Race and democratic contestation.

• Author: Kang, Michael S.

INTRODUCTION I. ELECTORAL COMPETITION AND THE NEW ERA OF THE VRA A. The VRA, Representation, and Electoral Competition B. LULAC v. Perry II. DEMOCRATIC CONTESTATION A. A Theory of Democratic Contestation B. Beyond Pluralism: The Challenges of Collective Action and the Origins of Mass Politics III. RACE AND DEMOCRATIC CONTESTATION A. The Politics of Racial Polarization B. LULAC and Democratic Contestation C. The Mistake of Coalition Districts and Their Misguided Popularity CONCLUSION INTRODUCTION

The Supreme Court once criticized the Voting Rights Act of 1965 (VRA), (1) widely regarded as the most successful intervention for racial minorities during the last century, (2) as representing merely the "politics of second best." (3) Although the VRA was needed long ago to dismantle the Jim Crow South, the Court's recent decisions reflect the view that the VRA today threatens to impose representational guarantees in place of, and often preemptive of, political resolution through electoral competition and interest group pluralism. (4) As the VRA passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, (5) liberals and conservatives once united in their support for the VRA have come to share the Court's concerns. (6) As Richard Pildes aptly put it, "the quiet era of the VRA now appears at an end." (7)

Electoral competition has become popular as the structural priority for election law, in place of representational guarantees like the VRA. (8) The VRA carves out, at least when conditions of racial polarization prevail, majority-minority districts (9) that tend to be overwhelmingly Democratic, with little intradistrict electoral competition from Republicans, by virtue of the Democratic partisanship of African American and Latino voters. (10) Particularly since the South has developed two-party competition that resembles what many view as "normal politics," (11) the establishment of majority-minority districts clashes with the normative sensibilities of an increasing number of commentators and courts. Samuel Issacharoff and Richard Pildes argue that courts instead should self-consciously focus on regulating electoral competition with the dominant structural aim of assuring a "robustly competitive partisan environment." (12) Not surprisingly, they are among the new group of skeptics (13) about the continuing value of the VRA and the "legal requirement of 'safe minority districting.'" (14) Issacharoff and Pildes argue that safe majority-minority districts under the VRA reduce electoral competition and thus may run counter to the VRA's purposes in the context of contemporary politics.

The Supreme Court also seemed to prioritize electoral competition under the VRA in its review of the 2003 Texas congressional redistricting in LULAC v. Perry. (15) The Court focused on three districts that were reconfigured in 2003, each of which faced VRA-related challenges. What was striking in the Court's handling of the VRA claims is that the Court decided to restore old District 23, the only challenged VRA district in which the racial minority had no guarantee of electing its candidate of choice. Despite a "politically active" Latino electorate, old District 23 consistently elected a Republican representative over the energetic opposition of Latino voters in close, competitive elections. Equally odd, the Court sustained the dismantling of old District 24 and ordered the dismantling of new District 25, two electorally safe districts where the minority communities successfully elected their candidates of choice. However, the Court's handling of the Texas redistricting may be explained by a growing judicial preference for electoral competition under the VRA. (16) In short, the Supreme Court may be joining with the greater skepticism about VRA majority-minority districting and its anticompetitive electoral effects.

This Article argues that this growing skepticism about the VRA is based on an impoverished account of political competition. Electoral competition is only one form of political competition. Even if the VRA and safe majority-minority districting cut against electoral competition, a structural commitment to competition in politics ought to transcend the simple maintenance of competitive elections between the major parties. Electoral competition should be judged with reference to the ultimate ends it is intended to produce-more democratic debate, greater civic engagement and participation, and richer political discourse-all of which are implicated by a deeper notion of political competition among political leaders that I term "democratic contestation." Electoral competition serves only as a proxy, a means to these greater democratic ends.

This Article offers democratic contestation as a basic value to be pursued in the law of democracy and the foundation for a theory that helps sort through and reconcile approaches to race, representation, and political competition under the VRA. Democratic contestation represents the basic competitive process among leaders to present the mass public with meaningful, attractive choices, not just about two candidates, but about what they want from government and the way they think of politics. Democratic contestation is the deliberative competition among political leaders to shape and frame the public's understandings about elective politics, public policy, and civic affairs. It encompasses the process by which leaders dare, force, and challenge the public to think about politics. Electoral competition is only one prominent element of this larger competition among political leaders for sociopolitical influence-a healthy process of democratic contestation that draws in and engages the public in that process to win the hearts and minds of citizens. (17) Although electoral competition generally coincides with democratic contestation, it also diverges in many instances that inform the way that the law of democracy should develop, particularly under the VRA.

The Article proposes a basic shift in the level of analysis from electoral competition among politically relevant groups, principally the major political parties, to a new, deeper focus on the more fundamental political competition among leaders to create and ultimately determine the character of the alignments that emerge as politically relevant in the first place. Of course, many commentators have debated the merits of different forms of electoral competition in various settings, whether the primary or general election, intradistrict or interdistrict, or within or across institutions like parties and branches of government. These debates, however, so far fail to connect those different forms of electoral competition to the deeper aspiration--represented by democratic contestation--that they all should seek to promote. This Article seeks to reorient the usual preference for electoral competition, in a way that ought to influence debate across all election law, by identifying and articulating the basic value of democratic contestation that underlies electoral competition.

Democratic contestation is both a means and an end of healthy democratic politics. It is a means in the sense that the process of democratic contestation should lead to richer, more legitimate and popular political outcomes that better respond to the hopes and needs of the sociopolitical community. But critically, democratic contestation is also an end in itself. The process by which the community entertains and confronts choices about how to define its politics is a crucial function of democracy, justly celebrated by democratic theory. It is a central tenet of a theory of democratic contestation that political leaders initiate agenda setting and frame the basic questions and alternatives in the process of democratic contestation. A theory of democratic contestation values the process of democratic contestation as a fundamental aim of the law of democracy and therefore brings a new theoretical perspective to old views and debates.

Democratic contestation offers a synthesis of democratic theory, bridging quite disparate elite and participatory perspectives. A theory of democratic contestation is distinctly leader-centered in that it envisions at its heart robust political competition among political leaders as the engine of democratic politics. It takes for granted that mass democracy, given the challenges of collective action, depends critically on the coordinating entrepreneurship of political leaders. The process of democratic contestation helps define the political alignment of the polity and constitutes the substantive politics for the community. However, diverging from traditional elite perspectives, a theory of democratic contestation prizes leadership competition precisely because that competition makes possible the central goal of promoting mass participatory politics. A process of democratic contestation draws in the mass public, makes political debate accessible, presents civic choices to the public, and instigates a broader discourse about the political future of the community. At the individual level, this process enables citizens to constitute political identity by engaging in politics and developing their particular sensibilities about public affairs. The process of democratic contestation thus integrates the personal self-constitution for individual citizens at the micro level and the collective self-constitution for the sociopolitical community at the macro level. The theory of democratic contestation that I introduce here, and plan to develop in future work, does not defy the consensus that electoral competition is valuable as a general matter over the great range of instances. Electoral competition is generally consistent as a goal with a theory of democratic contestation, serving as a regular catalyst for leadership mobilization and mass political participation. Indeed, a theory of democratic contestation...