BY VISITING PILDES
Legal issues concerning the structure of American democracy have increasingly come to dominate the Supreme Court’s Term. While constitutional law scholarship has emphasized individual rights, issues of equality and theories of judicial review, the Supreme Court’s increasing confrontation with the structure of elections and governance has been one of the least well appreciated developments in Supreme Court practice over the last decade. This Term, the Court will decide the constitutionality of partisan gerrymandering; the Court’s decision could well have dramatic ramifications for how easily existing officeholders are able to manipulate the design of democratic institutions in the pursuit of partisan self-interest. The Court will also decide on the constitutionality of the most significant changes in election financing in a generation, the McCain-Feingold legislation.
In the Term that just ended, the Court addressed the recurring struggle over issues of race and political representation. Three years into the new century, America continues to struggle over what W. E. B. DuBois famously called the problem of the last century: the problem of the color line. Comparing the Court’s decision on race and politics with its decision on race and education, in the affirmative action cases, illuminates the distinct approach the Court takes to questions of democratic governance.
In the affirmative action cases, the court found taking race into account to be constitutionally permissible, at least if done in certain ways. At the same time, the Court held that drawing “safe” legislative districts for black candidates is not as important as many voting-rights advocates had argued. Although the court’s decision upholding affirmative action received far more attention, its decision on voting rights is likely to have at least as much impact.
In Georgia v. Ashcroft, the Supreme Court opened a new era in the understanding of the Voting Rights Act of 1965, the most effective civil-rights law in American history. The court ruled that states may consider overall minority influence, and not just the number of minority voters, when redrawing legislative districts. In doing so, the conservatives on the court found themselves in agreement with the liberal black political leadership of Georgia.
Increasingly, struggles over voting rights pit “identity politics” against partisan politics. Georgia v. Ashcroft was typical: on one side stood the State of Georgia, where about 20 percent of the state legislators are black and where the Democratic Party, which black Georgians overwhelmingly support, controlled the legislative and executive branches. Pressed by its black leadership, Georgia abandoned some “safe” districts – those with a majority of black voters, in which a black candidate was almost certain to be elected – to create more integrated ones in which coalitions of whites and blacks would decide who won office. On the other side was the Justice Department, as well as groups like the American Civil Liberties Union and the lower federal courts, which held that the Voting Rights Act required the creation of safe districts.
Of course, like all laws, the Voting Rights Act reflects the problems that shaped its creation. Last amended by Congress in 1982, the act was forged in a different America. Forty years ago, blacks were not permitted to vote in much of the South, an inequity that was the focus of the law.
Even 20 years ago, the South was dominated by the Democratic Party. The party had very little competition and even less incentive to be accountable. If party leaders wanted to exclude blacks from elective office, they could; they didn’t need black support. Partly for this reason, the number of black elected officials was minuscule. Blacks, who constituted about 20 percent of the population in the South, had hardly any political influence.
In the 1980s, Congress and the courts therefore required “safe” minority districts, in which black voters would be able to elect their candidates regardless of how whites voted. But with some districts intentionally drawn to be dominated by blacks, surrounding districts became even more dominated by whites.
Many found this solution troubling – including supporters of race-conscious public policies, like affirmative action, in other areas. But in the electoral context of a generation ago, this approach seemed the only way to create equal opportunities for black voters in a one-party system.
The South of 2003 is changed. The reign of the one-party monopoly has come to an end. Partly because of the success of the Voting Rights Act, a substantial number of black legislators now wield power, even in the Deep South. Moreover, despite the persistence of racially polarized voting, white voters no longer abandon the party when it nominates black candidates; strong black candidates regularly get about a third of the white vote. The era of interracial harmony has not yet arrived, but these are changes with cultural and legal consequence.
Appreciating these changes, Georgia’s black legislators decided, virtually unanimously, to temper the single-minded pursuit of “safe” districts. When redistricting was required in the wake of the 2000 census, they put some of those safe districts at risk and endorsed districts in which interracial coalitions would decide elections.
The rise of two-party politics in the South helps explain why: a vibrant Republican Party now threatened to take over state government. That pressure united black and white Democrats. As black Democrats in Georgia saw it, what good are seats in a political body more hostile overall to the interests of black voters?
When no blacks held office, getting elected was the overriding goal. But now, being part of an effective governing coalition has begun to matter even more. White Democrats, disciplined by party competition, agree. Such political maneuvering might seem crass, but it is a hopeful sign that race is becoming just one of many elements in the routine struggles of politics.
The Supreme Court was remarkably astute about the new South’s new politics. The Voting Rights Act, it ruled, does not require the election of black candidates for their own sake. Its purpose is to ensure equal opportunities and meaningful political influence and participation. If that goal is best realized by designing democratic institutions that foster interracial coalitions, the court concluded, the law should not stand in the way.
This is much the same as the court’s approach in the affirmative action cases, in which it allowed university administrators flexibility to decide how much to weigh race in admission decisions. Similarly, in the most important voting-rights decision in a generation, the court concluded that the law did not dictate a single solution. The states now have some leeway to decide exactly what political equality means.
* * *
Difficult decisions lie ahead. As a first step toward a new understanding of political equality, Georgia v. Ashcroft was legally difficult, but practically easy; black legislators were not seriously at risk of losing in the less “safe,” more integrated new districts. But as the four dissenters in the case worried, deciding what amounts to meaningful political power, and what tradeoffs to accept in pursuit of it, is fraught with controversy and uncertainty. Looming are more profound questions, like whether political equality may sometimes require black candidates giving up safe seats.
Partly because of the Voting Rights Act, black elected officials will be helping to decide which tradeoffs to make. With its decision, the Supreme Court has recognized that the relationship between politics and race in America has changed since 1965. The surest sign of this transformation is that today, it is G
eorgia that is leading the way in defining political equality.
Last Term’s decision in Georgia v. Ashcroft suggests how complex and fascinating the legal effort to construct appropriate democratic institutions is. This Term’s decisions on partisan gerrymandering and campaign-finance regulation will inevitably further the Court’s deeper engagement with the legal meaning of democratic self-governance.
Richard H. Pildes, HLS visiting professor and professor at New York University School of Law, is co-author of Law and Democracy.
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