Diffusion of political power and the Voting Rights Act.

• Author: Pildes, Richard H.

1. THE TENSION

   As we enter the first redistricting of the new century, the explosive mix of race and politics continues to fuel two fundamentally opposed positions. Redistricters and reviewing courts will have to contend not only with the manner in which the federal statutory and constitutional frameworks express both these polar positions, but also with a constitutionally required via media between these poles that the current Court has sought to map out.(1)

   The first pole might be labeled equal opportunity for "full and fair representation." Put briefly, this position holds that majoritarian institutions suffer the potential defect of enabling a dominant and unified majority to use its power over the design of democratic institutions in such a way as to effectively exclude political minorities from meaningful political participation, even when the formal right to vote is respected. When that kind of majoritarian domination occurs in a sustained and systematic way over multiple election cycles--and when institutions designed in such a way then produce outcomes that result in differential provision of public goods and services to political minorities (for example, in the rural South fewer roads being paved in the black side of town)--it seems difficult to resist the conclusion that Madison's nightmare of "majority factionalism" has become a reality.(2) Healthy democratic systems, and morally justified ones, afford structural devices that destabilize systematic majoritarian domination in order to enhance the opportunity for representation of potentially exploitable and excludable groups.

   The Voting Rights Act(3) is the central device for this purpose in the United States. Starting from the Act, advocates of "full and fair representation" often assert (given the history and, where it exists, continuing presence of racially-polarized voting,(4) as well as the reality of majoritarian-dominated city councils, county commissions, legislatures, and other elective bodies) that most means of drawing election districts that enhance minority representation ought to be permitted. This includes intentionally drawing black-majority election districts; for many advocates, it also includes districts of whatever shape or design, including highly "bizarre"(5) ones, if such districts are necessary to ensure full and fair representation.(6) From this viewpoint, the problem with the Supreme Court's racial gerrymandering decisions is that they stand as obstacles to the "full and fair representation" ideal.

   The other pole in this conflict could be labeled the ideal of "democratic citizenship." Put briefly, proponents of this view assert that, whatever the merits of affirmative-action type policies in other remedial contexts, there is something distinctly and profoundly troubling about using race to design the fundamental democratic institutions of the State. On this view, a practice of self-consciously creating black, Hispanic, or Asian-majority districts, or white-majority districts, expresses a view of political identity inconsistent with democratic ideals. In addition to what such a practice represents about the nature of citizenship, it might have the consequentialist effect of encouraging citizens and representatives increasingly to come to experience and define their political identities and interests in partial terms.(7)

   The more extreme democratic institutional structures in use in other countries, but not yet widely proposed here, might readily be thought to have such expressive and consequential effects. Belgium's consociational democracy, for example, constitutionally requires concurrent majorities of legislators from both the Dutch-speaking majority and the French-speaking minority to approve any legislation affecting the "cultural and educational interests" of each group.(8) If the United States moved toward similar consociational forms, in which concurrent majorities of both black and white legislators were required on certain issues, is it implausible to imagine that the racialization of politics would be enhanced, while the sense of common democratic citizenship would be diminished? Religious, cultural, and linguistic cleavages in Belgium are perhaps so deep that such consociational structures are the best gamble for holding the country together. But is the role of race, despite its terrible and pervasive presence in the history of the United States, enough to justify similar consociational structures here?

   Many who support affirmative action in other contexts, such as academic admissions, are more troubled and uncomfortable about the use of race in the design of democratic institutions. That greater discomfort reflects the force this conception of "democratic citizenship" exerts. For example, the African National Congress in South Africa, staunchly committed to affirmative action in most spheres, opted for the proportional representation electoral system, rather than the territorial election districts of the Anglo-American model. Territorial districting would have required public decisions about the racial composition of such districts, and even to the ANC Leadership, such decisions were considered too divisive and polarizing.(9) Indeed, from the viewpoint of some advocates of the "democratic citizenship" ideal, the problem with the Supreme Court's racial redistricting decisions is not that they go too far, but that they do not go far enough. By not prohibiting altogether the purposeful use of race in the design of electoral institutions, the Court's decisions compromise one of the constitutive and constitutionally-binding principles of the democratic state.(10)

   Must public policy or constitutional law choose between these antithetical and polar opposite positions? Many people resist this stark choice because they seem to feel the simultaneous pull of both of those moral and legal ideals I have sketched briefly. Pressed by Justices who adopt the "full and fair representation" view, as well as by Justices who embrace the "democratic citizenship" view, the law has staked out a position somewhere between these two poles. The compromise inherent in the racial redistricting decisions reflects the tension between these competing polar principles. As a result, the rules these cases provide are elusive and, in the redistricting that looms, will be difficult to apply with any legal certainty. Is there an equilibrium that can hold here, both in terms of principle and practical administrable legal doctrine?

2. STRUCTURES OF REPRESENTATION AND THE INTERESTS OF PARTISAN, REGIONAL, AND NON-RACIAL MINORITIES

   To gain some purchase on these deeper underlying questions about the philosophy of representation and democratic citizenship, it is helpful to step back from the charged issue of race and explore more systematically the ways in which the American constitutional order structures political representation and governance. The problem of minority representation in majoritarian institutions is not confined to the area of race., nor to potential factionalization along lines of race. Indeed, in modern heterogeneous democracies the problem of fair representation of minority interests in majoritarian institutions is one of the central problems of political morality and institutional design. Consider three examples.

   1. Districted Elections

      Why do we have districted elections in the first place for our major representative institutions, such as the Congress? Districted elections for Congress are not constitutionally required, nor have they been universally used. Federal statutory law did not require them until 1842.(11)

      When districted elections became nationally required in 1842, this requirement emerged in response to particular constellations of political and cultural forces. The first congressional elections in the State of Pennsylvania illustrate the motivations and justifications for districted elections. That initial election was conducted on an at-large basis; voters statewide collectively chose all of the State's eight congressional seats.(12) The same statewide majority, if it had cohesive preferences, could therefore control all eight seats. Yet Pennsylvania was a deeply divided State, both in partisan terms and in terms of the material and ideological interests of its citizens. In the east, Federalists dominated, while in the more rural, western part of the state, Anti-Federalist sentiment was strong.(13) Despite these statewide differences, in the first congressional elections all eight congressmen elected were Federalists, and six of the eight came from the eastern part of the State.(14)

      This pure majoritarian system had produced a delegation viewed as sufficiently unrepresentative such that the result was public outrage. As one aggrieved critic put it, "I am sure that Pennsylvania will never again suffer eight representatives to be elected out of a mere corner of the state."(15) Enough pressure was put on the State legislature that it created eight individual districts for the next congressional elections. Given that districted elections were a response to the partisan and regional hegemony of the previous delegation, it would have been strange had district designers not consciously constructed at least some of the new, single-member districts so that Anti-Federalists in the west would have sufficent control to ensure some representation in the overall delegation.

      The very theory of districted elections, in other words, is that democratic institutions are best designed by diffusing political power and fragmenting majoritarian domination. Districted elections empower local minorities who would otherwise be swallowed up in a system not self-consciously designed to ensure some representation of their interests. Do districted elections, designed with the aim of diffusing political power and ensuring representation of diverse partisan or regional groupings, disturb us? Or rather, do we see them as a healthy and...