US: ETHNIC MINORITIES AND SINGLE-MEMBER DISTRICTS

Single-member districts (SMDs) are deeply rooted in American political tradition. From the founding of the United States in the eighteenth century to the present, electoral representation has been grounded on the concept of territorial units and subunits. Americans have always thought of popular sovereignty in spatial terms, beginning with the original conception of the U.S. Constitution as a compact among sovereign states and continuing within the states to the valorization of county and municipal government autonomy or "home rule." The Constitution does not specify how popular elections should be structured, and the states have experimented with a variety of single-member-district, multimember-district and at-large forms. But SMDs frequently, if episodically, have been the method of choice for elections at all levels, federal, state, and local, because they enable smaller, geographically situated communities to send their own representatives to larger legislative assemblies. Conversely, multimember districts and at-large elections have been employed when ruling majorities wanted to emphasize the corporate identity of particular jurisdictions and to suppress partisan or ethnic "factionalism." At-large voting rules such as majority-vote requirements, anti-single-shot laws and numbered places were used to maximize the power of ethnic majorities to control all the seats in their legislative bodies.

Historically blacks have been the primary targets of vote-submergence devices in the U.S. The United States is the only modern democracy founded on the institution of slavery, and blacks are entrenched in its Constitution and political institutions as an internal national "other." Slaves were non-persons, and even free blacks were non-citizens. After the Civil War and Reconstruction, blacks in the South were systematically terrorized during elections and, around the turn of the century, disfranchised altogether. The all-white Democratic Party primary became the only election that mattered, and it turned the "solid South" into a region of one-party states. International pressures of the Cold War and the NAACP's litigation campaign against legalized racial segregation eventually succeeded in striking down laws which denied blacks the vote and barred them from primary elections. Thereafter, many majority-white jurisdictions, in and out of the South, resorted to at-large and multimember election schemes to minimize black electoral influence.

The U.S. Supreme Court responded to the post-World War II reexamination of American nationality by elevating the constitutional importance of the individual. In 1963 and 1964 the Court reversed its longstanding refusal to get involved in redistricting controversies and granted relief to white urban voters complaining about the refusal of state legislatures, dominated by underpopulated rural districts, to redistrict themselves. The Supreme Court relied on the Equal Protection Clause of the Fourteenth Amendment to announce the rule of one person, one vote, defining the individual citizen as the basic unit of electoral politics. However, by making the under-weighting of a person's vote justifiable, the Court opened the door to claims that voting strength could be diluted by non-mathematical means, in particular by electoral structures which allowed a bloc-voting white majority to deny a black citizen any opportunity to choose a representative in the state or local legislature. The Supreme Court responded by instructing lower courts to prefer SMDs when they ordered redistricting of malapportioned legislative bodies, and in 1973 it declared unconstitutional Texas' use of multimember legislative districts, specifically because they denied black and Latino voters an equal opportunity to elect candidates of their choice.

All these electoral reforms were wrought by judicial reinterpretation of the Constitution. Meanwhile, in 1965, prodded by the confrontational mass politics of the Civil Rights Movement, Congress passed and President Lyndon Johnson signed the Voting Rights Act, which enabled most blacks in the South to vote for the first time. The conditions that would warrant judicial relief from minority vote dilution became the subject of intense and increasingly complicated litigation, both with respect to at-large or multimember-district elections and with respect to allegedly gerrymandered SMDs. In 1980 the Supreme Court held that racial minorities must prove that a challenged election structure was designed or maintained intentionally to dilute their voting strength. Congress responded with the Voting Rights Act of 1982, which created a statutory entitlement to judicial relief from election structures which had the effect or "result" of diluting the voting strength of protected minorities, defined as racial groups and "persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." The 1982 Voting Rights Act, helped along by a 1986 Supreme Court decision which streamlined the proof it required, sparked widespread changes from at-large elections to SMDs, through both litigation and legislation.

By the time the 1990 census rolled around, nearly every state and local redistricting authority was preoccupied with the task of drawing "minority-majority" SMDs that would comply with both the constitutional rule of population equality and the anti-vote dilution mandate of the Voting Rights Act. The new SMDs produced remarkable gains in office holding for both African Americans and Latinos. The number of black elected officials nationwide grew from 300 in 1964 to approximately 8,000 in 1993, although this figure still constituted less than two percent of all elected officials in a country where blacks account for twelve percent of the population. Since passage of the 1965 Voting Rights Act, the number of African-American members of Congress had increased from nine to thirty-eight, and majority-black SMDs were responsible for all seventeen of the African Americans elected to Congress from the eleven Southern states of the old Confederacy. After the 1994 elections, under a new redistricting plan negotiated by black political leaders, Alabama became the first and only Southern State ever to achieve black proportional representation in both houses of its Legislature.

The nationalist backlash provoked by this surge in majority-black and majority-Hispanic SMDs probably was inevitable. The way SMDs are drawn necessarily defines the constituencies that are deemed to be relevant for purposes of representation in legislative assemblies, and it does so in strictly geographic terms. Seldom are redistricting choices politically irrelevant, mere administrative devices for cumulating individual voter preferences. Rather, they declare who the operative national subcommunities shall be and how much power they will enjoy in the lawmaking process. In the United States, counties, municipalities, and recognizable neighborhoods have been the traditional building blocks for redistricting, except when it was expedient to ignore their boundaries for the sake of submerging the electoral influence of African Americans and other ethnic minorities. Now it has become necessary to split up traditional political subdivisions to create districts with African-American or Latino majorities, because in the U.S. people of color have no clearly discernible "homelands." Although they frequently are clustered in ethnically identifiable neighborhoods, these residential enclaves are dispersed among more populous, predominantly white neighborhoods. The result in some cases has been very irregularly shaped, noncompact majority-black or majority-Latino districts which, although they were no more bizarre than some majority-white districts, unmistakably signaled racial or ethnic designs.

The most contorted black and Latino districts quickly drew court challenges from white voters, who contended they violated a radically "colorblind" interpretation of the Constitution. In 1993, the Supreme Court issued the first of a series of decisions which established "an analytically distinct" constitutional cause of action that could be used by individual citizens who wished to challenge "racially gerrymandered" SMDs. Plaintiffs would not have to bear the heavy burden of proving that because of the challenged districts their votes were denied or abridged or that their voting strength was diluted. Instead, the Court recognized a presumptively stigmatic harm ensuing from districts which were drawn for the "predominant" purpose of race and which could not be justified as a "narrowly tailored" effort to serve a "compelling state interest." Such districts are unconstitutional, said the Court, because they presume that all members of the ethnic minority think and vote alike and share the same political interests, a message the Court fears will encourage racial "balkanization" of the electorate. This new gerrymander jurisprudence, which aims to address perceived harms to national unity rather than to the individual plaintiff, has produced court orders striking down several majority-black and majority-Latino SMDs at the Congressional, state, and local levels. The new constitutional districting rules have been created and reaffirmed by the same narrow, five-justice Court majority over the vigorous dissents of four justices, who contend that they offend both substantive justice and the proper limits of judicial review.

Justice Felix Frankfurter warned about the perils of the judiciary entering the "political thicket" in his dissent from the first one-person, one-vote case in 1963. He may be vindicated by the incoherence of the Supreme Court's current gerrymandering principles. Surely nothing could be less appropriate for resolution by judges than questions about how the sovereign people should define themselves in a multi-ethnic democratic republic. In its rush to prevent state legislatures from assuming that all African Americans think alike, the Court has yet to confront the converse proposition: What if African-American or Mexican-American or Asian-American or Native-American citizens in a particular state or locale actually do share the same political interests and freely associate to assert them through their elected representatives, through their community institutions or through political organizations-perhaps political parties? To suggest that citizens of color are constitutionally prohibited from negotiating for their own SMDs would contravene historical, constitutionally protected notions of political freedom in the U.S. This is an entirely different question from whether members of an ethnic minority can demand that such districts be created as a matter of legal or constitutional right.

But these are serious questions, which advocates of "majority-minority" SMDs themselves are only now being forced to address. There was never a consensus among them about the political limits or normative endpoint of the voting rights they pressed into remarkably successful service. Today, most advocates of SMDs designed to produce voter majorities of a particular ethnic group defend them as necessary responses to the "unfortunate" reality of ethnic divisions in the national fabric. They share with the opponents of majority-minority districts an underlying commitment to the vision of the United States as an immigrant nation, one in which newcomers and their descendants voluntarily assimilate in the established institutions of public political and social life while retaining the right to preserve their ethnic distinctiveness in strictly private institutional ways. Even private (white) ethnic associations were under pressure to disappear during the "melting pot" era of Anglo ascendancy, which extended at least through World War I. A distinct change in American identity was wrought by World War II, however, when the descendants of other European nationalities placed their stamp of ownership on the American nation and the Anglo-American political traditions they had adopted. The full implications of this national redefinition were largely submerged, as they were throughout the world, in the empires created by competing statist ideologies during the Cold War. That has all changed now, and the U.S. is not immune from the winds of ethnic nationalism that are sweeping the globe.

Today, Americans of German and Irish ancestry outnumber those of English descent. They now sit in the front benches, along with Southern-European and Eastern-European Americans, including secular American Jews, where together they have become the most passionate defenders of their adopted English language and Anglo-American Constitution. Ethnically identifiable SMDs are an embarrassment to these Americans and a threat to their national vision. The right wing of the immigrant nation supports the current regime of suppressing and delegitimising SMDs that have all too obvious racial or ethnic designs, while the left wing either defends majority-minority districts as temporary integration tools or urges that they be replaced with multimember-district schemes using semi-proportional or single-transferable-vote rules. The growing number of PR proponents also criticize SMDs because they can make it easier for incumbents to get re-elected, engendering a lack of accountability which hurts ethnic majorities and minorities alike. But PR systems are not invulnerable to the same charges often leveled at majority-minority SMDs, that they encourage ethnic polarization and threaten destabilization.

Left out of this immigrant debate and its common objectives of national uniformity, however, are Americans of color, especially the descendants of African slaves. Some scholars now acknowledge that white supremacy has always been a more powerful defining characteristic of American citizenship than any of the more openly debated versions of liberal pluralism and civic republicanism. Many white Americans are simply disturbed or even frightened by black control of the political units in which they reside. For African Americans, a more inclusive immigrant nation may be neither realistic nor an acceptable remedy for centuries of caste exclusion. They may favour renegotiations of American nationhood on terms that at last acknowledge their distinctiveness and accord them full dignity and free agency. The periodic redrawing of SMDs may be one of the best ways of forcing their national demands onto the table, which could explain why a hostile Supreme Court majority has constitutionalized the issue in hopes of squelching the debate. Proportional representation systems may afford African Americans equal participation in legislative bodies, but by sidestepping the constitutive inter-ethnic dialogue redrawing SMDs requires they may actually impede the historical quest of descendants of slaves for complete freedom. Recent PR proposals by some members of the Congressional Black Caucus have not resonated strongly in the black community. On the other hand, it is easy to imagine how the descendants of conquered indigenous peoples and of non-white immigrants might have entirely different views of which election structures best suit their personal and collective agendas in an increasingly diverse U.S.

A just resolution of these conflicting, often incommensurable ethnic positions on electoral structures and their underlying national visions can be achieved only through mutual consent to compromises, which must be incomplete and provisional so long as we value the liberal ideal of individual freedom to shape and reshape one's own cultural and political identity. The negotiations required to reach agreement on such formative questions are particularly difficult to start and to sustain in the United States, because for so many Americans their national identity is invested in a sacred, written Constitution, which for all practical purposes can only be reinterpreted, not renegotiated. Not surprisingly, the greatest progress toward national consensus usually has been achieved through democratically negotiated compromises outside the constitutional context, as with the Voting Rights Act, for example. Now, with considerable encouragement from "colorblind" conservatives, some members of the Supreme Court are suggesting that what they consider to be overzealous implementation by the democratic branches of federal and state governments may call into question the constitutional validity of the Act itself. And the occasion for this constitutional confrontation will be the battle over legislative redistricting. Thus, if the American experience with SMDs as an instrument of political empowerment for ethnic minorities holds any lessons for other democracies, they would include the importance of the particular national context, of respect for its political traditions and the particular situations of subnational groups within them, of the opportunities for gaining the widest possible consensus in making decisions about election structures, and, most of all, of humility when it comes to expectations of lasting solutions.