Chapter 6



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.



[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.