MINORITY REPRESENTATION, THE SUPREME COURT, AND THE POLITICS OF DEMOCRACY

• Date: 09 April 2003
• Pages: 33-72
• DOI: https://doi.org/10.1016/S1059-4337(02)28002-3
• Published date: 09 April 2003
• Author: Yasmin A Dawood

MINORITY REPRESENTATION, THE

SUPREME COURT, AND THE POLITICS

OF DEMOCRACY

Yasmin A. Dawood

ABSTRACT

This article develops an alternative theoretical approach to the Supreme

Court’s controversial electoral redistricting decisions in Shaw v. Reno

(1993) and its progeny.Instead of relying on the traditional equal protection

interpretation, this paper argues that controversies over electoral redis-

tricting are at base disputes among competing visions of democracy. In

the Court’s recent redistricting cases, the majority and the dissent adopted

fundamentally different visions of democracy – Individualist Democracy and

Democracy as Power. In addition to elaborating these rival understandings

of democracy, this article develops the concept of Symbolic Democracy to

explain a central paradox in the Court majority’s decision: its simultaneous

denial and recognition of the relevance of racial groups in representation.

INTRODUCTION

Racial oppression in the United States has been historically tied to the exclusion of

African Americans from the polity. The quest for democratic inclusion continues

to this day, although the objectiveis no longer the attainment of the formal right to

vote. In the contemporary period, racial oppression is fundamentally based on the

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 28, 33–72

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34 YASMINA. DAWOOD

lack of political power. Although African Americans have the ballot, they enjoy

scant legislative influence on the public policies that govern their everyday lives.

These urgent issues – voting, representation, race, power and exclusion – are at

the center of the Supreme Court’s recent adjudication of minority representation.

In the 1990s, the Supreme Court ushered in its “new jurisprudence” on minor-

ity representation with its controversial rulings in Shaw v. Reno (1993) and its

progeny.1The Court held in Shaw v. Reno (1993) that certain majority African-

American electoral districts violated the equal protection clause of the Fourteenth

Amendment. In Shaw, the Court considered the constitutionality of the Twelfth

District, a majority-minority legislative district in North Carolina. What appeared

to fuel the Court’s hostility to the district was its unusual shape: it followed the

I-85 corridor for almost 160 miles until, as the lower court described it, the dis-

trict “gobble[d] in enough enclaves of black neighborhoods.” In an ironic twist,

white voters launched suit claiming that the state had created an unconstitu-

tional racial gerrymander and had violated their constitutional right to partici-

pate in a color-blind electoral process. Adding to the controversy surrounding the

Shaw case was the fact that, as a result of the Twelfth District, North Carolina

sent its first African-American representatives to Congress since Reconstruction

(Shaw v. Reno 509 U.S. 630; 1993).

The Shaw case represented a dramatic departure from the Court’s prior position

that race conscious districting would at times be required in order to protect the

ability of racial minorities to elect a candidate of their choice.2In the next case,

Miller v. Johnson (1995), the Court broadened the scope of Shaw by holding that

a redistricting plan would be found invalid if “race was the predominant factor”

motivatingthe legislature when it devised the plan (Miller v. Johnson 515 U.S. 900;

1995). The Supreme Court applied its new jurisprudence in Bush v. Vera (1996)

and Shaw v. Hunt (1996) to overturnthe constitutionality of the majority-minority

districts at issue in those cases. In all four cases, the dissenting justices rigorously

criticized the Court’s new stance on minority representation.

What is at stake in the Supreme Court’s recent adjudication of minority repre-

sentation? For the most part, commentators characterize the disagreement between

the Court majority and the dissent as a clash between a color-blind and a color-

conscious approach to the equal protection clause of the Fourteenth Amendment.

A central difficulty with the traditional interpretation, however, is that these recent

redistricting decisions do not adhere rigidly to a color-blind/color-conscious di-

chotomy; indeed, the Court majority floated unhappily between permitting the use

of “some” race as mandated by the Voting Rights Act, and forbidding the influence

of “too much” race on the basis that it presumptively violated the Constitution.

In contrast to the traditional interpretation, I develop an alternative theore-

tical approach to the recent redistricting cases, one that applies the insights of

Minority Representation, the Supreme Court, and the Politics of Democracy 35

democratic theory to the Supreme Court’s adjudication of minority represen-

tation.3In general, I argue that controversies over electoral redistricting are at

base disputes among competing visions of democracy. By crafting the rules and

standards that govern electoral redistricting, the Court implicitly adopted certain

theories of representation and embraced particular conceptions of democracy (see

also Issacharoff et al., 1998).4

A primary objective of this article is to identify and analyze the competing

visions of democracy in the Supreme Court’s new jurisprudence on minority

representation. While these (and other) conceptions of democracy animate

the Court’s voting rights jurisprudence as a whole, I focus specifically on the

rival conceptions of democracy in Shaw v. Reno (1993) and its progeny.5In

addition, I argue that these rival visions of democracy are often at the heart

of the apparent incoherence that marks the Court’s adjudication of minority

representation. Tensions among competing visions of democracy explain not

only the complexities of the majority opinion, but also help to explain the

deep divide between the majority and the dissent over the constitutionality of

majority-minority districts.6The Court’s understanding of democracy, it will be

shown, embodies a series of compromises among different visions of democracy,

leading to a jurisprudence that is often contradictory, evenincoherent, and at times

paradoxical.

Touncover these rival understandings of democracy, I treat the Supreme Court’s

decisions as political texts in their own right. I distinguish between the “explicit”

and the “implicit” visions of democracy in the Court’s recent redistricting cases.

By “explicit” visions of democracy, I am referring to what the Court itself

actually says about democracy and representation in its decisions. I analyze the

Court’s articulation of these conceptions of democracy, and show how these

understandings are relevant to the outcome of the cases. By “implicit” conceptions

of democracy, I am referring to those theories of democracy and representation

that are implied by the Court’sdecisions. That is, I examine how the Court’s consti-

tutional doctrines instantiate certain forms and understandings of democracy and

representation.

In Shaw v. Reno (1993) and its progeny, the majority and dissenting opinions

adopted fundamentally different visions of democracy.The Shaw majority adopted

an explicit vision of democracy that I refer to as “Individualist Democracy.” In the

majority’s vision, a system of government represents the interests of individuals,

and not groups, in the political process. When describing its conception of

democracy, the majority contended that race was not and should not be treated

as politically salient in the structure of a representative system. By contrast, the

dissenting opinion in Shaw v. Reno (1993) had an entirely different understanding

of democracy. The dissent’s explicit vision of democracy, which I refer to as