Majority-Minority Voting Districts and Their Role in Politics:
Their Advantages, Their Drawbacks, and the Current Law

Thursday, Oct. 07, 2004

Do two rights ever make a wrong? When it comes to two important aspects of voting rights, the answer may be yes.

The first is the use of majority-minority districts. These are political districts in which members of a racial minority make up an effective voting majority. This gives them the ability to participate and elect representatives of their own choosing, and has been the solution of choice in situations where there is, or could be, racial vote dilution.

But majority-minority districts give rise to a dynamic that undercuts the very goal they are designed to achieve. While they improve the ability of minority voters to elect a candidate of their choice in a particular district, they also cost their preferred political party other valuable seats in the legislature.

This, however, is less the fault of the majority-minority districts than of the second aspect of voting rights: the strict application of the one person, one vote standard. In this column, I will explain why that is, and propose one possible way out of this dilemma.

Creating Majority-Minority Districts Favors Republicans, Although Most Minorities Don't

Majority-minority districts have at least one very curious effect: they help Republicans. This is curious because minority voters, especially blacks, vote for Democrats in overwhelming numbers. But upon closer study, this by-product of majority-minority districts merely fulfills a longstanding theoretical prediction.

The theory goes like this. When creating a majority-minority political district, the additional minority voters must come from somewhere. That somewhere is adjoining districts, which are drained of their minority voters. Those voters, though, are not merely minority voters-they are also reliably Democratic voters. And this makes it more likely that the Republican candidates will prevail in those adjoining districts.

Would this actually happen in practice? It's well-documented that it already has. After the 1990 census, scores of majority-minority districts were created in order to comply with the mandates of the Voting Rights Act. For example, thirteen additional majority-black Congressional districts were created. They, in turn, produced thirteen additional black representatives. Majority-minority districting did, indeed, lead to the election of the candidates of the minorities' choosing.

Unfortunately, a large number of studies of the 1992 and 1994 Congressional elections revealed that this additional representation came at a cost. As a result of majority-minority districting, Democrats lost at least ten seats to Republicans. When minority voters were drained out of adjoining districts, Republican majorities were the result.

Both parties apparently notice that majority-minority districts tend to help Republicans overall, and hurt Democrats overall. In the early 1990s, the Republican National Committee pushed for the creation of more black and Hispanic districts as part of a strategy to win additional seats in the House. And, more recently in Georgia and New Jersey, Democrats sought to reduce the number of safe minority districts in order to improve the party's chances overall. In doing so, both parties were acting contrary to their general positions on race-conscious lawmaking.

Minority voting rights advocates, then, face a choice between pushing districting plans that increase the number of minority representatives and those that increase the number of Democratic representatives. This is a real dilemma, since, of the two major parties, Democrats are generally more sympathetic to minority interests (hence the overwhelming support).

And this analysis raises several important questions. First, we've seen that, as a result of majority-minority districting, minority voters - who overwhelming vote Democratic - end up with fewer Democratic Congresspersons, though also more minority Congresspersons. Is that really a victory for minority representation?

Second, is there any legal solution to this tradeoff? I will argue that there is. For while some of the reasons for the tradeoff don't lend themselves to ready legal solutions, there is at least one reason for the tradeoff that could be changed with a stroke of the pen (so long as the person with the pen was writing for a majority of the Supreme Court). And that reason is the Supreme Court's strict application of the one person, one vote standard.

The Supreme Court's Strict Application of the One Person, One Vote Standard

The one person, one vote standard ensures that each member of a legislative body represents the same number of people. Single-member political districts, then, must be drawn with an equal number of people in them. That way, each person's vote is assigned equal weight in determining the makeup of the legislature.

The standard was developed by the Supreme Court as a response to legislative inaction with respect to district sizes in the first half of the twentieth century. State legislators, reluctant to redistrict themselves out of power, stood by in the face of demographic changes that gave rise to large population disparities among political districts. As a result, there were often tremendous differences in district sizes (and, thus, voting power) by the 1950s and early 1960s.

The Supreme Court stepped into the business of policing district size in the 1962 decision Baker v. Carr, and soon after that it applied the one person, one vote standard to both state legislative districts and congressional districts. But it became clear over the next few decades that, when it came to the actual application of the standard, the Supreme Court was a stickler.

The Supreme Court essentially held that congressional districts within the same state must have exactly the same population. State and local districts are allowed a little more leeway, but not much-up to ten percent difference between the largest and smallest districts without justification; a bit more when suitably justified. But even that ten percent "safe harbor" was recently called into question last summer when the Supreme Court summarily affirmed a lower court ruling against it.

In any case, it should be clear how the one person, one vote standard contributes to the tradeoff in minority representation. Strict application of the standard makes redistricting a zero-sum game-since districts must have the same number of people in them, increasing the percentage of minority voters in one district inevitably decreases it in others. And this forces the tradeoff as reliably Democratic voters get concentrated in the newly-formed majority-minority district.

What Can We Do About the Tradeoff?

Given the role of the one person, one vote standard in forcing this tradeoff, one potential way out is to relax the application of the one person, one vote standard. And here I merely propose relaxing the standard as a means of maintaining or improving minority participation in the political system.

But, of course, this could be done more generally, since there's little reason to hold political districts to a standard so precise. Census errors, and demographic changes between censuses, ensure that district voter totals virtually never - indeed, probably literally never -- actually are equal.

Relaxing the standard in this context, though, would mean allowing state legislatures (often, in an attempt to comply with the Voting Rights Act) to create majority-minority districts with smaller populations than the surrounding districts, numerically concentrating minority voting power. This would allow them to create or maintain majority-minority districts without most generally risking the dilution of minority representation by reducing the fortunes of Democrats in surrounding districts.

Such a proposal wouldn't mean tossing out the one person, one vote standard, or completely backing out of the early malapportionment cases like Baker v. Carr, Reynolds v. Sims, and Wesberry v. Sanders. It merely means relaxing application of the standard in certain situations (something that's already done somewhat when it come to state and local districts). There was nothing in the original malapportionment problem that demanded such an exacting application of the standard. And courts would still have the power to strike down political districts that get too far out of hand-and could do so long before we reach the levels of malapportionment that existed in the 1950s and early 1960s.

Some Potential Problems, Constitutional and Political

There's at least one catch, though: This kind of race-conscious districting might run afoul of the Supreme Court's precedents, such as Shaw v. Reno and Miller v. Johnson setting restrictions on race-conscious districting -- for race might be the predominant factor in such a plan.

While there may be independent reasons for overruling those cases, you would not necessarily have to do so to vary district sizes in this way. Playing with the size of a majority-minority district shouldn't really be analyzed any differently than playing with the shape. The Supreme Court, in cases like Hunt v. Cromartie, has recently found such plans to be motivated by a variety of factors, including the protection of incumbents and maintenance of party strength. Changes in district size, like those in district shape, would be motivated by the same sets of concerns, and could be analyzed in much the same way.

Some may fear that relaxing application of the standard would lead to excessive judicial intervention in what should be a political process. But they should, well, relax. A relaxed standard would, if anything, probably lead to less judicial intervention - not more.

Even with the strict application of the standard that current law requires, there are already countless ways to slice the electorate into equally-sized districts. Already, judges must often choose among these options.

In fact, strict application of the standard makes it more likely that judges will be involved in such decisionmaking. Almost every political district becomes instantly unconstitutional upon the release of the decennial census data. And it is judges who often oversee how these constitutional violations will be remedied. Were the standard more relaxed, many districts would survive the census intact - and typically, only those that markedly grew or shrank would come under judicial scrutiny.

Would the major political parties take advantage of such a relaxation of the standard? You bet. The likely partisan effect of such a proposal would be to help Democrats. But remember, the key to fulfilling the mandates of the Voting Rights Act involves ensuring effective minority participation. Democrats would be helped - but would they be helped unfairly?

I think the answer is a clear no. Given that most minority groups overwhelmingly support Democrats, it makes some sense that if minorities' ability to participate truly does improve, Democrats would benefit. At least it makes more sense than what's currently happening.

What does all of this mean for this and future elections? Well, given the relatively slim margins enjoyed by Republicans in Congress and many state legislatures, it reminds us that some of those Republican victories may be a result of majority-minority districting, not any genuine change in the country's political views. And it reminds us that there is something we, or at least the Supreme Court, can do about it.

Grant Hayden is a professor at Hofstra Law School, where he teaches Labor Law, Employment Discrimination, and Voting Rights.

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