On the last day of its 1992-93 term, a closely-divided Supreme Court raised the issue of reverse discrimination in the Shaw v. Reno voting rights case. The high court objected to the configuration of two North Carolina congressional districts which it ruled had been drawn to help assure the election of black candidates in a state where 22 percent of the current population is black, but which had not elected a black to its 12-member congressional delegation since the turn of the century. Writing for the majority in a 5-4 decision, Justice Sandra Day O'Connor, a Reagan appointee, found herself at odds with Justice David Souter, a Bush appointee who issued one of the four dissents.
Voting Rights Act Enforcement Strategy in Question
Justice O'Connor used such terms as "bizarre" and "political apartheid" to describe the two congressional districts, one of which was 160 miles in length and at times only the width of the corridor of the interstate highway which snaked through it from Charlotte to Durham. The majority found a violation of the Equal Protection clause of the 14th Amendment to the U.S. Constitution.
Although race-conscious redistricting plans are not impermissible per se, this case was one the Court interpreted as "racial gerrymandering." Voters were judged to have been classified on the basis of race, ignoring other relevant factors like geographical and political boundaries. Justice O'Connor wrote that such racial classifications are "by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."
Since departing Justice Byron White was one of the dissenters, the court apparently will continue to have a majority against so-called racial gerrymanders. This could place in jeopardy current districting plans in a number of states, notably New York, California, Texas, Illinois, Florida, Georgia and Louisiana.
For example, Northern Florida has a district which has been described as "resembling a racoon that had been run over by an 18-wheeler." It is a wish-bone shaped contortion running through 14 widely-separated counties. Two other districts in the state which were created in order to help elect black representatives follow the pattern which Justice O'Connor found constitutionally objectionable in that they wind through agricultural areas, financial centers and manufacturing areas until collecting enough enclaves of black neighborhoods.
Single-Member Districts as the Problem
The issue involved goes far deeper than the fact that the lack of compactness in districts can make a state reapportionment map -- many of which are influenced much more by partisan concerns than by race factors -- look like a Rorschach ink blot test. Yes, African-Americans now hold 39 of 435 seats in the U.S. House. But with less than 10 percent of the membership they still confront a daunting task in representing the needs and aspirations of millions of African-Americans on a national level -- in part because of the race-conscious districting designed to increase their political power.
The irony is that when creating the maximum number of majority black districts, one also creates a maximum number of Representatives in Congress with virtually no black constituents. These Members are far more likely to be, if not indifferent, certainly far less sensitive on a day-to-day basis to the needs of blacks who are in a minority in their district.
The Solution in Proportional Representation
Fortunately, there is a better way of addressing this basic problem than simply redrawing lines on a map. Most Western democracies today use proportional representation (PR) voting systems. The United States is one of the handful of former British colonies like Canada, New Zealand and India which cling to a "plurality" winner-take all system of voting in single-member districts -- and New Zealanders this year voted to adopt PR, while both Britain and Canada are seriously debating PR's merits.
Our winner-take-all system in districts inevitably causes "balkanization" (a term used by Justice O'Connor in her opinion) of the electorate because it forces representation based on geography -- where you live -- rather than what you think. Millions of voters find themselves "represented" by someone they voted against and are effectively disenfranchised because our system can waste 49% of votes (all those who vote for a losing candidate) in a two candidate race -- and up to 66% in a three-person race!
PR would eliminate gerrymandering and reduce wasted votes through creating multi-candidate House districts where seats are distributed in proportion to the votes cast for the competing parties or candidates. As clearly authorized by the U.S. Constitution, Congress could institute one of the many PR systems through a national election law changing how states elect their members -- there would be no need for a protracted campaign to pass a constitutional amendment. If Congress does not act, individual states could adopt PR for their legislatures and, if a 1967 single-member district law is modified, their Members of Congress.
John Stuart Mill long ago wrote that "The first principle of democracy is representation in proportion to numbers." The Encyclopedia Britannica -- never accused of partisan leanings -- summed it up like this: "The case of PR is fundamentally the same as that for representative democracy. Only if an assembly represents the full diversity of opinion within a nation can its decisions be regarded as the decisions of the nation itself."
In the aftermath of the U.S. Supreme Court Shaw v. Reno decision that undercuts attempts to increase minority representation within the confines of our winner-take-all system, the time has never been more ripe for a full, free and informed debate on our voting system and how it could be improved in ways that would more perfectly express the will of the people -- all the people.
John B. Anderson is a visiting professor at Nova University Law School and former Member of Congress. He is National Chair of The Center for Voting and Democracy's Advisory Board. This piece first appeared in The Christian Science Monitor.
| "But [Justice John Paul] Stevens'
dissent suggests an underlying problem. It will rarely be possible to draw districts to
benefit more than one minority group at a time. That has prompted many political thinkers
-- among them Lani Guinier, the rejected civil rights nominee -- to look to alternative
voting systems, like cumulative voting or proportional representation, to protect the
rights of all minorities without diminishing the rights of others. The court's action in
the North Carolina case suggests this is now an open issue."
Boston Globe editorial, June 29, 1993
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