IT’S A CURIOUS COALITION, WITH A seductive but disquieting agenda.
In Georgia black leaders, the American Civil Liberties Union, and the Bush Justice Department are challenging as racially discriminatory a state law that requires legislative and judicial candidates to win by a majority vote.
Across America civil rights lawyers and minority politicians, often with Republican support, are preparing a potent legal and political.offensive to create as many election districts as possible with heavy black or Hispanic majorities as the decennial redis-tricting process gets under way. Under current Voting Rights Act doctrine (as well as reigning liberal political orthodoxy), a lawyer advising nervous Democrats says, "racial gerrymandering is almost required" to create odd-shaped black or Hispanic districts. So race is the first criterion, and a quagmire of litigation looms.
And, in two pending Supreme Court cases, minority plaintiffs are pushing, with qualified Justice Department support, for full application of the Voting Rights Act to judicial elections. The plaintiffs want to force Louisiana to draw a black majority election district for its supreme court and to force states that elect trial judges to abandon jurisdiction-wide voting in favor of single-judge districts, drawn wherever possible along racial lines. These developments illustrate an alliance of convenience that has developed between civil rights lawyers – who for 25 years have battled with astonishing success for full voting rights for blacks and other minorities – and Republicans, whose enthusiasm for minority office-holding surfaced more recently, in tandem with their awareness of how it can help their side.
More fundamentally, these developments raise the question whether some voting rights suits and remedies now being pursued around the country may – in the long run – do more harm than good, by spurring politicians to appeal only to members of their own race, and by putting the law’s imprimatur on the notion that it’s only natural to vote along racial lines.
"We are about the business of gerrymandering to elect minorities," complains a political consultant in the Midwest. A self-described liberal Democrat, he says he is having a "very lucrative" year drawing districts for minority politicians and Republicans. But he sayvS he’s troubled: "I think what we’re doing here is ruining the old form of coalition-building, and the old Roosevelt coalition. We’re entering a mean stage of American politicsÖ where people get elected by making racial appeals.” Are voting rights suits entrenching separate-but equal elections as a permanent feature of the American landscape? Are they institutionalizing the kind of racially polarized politics we should be trying to get away from? Might they leave minorities and their representatives isolated?
These questions admit of no simple or confident answers. We need black and Hispanic faces in more than token numbers in public office. Given racial bloc voting, this goal has been, and to some extent remains, reachable only by sometimes drawing "majority-minority" districts – that is, districts where minorities are a majority of the population. That has often been a necessary remedy for deliberate state dilution of minority votes through devices like racial gerrymandering to fragment black neighborhoods.
The problem is that this remedy for discrimination has evolved into insistent demands for a new brand of racial gerrymandering, designed to increase minority office-holding at all costs, sometimes by methods like pulling scattered pockets of minority voters into odd-shaped districts.
Almost every step that has been taken down this road has a certain logic. But with each new step – with almost no public debate – we seem to be perpetuating racial divisions by carving a principle of racial separation into our electoral system.
Civil rights lawyers don’t see a problem here. Creating more black districts not only "provides blacks with an equal chance to elect representatives of their choice," stresses Laughlin McDonald, Southern regional director of the ACLU in Atlanta, it’s the way to "give blacks legitimacy as politicians and give black politicians power."
Frank Parker, the senior voting rights lawyer at the Lawyers’ Committee for Civil Rights Under Law, says this approach is not an engine of racial polarization but rather a necessary response to it. He also contends that "election of more blacks from majority black districts may have the effect of decreasing racial bloc voting by whites," because "once more blacks show they can do the job and are competent and literate and not corrupt, this irrational fear of blacks holding public office will dissipate."
Parker and McDonald are heroes of the voting rights bar who know as much about this as anyone. They have me almost persuaded. But I fear that . they may succeed too well in mowing down every incidental impediment to election of more minority politicians, with harmful side effects on the democratic system. And I worry about where their strategy will lead us all in the decades to come.
I have no neat formula for changing this drift. But we could start by hesitating to endorse as a discrimination remedy every scheme that could conceivably help black and Hispanic candidates win more elections, and by taking note of the social costs of new-style racial.gerrymandering:
There is something antidemocratic about the challenges to Georgia’s nmjoriiy-volc Uiw now being brought by the ACLU’s McDonald on behalf of black leaders and by the Justice Department, amid applauding editorials in The New York Times and The Washington Post
The Georgia law requires a runoff, typically in primary elections, between the two highest finishers whenever three or more candidates split the votes with nobody getting a majority. By classifying this system as illegal discrimination, the plaintiffs and the administration would deny to the state the power to reserve legislative and judicial offices to the candidates with the broadest popular support.
Their immediate goal is to deliver Democratic nominations to black candidates who – whether for reasons of race or of ideology – lack majority support in their party. But the chief beneficiaries would be Republicans, who would likely beat any such nominees. And their lawsuits could well have the side effect of opening the door to fringe candidates like race-baiting former Klansman David Duke of Louisiana.
Although the Justice Department has so far limited its challenge to Georgia, and to districts where it says the law has hurt black candidates, its approach would also cast doubt on similar runoff laws in eight other Southern states and in some Northern and Western cities.
The net long-term effect of creating as many black- and Hispanic-majority voting districts as possible could be to reduce black and Hispanic-voters’ influence over policymakers generally, by leaving many white officeholders with little incentive to court them. The cost of rigging the system to elect more minorities may thus be a net loss in legislative support for inner-city schools, antipovcrty programs, and civil rights bills.
That’s because concentrating minority voters into a few districts makes the surrounding districts whiter and m…
IT’S A CURIOUS COALITION, WITH A seductive but disquieting agenda.
In Georgia black leaders, the American Civil Liberties Union, and the Bush Justice Department are challenging as racially discriminatory a state law that requires legislative and judicial candidates to win by a majority vote.
Across America civil rights lawyers and minority politicians, often with Republican support, are preparing a potent legal and political.offensive to create as many election districts as possible with heavy black or Hispanic majorities as the decennial redis-tricting process gets under way. Under current Voting Rights Act doctrine (as well as reigning liberal political orthodoxy), a lawyer advising nervous Democrats says, "racial gerrymandering is almost required" to create odd-shaped black or Hispanic districts. So race is the first criterion, and a quagmire of litigation looms.
And, in two pending Supreme Court cases, minority plaintiffs are pushing, with qualified Justice Department support, for full application of the Voting Rights Act to judicial elections. The plaintiffs want to force Louisiana to draw a black majority election district for its supreme court and to force states that elect trial judges to abandon jurisdiction-wide voting in favor of single-judge districts, drawn wherever possible along racial lines. These developments illustrate an alliance of convenience that has developed between civil rights lawyers – who for 25 years have battled with astonishing success for full voting rights for blacks and other minorities – and Republicans, whose enthusiasm for minority office-holding surfaced more recently, in tandem with their awareness of how it can help their side.
More fundamentally, these developments raise the question whether some voting rights suits and remedies now being pursued around the country may – in the long run – do more harm than good, by spurring politicians to appeal only to members of their own race, and by putting the law’s imprimatur on the notion that it’s only natural to vote along racial lines.
"We are about the business of gerrymandering to elect minorities," complains a political consultant in the Midwest. A self-described liberal Democrat, he says he is having a "very lucrative" year drawing districts for minority politicians and Republicans. But he sayvS he’s troubled: "I think what we’re doing here is ruining the old form of coalition-building, and the old Roosevelt coalition. We’re entering a mean stage of American politicsÖ where people get elected by making racial appeals.” Are voting rights suits entrenching separate-but equal elections as a permanent feature of the American landscape? Are they institutionalizing the kind of racially polarized politics we should be trying to get away from? Might they leave minorities and their representatives isolated?
These questions admit of no simple or confident answers. We need black and Hispanic faces in more than token numbers in public office. Given racial bloc voting, this goal has been, and to some extent remains, reachable only by sometimes drawing "majority-minority" districts – that is, districts where minorities are a majority of the population. That has often been a necessary remedy for deliberate state dilution of minority votes through devices like racial gerrymandering to fragment black neighborhoods.
The problem is that this remedy for discrimination has evolved into insistent demands for a new brand of racial gerrymandering, designed to increase minority office-holding at all costs, sometimes by methods like pulling scattered pockets of minority voters into odd-shaped districts.
Almost every step that has been taken down this road has a certain logic. But with each new step – with almost no public debate – we seem to be perpetuating racial divisions by carving a principle of racial separation into our electoral system.
Civil rights lawyers don’t see a problem here. Creating more black districts not only "provides blacks with an equal chance to elect representatives of their choice," stresses Laughlin McDonald, Southern regional director of the ACLU in Atlanta, it’s the way to "give blacks legitimacy as politicians and give black politicians power."
Frank Parker, the senior voting rights lawyer at the Lawyers’ Committee for Civil Rights Under Law, says this approach is not an engine of racial polarization but rather a necessary response to it. He also contends that "election of more blacks from majority black districts may have the effect of decreasing racial bloc voting by whites," because "once more blacks show they can do the job and are competent and literate and not corrupt, this irrational fear of blacks holding public office will dissipate."
Parker and McDonald are heroes of the voting rights bar who know as much about this as anyone. They have me almost persuaded. But I fear that . they may succeed too well in mowing down every incidental impediment to election of more minority politicians, with harmful side effects on the democratic system. And I worry about where their strategy will lead us all in the decades to come.
I have no neat formula for changing this drift. But we could start by hesitating to endorse as a discrimination remedy every scheme that could conceivably help black and Hispanic candidates win more elections, and by taking note of the social costs of new-style racial.gerrymandering:
There is something antidemocratic about the challenges to Georgia’s nmjoriiy-volc Uiw now being brought by the ACLU’s McDonald on behalf of black leaders and by the Justice Department, amid applauding editorials in The New York Times and The Washington Post
The Georgia law requires a runoff, typically in primary elections, between the two highest finishers whenever three or more candidates split the votes with nobody getting a majority. By classifying this system as illegal discrimination, the plaintiffs and the administration would deny to the state the power to reserve legislative and judicial offices to the candidates with the broadest popular support.
Their immediate goal is to deliver Democratic nominations to black candidates who – whether for reasons of race or of ideology – lack majority support in their party. But the chief beneficiaries would be Republicans, who would likely beat any such nominees. And their lawsuits could well have the side effect of opening the door to fringe candidates like race-baiting former Klansman David Duke of Louisiana.
Although the Justice Department has so far limited its challenge to Georgia, and to districts where it says the law has hurt black candidates, its approach would also cast doubt on similar runoff laws in eight other Southern states and in some Northern and Western cities.
The net long-term effect of creating as many black- and Hispanic-majority voting districts as possible could be to reduce black and Hispanic-voters’ influence over policymakers generally, by leaving many white officeholders with little incentive to court them. The cost of rigging the system to elect more minorities may thus be a net loss in legislative support for inner-city schools, antipovcrty programs, and civil rights bills.
That’s because concentrating minority voters into a few districts makes the surrounding districts whiter and more conservative. Thus, while minority politicians are the immediate beneficiaries of legally driven gerrymanders lo create as many black ami Hispanic districts its possible, the indirect (and perhaps more numerous) long-run beneficiaries will often be conservative Republicans. It’s less than clear that this benefits minority voters.
This trend toward isolating minorities in racial enclaves surrounded by overwhelmingly white districts may also help perpetuate the poison of racial politics in our society. It pits blacks and Hispanics against one another as well as against the white majority. Fostering election of officials who need not appeal to members of other races seems an odd way to pursue Martin Luther King, Jr.’s dream of a land where his children "will not be judged by the color of their skin, but by the content of their character."
The civil rights lawyers’ agenda of seeking as many racially identifiable election districts’ as possible could have especially troubling side effects in the context of judicial elections, which are held in 41 states. There is a strong case for finding the Voting Rights Act covers judicial elections. But unless the Supreme Court limits the reach of any such holding, it could lead to fragmenting most or all judicial election districts into single-member racial bastions. This would have the desired effect of more proportional representation of minorities on the bench, but at a high cost: Do we want judges to represent racial constituencies, or to dispense equal justice under law?
Overly procrustean application of Voting Rights Act doctrines in this area might also block states from adopting the salutary reform of substituting merit-based appointive systems for judicial elections.
The spate of voting rights litigation has led to pervasive and highly discretionary oversight by the federal judiciary of the stale and local electoral process, including the drawing of congressional districts. This confers on federal judges the power in effect to load the electoral dice in favor of individual politicians by adopting their supporters’ proposals for redrawing district lines and recasting rules.
QUOTA-LIKE REDRESS
There is some irony in the spectacle of the Bush administration and Republican leaders, who denounce as a "quota bill" the proposals of Democrats in Congress to combat statistical underrepresentation of minorities in workplaces, demanding in the next breath quota-like redress for underrepresentation of minorities in elective offices.
"Minorities remain grossly underrepresented in Congress, state legislatures, and local boards and commissions," Benjamin Ginsberg, the Republican National Committee’s chief counsel, told the Congressional Black Caucus last year. Faulting Democratic incumbents (with some reason) for victimizing minorities and Republicans alike by gerrymandering to protect themselves, he said the law "now requires the drawing of majority-minority districts wherever possible." Republicans (with financial help from some right-leaning foundations) have offered political, legal, and technical aid in the push for minority districts, saying this opens up nearby districts for them by draining off minorities, while driving a wedge between white Democrats and minority groups.
One conservative Republican lawyer says ruefully that he finds himself working toward an electoral system of "de facto apartheid," because that serves the interests of his Republican voting-rights clients.
John Dunne, the likable, politically savvy former New York state senator (and former appellate litigator in New York City and Long Island with Riv-kin, Radlcr, Dunne & Bayh) chosen by President Bush to head the Justice Department’s civil rights division, acknowledges that his enforcement policies "may have the effect" of helping Republicans. But he stresses that this "is not factored into our decisions," and that his only motive is "to enforce the law in very strong, vigorous terms," as Congress intended.
There is no reason to doubt Dunne’s sincerity. As he notes, "My gang at the voting section, they’re old-line civil rights activist lawyers." These career lawyers have long pushed for more majority-minority districts and disfavored majority-vote laws; nobody accuses them ol a pro-Republican agenda.
But it may be doubted whether – if this new brand of racial gerrymandering did not dovetail so neatly with the Republican drive to become the majority party – the Bush administration would give Dunne’s gang so much leeway to take positions so philosophically at odds with the administration’s general antiquota rhetoric.
Given the community of interest between civil rights groups and Republicans, no potent interest group in the voting rights field is making much noise about the social costs ot the new brand of racial gerrymandering.
National Democratic leaders and their lawyers, who stand to lose white incumbents as more minority districts are created and who could lose a lot more in the long run. mute their concerns about separate-but-equal districting because many of them buy the remedial justification and because they want to avoid offending minority constituencies. They often compete with Republicans to satisfy black and Hispanic leaders’ demands for more minority districts.
Such a constellation of powerful interest groups pushing in the same direction – virtually unopposed among opinion makers except for scholarly critiques by a few professors like Donald Horowitz of Duke University School of Law and political scientists like Abigail Thernstrom, author of a 1987 book entitled Whose Votes Count? – is a formula for overkill.
The current offensive marks a third stage in the broad evolution of the Voting Rights Act: It was passed in 1965 primarily to secure the rights of blacks in the South to vole, which had long been denied by discriminatory use of literacy tests and other devices; it was soon adapted for use as a shield against stratagems by the white power structure in many jurisdictions to dilute the black vote; and now it is also being used as a sword, to cut down state laws that have the effect of impeding election of minorities regardless of what other purposes they may serve, and to mandate creation of majority-minority election districts wherever possible.
The impetus comes from the 1982 amendments to Section 2 of the act. They dispensed with the requirement of proving discriminatory intent and invalidated any voting procedure which "results in" dilution of minorities’ ability "to elect representatives of their choice" (with the proviso that this does not mean a right to proportional representation).
The Supreme Court gave this confusing language a broad interpretation in 1986, in Thomburg v. Gingles, which can be read as holding that as many majority-minority districts as possible must be drawn wherever racial bloc voting persists. That means nearly everywhere, contends Frank Parker, who adds that "we have the law more on our side than ever.before."
Thus armed, civil rights lawyers, including groups like the Mexican American Legal Defense and Educational Fund as well as those who represent mainly blacks, and the Justice Department have been sweeping aside at-large election schemes and forcing creation of minority districts, throughout the old South and as far away as Los Angeles.
The decennial redistricting now under way is accelerating this process and extending it to every corner of the nation, as minority politicians and their supporters plausibly contend that the law elevates creation of majority-minority districts above all other goals, including geographical compactness and protection . of incumbents. Not only blacks and Hispanics, but also Native Americans, Asian-Americans, subgroups like Puerto Ricans, and even homosexuals in New York are pressing for their own districts.
Thus have we extended to the limits of their logic remedies devised 25 years ago to break white monopolies on elective office. Thus has gerrymandering to block election of minority politcian given way to gerrymandering to guarantee them safe seats.
All this comes at a time when evidence is accumulating that centrist black politicians – like Governor L. Douglas Wilder of 19 percent-black Virginia and Representative Gary Franks of Connecticut, a black Republican who won in a 4 percent-black district – can take majority-white jurisdictions by building biracial coalitions. "We’ve gone through a political revolution in the past twenty-five years," says Abigail Thernstrom, "and it ain’t 1966 in Mississippi anymore."
Besides, while minorities are still far from attaining proportional representation among elected officials, the effectiveness of minority votes cannot be gauged solely on that basis. White candidates throughout the South now need black votes to get elected, and compete energetically for them by supporting civil rights laws and other measures important to black voters.
But those who most need biracial support – white and black Democrats running in racially mixed districts – may become endangered species as districts are redrawn along racial lines and the political parties realign themselves accordingly, with the Republicans gaining strength while becoming ever more the party of whites.
INCREASING RACIAL POLARIZATION
The pending challenges to Georgia’s majority vote law are among the bolder and probably most counterproductive efforts to sweep aside any possible impediment to election of blacks.
The plaintiffs and the Justice Department stress statements by one supporter of the majority-vote law, before its adoption in 1964, that it would counter "Negro bloc voting." The history also suggests, however, that the main purpose of the law – adopted with progressive support, at a time when most blacks were disenfranchised – may have been to prevent local political bosses without majority support and fringe candidates from winning by pluralities in crowded Democratic primaries.
Jesse Jackson and some other black politicians have bitterly complained for years that majority-vote laws discriminate against blacks who could win pluralities in Democratic primaries when the white vote is split, but who would lose runoffs because whites would vote as a bloc against them.
It is unlikely, however, that the Georgia runoff law in fact keeps many, if any, blacks out of office. And abolishing it would be less likely to elect blacks than to increase racial polarization, driving moderate whites into the swelling Republican ranks.
While blacks have lost more runoff primaries than they have won against whites in Georgia, the difference has not been dramatic since the late 1970s. And abolishing runoffs "would likely have very little beneficial impact on minorities seeking office in majority white jurisdictions, while it could actually work against the election of blacks in many majority black jurisdictions."
So said none other than the ACLU’s McDonald – now suing to strike down the runoff law – in a 1985 article in The Urban Lawyer. While asserting that majority-vote laws were rooted in white racism, he wrote then that eliminating runoffs would only spur whites to choose consensus candidates in "smoke-filled rooms" before the primary election.
In any event, those whites who now vote against blacks for racist reasons in runoff Democratic primaries would probably also vote against black Democratic nominees, and for white Republicans, in general elections.
But McDonald is now undeterred by such prospects, And he has figured out how to guard against any white plurality victories in black-majority districts: He would leave the majority-vote requirement intact in most of those districts by exempting from his lawsuit all single-member districts created through litigation against atlarge local election schemes. The Georgia attorney general’s office calls this tactic "nothing more than an effort to create one set of rules for black majority districts, and another for white majority districts," in a brief filed in a voting rights suit in federal district court in Atlanta.
Black politicians’ positions on the runoff law have, in fact, seemed to vary depending on their immediate self-interest. Andrew Young, for example, challenged the 1964 law in a 1971 lawsuit as racially motivated and discriminatory in effect. Then, in 1981, he became mayor of Atlanta by winning a runoff against a white candidate who had outpolled him in the first primary. In the 1984 presidential campaign and for years thereafter, he championed the runoff law as helpful in choosing nominees with broad support. But in a deposition last year he came almost full circle, saying he might oppose the law if it were proven to have been racially motivated.
Inconsistent? Georgia attorney general Michael Bowers notes mischievously that "my friend John Dunne" voted in 1972, as a state senator, for a law requiring runoff primaries for citywide offices in New York City if no one polls 40 percent in the first primary. The New York law narrowly survived a 1985 voting rights suit by blacks and Hispanics. Dunne dismisses the comparison, saying that 40 percent is not 50 percent, and nobody suggested any racist intent in 1972.
But even if there were stronger proof that Georgia’s runoff law was aimed primarily against blacks, or is an obstacle to black victories, a remedy short of abolition should be devised. Courts should not be rigging the rules to deliver elections to candidates without wide support. The state is right when it says the Voting Rights Act does not ordain any "right of a political minority to supremacy over a political majority."
If states cannot reserve their public offices for the candidates with the broadest support, what will come next? Nobody has yet called for replacing state governors with multiracial councils, or giving each minority group member two votes. But some Latino lawyers call for eliminating the citizenship requirement for voting. And explicit racial quotas for public bodies have arrived: The New York City charter adopted in 1989 requires setting aside seats for blacks. Hispunics, and Asians, in proportion to population, on the commission appointed to draw electoral district lines for the city council.
Is this the kind of America we want? How are we ever going to get away from racial politics if we gerrymander ourselves into racial enclaves?
"I really haven’t thought much about that," responds Dunne. He has enough work enforcing the laws, he says, without "speculating as to what it means for the future."
We ought to start speculating about this, though. Because, if we don’t, we may lose forever the ideal of a political system in which a candidate’s race should not matter.