By Carol M. Swain.(1) Cambridge, Mass.: Harvard University Press. 1993. Pp. xii, 275.
Daniel A. Farber(2)
For the past twenty years, the federal courts have been vigorously engaged in racial redistricting. Recently, this involvement was attacked by the only black member of the current Court. In his concurring opinion in Holder v. Hall,(3) Justice Thomas challenged the conceptual basis for race-based reapportionment. A contrary view, represented by writers such as Lani Guinier, is that current judicial efforts do not go nearly far enough. This viewpoint is exemplified by Randall Kennedy's harsh review of Black Faces, Black Interests in Reconstruction.(4) Notably, this debate about redistricting is not merely taking place between blacks and whites but also among blacks themselves--Kennedy, Guinier, and Swain are all African American.
Unlike many other contributions to this debate, the Swain book is richly empirical. Besides the multiple-regression analyses that are the staple of modern social science, Professor Swain presents the results of several years of patient interviews with black and white members of the U.S. House and their staffs. In this review, I will try to situate Swain's book within this ongoing debate. Part I of the review will explore the ongoing normative debate about the nature of representation, a debate in which Swain's views seem midway between those of Thomas and Kennedy. Part II will consider her empirical conclusions and how they relate to the normative debate.
To understand the debate over racial reapportionment, some understanding of legal doctrine is essential. As a constitutional matter, intentional racial discrimination is impermissible in redistricting as elsewhere. But under Washington v. Davis,(5) unintended impacts on blacks, no matter how severe, do not receive serious constitutional scrutiny. The statutory story is more complex. Under the original 1965 Voting Rights Act, the Attorney General could veto new laws in certain jurisdictions having the purpose or effect of interfering with black voting. As construed by the Supreme Court, this provision extended beyond voting procedures to include all electoral issues, such as apportionment. Lower courts allowed similar statutory challenges to existing laws to be brought by private citizens, and some important rulings recognized a cause of action for "vote dilution." The Supreme Court initially rejected these lower court decisions,(6) but Congress repudiated the Court's interpretation.(7)
As currently amended, the statute allows private suits to be brought without a showing of intentional discrimination. Virtually everyone agrees that the amendment was intended to allow suit for vote dilution. Congress was unable, however, to provide any real definition of vote dilution, although it did eschew any mandate of proportional representation. The courts have struggled ever since to clarify the concept of vote dilution; perhaps the only thing that is really clear is that the plaintiff must demonstrate the existence of racial bloc voting.(8)
As a result of actual or potential litigation, redistricting is now conducted with an eye to avoiding claims of vote dilution, which in practice has sometimes meant the drawing of torturously complex district lines in order to maximize black voting strength. Liberals applaud this practice as a remedy for decades of political subordination. The Court has generally acquiesced in this enterprise, but in one decision found a state guilty of unconstitutional racial gerrymandering.(9) Conservatives consider the whole project a particularly nefarious form of affirmative action, which they would like to jettison.
This brings us back to Justice Thomas's concurrence in Holder. The narrow issue before the Court was whether the Voting Rights Act applies to a change in the size of a governing body, when that change has the likely effect of reducing black representation. Justice Thomas used the case, however, as an occasion to rethink the entire issue of racial gerrymandering. He argued, not very persuasively, that the statute was never intended to cover electoral issues such as apportionment--an argument that might conceivably have been valid in 1965 but now comes many years too late.(10) Our present concern, however, is not with this question of statutory interpretation but rather with Thomas's broader attack on the idea of vote dilution.
The first prong of Thomas's critique relates to the concept of representation. There are various theories of representation, he pointed out, with a variety of implications for vote-dilution cases. At least under one tenable theory of representation, a group need not be a majority for its interests to be represented: "in a two-party system such as ours, the influence of a potential `swing' group of voters...