"Every man takes the arm of the law for his protections as more effectual than his own, and therefore every man has an equal right in the formation of the government and of the laws by which he is to be governed and judged." [FN1] When Thomas Paine wrote these words over two hundred years ago, he captured the essence of American democracy. Having a voice in government means more than merely casting a ballot. Instead, the basic right of all qualified citizens to grant or withhold their consent mandates "fair and effective representation": a right to elect representatives and participate in the decision making processes of government.
At the same time, the Founding Fathers recognized that voting itself posed a danger to a representative democracy. Majority factions were particularly troubling because the principle of majority rule empowered them to silence the voices of those in the minority. Consequently, the constitutional Framers installed the federal courts as "judicial referees" that would protect minorities from the tyranny of the majority. When it enacted the Voting Rights Act of 1965, Congress also envisioned that the judiciary would play an active role in protecting the right of minorities to give or withhold their consent.
Yet, courts have opted for a more passive approach that directly undermines the voices of minorities in government. Out of "respect" for the democratic process, the judiciary has protected consent only to the extent that it can do so in a "principled" manner that does not overturn the will of the majority. As a result, minority voters no longer must raise their voices against the tyranny of the majority, but the tyranny of the judiciary. This Article discusses the impact of the judiciary's ill-advised approach to claims brought under section two of the Voting Rights Act, and proposes an alternative approach more consistent with the democratic theories embodied in the Constitution and section two.
INTRODUCTION 445
I. VOICES IN GOVERNMENT: UNDERSTANDING AND PROTECTING CONSENT .......... 456
A. The Constitutional Basis of Consent .............................. 459
B. Blacks and Consent: The Reconstruction Amendments ................ 469
C. Judicial Referees and the Regulation of Consent .................. 487
II. IMPLEMENTING THE GUARANTEE OF CONSENT ............................... 505
A. Consent and "One Person, One Vote" ............................... 507
B. Consent and Process Democracy .................................... 513
1. "Structural Process" or "Pure Process" Claims ................ 518
2. "Quasi-Structural Process" Claims ............................ 523
3. "Geography Process" Claims ................................... 529
4. "Submersion Process" or "Perverted Process" Claims ........... 535
5. "Parliamentary Process Claims" and Legislative Outcomes ...... 537
C. Redefining the Boundaries for Judicial Protection of Consent ..... 546
III. CONSENT DENIED: THE END OF THE "SECOND RECONSTRUCTION" .............. 561
A. Supreme Blunder: Legislating Democratic Theory from the Judicial
Thicket ........................................................... 562
B. Perverted Process: Judicial Referees and the Reinforcement of
Majority Tyranny .................................................. 585
1. Judge Higginbotham's LULAC II Opinion: Partisan Politics ..... 586
2. Judge Tjoflat and the "Racial Bias" Straw Man ................ 592
3. Holder, Shaw, and Section 2: Even When There's a "Wrong,"
There's No Remedy ................................................. 602
IV. A RETURN
TO CONSENT: RESTORING MEANING TO SECTION 2 OF THE VOTING
RIGHTS ACT AND THE ROLE OF THE JUDICIAL REFEREES IN ENFORCING IT .. 609
Our slavery is complete as long as we are subject to regulations made by a legislature, in the election of which we had not a voice, and over whose members we have not the least controul. If any thing could add to a slavery in its nature so perfect, it would be, that we are under the government of a power whose views may be distinct, and whose interests may be the opposite of ours. [FN2]
Over one thousand voices joined in unison, singing "We shall overcome." The trial stopped momentarily, while the echoes of these words drowned out the answer of the witness on the stand. An eerie silence settled over the courtroom before the attorney's examination of the witness resumed. Outside, the protesters were marching arm in arm down the narrow boulevard in front of the courthouse, temporarily blocking traffic. At first blush, the scene was reminiscent of Montgomery, Alabama at the height of the civil rights movement. But this was Tallahassee, Florida, in February 1996. [FN3]
In fact, throughout the United States, this scene has been replayed many times in the last few years. However, the scenes differ from those of some thirty years past. The protesters are no longer turning to federal judges for changes which will secure for them true equality under the law, irrespective of race, color, or creed. That battle has been won. [FN4] Instead, the protesters raise their voices against the changes that federal judges are making in how the law is interpreted. [FN5] As a result of these changes, the fabric of the equality they have gained seems to be unraveling.
This paradigm shift presents several issues, none of which can be resolved easily. Perhaps the most important issue is determining how "equality" is defined. It is axiomatic that equality cannot always be taken at face value. Treating all racial and ethnic groups alike under all circumstances, without regard to socioeconomic differences and other present effects of past discrimination, only might exacerbate inherent inequalities further. [FN6] In other words, the "shackled runner" argument still has merit in America today. [FN7] In voting rights cases, the majority's dilution of a minority group's voting power [FN8] through consistent, overwhelming opposition to the minority group's candidate of choice, [FN9] can render the "equal" right to vote virtually meaningless. Quite simply, there are no easy solutions to the dilemma of trying to treat all people alike in a voting system, while still affording everyone equality of opportunity. Contrary to what a majority of the present Supreme Court might believe, this problem cannot be avoided simply by declaring abstract commitments to protecting the right to vote. [FN10] Rigid, mechanical, court-created rules fail to account for varying local contexts and difficulties in implementation, and inherently are inconsistent with the flexible and adaptable protection Congress intended to provide in the Voting Rights Act. [FN11]
The Supreme Court's narrowing of the scope of voting rights claims has set these events in motion. For example, in Shaw v. Reno, [FN12] the Court recognized, for the first time, the viability of an equal protection challenge to race-based districting plans designed to enhance minority representation. While some would argue this result is not surprising in light of the Court's Fourteenth Amendment jurisprudence, [FN13] it has had a far-reaching impact. Indeed, the Court expressed concern in other cases that federal courts, the States, and the Department of Justice were using the Voting Rights Act to create enclaves of safe districts for different racial and ethnic groups. [FN14] In perhaps the most telling statement of what this change in the law meant for these groups, Justice Thomas observed, in Holder v. Hall, "that practice now promises to embroil courts in a lengthy process of attempting to undo, or at least minimize, the damage wrought by the system we created." [FN15]
The timing of these decisions apparently could not have been worse, in light of the appearance that political equality for blacks was close at hand. [FN16] When Congress enacted the Voting Rights Act in 1965, there were only three black legislators in the eleven southern states, six black members of Congress (none from the Deep South), and fewer than 280 blacks elected to political office nationwide. By 1996, there were more than 250 black legislators in the eleven southern states, thirty-nine black members of Congress, and more than 8,200 blacks elected to political office nationwide. [FN17] Their election had given their constituents hope in two critical respects. First, it appeared that the promise of "one person, one vote" [FN18] was no longer just an aspiration, but was finally coming to fruition. Second, it seemed that increased political representation had led to greater economic development and opportunities for blacks and other racial and ethnic groups who had been neglected for so long. [FN19] In the midst of this apparent victory, the rules of the game seemed to have been changed irrevocably. [FN20]
When the Supreme Court actually has ventured into the "political thicket," [FN21] it has done so half-heartedly, clinging to its own fixed, mechanical notions of "one person, one vote"-population equality among districts [FN22]-at the expense of what the majority in Reynolds v. Sims termed "fair and effective representation." [FN23] The Court has been particularly uneasy in addressing vote dilution challenges, which require a significant deviation in treatment from the comparatively easier cases of numerical malapportionment and mechanisms that cause the outright denial of the ballot. Instead, proof of minority vote dilution demands looking at election results and determining whether those results are "fair." [FN24] The Court's discomfort largely is premised on its belief that assessing the fairness of electoral outcomes necessarily requires it to adopt and to impose a particular democratic theory on the States. [FN25] Surely, it is troublesome that the least democratic branch of government even should be in a position to make sweeping changes to one of the most basic rights United States citizens possess: the right to vote. [FN26] The Court's outward expression of disdain for adopting a democratic theory, however, merely begs the question and hides an inner truth. The Court (or at least certain members of the Court) has adopted a democratic theory, and it is inconsistent with the theory selected by the people's representatives in Congress. [FN27]
Essentially, the Supreme Court has advanced a democratic theory that primarily protects the individual right to cast a ballot and only sparingly protects against other impediments to minority participation in the democratic process. [FN28] This democratic theory clashes with the type of relief from vote dilution that Congress afforded minority groups in section 2 of the Voting Rights Act of 1965. [FN29] Congress intended section 2 to reach past the ballot box and examine the actual outcome of elections to determine "whether minorities have equal access to the process of electing their representatives." [FN30] Thus, section 2 codifies the democratic theory that having a meaningful voice in the political process includes being able to join together with other like-minded individuals to elect a candidate of choice, free from sustained, discriminatory vote dilution by another group or groups of individuals. Moreover, the democratic model adopted by Congress in section 2 also is consistent with the Court's constitutional role in our political system. [FN31] The result of the Court's intransigence to fulfilling faithfully its constitutional check on majority factionalism is that "consent of the governed" [FN32] often means little more than "consent of the majority"-only one half of the republican equation; and those in a minority are left without a meaningful voice in government.
This Article will discuss the implications of the Court's usurpation of democratic theory with regard to minority vote dilution claims brought under section 2. It will examine how application of the Court's narrow view of the right to vote has permitted lower federal courts essentially to rewrite section 2 in a way that virtually assures a finding of no liability in all but the most egregious circumstances. In addition, the Article will show how the Court's discomfort with overturning the will of the majority-as expressed in elections- has encouraged the lower courts to "explain away" even the most obvious cases of polarized voting. What has resulted, the Article will argue, is the virtual evisceration of section 2 as a meaningful remedy for minorities who have been denied access to the political process.
Part I begins by discussing the role of democratic theory in evaluating voting rights claims. This discussion will provide some enlightenment as to the reasons the Court has embarked on a dangerous, if not undemocratic, path in the voting rights arena. As an initial matter, it will trace the development of the consent theory of democracy espoused by James Madison and reflected in the Constitution and Reconstruction Amendments. [FN33] The examination of this development will lead to an analysis of the role of the judiciary in protecting voting rights. Part I also will describe how the Framers intended the courts to act as "judicial referees" on the political playing field, regulating the voting game to ensure that each participant has a fair and equal opportunity to consent to their government. [FN34] This Part concludes with a proposal for nothing less than "judicially active" referees who, subject to certain constitutional and practical limitations, will not be afraid to stop the game when they observe one of the participants commit a foul.
Part II examines how the Supreme Court has fared in its role as referee. It will demonstrate that functionally, the Court has examined the right to vote under a "process democracy" continuum comprised of five types of claims: "structural process" or "pure process" claims; [FN35] "quasi-structural process" claims; [FN36] "geography process" claims; [FN37] "submersion process" or "perverted process" claims; [FN38] and "parliamentary process" claims. [FN39] The first section will describe the "one person, one vote" cases, wherein the Court professed to adopt a pure process approach to malapportionment by treating it as a deprivation of individual access to the political process. The second section will examine the Court's treatment of process democracy claims, in which the Court generally has treated pure process claims as the most favored and, hence, the most protected, unlike parliamentary process claims, which have received no protection at all from the Court (except to the extent that the outcomes the parliamentary process generates implicate a constitutional right independent of the right to vote). The second section concludes with a description of an alternative approach for judicial referees to follow along the continuum of process democracy rights, consistent with congressional intent codified in section 2 of the Voting Rights Act.
Part III assesses, in detail, the record of the Supreme Court and the lower federal courts in policing perverted process claims (vote dilution claims under section 2 of the Voting Rights Act). After discussing the democratic theory Congress adopted when it repudiated the Bolden intent test [FN40] in favor of a results test [FN41] in the 1982 amendments to section 2, Part III will review the Court's interpretation of those amendments in Thornburg v. Gingles [FN42] and other cases. It also will outline how the Court's line of decisions following Shaw v. Reno, [FN43] while creating a claim "analytically distinct" from actionable vote dilution, at the same time simplified the lower courts' redefinition of section 2 by shifting vote dilution claims away from a group focus and towards an individual focus. The fait accompli then will be seen in a number of lower court decisions, which this Part will use to illustrate the devastating consequences of this paradigm shift. [FN44] These courts have placed a virtually insurmountable evidentiary burden on vote dilution claimants through methodology which "explains away" dilution, namely, by attributing the presence of racially polarized voting to unprotected non-racial causes, by completely deferring to state interests, or by refusing to impose a race-conscious remedial plan. Part III will illustrate that the democratic theory adopted by Congress and embodied in section 2 has been disregarded in favor of an inconsistent judicial view of what "voting" means in the American democratic system.
Part IV will show how the federal courts can lift themselves "out of the so-called 'political' arena and into the conventional sphere of constitutional litigation" [FN45] in assessing claims under section 2. It issues a challenge to the courts to deconstruct theoretically the revived intent test they created and to return to their proper constitutional roles of securing the right to vote for all voters. Part IV also will reemphasize briefly the point made in Part I that protection of minorities from the "tyranny of the majority" is a fundamental constitutional value which always has been consistent with the Madisonian vision of democracy in this country. [FN46] It will urge the rejection of a narrower, individualist view of voting rights (which is perfectly proper for other types of voting claims), in favor of the broader group rights focus which was a principal part of the democratic theory adopted by Congress for vote dilution claims. It then will describe a proper reading of the results test which is consistent with what Congress intended, as well as with the constitutional limits on Congress to adopt remedial measures under the Fourteenth and Fifteenth Amendments. Finally, it will suggest that federal courts should avoid their shortsighted focus on alternative causal explanations for widespread, systemic, racially- polarized voting, and return to the fundamental democratic principle codified in section 2: determination of whether minority voters are denied their voice in government by having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." [FN47] In that manner, this Article suggests that federal courts will resume their proper role as judicial referees in protecting the process of democracy and related outcome democracy rights of all Americans to exercise that most fundamental of rights: the right to vote.
Until the federal courts return to the proper decision-making process, judicial tyranny will continue unabated. It is time for judges, in the name of so-called "neutral principles," to stop intervening to dilute and undermine the broad protection afforded by section 2 of the Voting Rights Act. Instead, the courts must fulfill their constitutional role as impartial referees and apply section 2 in the manner that Congress intended. These judicial referees also must recognize which rules of the game to apply. Just as it is improper to enforce the rules of football when umpiring a baseball game, it also is improper to apply an individual focus to a group right (vote dilution), or a constitutional standard (the intent test) when a congressional standard (the results test) is appropriate. Section 2 will have meaning only when all players are allowed to participate in the game of consent, and an appropriate balance is struck between respect for majority rule and protection of minorities from the tyranny of majority factionalism. Only then will the federal courts begin to enforce a view of "voting" that is consistent with the democratic theories embodied in the Constitution and section 2.
FN2. JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION 128 (1989) (quoting Anonymous, The Usurpations of England the [C]hief Sources of the Miseries of Ireland; and the Legislative Independence of this Kingdom, the [O]nly Means of [S]ecuring and [P]erpetuating the Commercial Advantages [L]ately [R]ecovered 28 (Dublin, 1780) (emphasis added)). Reid points out that, while this quote is from a writer advocating the right of Irish Protestants to representation, it also supports the same case for American colonials. See id. This Article will demonstrate that the quote could have been written today on behalf of many minorities attempting to participate in the American political process.
FN3. See Residents Rally to Keep Brown's District Intact, ST. PETERSBURG TIMES (Fla.), Feb. 20, 1996, at 4B; Blacks Rally for District, TAMPA TRIB., Feb. 20, 1996, at 6.
FN4. Of course, "equality under the law" does not necessarily mean that equality has been attained in society. The vast disparities between whites and a number of minority groups in household income, education, home ownership, and health coverage, among other things, are a testament to the continuing presence of inequalities. See generally COUNCIL OF ECONOMIC ADVISORS, CHANGING AMERICA: INDICATORS OF SOCIAL AND ECONOMIC WELL-BEING BY RACE AND HISPANIC ORIGIN (Sept. 1998) (estimating 1997 census data of social and economic indicators); ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (rev. ed. 1995) (summarizing and comparing 1990 census data of whites and minorities). The point merely is that there are no longer overt racial inequalities codified by law.
FN5. Compare Rep. Brown Apologizes Over Aide's Klan Remarks, ORLANDO SENTINEL, Feb. 14, 1996, at D3 (stating that an aide to Congresswoman Brown remarked that "[t]here was a time when the people we were concerned about wore white sheets-now they wear black robes"), with Jesse Jackson, White Sheets, Blue Suits, Black Robes, NEW PITT. COURIER, June 26, 1996, at A7. Jesse Jackson wrote:
We have witnessed the return of the white sheet crowd, sneaking in by night to burn the churches of our people. We have watched the mean spirited maneuvers of the blue suit crowd, the Gingrich Congress and many of our state legislatures, as they try day after day to wipe out a half-century of social progress. Last week, we saw the return of the black robes crowd, who with each decision, roll back a little more of Dr. King's reconstruction.
Id. Reverend Jackson made his comments in response to the Supreme Court's decisions in Shaw v. Hunt, 517 U.S. 889 (1996), and Bush v. Vera, 517 U.S. 952 (1996). See Jackson, supra.
FN6. For example, as some members of the Senate Judiciary Committee pointed out in a separate statement on the Voting Rights Act of 1965, the "equal application" of literacy tests "would abridge 15th [A]mendment rights" because "the educational differences between whites and Negroes" resulting from past discrimination in education effectively would preclude many blacks from being able to register to vote. S. REP. NO. 89-162 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2554 (identifying the views of 12 members of the Judiciary Committee relating to the Voting Rights Act of 1965).
FN7. The image of the "shackled runner" was suggested by President Lyndon Johnson in a 1965 commencement speech at Howard University. See Lyndon B. Johnson, Commencement Address at Howard University (June 4, 1965), in 2 PUBLIC PAPERS OF THE PRESIDENTS-1965, at 636 (1966). Policymakers have used the "shackled runner" argument to illustrate the compelling need for affirmative action to remedy past discrimination:
Imagine a hundred-yard dash in which one of the two runners has his legs shackled together. He has progressed ten yards, while the unshackled runner has gone fifty yards. At that point the judges decide that the race is unfair. How do they rectify the situation? Do they merely remove the shackles and allow the race to proceed? Then they could say that "equal opportunity" now prevailed. But one of the runners would still be forty yards ahead of the other. Would it not be the better part of justice to allow the previously shackled runner to make up the forty-yard gap, or to start the race all over again? That would be affirmative action toward equality.
Mary C. Segers, Justifying Affirmative Action, in JAMES C. FOSTER & MARY C. SEGERS ET AL., ELUSIVE EQUALITY: LIBERALISM, AFFIRMATIVE ACTION, AND SOCIAL CHANGE IN AMERICA 78 (1983) (quoting Earl Raab, Quotas by Any Other Name, COMMENTARY, Jan. 1972, at 4). The significant degree of underrepresentation of African-Americans, Hispanics, and other significant racial and ethnic groups is the most obvious reason why continued scrutiny of electoral systems is required. See generally MARTIN CARNOY, FADED DREAMS: THE POLITICS AND ECONOMICS OF RACE IN AMERICA 112-15 (1994) (noting that what little black political power there is exists at the local, not the national level); HACKER, supra note 4, at 235-36 ("Many black Americans still complain that almost all of the people governing them are white .... Not only has every president of the United States been white, but at this writing so are every governor and all but one senator .... Indeed, there are still many black Americans who have yet to be represented by a person of their race at any governmental level."); REDISTRICTING IN THE 1990S: A GUIDE FOR MINORITY GROUPS 25-27, 37-41, 52 (William O. O'Hare ed., 1989) (describing underrepresentation of blacks and Hispanics throughout the United States); Richard L. Engstrom & Michael McDonald, The Election of Blacks to Southern City Councils: The Dominant Impact of Electoral Arrangements, in BLACKS IN SOUTHERN POLITICS 245, 255 (L. Moreland et al. eds., 1987) (finding a large degree of minority underrepresentation in Southern municipalities); For an extensive discussion of minority representation in the South, see QUIET REVOLUTION IN THE SOUTH (Chandler Davidson & Bernard Grofman eds., 1994). It is important to note, however, that section 2 of the Voting Rights Act is not an affirmative action statute, but a means to ensure that all voters have fair and equal access to the political system. Cf. Shaw v. Reno, 509 U.S. 630, 675 (1993) (White, J., dissenting).
[S]tate efforts to remedy minority vote dilution are wholly unlike what has been labeled "affirmative action." To the extent that no other racial group is injured, remedying a Voting Rights Act violation does not involve preferential treatment.... It involves, instead, an attempt to equalize treatment, and to provide minority voters with an effective voice in the political process.
Id.; see also Bernard Grofman, Would Vince Lombardi Have Been Right If He Had Said: "When It Comes to Redistricting, Race Isn't Everything, It's the Only Thing?", 14 CARDOZO L. REV. 1237, 1247 (1993) (noting that voting rights remedies cannot be characterized as "affirmative action" because they emphasize equal treatment, not that "the claims of minorities are given more weight than those of identically situated whites"); Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different, 84 CAL. L. REV. 1201, 1202 (1996) ("[T]he Court's attempt to integrate voting rights law into its more general approach to affirmative action is both misguided and incoherent."); James Thomas Tucker, Affirmative Action and [Mis]representation: Reclaiming the Civil Rights Vision of the Right to Vote (forthcoming 1999) (on file with author) (criticizing the obstructionist tactics of opponents of minority voting rights to label efforts to secure equal minority participation in the political process as "affirmative action"). But see S. REP. NO. 417, at 232 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 402 (additional views of Sen. East) (arguing that section 2's disclaimer on the right to proportional representation will be ineffective because "analogous disclaimer language contained in Title VII has not prevented courts from using affirmative action as a remedy"); see also id. at 92-93, reprinted in 1982 U.S.C.C.A.N. at 266 (additional views of Sen. Thurmond) (finding it "difficult ... to believe" that the "constructive effort" required under the 1982 amendments to the bailout provisions of the Act is "intended to be employed as anything other than a vehicle to promote 'affirmative action' principles of civil rights of the voting process"); ANDREW KULL, THE COLOR- BLIND CONSTITUTION 181 (1992) (describing how the guarantee of voting rights to minorities has shifted to a guarantee of fair results); Anthony A. Peacock, Shaw v. Reno %iand the Voting Rights Conundrum: Equality, The Public Interest, and the Politics of Representation, in AFFIRMATIVE ACTION AND REPRESENTATION: Shaw v. Reno%i and the Future of Voting Rights 127, 151 (Anthony A. Peacock ed., 1997) [hereinafter Affirmative Action and Representation] (indicating that, in the wake of the 1982 amendments to section 2, "the VRA had become an unequivocal tool of affirmative action"); Abigail Thernstrom, Voting Rights: Another Affirmative Action Mess, 43 UCLA L. Rev. 2031, 2031 (1996) (asserting that protection of minority voting rights is nothing more than an attempt to "provide maximum protection for minority candidates from white competition").
FN8. See infra note 240 (discussing whether the right to vote is an individual right, a group right, or both).
FN9. See generally Chandler Davidson, The Voting Rights Act: A Brief History, in CONTROVERSIES IN MINORITY VOTING: THE VOTING RIGHTS ACT IN PERSPECTIVE 24 (Bernard Grofman & Chandler Davidson eds., 1992) [hereinafter CONTROVERSIES IN MINORITY VOTING] ("Ethnic or racial minority vote dilution may be defined as a process whereby election laws or practices, either singly or in concert, combine with systematic bloc voting among an identifiable majority group to diminish or cancel the voting strength of at least one minority group.").
FN10. See infra notes 264-66, 295-300 and accompanying text (discussing the "majoritarian default" position, whereby failing to address an issue in order to avoid making difficult value choices is itself a substantive decision).
FN11. 42 U.S.C. § 1973 (1994); see infra notes 507-80 and accompanying text.
FN12. 509 U.S. 630 (1993).
FN13. See infra notes 674-84 and accompanying text.
FN14. See Bush v. Vera, 517 U.S. 952, 969-76 (1996); Miller v. Johnson, 515 U.S. 900, 922-27 (1995); see also Holder v. Hall, 512 U.S. 874, 905 (1994) (Thomas, J., concurring) (criticizing "the currently fashionable mechanism of drawing majority-minority single-member districts" which have been "aptly characterized as a process of 'creating racially "safe boroughs.""' (quoting United States v. Dallas County Comm'n, 850 F.2d 1433, 1444 (11th Cir. 1988) (Hill, J., concurring specially))). Some commentators agree with the Court. See Timothy G. O'Rourke, Shaw v. Reno: The Shape of Things to Come, in AFFIRMATIVE ACTION AND REPRESENTATION, supra note 7, at 69- 73, 93; Abigail Thernstrom, More Notes from a Political Thicket, in AFFIRMATIVE ACTION AND REPRESENTATION, supra note 7, at 108-12, 115-16. But see Bernard Grofman, The Supreme Court, The Voting Rights Act, and Minority Representation, in AFFIRMATIVE ACTION AND REPRESENTATION, supra note 7, at 190-91 (stating that the claim that the Justice Department has engaged in a policy of maximizing minority electoral success is mistaken and the "bleaching" argument-that the Department has sought to use majority-minority districts to advance Republican interests-is rebutted by the enforcement policies under the Clinton administration).
FN15. 512 U.S. at 905 (Thomas, J., concurring).
FN16. Some writers question, however, whether black electoral success actually translates into true political empowerment. They instead argue that isolated electoral success simply might alter the location of disenfranchisement from the ballot box to the legislature. See, e.g., LANI GUINIER, THE TYRANNY OF THE MAJORITY 117-18 (1994); Pamela S. Karlan, Undoing the Right Thing: Single- Member Offices and the Voting Rights Act, 77 VA. L. REV. 1, 41-43 (1991); discussion infra notes 457-506 and accompanying text. During the debates on passage of the Fifteenth Amendment, Thaddeus Stevens recognized that giving blacks the unimpeded right to cast ballots and elect candidates neither guaranteed they would be protected from white hostility nor ensured their economic prosperity. See infra note 182; cf. infra note 20 (discussing whether electoral success leads to beneficial outcomes).
FN17. See Bill Rankin, Perspective: Electoral Districts and the Courts-An Act Under Attack, ATLANTA J. & CONST., June 8, 1997, at G6; see also QUIET REVOLUTION IN THE SOUTH, supra note 7, at 383-86 (outlining the impact of the Voting Rights Act); Chandler Davidson, The Voting Rights Act: A Brief History, in CONTROVERSIES IN MINORITY VOTING, supra note 9, at 42-44 (describing increases in minority voter registration and officeholding after passage of the Voting Rights Act); Laughlin McDonald, The Counterrevolution in Minority Voting Rights, 65 MISS. L.J. 271, 271-72 (1995) (outlining the impact of the Voting Rights Act); Frank R. Parker, The Constitutionality of Racial Redistricting: A Critique of Shaw v. Reno, 3 D.C. L. REV. 1, 2-6 (1995) (discussing increases in minority representation after the 1990 Census).
FN18. Gray v. Sanders, 372 U.S. 368, 381 (1963); see also supra note 314 and accompanying text (discussing what "one person, one vote" seems to guarantee); cf. discussion infra notes 293-325 and accompanying text (identifying what the Court has concluded "one person, one vote" actually guarantees).
FN19. The question of whether black electoral success has led to beneficial outcomes for the black community has been debated widely. Black Americans often have maintained the "conviction that through politics they could influence government to act to improve their social and economic status." Milton D. Morris, Black Electoral Participation and the Distribution of Political Benefits, in THE RIGHT TO VOTE, reprinted in MINORITY VOTE DILUTION 271, 271-85 (Chandler Davidson ed., 1989). Many commentators have found that substantive benefits in fact do flow to the black community. See, e.g., RUFUS P. BROWNING ET AL., PROTEST IS NOT ENOUGH: THE STRUGGLE OF BLACKS AND HISPANICS FOR EQUALITY IN URBAN POLITICS (1984); JAMES W. BUTTON, BLACKS AND SOCIAL CHANGE: IMPACT OF THE CIVIL RIGHTS MOVEMENT IN SOUTHERN COMMUNITIES 15-26 (1989); Laughlin McDonald, The Quiet Revolution in Minority Voting Rights, 42 VAND. L. REV. 1249, 1277-79 (1989). Some judges have reached similar conclusions. See generally Johnson v. Mortham, 926 F. Supp. 1460, 1499-502 (N.D. Fla. 1996) (three judge panel) (Hatchett, J., dissenting) (discussing the many benefits to the black and white communities of north central Florida which resulted from Congresswoman Corrine Brown's representation in a majority- minority district); Hays v. Louisiana, 862 F. Supp. 119, 128 (W.D. La. 1994) (three judge panel) (Shaw, J., concurring) (noting "the great benefits that are derived by an increase in minority representation in government"), vacated, 515 U.S. 737 (1995). On the other hand, many scholars disagree, finding that black electoral success does not always translate into "substantive representation," i.e., a situation in which "tangible policy and other benefits [are secured] for minority voters." Richard H. Pildes & Kristen Donoghue, Cumulative Voting in the United States, 1995 U. CHI. LEGAL F. 241, 277 (1995). For examples of such conclusions, see PETER APPLEBOME, DIXIE RISING (1996); Ankur J. Goel et al., Comment, Black Neighborhoods Becoming Black Cities: Group Empowerment, Local Control, and the Implication of Being Darker Than Brown, 23 HARV. C.R.-C.L. L. REV. 415, 418 (1988) ("Traditional civil rights strategies sought equality for people of color through access to the dominant white culture, and were grounded in a vision of integration .... This concept of equality promoted integration at the expense of economic and political empowerment, and has been described as 'noneconomic liberalism."'); GUINIER, supra note 16, at 66-69 (critiquing the "responsiveness assumption" of black electoral success theory, whereby black voters are said to "gain substantive policy influence by electing racial compatriots with special attachment to and understanding of the black community and its distinctive interests"); Richard H. Pildes, The Politics of Race, 108 HARV. L. REV. 1359, 1382 (1995) (reviewing QUIET REVOLUTION IN THE SOUTH, supra note 7) (observing that in southern politics, as "the Black population reaches a critical mass, White voters begin to see Black participation as a credible threat; in reaction, White voters band together and develop more conservative preferences").
FN20. There has been extensive debate over whether the narrowed scope of voting rights claims actually will diminish the electoral success of minority candidates and flow of benefits to minority communities. Professor Carol Swain believes it will not:
Voting rights activists, I believe, have overstated their case against the Court. African-Americans and Hispanics have not been harmed by the Court's redistricting decisions. Despite dire predictions to the contrary, Congress has not been "bleach[ed]." Minority legislators, in fact, performed much better than was predicted during the 1996 elections, as black Democrats who stood for reelection in invalidated districts were returned to office by respectable margins.
Carol M. Swain, Not "Wrongful" by Any Means: The Court's Decisions in the Redistricting Cases, 34 HOUS. L. REV. 315, 318-19 (1997); accord Abigail Thernstrom, More Notes from a Political Thicket, in AFFIRMATIVE ACTION AND REPRESENTATION, supra note 7, at 117-21 (describing the argument that "[b]lack candidates cannot get elected in majority-white settings" as "bleak and wrong," and pointing to black electoral success). Conversely, some scholars have argued that the strong showing of minority candidates in the 1996 elections was more a product of incumbency and high voter turnout by voters from the candidates' own constituencies, and does not accurately reflect the need for continued judicial protection of minority voting rights. See Clarence Page, Results are Deceptive in Redrawn Black Districts, HOUS. CHRON., Dec. 1, 1996, at 3; see also Bernard Grofman, The Supreme Court, The Voting Rights Act, and Minority Representation, in AFFIRMATIVE ACTION AND REPRESENTATION, supra note 7, at 195-99 (summarizing statistics to rebut arguments by Swain and Thernstrom that minority districts are unnecessary); Bernard Grofman & Lisa Handley, 1990s Issues in Voting Rights, 65 MISS. L.J. 205, 248-57 (1995) (analyzing statistics to rebut arguments by Swain and Thernstrom that minority districts no longer are necessary). For additional discussion of the potential impact of Shaw v. Reno and other recent voting rights decisions on minority representation, see generally Timothy G. O'Rourke, Shaw v. Reno: The Shape of Things to Come, in AFFIRMATIVE ACTION AND REPRESENTATION, supra note 7, at 45-48.
FN21. Colegrove v. Green, 328 U.S. 549, 556 (1946).
FN22. See infra notes 322-23 and accompanying text.
FN23. Reynolds v. Sims, 377 U.S. 533, 565-66 (1964).
FN24. Cf. Bruce E. Cain, Voting Rights and Democratic Theory: Toward a Color- Blind Society?, in CONTROVERSIES IN MINORITY VOTING, supra note 9, at 262 ("[T]he voting rights controversy is really another variant of a long-standing dilemma in democratic theory: How should minority rights be balanced against the majority will in a system of government that derives its legitimacy from the consent of the governed?").
FN25. Justice Thomas perhaps best articulated this discomfort in Holder v. Hall, 512 U.S. 874 (1994). See infra notes 591-629 and accompanying text; see also infra note 322 (collecting citations of justices who have criticized the Court for engaging in matters of democratic theory in the "one person, one vote" cases).
FN26. As John Agresto has observed, there is a "great paradox regarding judicial review": Citizens trust the Court to apply basic constitutional principles "to work out our present and our future in terms of our inheritance from the past. But that selfsame power contains within it the most serious of potential dangers, the possibility that the judiciary will substitute its principles for the Constitution's, and then actively enforce its visions autonomously and unchecked." JOHN AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY 156-57 (1984).
FN27. See infra notes 581-848 and accompanying text (discussing reliance of federal courts on majoritarian default instead of the constitutional conception of democracy). In the context of section 2, this position is particularly perverse. Many members of the Court have rejected a constitutional conception of voting rights in order to avoid advancing a democratic theory. See supra note 25 and accompanying text. However, the Court also has rejected a majoritarian conception of voting rights by disregarding the democratic theory advanced by Congress in the amended section 2. See infra notes 591-712 and accompanying text.
FN28. See infra notes 293-506, 591-712 and accompanying text.
FN29. See Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973 (1994)); infra notes 507-80 and accompanying text.
FN30. S. REP. NO. 417, at 36 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 214.
FN31. See infra notes 48-280 and accompanying text.
FN32. See infra note 71 and accompanying text.
FN33. See infra notes 61-207 and accompanying text.
FN34. See infra notes 208-80 and accompanying text.
FN35. See infra notes 347-84 and accompanying text.
FN36. See infra notes 385-418 and accompanying text.
FN37. See infra notes 419-46 and accompanying text.
FN38. See infra notes 447-56 and accompanying text.
FN39. See infra notes 457-506 and accompanying text.
FN40. See infra note 551 and accompanying text.
FN41. See infra notes 545-59 and accompanying text.
FN42. 478 U.S. 30 (1986).
FN43. 509 U.S. 630, 652 (1993).
FN44. These decisions include, among others, Judge Higginbotham's majority opinion in League of United Latin American Citizens, Council No. 4434 v. Clements ("LULAC II"), 999 F.2d 831 (5th Cir. 1993) (en banc) (rejecting section 2 claim because minority group's electoral losses were attributable to "partisan politics"), cert. denied, 510 U.S. 1071 (1994), and Judge Tjoflat's opinions in both Solomon v. Liberty County, Florida, 899 F.2d 1012 (11th Cir. 1990) (en banc) (per curiam decision of court evenly divided on the proper standards for analyzing a section 2 vote dilution claim), cert. denied, 498 U.S. 1023 (1991), and Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc) (holding that the state's interest in maintaining its judicial election system precluded implementation of remedies for any section 2 violations that had occurred), cert. denied, 514 U.S. 1083 (1995).
FN45. Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960).
FN46. Cf. GUINIER, supra note 16, at 3 ("The tyranny of the majority, according to Madison, requires safeguards to protect 'one part of the society against the injustice of the other part."'); see also THE FEDERALIST NO. 10, at 78-84 (James Madison) (Clinton Rossiter ed., 1961) (discussing ways to control the tyranny of factions). For an interesting discussion of the Court's citations to The Federalist Papers in its decisions, see Buckner F. Melton, Jr., The Supreme Court and The Federalist: A Citation List and Analysis, 85 Ky. L.J. 243 (1996-1997).
FN47. 42 U.S.C. § 1973(b) (1994) (emphasis added). As outlined in notes 507-80 and accompanying text, infra, this language shows that section 2 covers two distinct areas. First, it protects the rights of groups of voters to have a fair opportunity to select the representatives of their choice. Second, it guards against attempts by the majority to deny groups fair and effective participation through parliamentary processes that undercut their representation.
As a world leader emphasizing the need for international relations grounded upon democracy and human rights, the United States has yet to face the dilemma of how to deal with its own past and its most egregious historical injustices, an obvious example being the legacy of slavery. [FN1]
The current state of race relations in America is charged with vigorous debates over the utility of a formal apology for slavery [FN2] and the appropriate fate of affirmative action, [FN3] as well as vivid reminders of past civil- and government-sanctioned transgressions against African Americans. [FN4] The enslavement of Africans in America from 1619 to 1865 is one of the most callous, vexatious, near-genocidal violations of human rights in world history; [FN5] that history is buried in the conscience of this Nation. [FN6] The legacy of slavery in America is marked by the continued marginalization of African Americans within the firmly rooted, self- perpetuating economic caste system that is this Nation's foundation. [FN7]
President Clinton has a vision of America becoming "the world's first truly multiracial, multiethnic, multireligious democracy," so that we as a Nation will be "better positioned . . . to lead the world toward peace and freedom and prosperity" in the twenty-first century. [FN8] To that end, the President has commissioned the "President's Advisory Board on Race" to examine how we can end the racial divide that still pervades the Nation more than three decades after the end of overt, systemic discrimination and Jim Crow laws. [FN9] The order provides that the board shall advise the President on matters involving race and racial reconciliation, including ways in which the President can: (1) Promote a constructive national dialogue to confront and work through challenging issues that surround race; (2) Increase the Nation's understanding of our recent history of race relations and the course our Nation is charting on issues of race relations and racial diversity; (3) Bridge racial divides by encouraging leaders in communities throughout the Nation to develop and implement innovative approaches to calming racial tensions; [and] (4) Identify, develop, and implement solutions to problems in areas in which race has a substantial impact, such as education, economic opportunity, housing, health care, and the administration of justice. [FN10]
That agenda echoes the famous I Have A Dream speech in which Martin Luther King, Jr. painted his vision for a harmonious multiracial, multiethnic, and multireligious American democracy. [FN11] That was three and one-half decades ago, and still, America is far from reaching a true equal-access democracy in which every individual enjoys full citizenship [FN12] and equal opportunity. [FN13] "If we can finally achieve [that] multicultural balance, America would unquestionably be perceived as the moral leader of a world characterized by intranational ethnic dissension and oppression." [FN14]
In recent years, however, many have interpreted the very protections that were enacted to alleviate systemic racial discrimination against disadvantaged minority groups [FN15]--namely, the Fourteenth Amendment and Title VII--in a way that threatens to eradicate progress. [FN16] California's Proposition 209, [FN17] which succeeded in amending the California Constitution, is spawning "copycat" legislation that ultimately may result in the demise of government affirmative action. [FN18] Some affirmative-action opponents justify their position by suggesting that the elimination of all race-preferential policies in favor of a strict meritocracy reflects King's ideal. [FN19] Against the backdrop of race-neutral policy reasoning, President Clinton's vision conjures up images of the utopian America that we have not been able to achieve--images of an America where people are judged by the "content of their character" [FN20] and where we truly can all just get along. [FN21] A discussion of whether colorblindness is a necessary step to achieve equality, or whether colorblindness is even desirable as an end objective, is beyond the scope of this Comment. However, "assum[ing] that our goal is a color-blind society, whatever that really means," [FN22] the question is whether "requiring that people act in a color-blind manner [will] hasten the day when people actually think in a color-blind way in their socially and economically significant dealings with others." [FN23] The evidence suggests not. Despite some progress, "[e]conomic and social disadvantages remain powerfully linked with color, and this linkage exacts an enormous toll on the perception and reality of opportunity in America. Racial discrimination and race-based exclusion remain significant forces." [FN24]
Therefore, I submit that at least one prerequisite to resolving the dilemma of race relations in America is reparations for African Americans. The issue addressed in this Comment is whether legislative reparations are a justifiable remedy for African Americans, particularly in light of the imminent dismantling of affirmative action with Proposition 209 and the decisions that have followed. [FN25] Part I gives a brief overview of the quest for African American reparations since the end of slavery. Part II focuses on the continuing effects of slavery and systemic discrimination, and on the argument that continuing black and white inequities are rooted in such institutions. This Part discusses wealth as a measure of inequity to set the stage for determining damages and the appropriate compensation. Part III discusses why reparations are a prerequisite to an equitable society. In addition, Part III reflects on the "moral economy" incentive for granting reparations to African Americans. Part IV presents the rationale for a legislative remedy in the context of distributive justice. This section reviews the Civil Liberties Act as a precedent for race-based reparations, and discusses the arguments reconciling African American reparations and the Equal Protection Clause. Finally, Part V offers suggestions in answer to the who, what, and how of implementing an African American reparations scheme.
FN1. Elazar Barkan, Payback Time: Restitution and the Moral Economy of Nations, Tikkun, Sept.-Oct. 1996, at 52, 58.
FN2. See Paul Magnusson, A New Ground Zero in the Race Debate?, Bus. Wk., Sept. 22, 1997, at 10, 12 (reviewing Stephan Thernstrom & Abigail Thernstrom, America in Black and White: One Nation Indivisible (1997)) (questioning whether a formal apology for slavery will have a significant impact on race relations); Jonathan Alter, The Long Shadow of Slavery, Newsweek, Dec. 8, 1997, at 58, 62 (discussing the varying postures on a formal apology for slavery by the U.S. government); Nancy Mathis, Clinton Avoids Slavery Issue: President Asks Race Panel to Look at Education, Hous. Chron., Oct. 1, 1997, at 4 (reporting President Clinton's refusal to discuss the topic of a formal apology for slavery at the first meeting of his Advisory Board on Race).
FN3. "We are witnessing a broad-based assault on affirmative action--in the courts, the legislatures, and the media." Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953, 953 & nn.1-3 (1996) (footnotes omitted) (citing recent court cases, including Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), state and federal legislative efforts to repeal affirmative action, and negative press coverage of affirmative action that downplays continuing discrimination).
FN4. The media has played a key role in calling the Nation's attention to little-known or largely-forgotten incidents in the history of the African Holocaust through docudramas and movies. See, e.g., Amistad (DreamWorks SKG 1997) (portraying the uprising and subsequent trial of kidnapped Africans who revolted during their Middle Passage); Ghosts of Mississippi (Castle Rock Entertainment 1996) (portraying the delay in bringing the assassin of civil rights leader, Medgar Evers, to justice); Miss Evers' Boys (Home Box Office Films 1996) (portraying the victimization of African American men who were subjected to syphilis and left untreated as part of what has become known as the Tuskegee experiment); Rosewood (Peters Entertainment 1997) (portraying the destruction of a prosperous African American town in Florida and the massacre of its residents by a riotous white mob over the course of three days, without state action to control it). The Tuskegee experiment was a study of the effects of syphilis on untreated sufferers, conducted by the U.S. Public Health Service from 1932 to 1972. See James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment (new & expanded ed. 1993). The subjects were 399 African American men in Macon, Alabama, who were unknowingly subjected to the debilitating progression of syphilis into the 1960s, despite the fact that medical treatment was available and a cure had been found by 1947. See id. (telling the story of the Tuskegee syphilis experiment).
FN5. See John Hope Franklin & Alfred A. Moss, Jr., From Slavery to Freedom: A History of African Americans 56-197 (7th ed. 1994) (discussing American slavery from its inception to its end).
FN6. As one journalist puts it, "Slavery is such a gash in the national psyche that mainstream American culture rarely dares to touch it." Alter, supra note 2, at 60; see also supra note 4 (noting recent films dealing with the little- known and often-forgotten plight of African Americans).
FN7. See Vincene Verdun, If the Shoe Fits Wear It: An Analysis of Reparations to African Americans, 67 Tul. L. Rev. 597, 640 (1993) ("When slavery ended, it was replaced by a caste system designed to maintain the status quo of...white supremacy. The caste system was supported by state and local laws, the courts, the Constitution as interpreted by the Supreme Court in Plessy v. Ferguson, and the American people." (footnotes omitted)). But cf. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) ("There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens."), overruled by Brown v. Board of Educ., 347 U.S. 483 (1954). See generally Eric Foner, Politics and Ideology in the Age of the Civil War 10-11 (1980) (noting the centrality of slavery to the American experience, including the American Revolution and industrial expansion); infra text accompanying notes 147-51 (noting illustrations of the exclusion of African Americans).
FN8. President William J. Clinton, Remarks at the New England Presidential Luncheon, in Boston, Mass. (June 30, 1997), available in 1997 WL 10085085.
FN9. See Exec. Order No. 13,050, 3 C.F.R 207, 207-08 (1997) (establishing the President's Advisory Board on Race).
FN10. Id. at 207 (emphasis added).
FN11. See Martin Luther King Jr., Keynote Address of the March on Washington, D.C. for Civil Rights (Aug. 28, 1963), in I Have A Dream: Writings and Speeches That Changed the World 101, 105-06 (James Melvin Washington ed., 1992) ("[W]e will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood.... [A]ll of God's children--black men and white men, Jews and Gentiles, Catholics and Protestants--will be able to join hands ...."). The march marked the centennial of the Emancipation Proclamation.
FN12. The concept of full citizenship may be familiar, and yet unclear. See Talcott Parsons, Full Citizenship for the Negro American?: A Sociological Problem, 94 Daedalus 1009, 1009 (1965), reprinted in 1 Race, Law, and American History 1700-1990: The African American Experience 423, 423 (1992) ( "As the British sociologist T.H. Marshall has shown with particular clarity, citizenship is a complicated matter which is by no means exhausted by the more literal meanings of the term 'civil rights."' (footnote omitted)). For clarification of the term "full citizenship" for purposes of this Comment, see infra Part II.C.
FN13. See Luke Charles Harris & Uma Narayan, Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11 Harv. BlackLetter J. 1, 4 (1994) (focusing "on considerations of equality and full citizenship as they relate to the rights of Blacks and other marginalized Americans"). Harris and Narayan argue that women and people of color "continue to face institutional obstacles to equal consideration and equal treatment. These obstacles include not only continuing forms of blatant racism and sexism, but, more importantly, a variety of subtle institutional practices that impede equal opportunity ...." Id. at 17-18. Studies reflecting the imbalance of the white and black experience bear this out. See, e.g., infra notes 171-73 and accompanying text (discussing evidence of racial discrimination in employment, housing, and loans).
FN14. Rhonda V. Magee, The Master's Tools, from the Bottom Up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863, 874 (1993).
FN15. While the author acknowledges that American racial dynamics are not solely a matter of "black and white," the focus of this Comment is on African Americans. To that end, this Comment will discuss race relations in the context of the African American/white American experience.
FN16. See, e.g., Taxman v. Board of Educ., 91 F.3d 1547, 1550 (3d Cir. 1996) (holding that the school board's affirmative-action plan violated Title VII because the plan, which was adopted to promote diversity by retaining minority teachers where potential candidates for layoffs were equally qualified, was not remedial in nature). It seems only logical that the strides gained through remedial actions--in this case the hiring of more minority teachers--should be preservable by allowing some consideration of diversity during downsizing, when all else is equal. Anything less would result in either: (1) pretextual hiring, where employers hire minorities to remedy past discrimination, but lay-off or fire for what appears to be a nondiscriminatory reason; or (2) cyclical hiring, where employers layoff minority teachers without consideration of their numbers, necessitating later affirmative efforts to "re-remedy" by hiring more minority teachers.
FN17. California's Proposition 209 provides, in part, that:
(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
....
(f) For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state. (g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.
Cal. Const. art. 1, § 31. Ironically titled the 1995 Civil Rights Initiative, this state legislation effectively eliminates the use of affirmative-action programs by California state institutions.
FN18. See Equal Opportunity Act of 1995, H.R. 2128, 104th Cong. (1995) (prohibiting "discrimination and preferential treatment on the basis of race, color, national origin, or sex with respect to Federal employment, contracts and programs, and for other purposes"); Sturm & Guinier, supra note 3, at 953 n.2 (noting the efforts of the Illinois, Georgia, and Pennsylvania state legislatures "to end race and gender preferences"). As government affirmative action declines, so too does private sector affirmative action. A recent disclosure of blatant discriminatory animus within the upper echelons of Texaco is illustrative:
This particular company's management structure has also been impervious to its previously stated diversity goals. One mid-level manager in Houston, when informed of a Black employee's discrimination complaint, replied, "I'd fire her Black a[**]." Informed that this was illegal, the manager sniffed, "I guess we treat niggers differently down here." That exchange was contained in an affidavit filed in federal court.
John William Templeton, Texaco Settlement Doesn't Settle the Underlying Power of Imbalance, Wash. Afro-Am., Nov. 30, 1996, at A5.
FN19. See Equal Opportunity Act of 1995: Hearing on H.R. 2128 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 17 (1995) [hereinafter Hearing on H.R. 2128] (statement of Rep. Susan Molinari) ("Our country has long believed that people should be measured on their own merit, not because of their skin color or sex."); see also Certain Trumpet Program, Talking Back: Framing Memo: The Affirmative Action Debate A4 (Sept. 1996) (identifying the I Have A Dream speech as a metaphor for the anti- affirmative-action position in favor of a color-blind society); Christopher Edley, Jr., Not All Black and White: Affirmative Action, Race, and American Values 84 (1996) ("Critics of race-conscious measures often invoke Martin Luther King, Jr.'s 'content of their character' passage in urging that we hasten the realization of a color-blind society by insisting on color-blind practices now ....").
Ironically, or perhaps not, those recalling this speech often overlook King's symbolic reference to America giving "the Negro people a bad check; a check which has come back marked 'insufficient funds,"' which followed his likening of the Declaration of Independence to a promissory note. King, supra note 11, at 102. Although the reference to a payment of debt may have been symbolic, Verdun argues that "King made the reference to the 'bad check' in a historical context which carries the clear inference that the check was for historical wrongs." Verdun, supra note 7, at 604 n.21. King's frequent references to the American dream in other speeches were "directed mainly to the white public--the federal government, southern moderates, northern liberals, and religious communities--because he believed they had the material resources and the moral capacity to create a world based on the principles that they claimed to live by." James H. Cone, Martin & Malcolm & America: A Dream or a Nightmare? 67 (1991). King concluded "that without economic justice, the right to a job or income, talk about 'life liberty, and the pursuit of happiness' was nothing but a figment of one's political imagination." Id. at 223.
FN20. King, supra note 11, at 104.
FN21. Following the outbreak of the 1992 race riots in Los Angeles, Rodney King asked in striking simplicity: "Can't we get along? Can't we all just get along?" Matthew Dallek, After L.A., Hope Does Exist, S.F. Examiner, June 18, 1992, at A19, available in 1992 WL 7582730.
FN22. Edley, supra note 19, at 82.
FN23. Id. at 81-82.
FN24. Id. at 71.
FN25. See Coalition for Econ.
Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (challenging, but failing
to stop, the enactment of Article 1, § 31 of the California Constitution
(Proposition 209) on the grounds that it denied equal protection and conflicted
with federal civil rights statutes); see also Cal. Const. art. 1, §
31 ("The state shall not discriminate against, or grant preferential treatment
to, any individual or group on the basis of race, sex, color, ethnicity,
or national origin in the operation of public employment, public education,
or public contracting."); Hopwood v. Texas, 78 F. 3d 932 (5th Cir. 1996)
(holding that the use of race as a factor in law school admissions in favor
of increasing minority enrollment violates the 14th Amendment).
In One Nation Indivisible: How Ethnic Separatism Threatens America, J. Harvie Wilkinson III, chief judge of the U.S. Fourth Circuit Court of Appeals, offers a troubling vision of America in the 21st century. He sees a nation divided by rival racial and ethnic groups, each with its own agenda, each seeking government favor, each claiming its unique victimhood. The harbinger of this crisis is the trend toward self-segregation, a view of the American dream that puts race and ethnicity above national interests.
Judge Wilkinson believes the forces of separatism are being aided by an unlikely ally: our national civil rights policy. He argues that measures meant to overcome discrimination against black Americans now serve to undermine the goals of integration and equality of opportunity. Civil rights remedies forged since Brown v. Board of Education [FN1] set the standard for school integration have been counterproductive and encourage pursuit of narrow racial and ethnic self-interests.
This turn of events, Wilkinson asserts, is the result of significant changes in the country's demographics in recent years. He believes the problem has been exacerbated by the influx of immigrants who have entered the country since landmark legislation in 1965 signaled a shift in immigration policy from a national quota system to one based on family preference and occupational qualifications. As a consequence, fewer Europeans and more Asians and Latin Americans have been admitted. The decade of the 1980s was only one of four in our nation's history when immigration accounted for at least a 30 percent growth in population. California alone accepts more immigrants than any other nation in the world. Of the almost one million immigrants who become permanent residents in the United States each year, 80 percent are from Asia, the Pacific islands, and Latin America. The result is what Wilkinson calls "New America"--a melange of multi-culturalism, multi-ethnicity, and multi-racialism. Laws meant to end discrimination by whites against blacks now create lasting enmities among other minorities who feel discriminated against in favor of African- Americans, and who believe the same laws should be available to them to consolidate their positions in American political and social life.
To deter this trend toward separatism, Judge Wilkinson advocates returning to the integrative ideal of Brown v. Board of Education and rejecting race-based affirmative action measures and legislative reapportionment practices that create "safe" minority seats. He cites as an example of the promotion of divisive interests Johnson v. De Grandy, [FN2] which construed section 2 of the Voting Rights Act of 1965. The U.S. Supreme Court used a "totality of the circumstances" test to determine whether Florida's legislative redistricting plan met the requirements of the act, but left intact as part of the test the concept of "proportionality," which means that the proportion of districts in which there is a majority of minority-group voters must closely approximate the percentage of the minority group in the relevant jurisdiction as a whole. Wilkinson criticizes this concept because it "requires that we look at American voters not as individuals, but as members of racial voting blocs" (p. 104). Proportionality is "a dangerous prescription for New America" (p. 107) because it pits minority groups against each other in the clamor for safe districts and discourages Americans from working together to unite behind common goals.
As an antidote, Wilkinson cites Miller v. Johnson, [FN3] where the Supreme Court struck down Georgia's congressional redistricting plan, which had drawn a district to ensure a majority black vote. The ruling left the black incumbent to run in a primary where African-Americans of voting age comprised only 33 percent of the district's population. Although predictions in the black community were dire, the incumbent was re-elected. Afterward she was quoted as saying, "We put together the kind of campaign that transcends race" (p. 111), something Wilkinson believes she would not have done if the majority of voters in the district were of her race, so the integrative ideal was served. He sees the Miller decision as groundbreaking for its prohibition of race as the predominant factor in redistricting. Race-based redistricting "is a far cry from the dream of Brown. State-sponsored electoral enclaves seem a species of segregation, which has more in common with Brown's predecessor, Plessy. [FN4] It is wrong for legislators to arrive in office as representatives of races rather than as champions of American citizens. In bestowing upon elected officials a racial power base, the law encourages political leaders to accentuate the role of racial differences in America and to maintain the racial solidarity of their followings. Thus it is a separatist political future that we face" (p. 117).
Affirmative action plans in education fare no better in Wilkinson's opinion. They substitute one form of discrimination for another. He cites the experience of Asian-American applicants to the University of California at Berkeley who were rejected in favor of less qualified blacks and Hispanics, and of Cheryl Hopwood, who was refused admission by the University of Texas Law School on the basis of a quota system, as examples of affirmative action run amok. He lauds the Fifth Circuit for reversing the law school's decision. [FN5]
Wilkinson is especially critical of affirmative action plans for their implicit class discrimination, since upper class blacks benefit more from them than people from disadvantaged backgrounds. "Why has the class-based separatism of affirmative action not attracted more attention? Why should not efforts based on a race-neutral concept of disadvantage attract greater support? Disadvantaged Americans who have overcome socioeconomic obstacles merit consideration not because of their race but because of, among other things, their determination and perseverance. An approach that concerns itself with disadvantaged individuals does not suffer the drawbacks of traditional race- based action such as injustice to dispreferred groups, stigmatization of preferred ones, and flagrant race-consciousness" (p. 135).
He considers laws making English the official language of government useful tools in the fight against separatism. Arizona enacted such a measure but went further than most, requiring state employees to use English in their official duties. A Spanish-speaking bilingual employee challenged the law, and the Ninth Circuit found the requirement unconstitutional. [FN6] Judge Wilkinson disagrees with the ruling for reasons articulated by dissenting Judge Ferdinand Fernandez, who said the court "had come perilously close to embracing three astonishing propositions: (1) that the state had no right to choose the language in which state business can be conducted; (2) that [the plaintiff's] use of 'a language of her choice to perform the State's business cannot be restricted'; and (3) that a member of the general public has 'a constitutional right to have the State provide services in [a] particular language.' In short, the Ninth Circuit majority had set in motion deeply separatist tendencies" (p. 168).
Wilkinson also condemns the use of speech codes on college campuses, and asserts that they foreclose meaningful dialogue about race and ethnicity. "[T]hey reflect the understandable impulse to forcefully condemn the racists in our midst. But stifling speech has always been a chancy form of surgery. For every interracial insult that a speech code excises, it may cut short ten worthwhile interracial conversations" (p. 174). While "political correctness" may heighten sensitivity to unintended slurs, Wilkinson views it as ultimately negative. He would opt for a more open approach. "Achieving multiethnic understanding is a process of trial and error and entails misunderstandings along the way. Indeed, cultural interaction may be analogized to interpersonal communication, whose solidity is seldom enhanced by sweeping every sensitive issue out of sight" (p. 181).
Laws and policies that encourage separatism enshrine two principles dangerous to national unity: that "race is a premier civic credential, to be ranked right alongside the credential of American citizenship," and that "race should define the boundaries of representation in our democratic system" (p. 186). If we embrace those principles, Wilkinson asserts, we will cease to speak as a nation with one voice. As examples of the consequences of separatist politics, he invites our attention to Quebec's efforts to secede from Canada and to Europe's trouble-plagued path toward economic union.
Three 1995 U.S. Supreme Court decisions point the way out of the separatist abyss, in Wilkinson's view: Miller v. Johnson, [FN7] declaring unconstitutional Georgia's race-based congressional redistricting plan; Adarand Constructors v. Pena, [FN8] subjecting minority set-asides in government contracts to the strictest constitutional scrutiny, and condemning racial classifications in federal and state programs; and Missouri v. Jenkins, [FN9] declaring unconstitutional Kansas City's school desegregation plan for improperly including a racial balancing scheme, when its goal should have been only to "restor[e] the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct" (pp. 57-58). These decisions offer what Wilkinson considers to be a racially neutral course for the future, one that will counteract the drift toward separatism.
Almost daily, the news offers proof that America is not color-blind and that there is little about it that is race neutral. Self-segregation by race or ethnicity has a strong appeal, perhaps greater for many than the integrative ideal Wilkinson espouses. One Nation Indivisible may be troubling to some who see the promise of a country free from the vestiges of racial discrimination as unfulfilled. They will not, however, leave the book feeling as confident as when they started it as to the best means to fulfill this promise.
FN1. Brown I, 347 U.S. 483 (1954); Brown II, 349 U.S. 294 (1955).
FN2. 512 U.S. 997 (1994).
FN3. 515 U.S. 900 (1995).
FN4. 163 U.S. 537 (1896).
FN5. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996).
FN6. Yniguez v. Arizonians for Official English, 69 F.3d 920 (9th Cir. 1995), vacated and remanded, 520 U.S. 43 (1997) (lack of standing and mootness).
FN7. Note 3, supra.
FN8. 515 U.S. 200 (1995).
FN9. 515 U.S. 70 (1995).
Britain, with an army to enforce her tyranny, has declared, that she has a right (not only to tax) but "to bind us in all cases whatsoever," and if being bound in that manner is not slavery, then there is not such a thing as slavery upon earth. Even the expression is impious; for so unlimited a power can belong only to God.
--Thomas Paine [FN1]
This District had been a part of the States of Maryland and Virginia. It had been subject to the Constitution, and was a part of the United States. The Constitution had attached to it irrevocably. There are steps which can never be taken backward.... The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution.
-- Justice Sutherland, O'Donoghue v. United States [FN2]
No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.
-- Justice Black, Wesberry v. Sanders [FN3]
Do American citizens have a right to vote for representatives to Congress and their state and local legislative institutions? This question goes to the very character of our Constitution, but it is more than academic in the nation's capital. Today, more than 500,000 citizens living in the District of Columbia [FN4] have no voting representation in the United States Senate or the United States House of Representatives, and little prospect of achieving representation in either through political channels. [FN5]
Thus far, attempts to secure representation for District residents through litigation have failed. In Loughborough v. Blake, [FN6] the Supreme Court affirmed Congress' power to impose a direct federal tax on the District, refuting the principle of the American Revolution that called for "no taxation without representation" and rejecting the analogy between taxation of the disenfranchised colonists and taxation of disenfranchised Washingtonians. [FN7] Similarly, the courts have rejected claims that the establishment of an unelected local government in the District is unconstitutional because it constitutes discriminatory disenfranchisement in violation of the Fifteenth Amendment. [FN8] Still, despite the failure of previous constitutional challenges to congressional control, a strong equal protection argument is still available to District residents disenfranchised under the current regime.
The denial of representation in Congress locks District residents not only out of their national legislature but also out of what is in a structural sense their state legislature. Article I of the Constitution commits to Congress "exclusive Legislation in all Cases whatsoever" over the District that is "the Seat of the Government of the United States," [FN9] and the courts have likened the relationship between Congress and District residents to that of the states and their people. [FN10] Thus, Americans living in the District are the only citizens of the United States today who have voting representation neither in Congress nor in their "state" legislative sovereign. [FN11] This break in the democratic fabric is exacerbated by recent congressional actions transferring most of the legislative power over District affairs from the District's "home rule" government to an unelected financial control board. [FN12]
Thus, as the twentieth century draws to a close, the District remains isolated from the normal practices of representative democracy. It is the glaring "anomaly in our system of government, where the lawmakers are chosen by others than those for whom they make the laws," as President John Tyler put it long ago. [FN13] I have argued elsewhere that the American polity has been characterized by progressive waves of inclusion and representation, a trend countered by the declining suffrage fortunes of noncitizens. [FN14] But the trend of suffrage expansion has mostly bypassed citizens living in the District, who have lost much ground since the Republic began. [FN15]
In both a theoretical and practical sense, the effective disenfranchisement of the District is the paradigm case testing whether all American citizens actually enjoy a right to vote and to be represented on equal terms. This apparently marginal or parochial issue takes on central importance for the meaning of American constitutional democracy. [FN16]
The regime of non-representation in the nation's capital depends on the pervasive assumption that disenfranchisement is structurally required or, at the very least, implied by the Constitution. This Article challenges that assumption, which misreads the terms and meanings of our Constitution. In fact, the political arrangements set by Congress for the District violate the essential norms of the Constitution, denying District residents an "equal part in political life" and an "equal stake in government." [FN17] If the Constitution was ever a political straitjacket that imposed inequality and domination on citizens, the modern Constitution is a freedom charter, the democratic social contract of, by, and for a sovereign people, including the people who live in the District of Columbia.
In Part I, I argue that the people living in the District belong to the constitutional community and that constitutional principles, including equal protection, must apply with full force to their rights.
In Part II, I propose an alternative means of challenging the District's non-representation in Congress: as a violation of the equal protection and due process rights of District citizens. I argue that the current regime violates the Constitution in the following three ways:
1. Denial of representation in Congress burdens the equal protection and due process rights of American citizens in the District to be popularly represented in Congress on the basis of one person--one vote without regard to geographic residence, a right established in Wesberry v. Sanders [FN18] and subsequent voting rights jurisprudence, as well as the correlative right to run for Congress;
2. Denial of representation in Congress burdens the right of American citizens living in the District to be represented in their own state legislature, which is Congress itself, on the basis of one person--one vote without regard to geographic residence, a right established in Reynolds v. Sims, [FN19] as well as their correlative right to run for state legislature;
3. Denial of representation in Congress to the sixty-six-percent-majority- African American population in the District not only suggests a belief in the unfitness of the population to participate equally in national life but creates the kind of "uncomfortable resemblance to political apartheid" that the Supreme Court condemned and invalidated in Shaw v. Reno. [FN20]
Because these propositions allege burdens on fundamental rights, they trigger strict scrutiny. In Part III, therefore, I consider the three kinds of rationales invoked for disenfranchising District residents to see whether they are indeed compelling: (1) those having to do with the distinctive political characteristics of the local population; (2) those having to do with the inherent incompatibility between voting by District residents and the District Clause and other constitutional provisions; and (3) those having to do with the specific federal interest in promoting efficient government in the District.
In Part IV, I consider the justiciability of these claims under the political question and standing doctrines of the Court. I assert that there is no political question here because denial of voting rights is a classically cognizable injury, and the District population's lack of access to political power virtually guarantees that its disenfranchisement will not be cured politically. District residents have standing because they have been concretely injured by congressional decisions and there are plainly remedies available.
Finally, in Part V, I close by arguing that the District's disenfranchisement provides the perfect opportunity for the Court to demonstrate that the progression of equal protection and First Amendment principles in the twentieth century has given us a truly democratic Constitution. Under this remade Constitution, we must read the structural provisions through the lens of democratic self-government that favors the equal voting rights of all people.
This Article is dedicated to the memory of Josephine Butler and David A. Clarke, two champions of democracy for citizens of the District. The author has received the benefit of the views of literally hundreds of persons but would like to give special thanks to Congresswoman Eleanor Holmes Norton and District of Columbia Council Chairman Linda Cropp for their invaluable support and assistance, Mark Plotkin and Councilman Kevin Chavous for their encouragement, Professor Peter Raven-Hansen for his incisive suggestions, and the Dean and faculty of the Washington College of Law.
FN1. THOMAS PAINE, THE AMERICAN CRISIS, NUMBER ONE (R. Carlile 1819).
FN2. 289 U.S. 516, 541 (1933) (quoting Downes v. Bidwell, 182 U.S. 244, 260-61 (1901)).
FN3. 376 U.S. 1, 17-18 (1964).
FN4. The 1990 Census counted close to 607,000 District of Columbia residents. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1997 at 47 tbl. 46 (1997).
FN5. District residents have never had representation in the U.S. Senate. Since 1970, they have been represented in the House by a delegate who has no vote on final passage of legislation, although she may vote in Committee. See 2 U.S.C. § 25a (1994) (providing that the District of Columbia shall be represented by a delegate to the House of Representatives). The delegate briefly won the right to vote in the House Committee of the Whole; a policy that withstood a vigorous legal challenge, but was ultimately revoked in 1995 when the Republicans took over leadership of the House. See Michel v. Anderson, 14 F.3d 623, 624-25 (D.C. Cir. 1994). District residents participate in a limited way in the selection of electors in the presidential electoral college. See U.S. CONST. amend. XXIII, § 1.
The District populace has been complaining about its subordinate status since the District was created in the eighteenth century. In 1800, the people "were so sensitive to the loss of ... political rights and privileges, they petitioned Congress upon the matter, using these words: 'We shall be reduced to that condition of which we pathetically complained in our charges against Great Britain."' JAMES HUGH KEELEY, SR., DEMOCRACY OR DESPOTISM IN THE AMERICAN CAPITAL 59 (1939). Protest has continued with more or less fervor to the present day and, since the 1960s, residents have made some gains. In 1961, the Constitution was amended to give District residents electoral college votes in presidential elections. See U.S. CONST. amend. XXIII. In 1970, Congress created the position of nonvoting delegate. See District of Columbia Delegate Act, Pub. L. No. 91-405, 84 Stat. 848 (1970) (codified in 2 U.S.C. § 25(a) (1988)). In more recent years, however, the momentum has been with the District's adversaries. In 1978, Congress passed the D.C. Voting Rights Amendment, which would have amended the Constitution to treat the District as though it were a state for purposes of federal representation, creating two U.S. senators and probably one congressperson. The amendment failed after being ratified by only 16 states within the seven-year statutory period. The District Council petitioned Congress for statehood on September 12, 1983, but nothing happened for a decade. The U.S. House of Representatives took a vote on the petition for statehood for New Columbia in 1993, but rejected it by a vote of 277-153. See 139 CONG. REC. H10,573-75 (daily ed. Nov. 21, 1993). The Senate never conducted hearings on the statehood bill. More recently, the population has seen even the modest home rule government shorn of its powers. See infra note 12 and accompanying text. The 1998 Almanac of American Politics summed up the prospects for democratic change in the District with depressing accuracy, asserting that statehood "is a dead cause, and self-government continues in form only." MICHAEL BARONE & GRANT UJIFUSA, THE ALMANAC OF AMERICAN POLITICS 333 (1998).
FN6. 18 U.S. (5 Wheat.) 317, 324 (1820).
FN7. See also Heald v. District of Columbia, 259 U.S. 114, 124 (1922) (affirming the dismissal of a claim which challenged a local tax statute "because it subject[ed] residents of the District to taxation without representation"); Gibbons v. District of Columbia, 116 U.S. 404 (1886) (upholding the power of Congress, as local state legislature for the District, to tax different classes of property at different rates).
FN8. See Hobson v. Tobriner, 255 F. Supp. 295 (D.D.C. 1966); see also Carliner v. Board of Comm'rs, 265 F. Supp. 736 (D.D.C. 1967).
FN9. U.S. CONST. art. I, § 8, cl. 17.
FN10. See discussion infra Part II.B.
FN11. The residents of the 50 states are represented in their state legislatures and, through the workings of Article I, in Congress. Residents of Puerto Rico, Guam, American Samoa, and the Virgin Islands are denied voting representation in Congress, as well as participation in the election of the president and vice-president. See Amber L. Cottle, Comment, Silent Citizens: United States Territorial Residents and the Right to Vote in Presidential Elections, 1995 U. CHI. LEGAL F. 315, 315-17 (1995). However, they do have the right to vote for their own legislatures. Congress does not govern any of these territories directly, as it does the District, although it retains plenary power over them. See id. at 316. A further difference is that residents of these territories are not taxed by the federal government, while District residents are. See U.S. CONST., art. I, § 8, cl. 1 (requiring that federal taxes be "uniform throughout the United States," but not the territories).
FN12. District residents presently have no voting representation in their four- year-old presidentially appointed local "control board," as it is popularly known, or in the Emergency Transitional Educational Board of Trustees. The control board was created by Congress in response to a series of intensifying fiscal and management crises in the District government. See District of Columbia Financial Responsibility and Management Assistance Act, Pub. L. No. 104-8, § 2(a), 109 Stat. 97, 98 (1995) [hereinafter DCFRA] (finding the District government in a "fiscal emergency," buffeted by "pervasive" mismanagement and unable to deliver "effective or efficient services" to residents). The National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. No. 105-33, §§ 11000-11723, 111 Stat. 251, 712-87 (1997), strengthened the DCFRA by transferring most of the powers of the Mayor and Council of the District of Columbia to the control board. Together, these acts of Congress effectively ended just over two decades of limited home rule for the District of Columbia.
On November 15, 1996, the control board issued an order creating an Emergency Transitional Education Board of Trustees and transferred most of the elected D.C. Board of Education's powers to the new body. This order was invalidated by the United States Court of Appeals for the District of Columbia Circuit, which ruled that the control board exceeded its assigned statutory powers by delegating away its authority over the public schools to a third party not the superintendent. See Shook v. District of Columbia Fin. Responsibility & Management Assistance Auth., 132 F.3d 775, 782-83 (D.C. Cir. 1998). This decision represents a small victory in the resistance to attempts by Congress and the Control Board to wrest away from District citizens the last remnants of home rule. See generally Stephen R. Cook, Comment, Tough Love in the District: Management Reform Under the District of Columbia Financial Responsibility and Management Assistance Act, 47 AM. U. L. REV. 993, 1015-18 (discussing the D.C. Circuit's opinion in Shook and the control board's response).
FN13. KEELEY, supra note 5, at 58.
FN14. See Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional, and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1392-93 (1993).
FN15. Before Maryland and Virginia ceded land to Congress to create the new District, its inhabitants voted as residents of those states. Even after the cession of the lands to Congress in 1791, residents continued to vote in Maryland or Virginia (depending on where they lived within the District) until 1800 when Congress took the reins of power and passed the first Organic Act. See Peter Raven-Hansen, The Constitutionality of D.C. Statehood, 60 GEO. WASH. L. REV. 160 (1991) [hereinafter Raven-Hansen, D.C. Statehood]. Thus, the original understanding was that District residents were part of what Gerald Neuman has called, in a different context, an "optional electorate." Gerald L. Neuman, "We Are the People": Alien Suffrage in German and American Perspective, 13 MICH. J. INT'L L. 259, 320 (1992). They could be allowed to vote in other states or, theoretically, their voting rights could be allowed to wither on the vine. In practice, by contrast, the District as a community has essentially gone two full centuries without having had a vote for members of Congress.
FN16. The idea that the current regime is unconstitutional has recently caught on. On July 12, 1998, the District of Columbia Corporation Counsel, John Ferren, submitted a Petition for Redress of Grievances demanding full voting rights with the leadership of both the House of Representatives and the Senate. See Petition for Redress and Grievances from John M. Ferren, District of Columbia Corporation Counsel to Congress (July 12, 1998) (on file with the Harvard Civil Rights-Civil Liberties Law Review). The House reacted by attaching a restriction to the D.C. appropriations bill forbidding the Corporation Counsel to expend any funds advocating or litigating on behalf of the voting rights of its constituents. Pub. L. 105-277. Undaunted, the Corporation Counsel, assisted by the Washington, D.C. law firm of Covington and Burling and this author, filed suit in the U.S. District Court for the District of Columbia on September 18, 1998, seeking injunctive relief against various officials in the executive and legislative branches of government and a declaration that Congress must immediately vindicate full voting rights in the District. The case is presently before Judge Louis F. Oberdorfer. See Alexander v. Daley, No. 98-2187 (D.D.C. filed Sept. 18, 1998).
FN17. Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 FORDHAM L. REV. 1249, 1264 (1997).
[T]here can be no democracy, conceived as a joint venture in self- government, unless all citizens are given an opportunity to play an equal part in political life, and that means not only an equal franchise, but an equal voice .... [T]here can be no democracy so conceived unless people have, as individuals, an equal stake in the government.
Id.
FN18. 376 U.S. 1 (1964).
FN19. 377 U.S. 533 (1964).
FN20. 509 U.S. 630, 647 (1993).
INTRODUCTION
Recent high-profile lawsuits involving The University of Texas at Austin's law school admissions program, Mark Fuhrman's guilt or innocence for perjury, and Texaco's employment practices, each contained racial decisions which inflamed and divided the nation. [FN2] The decisions exemplify the fact that no matter what the issue, race-based decisions are guaranteed a hearty debate. Affirmative action is no exception. Affirmative action attempts to balance past and present racial inequities by producing a level playing field for minority and non-minority competition. [FN3] Like all other race-based issues, the creation of affirmative action led to concerns about the appropriate balance needed to level the field. [FN4] The Supreme Court provided a constitutional answer to these concerns in 1995 when it stated that race- based affirmative action programs must be analyzed under strict scrutiny. [FN5] In other words, the programs must serve a compelling governmental interest and be the least restrictive alternative.
When Congress passed the Voting Rights Act, it was clear that Congress was concerned about discrimination in state-drawn voting districts. [FN6] Pursuant to this Act, any state wanting to redraw its districts must submit the state's proposal to the Justice Department for approval. [FN7] Approval, however, did not shield the redistricting plan from subsequent attack. [FN8] The creation of the Voting Rights Act sparked the related issue of whether compliance with the Voting Rights Act served a compelling governmental interest. For, if compliance with the Voting Rights Act is a compelling interest, the state, assuming it chose the least restrictive alternative, would be allowed to use race as a factor in designing its districts. [FN9]
The Fifth Circuit answered the compelling interest question in Clark v. Calhoun County, Miss., in holding that Calhoun County, Mississippi's 1990 redistricting plan violated the Voting Rights Act. [FN10] Through analyzing two recent Supreme Court opinions, the circuit court found that compliance with the Voting Rights Act was a compelling interest. Equally compelling was the Supreme Court's application of a new level of scrutiny, "watered-down" [FN11] strict scrutiny, to affirmative action redistricting programs. Although the Supreme Court continues to apply "traditional" strict scrutiny to other race- based affirmative action programs, the Court now applies less scrutiny to racially drawn voting districts.
This Note analyzes the Fifth Circuit's opinion in Clark and provides additional support for the identification of the Supreme Court's new scrutiny of race-based redistricting. Part I of this Note provides the factual and procedural background of Clark. Part II focuses on the Fifth Circuit's holding that Calhoun County's redistricting plan violated the Voting Rights Act. Part III tracks the Fifth Circuit's analysis of two recent Supreme Court opinions concerning the constitutionality of affirmative action in redistricting and identifies the new compelling interest. Part IV explains the concept of "watered-down" strict scrutiny and supports the conclusion that the Supreme Court has moved to a lesser "watered-down" strict scrutiny of affirmative action in redistricting. The Fifth Circuit's findings, coupled with the Supreme Court's recent move to "watered-down" strict scrutiny, should ensure continued use of race as a factor in voter redistricting.
I. FACTS AND PROCEDURAL HISTORY
Following the release of the 1990 census, Calhoun County, Mississippi's Board of Supervisors hired a consulting group to develop a redistricting plan that reflected the population changes in the county. [FN12] In addition, the Board appointed a biracial committee made up of one black resident and one white resident from each election district to supervise the consultant's work. [FN13] This biracial committee approved one of the consultant's redistricting proposals, and the Board formally adopted it after a public hearing. [FN14] Pursuant to the Voting Rights Act, the Department of Justice subsequently precleared the proposed redistricting plan. [FN15]
James Clark and Barbara Brown (collectively "Clark") were black residents and registered voters in Calhoun County. Clark sued Calhoun County, the Calhoun County Democratic Executive Committee, the Calhoun County Republican Executive Committee, and the Calhoun County Election Commission (collectively "Calhoun County"), alleging that Calhoun County's redistricting plan violated Section 2 of the Voting Rights Act. [FN16] Section 2 of the Voting Rights Act prohibits any voting practice or procedure that "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color." [FN17] Clark claimed the redistricting plan resulted in a dilution of the minority vote in Calhoun County, thus violating Section 2.
After a bench trial, the District Court granted judgment to Calhoun County, concluding that Clark had failed to establish a prima facie case of vote dilution under the Voting Rights Act. [FN18] Specifically, the Court found that pursuant to Section 2, Clark failed to show that a geographically compact black majority district could be created in Calhoun county, and that vote dilution existed in light of the totality of the circumstances. [FN19] Clark appealed to the Fifth Circuit. The Fifth Circuit, not satisfied with the District Court's analysis, remanded the case with instructions for the District Court to reconsider and explain with respect to the totality of circumstances. [FN20]
On remand, Clark submitted a proposed redistricting plan regarding the feasibility of drawing a geographically compact district. [FN21] After reviewing the evidence, the District Court found that a geographically compact black majority district could be created and that racially polarized voting did exist in the county. [FN22] Noting that Clark had established a prima facie case of vote dilution under the Voting Rights Act, the Court reconsidered its findings regarding the totality of the circumstances. [FN23] Ignoring the Fifth Circuit's request for explanation with "particularity," the Court confirmed its previous findings and concluded that Clark, again, failed to prove vote dilution under the totality of the circumstances. [FN24] Once more, Clark appealed the District Court's judgment. [FN25]
The second appeal to the Fifth Circuit proved to be more fruitful for Clark than the first. The Fifth Circuit found the District Court's second opinion to be "far from the particularized explanation [the Circuit Court] expected." [FN26] The Fifth Circuit also stated that although "we would [normally] remand this case for further consideration ... we need not do so where the record establishes unlawful vote dilution." [FN27] The Court then discussed the record, concluding that considering the totality of the circumstances, vote dilution existed in Calhoun County. [FN28]
In addition to finding vote dilution, the Fifth Circuit addressed a second issue: whether a state could avoid a violation, or remedy a found violation of the Voting Rights Act by implementing race-based affirmative action in the state's redistricting. [FN29] Calhoun County argued that "racial considerations dominated the drawing of [Clark's] proposed district" and the proposals, therefore, violated the Equal Protection Clause. [FN30] Although the Fifth Circuit felt the County's argument had "more bite than might appear at first glance," [FN31] the Circuit Court's analysis of two recent Supreme Court opinions found that affirmative action in voter redistricting serves a compelling interest. As a compelling interest, race-based redistricting used to avoid or remedy a found violation of the Voting Rights Act will survive strict scrutiny if a court finds that the scheme is narrowly tailored.
Clark, therefore, addressed two issues: whether Calhoun County's voter redistricting plan diluted the minority vote in violation of the Voting Rights Act, and whether Clark's proposed race-based redistricting plan violates the Equal Protection Clause. On the first issue, the Fifth Circuit held that Calhoun County's redistricting plan did, in fact, dilute the minority vote in violation of the Voting Rights Act. [FN32] On the second issue, the Fifth Circuit held that the proposed race-based redistricting plan was not ripe for review. [FN33] Although the redistricting issue was not ripe, the Fifth Circuit's analysis of this issue is extremely significant because it identifies a new compelling interest.
FN1. 88 F.3d 1393 (5th Cir.1996).
FN2. In Hopwood v. Texas, Sheryl Hopwood, along with three other white students, sued The University of Texas at Austin Law School for reverse discrimination after being denied admission. 78 F.3d 932 (5th Cir.), cert. denied, 116 S.Ct. 2581 (1996). The admissions plan considered white and minority applicants on separate tracks, in order to increase the number of minority students admitted. Hopwood, 78 F.3d at 936-37. The Hopwood ruling, which found this approach unacceptable, held that the school could no longer use race as a factor in admissions. Id. at 962.
In People v. Simpson, O.J. Simpson was charged with the brutal murders of his estranged white wife and a local white waiter. No. BA-097211 (Super.Ct. Los Angeles Cty., Oct. 3, 1995); see Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations As a Denial of the Right to Counsel, 98 W.VA.L.REV. 863, 875 (1996). Following his testimony in O.J. Simpson's trial, Mark Fuhrman was given three years probation and a $200 fine after pleading no contest to perjury for denying under oath that he had not used the word "nigger" in ten years. See V. Dion Haynes, Fuhrman Bargains Out of Jail Time: Facing Perjury Charge, He Gets Three Year Probation, CHI. TRIB., Oct. 3, 1996, at 3. Mark Fuhrman was a Los Angeles county police detective who allegedly found a bloody glove at the Simpson estate matching one found at the deceased's estate. The Big Story, (CNN television broadcast, Mar. 20, 1995).
In 1994, four employees of Texaco Inc. met in private at the company's White Plains, N.Y., headquarters to discuss some personnel documents that had been requested in a race discrimination lawsuit. Sharon Walsh, Destroying Documents and Legal Defenses; Experts Say Texaco Points Up How Shredders Can Come Back to Haunt Companies, WASH.POST., Jan. 26, 1997. The company's treasurer was heard on a tape recording of the meeting saying that "[w]e're going to purge the [expletive] out of these books.... We're not going to have any [expletive] thing that ... we don't need to be in them." Id. Texaco agreed to pay $176.1 million to approximately 1,400 current and former black employees to end a race: discrimination suit. Allanna Sullivan, EEOC, Texaco and Plaintiffs' Lawyers Seek to End Differences Over Settlement, WALL ST. J., Dec. 23, 1996, at B5.
FN3. See BLACK'S LAW DICTIONARY 59 (6th ed. 1990) (defining affirmative action programs as, "positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination").
FN4. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630-31 (1991) ("If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury.").
FN5. See Adarand v. Pena, 515 U.S. 200, 220 (1995) (holding that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny").
FN6. See Miller v. Johnson, 515 U.S. 900, 926 (1995). In Miller, the Court stated that:
Section 5 [of the Voting Rights Act] was a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. That practice had been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory.... Congress therefore decided, as the Supreme Court held it could, to shift the advantage of time and inertia from the perpetrators of the evil to its victim, by freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.
Id. (citing Beer v. United States, 425 U.S. 130, 140 (1976) (internal citations omitted)).
FN7. See 42 U.S.C. § 1973(c) (1965) (stating that any alteration of voting qualification or procedure should not have the purpose or effect of denying or abridging the right to vote on account of race or color).
FN8. Id.
FN9. As discussed in Part IV of this Note, the Supreme Court's recent move to "watered-down" strict scrutiny of race-based redistricting does not require the least restrictive alternative.
FN10. Clark v. Calhoun County, Miss., 88 F.3d 1393, 1400 (5th Cir.1996).
FN11. Richmond v. J.A. Croson Co., 499 U.S. 469, 494 (1999) (O'Connor, J., dissenting).
FN12. Id. at 1394. According to the 1990 census, black residents comprise 23% of the county's voting age population and 27% of its population overall. Id. at 1395. The County experienced an overall decrease in population of 736 people, but a 1.52% increase in the black population from 1980 and a 1.52% decrease in the white population. Clark v. Calhoun County, 813 F.Supp. 1189, 1191 (N.D.Miss.1993).
The redistricting plan divided Calhoun County's black population "roughly equally among [its] five districts, ranging from a low of 19% of the population in [one district] to a high of 42% in [another district]." Clark, 88 F.3d at 1395. The Board of Supervisors requested that the consultants consider the following criteria in its redistricting: (1) "[i]f at all possible, the population deviation should be held to 5% or less"; (2) "[t]he voting strength of all minorities within the County should be considered so as not to dilute their present strength and/or to 'pack' any one district in order to dilute the overall minority voting strength"; (3) "[i]f possible, no incumbent supervisor should be placed in a district with another incumbent supervisor"; (4) "[t]he present voting precincts should be maintained if at all possible"; and (5) "[t] he separate bonded indebtedness of Districts 1 and 4 should be considered in order to minimize taxing districts and confusion." Clark, 813 F.Supp. at 1192.
Clark was one of several redistricting cases litigated after the 1990 census. Id. at 1189; See generally Bush v. Vera, 116 S.Ct. 1941, 1950 (1996) ("This is the latest in a series of appeals involving racial gerrymandering challenges to state redistricting efforts in the wake of the 1990 census."); Shaw v. Hunt, 116 S.Ct.1894 (1996) [hereinafter Shaw II]; United States v. Hays, 515 U.S. 737 (1995); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993) [hereinafter Shaw I].
FN13. Clark, 88 F.3d at 1394.
FN14. Id. at 1394-95.
FN15. Id. at 1402. Justice Department pre-clearance does not prevent subsequent attack. See 42 U.S.C. § 1973(c) (1982).
FN16. Clark v. Calhoun County, Miss., 813 F.Supp. 1189, 1191 (N.D.Miss.1993). Clark originally sued Calhoun County alleging violation of Section 2 of the Voting Rights Act as well as the Fourteenth and Fifteenth Amendments to the U.S. Constitution. See Clark, 88 F.3d at 1395. Although the District Court dismissed Clark's constitutional claims, Clark only appealed the Section 2 claim. Id.
FN17. Voting Rights Act of 1965, § 2, as amended, 42 U.S.C. § 1973 (1982) (emphasis added). In 1982, Congress amended the Voting Rights Act by changing the language of § 2(a) and adding § 2(b), which provides a "results" test for violation of § 2(a). Bush, 116 S.Ct. at 1960. A violation exists if:
based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
Id. (quoting 42 U.S.C. § 1973(b) (1982)).
FN18. Clark, 813 F.Supp. at 1202. This article suggests that a prima facie case satisfies the three Gingles preconditions. In Thornburg v. Gingles, 106 S.Ct. 2752 (1986), The Supreme Court listed three preconditions for establishing a Section 2 violation: (1) "that [the minority group] is sufficiently large and geographically compact to constitute a majority in a single member district"; (2) "that [the minority group] is politically cohesive"; and (3) "that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Bush, 116 S.Ct. at 1961; Gingles, 106 S.Ct. at 2766-67. These preconditions are necessary, but not sufficient to prove vote dilution. See 42 U.S.C. § 1973(b) (1982); Bush, 116 S.Ct. at 1960. If these preconditions are established, the minority group must further prove that under the totality of circumstances, they do not possess the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters. See 42 U.S.C. § 1973(b) (1982); Bush, 116 S.Ct. at 1960; Clark, 88 F.3d at 1398.
FN19. Clark, 813 F.Supp. at 1202. See infra note 32 and accompanying text.
FN20. Clark v. Calhoun County, Miss., 21 F.3d 92, 97 (5th Cir.1994).
FN21. Clark v. Calhoun County, Miss., 881 F.Supp. 252,254 (N.D.Miss.1995).
FN22. Id.
FN23. Id.
FN24. Id. at 256.
FN25. Clark, 88 F.3d at 1395.
FN26. Id. at 1396.
FN27. Id.
FN28. The Fifth Circuit's discussion of the record is analyzed in Part III of this Note.
FN29. Clark, 88 F.3d at 1402.
FN30. Id.
FN31. Id.
FN32. Id.
FN33. Id. at 1407. Clark's proposed redistricting plan was created to establish one of the elements in his vote dilution claim. See Clark, 21 F.3d at 95 (stating that Clark's proposed districts were "simply presented to demonstrate that a majority-black district is feasible in Calhoun County"). The Fifth Circuit noted that Calhoun County has primary jurisdiction over its electoral system. Clark, 88 F.3d at 1407 (quoting Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d at 1109, 1124 (5th Cir.1991) [hereinafter Westwego III]), "It must be left to that body to develop, in the first instance, a plan which will remedy the dilution of the votes of the city's black citizens"). The Fifth Circuit reminded Calhoun County, however, that if it failed to develop a remedial plan, the federal District Court would. Id. (citing Westwego III, 946 F.2d at 1124, "fail[ure] to develop such a plan in a timely manner, or fail[ure] to develop a plan which fully remedies the current vote dilution, the responsibility for devising a remedial plan will devolve onto the federal district court").