Academic journal article
By Pildes, Richard H.
Harvard Journal of Law & Public Policy , Vol. 24, No. 1
I. 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? …