Clarence Thomas and Lani Guinier don’t agree on much. So when the arch-conservative Supreme Court justice and the Clinton nominee who was dumped as too radical find common ground, we should take notice. Both agree that some version of proportional representation is an attractive way out of one the most mind-numbing legal and philosophical puzzles of democratic representation.
Suppose a state with a racially polarized electorate wants to increase the representation of racial minorities in its legislature or congressional contingent. The state might want to do that because the Voting Rights Act, as amended in 1982, requires the government to arrange elections in a way that gives racial minorities a realistic opportunity to elect a representative of their choice. Or it might want to do that because it believes that, as a matter of fairness, a white majority ought to share its power with racial minorities. What should it do?
The traditional solution has been to draw race-conscious single-member districts. That means the government divides the voters into discrete districts, each of which elects one representative. The white majority continues to dominate most of the districts, but the lines are drawn so as to cordon off one or two districts in which the racial minority predominates. The result is often an oddly shaped district whose voters share little in common except for their race.
North Carolina is a good illustration. Almost a quarter of the state’s population is non-white. But its voters are so racially polarized that any district with a white majority would not elect an African-American. So long as districts were drawn to submerge the black minority, the state sent only white representatives to Congress. To avoid a Justice Department prosecution under the Voting Rights Act, the state redrew a couple of districts, linking together predominantly black neighborhoods; sure enough, those districts elected African-American representatives. The districts weren’t pretty though. One of them snaked for 160 miles along a highway from Charlotte to Durham. The joke was that you could drive down Interstate 85 with both doors open and hit most of the people in the district.
Pretty or not, the technique, applied across the nation, profoundly altered the complexion of state legislatures and Congress. The number of African-Americans elected to office nationwide increased by almost 20 percent and the number of Latinos increased by 50 percent between 1985 and 1992. In 1992, of the 16 new black members who were elected to Congress, 13 came from districts that had been redrawn to encompass black majorities.
However laudable these results, the means of achieving them are intensely controversial. Critics decry race-conscious districting as bowing to the fallacies that skin color dictates political interest and that only an African-American representative could represent a black constituency well. “Racial balkanization,” as Justice Thomas has called it, discourages people of different races from trying to find common ground. Even those who have favored enhancing the power of racial minorities worry that packing all the blacks in one district reduces their influence in the surrounding districts. And the practice has occasionally sparked feuds between different racial or ethnic minorities who would draw different lines to maximize their own power.
An increasingly conservative Supreme Court is among the detractors, casting doubt on the future of race-conscious districting. White voters have brought a spate of lawsuits in the wake of redistricting in the early 1990s, alleging that the drawing of race-conscious lines violated their right to equal protection. Accepting this claim, the Court struck North Carolina’s meandering district because, in Justice Sandra Day O’Connor’s ill-chosen words, it smacked of “political apartheid.” “Racial gerrymandering, even for remedial purposes,” she wrote for the Court, “may balkanize us into competing racial factions . . . [and] carry us further from the goal of a political system in which race no longer matters.”
That does not mean that legislators who draw districts cannot think about race. To the contrary, the Voting Rights Act still commands them to concern themselves with race when they draw their districts. The Court has just declared that race cannot be the “predominant factor” in drawing a district–whatever that means. “Think about race, but not too much,” is the governing principle. So long as single-member districts are the rule, legislatures will be at their peril in drawing lines. And every effort to walk the tightrope is a potential Supreme Court case.
The voting rights quandary mirrors the battle about racial preferences that has bitterly divided the country in other contexts. The public favors opportunities for the disadvantaged and does not mind race-neutral approaches that happen to benefit racial minorities disproportionately, but both the public and the courts are increasingly hostile to preferences linked expressly to race.
If Justice Thomas had his way, race would be an entirely impermissible factor, whether in employment or in drawing districts. But in a recent case, he offered a solution to the puzzle in the voting rights context. “In principle,” he said, “cumulative voting and other non-district-based methods of effecting proportional representation are simply more efficient and straightforward mechanisms for achieving what has already become our tacit objective: roughly proportional allocation of political power according to race.” That’s right: Justice Thomas, perhaps facetiously, is promoting Lani Guinier’s proposal to turn toward cumulative voting and other techniques for increasing the voting power of racial minorities.
The two have put their fingers on one of the great benefits of PR of any flavor, whether cumulative voting, limited voting, or preference voting. It empowers racial or ethnic minorities–indeed, minorities of any sort–without taking stock of race or ethnicity. With PR, it almost doesn’t matter how you draw the lines, or whether you do away with lines altogether and run all candidates at large. As Rob Richie and Steven Hill cogently demonstrate, under PR, minority preferences will emerge in rough proportion to their numbers and intensity. Predictably, jurisdictions nationwide that have adopted PR have shown dramatic increases in election rates of minority-preferred candidates, because these alternative approaches drive down the threshold of exclusion–the proportion of votes a particular candidate must attract in order to win a seat.
What’s more, PR does not depend upon any of the philosophically divisive assumptions that undermine support for race-based districting. The state does not group voters by race on the assumption that skin color dictates political interests. Rather, the voters essentially group themselves, in what Guinier calls “districts of the mind.” And since they do, there is no reason to fear that political strength in one area is bought at the price of weakness in the surrounding areas or that one racial minority can be empowered only to the detriment of another.
These benefits were enough to persuade numerous locales to adopt PR as a way of settling nettlesome voting rights complaints rather than the usual remedy of redrawing the map. A handful of federal judges have even gone so far as to order jurisdictions to adopt cumulative voting to remedy voting rights violations. Whether or not federal courts have such broad remedial powers, the unease caused by current law on race-conscious districting should be enough to convince state and local legislatures to experiment with models of PR in their elections and to convince Congress to free states to do the same for congressional races. There may be pitfalls, but if both Guinier and Thomas buy it, perhaps it’s worth a try.
