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In Search of a Coherent Theory of Voting Rights: Challenges to the Supreme Court's Vision of Fair and Effective Representation

Published online by Cambridge University Press:  05 August 2009

Mark E. Rush
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Extract

The Supreme Court's approach to representation and redistricting has been grounded on a vision of fairness which extends only as far as the electoral process itself. Accordingly, the doctrine of one-person one-vote, as well as the Court's advocacy of remedial redistricting measures, has focused on ensuring that the electoral routes to legislative representation remained open. Recently, a new wave of challenges to this approach has arisen in legal scholarship and the lower federal courts because its focus on maintaining an open and pluralist political process overlooks the political realities of governing: gaining representation means little if one remains an impotent minority. This article assesses the merits of this new “neopluralist” challenge and the extent to which the Supreme Court and lower federal courts have already begun to incorporate some of its elements. The article concludes by pointing out that this incorporation has led to the establishment of two lines of precedent which are based on irreconcilable notions of representation.

Type
Research Article
Information
The Review of Politics , Volume 56 , Issue 3: Special Issue on Public Law , Summer 1994 , pp. 503 - 523
Copyright
Copyright © University of Notre Dame 1994

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References

1. See Guinier, ,“The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success,” Michigan Law Review 89 (03 1991): 1077, 1136 (hereafter, “The Triumph of Tokenism”)CrossRefGoogle Scholar and “No Two Seats: The Elusive Quest For Political Equality,” Virginia Law Review 77 (11 1991): 1414 (hereafter “No Two Seats”)Google Scholar; see also Karlan, , “Undoing the Right Thing,” Virginia Law Review 77 (02 1991): 1.CrossRefGoogle Scholar

2. See, Presley v. Etowah County (112 S.Ct. 820, 1992); Dillard v. Crenshaw County (649 F. Supp. 289 (M. D. Ala 1986)); Butts v. City of New York (779 F.2d 141, 2d. Cir., 1985); and City of Carrolton Branch of NAACP v. Stallings (829 F.2d 1547 (1987)).

3. I use the term in the same sense as Kuhn, Thomas in The Structure of Scientific Revolutions (Chicago: The University of Chicago Press, 1970).Google Scholar

4. See, e.g., the opinion of the court in Presley v. Etowah County, 112 S.Ct. 820 (1992).

5. Reynolds v. Sims, 377 US 533, 562 (1964).

6. See, e.g., Mahan v. Howell. 410 US 315 (1973).

7. Karcher v. Daggett, 462 US, pp. 754–55, citations omitted.

8. Ibid., note 12, citations omitted.

9. Stevens uses several terms in alluding to political groups. In this last citation, he refers to “political group” and “politically salient class,” and I have already referred to “interests” in the texts. Insofar as I am addressing the Court's pluralist vision, my key concern is that there are numerous competing factional interests (in the Madisonian sense) who are vying for legislative influence, and whose agendas are not necessarily coextensive or compatible with some general public interest. Although one can argue that there is a difference between an interest (in, say, the Burkean sense) and a factious political interest group, the several terms will be used interchangeably throughout this article. I thank an anonymous reviewer for pointing this out to me.

10. 478 US 30 (1986).

11. “the degree of bloc voting which constitutes the threshold of legal significance will vary from district to district” (Ibid., pp. 55–56).

12. Ibid., p. 56.

13. Davis v. Bandemer, 478 US 109 (1986).

14. Ibid., p. 128.

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17. Ibid., p. 761, note 28, citing Tribe, , American Constitutional Law, 2d ed. (Mineola, NY: Foundation Press, 1988). p. 756, n 2.Google Scholar

18. See, e.g., Rush, , Does Redistricting Make a Difference?: Partisan Representation and Electoral Behavior (Baltimore: Johns Hopkins University Press,, 1993)Google Scholar and “The Variability of Partisanship and Turnout: Implications for Gerrymandering Analysis,” American Politics Quarterly 20 (1992): 99–122.CrossRefGoogle Scholar

19. This is not to deny that well-organized minorities can have disproportionately strong impacts on the legislative process. This is especially true in multiparty systems where a minority can become the sine qua non of a governing coalition.

20. Karlan, , “Undoing the Right Thing,” pp. 1, 3.Google Scholar

21. 779 F.2d 141 (2d Circuit 1985).

22. Ibid., p. 148 (emphasis in original).

23. Karlan, , “Undoing the Right Thing,” pp. 18–21.Google Scholar

24. Guinier, , “The Triumph of Tokenism,” pp. 1077, 1136.Google Scholar

25. Racial polarization is her principal concern. See especially “The Triumph of Tokenism,” p. 1129 ff.

26. 377 US, pp. 565–66.

27. “The Representation of Minority Interests: The Question of Single-Member Districts,” Cardozo Law Review 14 (04 1993): 1127, 1140Google Scholar (hereafter, “Single-Member Districts”).

28. “The Triumph of Tokenism,” p. 1136 (italics in original).

29. See note 7, supra.

30. See, e.g., “No Two Seats,” p. 1480.

31. “Single-Member Districts,” pp. 1163–74; “The Triumph of Tokenism,” pp. 1138–40.

32. “Triumph of Tokenism,” p. 1145.

33. “No Two Seats,” p. 1441.

34. Calhoun, , A Disquisition on Government, in The Works of John C. Calhoun, ed. Cralle, Richard, vol. 1 (New York: Russell and Russell, 1968) (hereafter, “Calhoun"), page 14–15.Google Scholar

35. Ibid., p. 30.

36. Ibid., p. 38.

37. “No Two Seats,” p. 1480.

38. Ibid., p. 1481.

39. Calhoun, p. 54.

40. “No Two Seats,” pp. 1488–89.

41. “Single-Member Districts,” p. 1140.

42. Guinier makes such a reference to “disadvantaged and stigmatized” minorities in “Single-Member Districts,” p. 1141.

43. 649 F.Supp 289 (M. D. Ala. 1986) and 829 F.2d 1547 (1987), respectively.

44. 112 S. Ct. 820 (1992).

45. Ibid., p. 838.

46. Ibid., p. 832.

47. See, e.g., Ely, John Hart, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980).Google Scholar

48. See, e.g., Pateman, Carol, Participation and Democratic Theory (Cambridge: Cambridge University Press, 1970)CrossRefGoogle Scholar; and Bachrach, Peter, The Theory of Democratic Elitism (Boston: Little, Brown & Co., 1967).Google Scholar

49. “Single-Member Districts,” p. 1144.

50. By “traditional” I refer to analysts who employ seats-votes ratios and base-race measures to determine the extent to which a given districting scheme may be biased. See generally, Grofman, Bernie, Political Gerrymandering and the Courts (New York: Agathon, 1990), especially pp. 145–77 and 289–95.Google Scholar

51. “Single-Member Districts,” p. 1145.

52. Shaw v. Reno 61 USLW 4833 (1993).

53. The Concept of Representation (Berkeley: University of California Press, 1967).Google Scholar

54. See, e.g., Avery v. Midland County, 390 US 474 (1967); Kramer v. Union Free School District, 395 US 621 (1969); Hadely v. Junior College District, 397 US 50 (1969); Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 US 719 (1972); Holt Civic Club v. Tuscaloosa, 439 US 60 (1978); and Ball v. James, 451 US 355 (1980).

55. 397 US, p. 56.