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 |