Author:Plier, Austin

INTRODUCTION I. CONGRESS'S MANDATE: GOOD INTENTIONS AND UNINTENDED CONSEQUENCES A. An Extension of the Voting Rights Act B. Paving the Road to Political Dysfunction II. AN ANALYTICAL FRAMEWORK FOR EVALUATING BURDENS ON VOTERS' POLITICAL ASSOCIATION RIGHTS A. Developing a Standard B. Addressing America's Districting Crisis Through a Political Association Rights Lens III. USING THE ANDERSON-BURDICK FRAMEWORK TO CHALLENGE SINGLE-MEMBER DISTRICTS ON POLITICAL ASSOCIATION GROUNDS A. The Character and Magnitude of the Burden B. Challenging Congress's Single-Member District Mandate Requires Strict Scrutiny C. Weighing Congress's Legitimate Interest IV. CONCERNS ABOUT JUSTICIABILITY A. Timmons and the Court's Reticence to Intervene B. Rebutting Justiciability Concerns CONCLUSION INTRODUCTION

In 1967, in the wake of the Voting Rights Act of 1965 (VRA), Congress enacted a law requiring every state to elect its representatives to the U.S. House of Representatives in single-member districts. (1) Congress's mandate was based on a well-founded fear that, in response to the VRA s success in combating discriminatory voting laws, states would adopt multimember congressional districts with winner-take-all voting in an attempt to keep black candidates from winning representation. (2) In the years after the law was passed, single-member districts--combined with the success of the VRA--increased the number of black candidates elected to the U.S. House, (3) and paved the way for the use of majority-minority voting districts to ensure communities of color could elect a candidate of their choice. (4) However, more than fifty years later, Congress's single-member districting scheme for U.S. House elections has had unintended and far-reaching consequences for America's national political health. (5) Furthermore, modern analysis reveals that single-member districts, in the context of twenty-first century technology and geographical trends, poorly deliver on Congress's original goal of ensuring fair representation of communities of color. (6) As a result, Congress has reached peak levels of dysfunction and partisan gridlock, and the composition of Congress lags behind the growing diversity of the American electorate. (7)

To spur desperately needed reform of America's U.S. House elections, this Note challenges the constitutionality of Congress's single-member district mandate, arguing that the law violates voters' First Amendment political association rights. Single-member districts, which result in winner-take-all (8) elections to fill all 435 seats in the U.S. House, effectively preserve a two-party system. With only one winner in each district, and only one vote to cast for each voter, elections naturally devolve into a two-candidate horse race. (9) The result is that, in the 115th Congress, every member of the U.S. House belonged to one of the two major parties, (10) leaving minor-party voters and those dissatisfied with major-party policy positions with the unenviable choice of voting their conscience--and in all likelihood, wasting their vote--or holding their noses and voting for one of the two major parties.

Relying on the analytical framework provided by the Anderson-Burdick standard, (11) this Note applies the Court's jurisprudence on political association rights to Congress's mandate of single-member districts. The Anderson-Burdick standard requires courts to evaluate the burden an election law imposes on voters' political association rights, and weighs that burden against the government's legitimate interests advanced by the law in question. (12) Although the Anderson-Burdick standard was developed through the Supreme Court's evaluation of state election laws, this Note takes the position that the standard represents the most logical approach to evaluating a First Amendment political association challenge to an Act of Congress.

Part I documents the history precipitating Congress's single-member district mandate and the troubling impact the mandate has had on America's political health. Part II describes the Court's development of the Anderson-Burdick standard as a means to evaluate state election laws burdening voters' political association rights and examines the Court's recent decision to vacate a district court's analysis of partisan gerrymandering through the lens of political association rights. Part III articulates the burden single-member districts impose on voters and weighs that burden against Congress's original legitimate interest in ensuring representation for black voters in the U.S. House. Part IV anticipates and addresses potential institutional concerns about the Supreme Court weighing in on Congress's chosen method of political representation.


    Part I first explores Congress's important reason for mandating single-member districts in the wake of the Voting Rights Act. It then examines the collateral consequences of using single-member districts to elect the U.S. House and illustrates how the current system has paved the road to the partisan polarization and gridlock that permeates American politics today.

    1. An Extension of the Voting Rights Act

      Congress passed its single-member district mandate for U.S. House elections in 1967, on the heels of the VRA of 1965. (13) The VRA resulted in a massive surge of newly registered black voters in southern states, where invidious laws had, up to that point, severely disenfranchised black citizens. (14) In response to the success of the VRA, southern states began to adopt multimember districts with winner-take-all voting in state and local elections in an attempt to keep black candidates from winning representation. (15) In practice, this meant states would draw districts large enough to ensure that white voters constituted a majority, and then hold at-large, winner-take-all elections for all the seats in the district. (16) Assuming the white majority voted as a group, black voters would be locked out of representation regardless of how many seats were up for election. (17) Congress feared that states would apply this discriminatory tactic to congressional elections, and, in 1967, passed a federal mandate that each state elect its U.S. House representatives from single-member districts to combat state attempts at diluting black votes. (18)

      The immediate impact of the law, combined with the powerful enfranchising effect of the VRA, was undeniable: in just five election cycles after single-member districts were mandated, the number of black congressmembers elected to the U.S. House tripled from five to fifteen. (19) Furthermore, since Congress passed its mandate, single-member districts have become a crude--albeit straightforward--means of remedying vote dilution (20) cases brought under section 2 of the VRA. (21) A typical remedy in such cases is to require a state or locality to draw, where possible, districts in which a racial minority community comprises a majority of the electorate and is thus able to elect a candidate of its choice. (22) In Thornburg v. Gingles, a landmark vote dilution case, the Supreme Court went as far as stating that "single-member district[s] [are] generally the appropriate standard against which to measure minority group potential to elect." (23)

      As long as a group of voters is numerous and compact enough to comprise a majority in a district, Congress's mandate gives district mapmakers a tool to ensure that racial minority communities are able to elect a candidate of their choice to the U.S. House. (24) However, more than fifty years of experience since Congress's mandate has revealed troubling shortcomings when using these districts as a proxy for representation of a voting group's interests. (25) Part III of this Note will further explore the limitations of majority-minority districts, and point to alternatives to single-member districts as a better means of providing racial minority communities with representation and political power in the U.S. House. (26)

    2. Paving the Road to Political Dysfunction

      When Congress passed its single-member district mandate in 1967, it could not anticipate the collateral impact of its chosen electoral structure on American politics over the course of the next few decades. The American political experience since the 1970s demonstrates that single-member districts are a driving factor of two interrelated and fundamental problems in U.S. House elections: plummeting levels of electoral competition and fierce partisan polarization.

      Competition has rapidly dwindled in U.S. House elections over the past few decades. In 1992, for example, 134 House districts were within 3 percentage points of being a fifty-fifty partisanship district; however, in the 2016 election, that number dropped to just 23 of the 435 House districts. (27) This trend is the product of Congress's single-member district system, combined with hardening partisanship over the past few decades. (28) Not only has partisanship grown stronger among voters, but it has done so along geographic lines. (29) Therefore, when only one person is elected to represent a district, partisan and geographic realities make it very hard to draw consistently competitive districts. (30) FairVote, a nonpartisan election reform organization, argues that "hardening partisanship has a wide range of negative effects in the context of our current winner-take-all, single-winner district system of elections," including "a staggering lack of competition that leaves millions of Americans without any hope of winning representation" or having a representative who feels compelled to listen to them. (31) Moreover, easily manipulated single-member districts exacerbate the effectiveness of partisan gerrymandering, (32) in which opposing-party voters are packed into as few districts as possible to gain an electoral advantage for the party drawing the maps, further hindering competition. (33)

      This increasing lack...

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