Single-member
districts (SMDs) are deeply rooted in American political tradition. From the
founding of the United
States in the eighteenth century to the
present, electoral representation has been grounded on the concept of
territorial units and subunits. Americans have always thought of popular
sovereignty in spatial terms, beginning with the original conception of the
U.S. Constitution as a compact among sovereign states and continuing within the
states to the valorization of county and municipal government autonomy or
"home rule." The Constitution does not specify how popular elections
should be structured, and the states have experimented with a variety of
single-member-district, multimember-district and at-large forms. But SMDs
frequently, if episodically, have been the method of choice for elections at
all levels, federal, state, and local, because they enable smaller,
geographically situated communities to send their own representatives to larger
legislative assemblies. Conversely, multimember districts and at-large
elections have been employed when ruling majorities wanted to emphasize the
corporate identity of particular jurisdictions and to suppress partisan or
ethnic "factionalism." At-large voting rules such as majority-vote
requirements, anti-single-shot laws and numbered places were used to maximize
the power of ethnic majorities to control all the seats in their legislative
bodies.
Historically
blacks have been the primary targets of vote-submergence devices in the U.S.
The United States
is the only modern democracy founded on the institution of slavery, and blacks
are entrenched in its Constitution and political institutions as an internal
national "other." Slaves were non-persons, and even free blacks were
non-citizens. After the Civil War and Reconstruction, blacks in the South were
systematically terrorized during elections and, around the turn of the century,
disfranchised altogether. The all-white Democratic Party primary became the
only election that mattered, and it turned the "solid South" into a
region of one-party states. International pressures of the Cold War and the
NAACP's litigation campaign against legalized racial segregation eventually
succeeded in striking down laws which denied blacks the vote and barred them
from primary elections. Thereafter, many majority-white jurisdictions, in and
out of the South, resorted to at-large and multimember election schemes to
minimize black electoral influence.
The U.S.
Supreme Court responded to the post-World War II reexamination of American
nationality by elevating the constitutional importance of the individual. In
1963 and 1964 the Court reversed its longstanding refusal to get involved in
redistricting controversies and granted relief to white urban voters
complaining about the refusal of state legislatures, dominated by
underpopulated rural districts, to redistrict themselves. The Supreme Court
relied on the Equal Protection Clause of the Fourteenth Amendment to announce
the rule of one person, one vote, defining the individual citizen as the basic
unit of electoral politics. However, by making the under-weighting of a
person's vote justifiable, the Court opened the door to claims that voting
strength could be diluted by non-mathematical means, in particular by electoral
structures which allowed a bloc-voting white majority to deny a black citizen
any opportunity to choose a representative in the state or local legislature.
The Supreme Court responded by instructing lower courts to prefer SMDs when
they ordered redistricting of malapportioned legislative bodies, and in 1973 it
declared unconstitutional Texas' use of multimember legislative districts,
specifically because they denied black and Latino voters an equal opportunity to
elect candidates of their choice.
All these
electoral reforms were wrought by judicial reinterpretation of the
Constitution. Meanwhile, in 1965, prodded by the confrontational mass politics
of the Civil Rights Movement, Congress passed and President Lyndon Johnson
signed the Voting Rights Act, which enabled most blacks in the South to vote
for the first time. The conditions that would warrant judicial relief from
minority vote dilution became the subject of intense and increasingly
complicated litigation, both with respect to at-large or multimember-district
elections and with respect to allegedly gerrymandered SMDs. In 1980 the Supreme
Court held that racial minorities must prove that a challenged election
structure was designed or maintained intentionally to dilute their voting
strength. Congress responded with the Voting Rights Act of 1982, which created
a statutory entitlement to judicial relief from election structures which had
the effect or "result" of diluting the voting strength of protected
minorities, defined as racial groups and "persons who are American Indian,
Asian American, Alaskan Natives or of Spanish heritage." The 1982 Voting
Rights Act, helped along by a 1986 Supreme Court decision which streamlined the
proof it required, sparked widespread changes from at-large elections to SMDs,
through both litigation and legislation.
By the time
the 1990 census rolled around, nearly every state and local redistricting
authority was preoccupied with the task of drawing
"minority-majority" SMDs that would comply with both the
constitutional rule of population equality and the anti-vote dilution mandate
of the Voting Rights Act. The new SMDs produced remarkable gains in office
holding for both African Americans and Latinos. The number of black elected officials
nationwide grew from 300 in 1964 to approximately 8,000 in 1993, although this
figure still constituted less than two percent of all elected officials in a
country where blacks account for twelve percent of the population. Since
passage of the 1965 Voting Rights Act, the number of African-American members
of Congress had increased from nine to thirty-eight, and majority-black SMDs
were responsible for all seventeen of the African Americans elected to Congress
from the eleven Southern states of the old Confederacy. After the 1994
elections, under a new redistricting plan negotiated by black political
leaders, Alabama
became the first and only Southern State ever to achieve black proportional
representation in both houses of its Legislature.
The nationalist
backlash provoked by this surge in majority-black and majority-Hispanic SMDs
probably was inevitable. The way SMDs are drawn necessarily defines the
constituencies that are deemed to be relevant for purposes of representation in
legislative assemblies, and it does so in strictly geographic terms. Seldom are
redistricting choices politically irrelevant, mere administrative devices for
cumulating individual voter preferences. Rather, they declare who the operative
national subcommunities shall be and how much power they will enjoy in the
lawmaking process. In the United
States, counties, municipalities, and
recognizable neighborhoods have been the traditional building blocks for
redistricting, except when it was expedient to ignore their boundaries for the
sake of submerging the electoral influence of African Americans and other
ethnic minorities. Now it has become necessary to split up traditional
political subdivisions to create districts with African-American or Latino
majorities, because in the U.S.
people of color have no clearly discernible "homelands." Although
they frequently are clustered in ethnically identifiable neighborhoods, these
residential enclaves are dispersed among more populous, predominantly white
neighborhoods. The result in some cases has been very irregularly shaped,
noncompact majority-black or majority-Latino districts which, although they
were no more bizarre than some majority-white districts, unmistakably signaled
racial or ethnic designs.
The most
contorted black and Latino districts quickly drew court challenges from white
voters, who contended they violated a radically "colorblind"
interpretation of the Constitution. In 1993, the Supreme Court issued the first
of a series of decisions which established "an analytically distinct"
constitutional cause of action that could be used by individual citizens who
wished to challenge "racially gerrymandered" SMDs. Plaintiffs would
not have to bear the heavy burden of proving that because of the challenged
districts their votes were denied or abridged or that their voting strength was
diluted. Instead, the Court recognized a presumptively stigmatic harm ensuing
from districts which were drawn for the "predominant" purpose of race
and which could not be justified as a "narrowly tailored" effort to
serve a "compelling state interest." Such districts are
unconstitutional, said the Court, because they presume that all members of the
ethnic minority think and vote alike and share the same political interests, a
message the Court fears will encourage racial "balkanization" of the
electorate. This new gerrymander jurisprudence, which aims to address perceived
harms to national unity rather than to the individual plaintiff, has produced
court orders striking down several majority-black and majority-Latino SMDs at
the Congressional, state, and local levels. The new constitutional districting
rules have been created and reaffirmed by the same narrow, five-justice Court
majority over the vigorous dissents of four justices, who contend that they offend
both substantive justice and the proper limits of judicial review.
Justice
Felix Frankfurter warned about the
perils of the judiciary entering the "political thicket" in his
dissent from the first one-person, one-vote case in 1963. He may be vindicated
by the incoherence of the Supreme Court's gerrymandering principles. Surely
nothing could be less appropriate for resolution by judges than questions about
how the sovereign people should define themselves in a multi-ethnic democratic
republic. In its rush to prevent state legislatures from assuming that all
African Americans think alike, the Court has yet to confront the converse
proposition: What if African-American or Mexican-American or Asian-American or
Native-American citizens in a particular state or locale actually do share the
same political interests and freely associate to assert them through their
elected representatives, through their community institutions or through
political organizations - perhaps political parties? To suggest that citizens
of color are constitutionally prohibited from negotiating for their own SMDs
would contravene historical, constitutionally protected notions of political
freedom in the U.S.
This is an entirely different question from whether members of an ethnic minority
can demand that such districts be created as a matter of legal or
constitutional right.
But these
are serious questions, which advocates of "majority-minority" SMDs
themselves are only now being forced to address. There was never a consensus
among them about the political limits or normative endpoint of the voting
rights they pressed into remarkably successful service. Today, most advocates
of SMDs designed to produce voter majorities of a particular ethnic group
defend them as necessary responses to the "unfortunate" reality of
ethnic divisions in the national fabric. They share with the opponents of
majority-minority districts an underlying commitment to the vision of the
United States as an immigrant nation, one in which newcomers and their descendants
voluntarily assimilate in the established institutions of public political and
social life while retaining the right to preserve their ethnic distinctiveness
in strictly private institutional ways. Even private (white) ethnic
associations were under pressure to disappear during the "melting
pot" era of Anglo ascendancy, which extended at least through World War I.
A distinct change in American identity was wrought by World War II, however,
when the descendants of other European nationalities placed their stamp of
ownership on the American nation and the Anglo-American political traditions
they had adopted. The full implications of this national redefinition were
largely submerged, as they were throughout the world, in the empires created by
competing statist ideologies during the Cold War. That has all changed now, and
the U.S.
is not immune from the winds of ethnic nationalism that are sweeping the globe.
Today,
Americans of German and Irish ancestry outnumber those of English descent. They
now sit in the front benches, along with Southern-European and Eastern-European
Americans, including secular American Jews, where together they have become the
most passionate defenders of their adopted English language and Anglo-American
Constitution. Ethnically identifiable SMDs are an embarrassment to these
Americans and a threat to their national vision. The right wing of the
immigrant nation supports the current regime of suppressing and delegitimising
SMDs that have all too obvious racial or ethnic designs, while the left wing
either defends majority-minority districts as temporary integration tools or
urges that they be replaced with multimember-district schemes using
semi-proportional or single-transferrable-vote rules. The growing number of PR
proponents also criticize SMDs because they can make it easier for incumbents
to get re-elected, engendering a lack of accountability which hurts ethnic
majorities and minorities alike. But PR systems are not invulnerable to the
same charges often leveled at majority-minority SMDs, that they encourage
ethnic polarization and threaten destabilization.
Left out of
this immigrant debate and its common objectives of national uniformity,
however, are Americans of color, especially the descendants of African slaves.
Some scholars now acknowledge that white supremacy has always been a more
powerful defining characteristic of American citizenship than any of the more
openly debated versions of liberal pluralism and civic republicanism. Many
white Americans are simply disturbed or even frightened by black control of the
political units in which they reside. For African Americans, a more inclusive
immigrant nation may be neither realistic nor an acceptable remedy for
centuries of caste exclusion. They may favour renegotiations of American
nationhood on terms that at last acknowledge their distinctiveness and accord
them full dignity and free agency. The periodic redrawing of SMDs may be one of
the best ways of forcing their national demands onto the table, which could
explain why a hostile Supreme Court majority has constitutionalized the issue
in hopes of squelching the debate. Proportional representation systems may
afford African Americans equal participation in legislative bodies, but by
sidestepping the constitutive inter-ethnic dialogue redrawing SMDs requires
they may actually impede the historical quest of descendants of slaves for
complete freedom. PR proposals by some members of the Congressional Black
Caucus have not resonated strongly in the black community. On the other hand,
it is easy to imagine how the descendants of conquered indigenous peoples and
of non-white immigrants might have entirely different views of which election
structures best suit their personal and collective agendas in an increasingly
diverse U.S.
A just
resolution of these conflicting, often incommensurable ethnic positions on
electoral structures and their underlying national visions can be achieved only
through mutual consent to compromises, which must be incomplete and provisional
so long as we value the liberal ideal of individual freedom to shape and
reshape one's own cultural and political identity. The negotiations required to
reach agreement on such formative questions are particularly difficult to start
and to sustain in the United
States, because for so many Americans their
national identity is invested in a sacred, written Constitution, which for all
practical purposes can only be reinterpreted, not renegotiated. Not
surprisingly, the greatest progress toward national consensus usually has been
achieved through democratically negotiated compromises outside the
constitutional context, as with the Voting Rights Act, for example. Now, with
considerable encouragement from "colorblind" conservatives, some
members of the Supreme Court are suggesting that what they consider to be
overzealous implementation by the democratic branches of federal and state
governments may call into question the constitutional validity of the Act
itself. And the occasion for this constitutional confrontation will be the
battle over legislative redistricting. Thus, if the American experience with
SMDs as an instrument of political empowerment for ethnic minorities holds any
lessons for other democracies, they would include the importance of the
particular national context, of respect for its political traditions and the
particular situations of subnational groups within them, of the opportunities
for gaining the widest possible consensus in making decisions about election
structures, and, most of all, of humility when it comes to expectations of
lasting solutions.
