Chapter 1



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--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.



[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 mattersa 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. 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. 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."