphasis on minority inclusiveness. But the South openly disapproved of the VRA, and began implementing at-large electoral schemes at the local and state level in an effort to dilute blacks’ newfound voting strength. The Supreme Court’s newly established one person, one vote standard indirectly encouraged a similar nationwide movement towards at-large, state legislative elections; drawing districts under this rule would be an increasingly intricate process that states would now be all too inclined to avoid. The popularity of at-large elections on the local and state level prompted Congress to enact another single-member district mandate for House elections, once again preserving the voting power of eligible minority groups.
Chapter 5 revealed that this protective trend would continue over the next 25 years, largely as a result of the Court’s heightened involvement in the nation’s electoral decisions. The Allen (1969) and White (1973) opinions both made it much easier for racial minorities to win their challenges to dilutionary electoral schemes. The Court then imposed the intent standard in Bolden in 1980, a burdensome criterion which required plaintiffs to prove the electoral plan at issue was implemented with the intent to discriminate against racial minorities. But Congress quickly responded to this controversial decision in 1982 by amending section 2 of the VRA, announcing that proof of discriminatory results, rather than intent, would be sufficient to substantiate a claim of vote dilution.[296] Four years later in Gingles , the Court explicated the amended section 2 by enumerating three precise criteria of vote dilution that would serve as effective guidelines in further lawsuits. With the exception of Bolden , then, the fifth chapter indicates that the Court broadened the scope of voting rights immensely, advancing minority representation to unprecedented heights during this time period.
Sadly, this electoral progress has now come to standstill, and may be taking a turn for the worse. Put simply, the federal Judiciary is becoming hypercritical about the remedies that can be used to offset racially polarized voting, another judicial trend explored in Chapter 5. The Court played an integral role in cultivating the practice of racial redistricting, yet its decisions in Shaw and Miller have imperiled the future of the majority-minority district. These districts have been resoundingly effective at integrating Congress and enhancing the representativeness of our federal Legislature.[297] Yet they are laden with controversy, with the Court choosing to depict its own innovation as a divisive force within our country. The Court’s captious stance on racial redistricting presents state legislatures with a confounding dilemma. For if they allow race to play too large a role in the drawing of their Congressional boundaries, they will be subject to strict scrutiny under the Equal Protection Clause. However, if they fail to create majority-minority districts in a state with a sizable minority population, they will be susceptible to litigation under Sections 2 and 5 of the VRA.[298]
This is a volatile, no-win situation that will woefully plague American democracy during the next round of redistricting. Unless something is done, state legislatures will struggle mightily to reconcile the requirements of the VRA with the Court’s recent enigmatic rulings. In addition, these legislatures will increasingly have their own state’s political interests ascertained and adjudged by a supposedly apolitical judiciary. Meanwhile, the nation’s old-fashioned faith in the proximate connection between Representative and constituent will continue to deteriorate, as district lines fluctuate with respect to the latest court decision. But the worst consequence of this districting disorder is the deleterious impact it will have on continuing efforts to effectuate minority representation in the House. As the majority-minority district loses viability, racial minorities concomitantly lose what had hitherto been their most effective tool of political empowerment. Without racial gerrymandering, the number of blacks and Latinos in Congress can be expected to decrease significantly.
With the Court’s position unlikely to change before district lines are redrawn, the States’ Choice of Voting Systems Act constitutes a much easier way out of this troubling predicament. State legislatures are currently in dire need of unique strategies with which to approach their daunting redistricting responsibilities. Alternative voting systems used within multimember districts would help states avoid the political and legal strife that is inherent to the creation of majority-minority districts.[299] Furthermore, these systems effectively provide racial minorities with the equal opportunity to elect a representative of their choice.[300] State legislatures would no longer have to go to such great lengths to provide blacks and Latinos this capability to elect; the flexible nature of these systems would allow states like North Carolina and Georgia to satisfy this requirement of the VRA while still observing traditional districting principles.
By repealing the 1967 law that currently precludes implementation of these systems on the federal level, the Act would permit each state to decide which electoral plan is most suitable for its own specific exigencies. Given that (1) the threat of litigation is so pervasive; (2) the VRA will still require covered jurisdictions to seek preclearance of their new electoral plans; and (3) the state legislatures are now much more racially integrated, the likelihood that their choices would be racially prejudiced is low. History suggests three distinct facts about these electoral decisions. First is that the Framers of the Constitution felt they were best left to the states. Second, that this was an aspect of state sovereignty that was bitterly defended throughout the early 1800s. And third, that the states have possessed this power throughout a majority of this nation’s 212 years of existence. As a result, it appears the Act would rightfully restore electoral authority to the same legislators who were intended to exercise it.
In addition to its conformity to the Constitution, the Act also maintains the devotion to minority representation that was fundamental to both the 1842 and 1967 single-member district mandates. While the circumstances were quite different in these two eras, both Congresses operated on the belief that the federal Legislature ought to be broadly representative of the nation as a whole.[301] Dissatisfied with the dilutionary tendency of at-large elections, these members of Congress endeavored to enhance the inclusiveness of the House of Representatives. In both instances, uniform district elections were seen as the only way in which this goal could be achieved.
Yet there no longer exists a need for electoral uniformity. The main motivation behind such a principle had always been the desire to prevent the various electoral inequalities that might occur if states were allowed unchecked discretion. Districting mandates ensured that each state would adopt a fair system that did not intrinsically weaken the voting strength of a particular portion of the population. Today, though, minority representation could be sufficiently safeguarded without this type of law, as the threat of litigation under section 2 and the preclearance provisions of section 5 would effectively prevent states from returning to dilutionary electoral systems.
The diversity among and within states today is much greater than it was in 1787. But even then, the Constitutional Convention declined to develop rigid, uniform, nationwide electoral requirements that would have prevented states form adopting a system specifically tailored to their needs. Why, then, should Congress continue to maintain a law that reduces options at a time when they seem to be needed most?
This want for uniformity now acts only as a stifling encumbrance on state legislatures, as they plainly need the freedom to explore new electoral formulas. This idea of state experimentation is hardly novel, as it has long been praised in American federalist thinking. Supreme Court Justice Brandeis held this concept in high esteem in 1932, when he declared in a classic dissent
“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”[302]
Justice Brandeis was not alone in his exaltation of state experimentation though. In his dissenting opinion in Lucas in 1964, Justice Potter Stewart widely extolled the “values of local individuality and initiative vital to the character of the Federal Union which it was the genius of our Constitution to create.”[303] Both of these opinions were obviously written well before the 1967 districting mandate was enacted. Nevertheless, they both stressed even back then how important it was for states to be capable of accommodating their own particular needs.
By offering states the capability to find a better method of representation through experimentation, the States’ Choice Act seems to offer something to both sides of the political spectrum. The bill provides states with new means of actualizing racial minority representation, and therefore represents a progressive measure certain to capture liberal approval. At the same time, the bill allows states to recover a cherished element their state sovereignty, an outcome that would normally find some support among conservatives.
In a discussion of electoral systems, James Madison once reasoned that “It is perhaps to be desired that various modes should be tried, as by that means only the best mode can be ascertained.”[304] As the nation readies itself for a new millennium that will begin with numerous districting nightmares, it is time for Congress to reflect on these historical conceptions of representation. The States’ Choice of Voting Systems Act forces the federal Legislature, just as it did in 1842 and 1967, to reconsider its ideas about electoral fairness. As such, this bill represents a new chapter in the enduring political discourse about minority representation. By allowing states to tinker with their House elections, the Act ultimately could facilitate the implementation of PR voting procedures for the first time ever in American federal elections. While this potential consequence sounds somewhat revolutionary, it would simply signal a logical culmination of the continuing efforts to find the most inclusive model of democracy available.
Chapter 6 notes
[290] Guinier, Tyranny 3-4.
[291] The Records of the Federal Convention of 1787, ed. Max Farrand (Yale University Press, 1911-1937) 136.
[292] Supra notes 44, 45.
[293] Supra notes 112, 113.
[294] Supra note 44.
[295] Kenneth C. Martis, “Districts,” in The Encyclopedia of the United States Congress 651, 651-52 (Donald C. Bacon et al. eds., Simon & Schuster, 1995).
[296] Davidson, in Davidson and Grofman, Controversies 38-39.
[297] Supra note 241.
[298] Donovan Wickline, “Walking a Tightrope: Redrawing Congressional District Lines After Shaw v. Reno and its Progeny,” 25 Fordham Urban Law Journal 641, 642-43 (Spring, 1998).
[299] See Steven J. Mulroy, “The Way Out: A Legal Standard for Imposing Alternative Electoral Systems as Voting Rights Remedies,” 33 Harvard Civil Rights-Civil Liberties Law Review 333, 350-55 (Summer, 1998). He shows that alternative systems efficiently avoid all of the harms and constitutional prohibitions enunciated in Shaw, Miller, and their progeny.
[300] Alternative voting systems would actually increase racial minorities’ “potential to elect,” a prerequisite underlying Gingles’ criterion regarding geographical compactness. Gingles, supra note 232, at 50, n17. This is because the larger character of multimember districts would allow state legislatures to more easily encompass the dispersed segments of the states’ racial minority population. Furthermore, the PR idiosyncrasies of the cumulative and single-transferable vote increase all minorities’ chances of winning representation by helping them to overcome their numerical disadvantage.
[301] Pildes and Donoghue 251-253.
[302] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932).
[303] Lucas, supra note 183, at 748.
[304] James Madison, “To Thomas Jefferson,” in Rutland, Papers 276.
Court cases and selected bibliography
Court cases
Abrams v. Johnson , 521 U.S. 74, 79 (1997).
Allen v. Board of Elections , 393 U.S. 544, 569 (1969).
Baker v. Carr , 369 U.S. 186 (1962).
Bush v. Vera , 517 U.S. 952 (1996).
Cane v. Worcester County , 847 F. Supp. 369 (D. Md. 1994).
City of Mobile v. Bolden , 446 U.S. 55 (1980).
Colegrove v. Green , 328 U.S. 549 (1946).
Gray v. Sanders , 372 U.S. 368 (1963).
Holder v. Hall , 114 S. Ct. 2581 (1994).
Hunt v. Cromartie (1999).
Johnson v. Miller , 922 F. Supp. 1552 (1995).
Johnson v. Miller , 922 F. Supp. 1556 (1995).
Lawyer v. Department of Justice , 117 S. Ct. 2186 (1997).
Lucas v. Forty-forth General Assembly of Colorado , 377 U.S. 713, 750 (1964).
Miller v. Johnson , 515 U.S. 900 (1995).
New State Ice Co. v. Liebmann , 285 U.S. 262, 311 (1932).
Shaw v. Hunt , 517 U.S. 899 (1996).
Shaw v. Reno , 509 U.S. 630 (1993).
Shaw v. Reno , 861 F. Supp. 408, 474 (1994).
Smith v. Allwright , 321 U.S. 649 (1944).
Terry v. Adams , 345 U.S. 461 (1953).
Thornburg v. Gingles , 478 U.S. 30 (1986).
Wesberry v. Sanders , 376 U.S. 1, 18 (1964).
White v. Regester , 412 U.S. 755 (1973).
Wood v. Broom , 287 U.S. 1 (1932).
Wright v. Rockefeller , 376 U.S. 52, 66 (1964).
Selected Bibliography Selected bibliography
Amy, Douglas. 1993. Real Choices, New Voices . New York: Columbia University Press.
———-. ÏProportional Representation: A New Option for Local Elections.Ó National Civic Review , Summer, 1993, pp. 275-281.
Anderson, John. ÏA Better Approach to Boosting Minority Representation?Ó The Christian Science Monitor , July 6, 1993, p. 18
Applebome, Peter. ÏGuinier Ideas, Once Seen as Odd, Now Get Serious Study.Ó The New York Times , April 3, 1994, p. 5.
Aspin, Larry T., and William K. Hall. 1996. ÏCumulative Voting and Minority Candidates: An Analysis of the 1991 Peoria City Council Elections.Ó American Review Policy 17: 225.
Blumstein, James F. 1983. ÏDefining and Proving Race Discrimination Perspectives on the Purpose vs. Results Approach from the Voting Rights Act.Ó Virginia Law Review 69: 633.
Briffault, Richard. 1995. ÏBook Review: Lani Guinier and the Dilemmas of American Democracy.Ó Columbia Law Review 95: 418-472.
Brischetto, Robert. ÏCumulative Voting as an Alternative to Districting: An Exit Survey of Sixteen Texas Communities.Ó National Civic Review , Fall-Winter, 1995, pp. 347-354.
Burton, Orville Vernon, Terence R. Finnegan, Peyton McCrary, and James W. Loewen. 1994. ÏSouth Carolina.Ó In Quiet Revolution in the South , eds. Chandler Davidson and Bernard Grofman. Princeton: Princeton University Press.
Celler, Emanuel. 1952. ÏCongressional ApportionmentÛPast, Present, and Future.Ó Law and Contemporary Problems 17: 268-275.
Congressional Globe . 1842. 27th Congress, Second Session, Volume 11, Part I.
———-. 1842. 27th Congress, Second Session, Volume 11, Appendix.
———-. 1862. 37th Congress, Second Session, Part IV.
Congressional Quarterly. 1994. Guide to US Elections . Washington D.C.: Congressional Quarterly.
Congressional Quarterly Almanac . 1965. 89th Congress, 1st Session, Volume XXI. Washington D.C.: Congressional Quarterly.
———-. 1967. 90th Congress, 1st Session, Volume XXIII. Washington D.C.: Congressional Quarterly.
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