The Conflict between Court Ideals and District Elections         

Samuel Issacharoff

        In the three decades since the Voting Rights Act, attention has shifted dramatically from rudimentary notions of voters' access to the ballot to extremely difficult questions of representation. In part, the very successes of the Act in making the franchise more broadly accessible than at any other time in the nation's history have placed the foundational questions of democracy properly before the political community.
        In addition, a confluence of events, including the decennial reapportionment in 1991-1992, the withdrawn nomination of Lani Guinier as Assistant Attorney General in 1993 and the visible presence of an expanded group of minority elected officials around the nation, forced questions about what the Court called "fair and effective" representation in Reynolds v. Sims to the forefront of the voting rights agenda.
        The Supreme Court's unsatisfying confrontation with questions of political fairness in Shaw v. Reno opened the door to reevaluations of the building blocks of most elections in the United States: the single-member, geographically-based district. With Justice Thomas' forceful invocation of proportional voting systems as part of his dissent from 25 years of vote dilution case law in Holder v. Hall (1994), and with the first judicial order of non-districted elections as court-imposed voting rights remedy in a Maryland voting rights case, the issue of non-districted elections is emerging front and center on the voting rights agenda.
        The Supreme Court in fact has contributed to the reevaluation of the foundational questions of voting rights. Although Justice Thomas's opinion in Holder is the only time the Court has directly addressed the question of proportional voting systems, the Court in its voting rights jurisprudence has unleashed a set of expectations for and constraints upon the operation of voting systems that are fundamentally destabilizing for single-member district voting systems.
        Were one to begin from scratch to determine which system would best satisfy the various constraints imposed by the Court on a fair system of
representation and best fit the Court's descriptions
of the positive goods that should be delivered by a voting system, it is unlikely that single-member districts would be the system of governance of choice.

Ensuring Fidelity to Voter Preferences

        It should be axiomatic that the purpose of election in a democratic order is to have "chosen the free and uncorrupted choice of those who have the right to take part in that choice" (Ex Parte Yarborough, 1884). The principle of "popular choice of representatives" (United States v. Classic, 1941) is, in the Supreme Court's view, "the foundation of our representative society" (Kramer v. Union Free School District, 1969). Ultimately, the popular choice can be deemed frustrated when electoral outcomes represent a "frustration of the will of a majority of voters of a fair chance to influence the political process" (Davis v. Bandemer, 1986).
        But districting necessarily imposes a filtering device on the popular choice of the voters. In their aggregate, voters may have a prescribed set of choices. When those votes are broken down into geographically-based districts, however, substantially different results may obtain, even within the equal population constraint on districts.
        This proposition is so self-evident as not to need elaboration. One only needs look at the enormous resources devoted to redistricting battles -- and even to the gubernatorial elections immediately preceding redistricting in large states like California -- to understand that different configurations of voters may yield different electoral outcomes, even with the same distribution of total votes.
        A ready example are House elections in Texas in 1992, held the year after a Democratic governor signed a plan crafted by a Democratic-run state legislature. The Democratic candidates won 49.9% of the vote, compared to the Republicans' 47.8%, yet won 70% of the state's 30 seats, with only one election closer than 10% -- proving not only that district lines matter, but strongly indicating that control of the line drawing process yields tangible rewards.
        Even the Supreme Court has recognized that districting of necessity is not coextensive with insuring fidelity to popular choices:

The very essence of districting is to produce a different -- a more politically fair -- result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats. Politics and political considerations are inseparable from districting and apportionment (Gaffney v. Cummings, 1973).

Or, as put more simply in Robert Dixon's Democratic Representation: Reapportionment in Law and Politics, "[in] a functional sense. . . districting is gerrymandering."

Districts and "Fairness"

        The burning question then becomes the baseline for determining whether redistricting does indeed further the two, not necessarily compatible, goals of faithfully reproducing popular choices and yielding "a more politically fair" outcome than if elections were simply left to the electorate at large.
        The driving consideration in this area, as in so much of voting rights law, is the concern for minority representation. It is this concern, after all, that inspired the second generation of voting rights cases and forced courts to substitute districted elections for at-large elections precisely for reasons of political representational opportunities roughly proportional to preconceived notions of group rights. Even the weaker form of group protection afforded to political, as opposed to racial, minorities must take some measure of proportionate outcomes as the point of departure. As the Supreme Court argued in Davis v. Bandemer:

[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole...[S]uch a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of voters of a fair chance to influence the political process.

        Repeatedly, the Court has fallen back on proportional and semi-proportional theories of representation to justify the inevitable political filtering that occurs with districting. In Gaffney, for example, the Court found that a rather evident political gerrymander should elicit only minimal judicial scrutiny so long as a "State purport fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so."
        This principle appears even more candidly in the contest or radical exclusion from representation: "The Constitution permits [a State] to draw district lines deliberately in such a way that the percentage of districts with a nonwhite majority roughly approximate the percentage of nonwhites in the country" (United Jewish Organizations, Inc. v. Carey, 1977).
        At an immediate level, it is difficult to reconcile this proportionate concept of fair representation with the express command of Section 2 of the Voting Rights Act that the Act creates no right to proportional representation by race.
        But more significantly, the dilemma is to create a conception of fairness that escapes the "brooding omnipresence" of concerns for proportionality that emerge throughout voting rights law, as pointed out by Sanford Levinson in his 1985 UCLA Law Review article "Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why It Won't Go Away."
        This is, as Justice Scalia has vociferously noted, the conceptual weakness at the heart of enforcement of politically fair objectives on an unruly electoral system: how does one ultimately measure dilution of voting influence in the absence of a comprehensible baseline definition of proper outcomes?
        Once the case law moved beyond the complete exclusion of minorities from political opportunity, there was an inexorable push toward the ultimate resolution of what group rights are cognizable. That definition of group rights, in turn, had to use some conception of proportionality as its baseline.
        At this point, the weakness of districting systems in achieving proportionate outcomes becomes manifest. Geographically-based districts are an inherently poor mechanism for reflecting the autonomous preferences of groups defined through the act of voting.
        Since districted elections necessarily stand between voter preferences and election outcomes, it is difficult for districted election systems to satisfy the demands for voter autonomy and outwardly determined proper outcomes. It is inconceivable that districted elections could better meet these objectives than many of the proportional and semi-proportional systems that assure proportionate results by reproducing voter preferences without state-sanctioned manipulation of the outcomes.

"Fair and Effective Representation"

        There are several ways of analyzing the varying Supreme Court doctrines governing the legal constraints upon the electoral process. At its most simple, the Court is able to effectively police the limits of negative liberties from most forms of state encroachment. While this is an accomplishment of no small measure, it is by no means complete.
        Perhaps because of the association of the reapportionment revolution with breaking a rural stranglehold on local politics, or perhaps because of the inevitable association of access to the franchise with eradicating the political power of Jim Crow, the Court in these cases sought a transformative vision of politics. Out of these cases establishing individual rights in the political sphere grew the more difficult propositions defining a new objective of political fairness.
        In analyzing both the initial articulation of what the Reynolds Court termed "fair and effective representation" and the subsequent applications of that principle, the challenge to single-member districts emerges most clearly. The positive liberties in these cases traverse an unsteady divide between political self-realization through concerted activity and the proper filtering role of districting in producing equitable electoral outcomes.
        At this level of analysis, however, single-member districts poorly fit the objectives set out by the Court. Indeed, single-member district would serve as the electoral system of choice only to satisfy immediate access to local representatives for
constituent services and the preservation of the political oligopoly enjoyed by the Democratic and Republican parties. These are hardly the most inspiring declarations of our democratic order.
        The broader Supreme Court declarations have particular salience in the post-1990 period of redistricting. The first generation of voting rights cases has broadened the electorate and made the process more open than ever before in American history. The amended Voting Rights Act has subjected the actual choices of political line-drawers to substantive judicial review. Technological change have in turn opened the redistricting process to a broader set of activists.
        The sum total is a districting process under greater pressure, under greater public scrutiny and judicial oversight, and still unable to deliver the promises of three decades of Supreme Court pronouncements.
        These unrealized expectations, more visible than ever, are ultimately destabilizing to the established order of single-member districting. Into this void will inevitably surface renewed attention to alternatives to districting, particularly if these alternative systems emerge as more faithful to the substantive vision of fairness that has animated the case law to date.

        Samuel Issacharoff is Charles Tilford McCormick Professor of Law at the Texas School of Law. This article is from a longer piece to appear in the 1995 University of Chicago Legal Forum.

        

        The American University Forum, continued

        • Samuel Issacharoff: Anytime the state starts to redistrict, the language used in its decisions is whether this is a Polish district, a black district, this is a Democratic district, this is a Republican district, and the trick is to get it right in terms of the mix. This means if you want to create a Polish district, you want about 60% Polish. 100% is packing, and that means that you have to throw people in there that the state has said, "You get in that district because we need you to fill out the numbers, but we don't really want you to affect the outcome. This is not your district."
        You know, if we want to create a 60% black district, that means we need 40% white votes who aren't supposed to affect the outcome of the election. If we want a Republican district, the Democrats are there to fill out the numbers, but they're not supposed to alter the outcome either.
        With the computer, the manipulation of lines, the way that these people -- I call them the filler people -- are being forced to fill out the numbers in these districts is so much more apparent. It is because this is so much more transparent that I think that the level of distaste at the grassroots response level is much higher....
        There is a line from Tolstoy about once an illusion is exposed, it can never be renewed. And the fact is that we have laid bare these processes, largely through Voting Rights Act litigation and somewhat through "one person, one vote" litigation. Everybody can see what we're doing.
        And with the computer, and Rick Pildes has shown, the lines are more extreme than they used to be. And there is a sense of just looking at it and saying, "I don't really want to be told that I should be the person that fills out the numbers in a district that belongs to another group as determined by the state districting authorities.