The Evolution of Sections 2 and 5 of the Voting Right Act
The Purported and Practical Problems of Race-Conscious Districting
An Explanation of the States Choice of Voting Systems Act
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.
Section 5 of the VRA requires covered jurisdictions to submit for approval any changes affecting voting 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, 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." The Justice Department thus had a great attained unprecedented authority over certain regions' electoral decisions, an outcome that gained heavy criticism.
Despite this controversy, the Supreme Court quickly enlarged the reach of section 5 in the 1969 Allen v. State Board of Elections ruling. 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. 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. 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." Consequently, section 5 became a weapon to prevent racial minority vote dilution at all levels of government.
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. 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." Yet the Court listed a hodgepodge of criteria, known as a "totality of circumstances," 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. 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.
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. 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.
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. This "results test" effectively repudiated Bolden , as Congress had been quite unhappy with the Court's requirement of discriminatory intent. 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. 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."
Litigation soared in response to the results test, with most plaintiffs winning their cases. 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. 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. 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 . 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. 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 . By minimizing the importance of historical, social, and economic dynamics, this decision sought to measure vote dilution in an objective, manageable fashion. In so doing, this ruling emphasized how strongly racial minority voting rights had been secured.
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. 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. 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.
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.
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. 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." 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." Accordingly, the case was remanded with the order that the districting plan warranted "close judicial scrutiny."
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." 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]."
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." 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. 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.
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. Georgia's state legislature was unable to reach agreement on a new plan, so the trial court actually ended up drawing new Congressional boundaries. 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."
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. 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." 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." 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. 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,
they certainly define race as the dominant dimension of electoral politics and
then lock in this judgement for the next decade.
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.
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. 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." 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.
While the Court has focused its attention on these two expressive harms, 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. 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. As a result, some question whether the descriptive gains are offset by the substantive losses in racial minorities' overall influence.
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." But in those jurisdictions where racial minorities are widely dispersed, as Latinos are in the West and Southwest, 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. 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.
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, 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.
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." 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." 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."
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. 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. 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. 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.
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. 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. The threshold of exclusion varies inversely with the number of seats to be filled, meaning the more contested seats, the lower the threshold. 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.
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. Rather, it acknowledges the importance of individual choice in choosing group affiliation, as well as the existence of intra-group differences. As a result, these systems would promote a concept of racial group identity that is interest-based rather than biological.
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. 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."
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. 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.
 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.)
 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.
 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.
 Supra note 2.
 Davidson, in Grofman and Davidson, Controversies 19; Days, in Grofman and Davidson, Controversies 53, 58.
 Allen, supra note 189; O'Rourke, in Grofman and Davidson, Controversies 90.
 Frank Parker, Black Votes Count: Political Empowerment in Mississippi After 1965 51-54 (University of North Carolina Press, 1990).
 Davidson, in Grofman and Davidson, Controversies 28.
 Allen, supra note 189, at 569.
 Davidson, in Grofman and Davidson, Controversies 28.
 White v. Regester, 412 U.S. 755 (1973).
 McDonald, in Grofman and Davidson, Controversies 66.
 White, supra note 220, at 769-70.
 Davidson, in Grofman and Davidson, Controversies 37.
 Davidson, in Grofman and Davidson, Controversies 37.
 City of Mobile v. Bolden, 446 U.S. 55 (1980).
 O'Rourke, in Grofman and Davidson, Controversies 95.
 Supra note 2.
 McDonald, in Grofman and Davidson, Controversies 68.
 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.
 Supra note 2.
 O'Rourke, in Grofman and Davidson, Controversies 100.
 McDonald, in Grofman and Davidson, Controversies 71.
 Ibid. Taken from Department of Justice, Civil Rights Division, 1987. "Voting Rights," Enforcing the Law 2 (Washington).
 Thornburg v. Gingles, 478 U.S. 30 (1986).
 Ibid, supra note 234, at 50-51.
 Davidson, in Grofman and Davidson, Controversies 32-33, 41-42.
 McDonald, in Grofman and Davidson, Controversies 70.
 Davidson, in Grofman and Davidson, Controversies 41.
 Many states have already changed their own legislative election systems in an effort to preclude litigation. Ibid, 42, n114; supra note 29.
 E. Joshua Rosenkranz, "Solving the Race Problem," Boston Review (March/April 1998, http://www-polisci.mit.edu/bostonreview/BR23.1/).
 Shaw, supra note 3, at 647.
 Ibid, at 658.
 Ibid, at 657.
 Miller, supra note 3, at 904.
 Ibid, at 917.
 Shaw v. Reno, 861 F. Supp. 408, 474 (1994).
 Shaw II, supra note 9, at 902.
 Hunt v. Cromartie (1999).
 Johnson v. Miller, 922 F. Supp. 1552 (1995).
 Johnson v. Miller, 922 F. Supp. 1556 (1995).
 Abrams v. Johnson, 521 U.S. 74, 79 (1997).
 Bush v. Vera, 517 U.S. 952 (1996); Shaw II, supra note 9; Lawyer v. Department of Justice, 117 S. Ct. 2186 (1997).
 Miller, supra note 3, at 928.
 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."
 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.
 Pildes and Donoghue 256.
 Wright v. Rockefeller, 376 U.S. 52, 66 (1964).
 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.
 Miller, supra note 3, at 912.
 Guinier, Tyranny 98.
 See Richard H. Pildes and Richard G. Niemi, "Expressive Harms, ╬Bizarre Districts,' and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno," 92 Michigan Law Review 483 (1993).
 Guinier, Representation 1162-63.
 Richard Briffault, "Book Review: Lani Guinier and the Dilemmas of American Democracy," 95 Columbia Law Review 418, 430 (1995).
 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.
 Gingles, supra note 234.
 Amy, Real Choices 277.
 Ibid, 127.
 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).
 Kousser 451-52.
 Supra note 7.
 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.
 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)).
 Pildes and Donoghue 255-56.
 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.
 Pildes and Donoghue 254.
 Engstrom, Taebel, and Cole 478.
 This assumes that the minority group concentrates all of its votes on one candidate.
 Engstrom 479.
 Engstrom 478.
 Pildes and Donoghue 255-56.
 Guinier, Tyranny 97-98.
 Ibid, 123.
 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).
 Editorial, "Better Politics from an Old Idea," Chicago Tribune (May 30, 1995).
 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.