Redistricting in Today's Shifting Racial Landscape
Thernstrom, Abigail, Stanford Law & Policy Review
"I was shortsighted, naive and narrow-minded to endorse the concept of drawing Congressional districts to take racial demographics' into account." (1)
Cynthia Tucker, in her confessional editorial in the South's premier newspaper, was too hard on herself. She had long supported race-conscious districting, but her erstwhile convictions had been those of the entire civil rights community and of elected officials across the political spectrum who saw such districting as one litmus test of a commitment to racial equality. (2) As the only Black editorial page editor of a major newspaper, Tucker could hardly have thought anything else.
In addition, it was in fact neither shortsighted nor naive to have regarded the deliberate drawing of districts sure to elect minority candidates to legislative office as important in earlier times. As Tucker herself notes, "[T]he tactic worked. In 1980, there were only 18 Blacks in the U.S. House of Representatives. Now, there are 44, many of them elected from districts drawn to meet the mandates of the Voting Rights Act." (3) They were drawn, that is, to conform to the demands of section 5, the preclearance provision of the statute--as it was interpreted in both Democratic and Republican administrations. (4)
The preclearance provision demands that districting maps in jurisdictions considered "covered" (which are mainly in the South) obtain approval from the Justice Department or the District Court of the District of Columbia before being implemented. (5) The districts that sent many new Black representatives to Congress would not have been precleared for use in upcoming elections unless the states had been able to prove their plans did not "have the purpose and [would] not have the effect of denying or abridging the right to vote on account of race or color." (6) Those that have been precleared have usually been drawn to guarantee safe seats for minority candidates.
How many Black House members would have been elected had they not been protected from White competition in the safe majority-minority districts that the Voting Rights Act came to demand? Far fewer, it is safe to say. A number of critics of section 5 began arguing against race-driven electoral maps as early as the 1980s. The balance between costs and benefits was not a simple question when White southern voters would not vote for Black candidates, whatever their credentials. (7)
The importance of descriptive representation--Blacks representing Blacks--cannot be dismissed. The history of Whites-only legislatures in the South made the presence of Blacks both symbolically and substantively important. Shared political power was integral to respect and self-respect. And, in recent decades, Black electoral success never dissipated that yearning for both--which was surely one reason African-American voters were so euphoric when Barack Obama won the 2008 presidential election. (8)
Racially integrated legislative settings worked to change racial attitudes. Most southern Whites had little or no experience working with Blacks as equals and undoubtedly saw dark skin as a sign of incompetence. When Blacks became legislative colleagues, their presence inhibited the expression of racist sentiments, and conversations in the public arena changed. (9)
And yet not only Ms. Tucker but many spokesmen for Black political interests are today beginning to question their prior commitment to what the ACLU once called "max-Black" districting. (10) The racial zeitgeist is changing as racism wanes. Civil rights advocates no longer predictably embrace a policy that once seemed clearly in the interest of African Americans. In 1995, Representative Melvin Watt (D-N.C.) argued that without racially gerrymandered districts designed to ensure Black office-holding "you're not going to have minority representation in Congress. It's just that simple." (11) Today, by contrast, Watt is arguing that the goal of the Voting Rights Act was "to level the playing field for African American candidates and voters. …