Race and democratic contestation

Yale Law Journal

Volumn 117, Issue 5, 2008, Pages 734-802

  Kang, Michael S ^a  

^a EMORY UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 41249103497     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/20455811     Document Type: Review

References (464)

1. Voting Rights Act of 1965, 42 U.S.C.A. §§ 1971, 1973 to 1973j (West 2007).
2. See, e.g., Pamela S. Karlan, Section 5 Squared: Congressional Power To Extend and Amend the Voting Rights Act, 44 HOUS. L. REV. 1, 2 (2007) ("The [Voting Rights] Act is rightly celebrated as the cornerstone of the 'Second Reconstruction.'").
3. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)
4. (quoting BERNARD GROFMAN, LISA HANDLEY, & RICHARD G. NIEMI, MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY 136 (1992)).
5. See, e.g., League of United Latin Am. Citizens v. Perry (LULAC), 126 S. Ct. 2594, 2613-23 (2006);
6. Georgia v. Ashcroft, 539 U.S. 461, 479-91 (2003).
7. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (codified as amended at 42 U.S.C.A §§ 1971 to i973bb-1 (West 2006)).
8. See, e.g., Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success?, 104 COLUM. L. REV. 1710, 1731 (2004);
9. Richard H. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 29, 68-70 (2004);
10. Abigail Thernstrom, Section 5 of the Voting Rights Act: By Now, a Murky Mess, 5 GEO. J.L. & PUB. POL'Y 41, 72-76 (2007).
11. Richard H. Pildes, The Politics of Race, 108 HARV. L. REV. 1359, 1361 (1995)
12. (reviewing QUIET REVOLUTION IN THE SOUTH (Chandler Davidson & Bernard Grofman eds., 1994)).
13. See, e.g., Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 646 (1998) ("Only through an appropriately competitive partisan environment can one of the central goals of democratic politics be realized: that the policy outcomes of the political process be responsive to the interests and views of citizens.");
14. Richard H. Pildes, Competitive, Deliberative, and Rights-Oriented Democracy, 3 ELECTION L.J. 685, 686, 691-95 (2004)
15. (reviewing RICHARD A POSNER, LAW, PRAGMATISM, AND DEMOCRACY (2003)) (stating that competitive theorists give electoral competition "pride of place" and priority among democratic values).
16. "Majority-minority" districts are districts in which African Americans or Latinos as a bloc constitute a majority of the population.
17. See Pamela S. Karlan, Our Separatism? Voting Rights as an American Nationalities Policy, 1995 U. CHI. LEGAL F. 83, 88 (noting that courts generally order majority-minority districts as a remedy under the VRA);
18. Michael P. McDonald, Redistricting and Competitive Districts, in THE MARKETPLACE OF DEMOCRACY: ELECTORAL COMPETITION AND AMERICAN POLITICS 222, 233 (Michael P. McDonald & John Samples eds., 2006) (noting the Democratic partisanship of African American and Latino voters).
19. Pildes, supra note 6, at 84.
20. Issacharoff & Pildes, supra note 8, at 717.
21. See Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 645-46 (2002);
22. Issacharoff & Pildes, supra note 8, at 704-07;
23. Pildes, supra note 6, at 95-99;
24. Richard H. Pildes, The Theory of Political Competition, 85 VA. L. REV. 1605, 1607 (1999).
25. Richard H. Pildes, The Decline of Legally Mandated Minority Representation, 68 OHIO ST. L.J. 1139, 1140 (2007).
26. 126 S. Ct. 2594 (2006).
27. See Ellen D. Katz, Reviving the Right To Vote, 68 OHIO ST. L.J. 1163, 1164-65 (2007).
28. Throughout this Article, I purposely adopt a functional rather than status-related definition of the term "leader." I distinguish leaders only by what they try to do-coordinate and organize mass politics toward any sociopolitical ends-and not at all by who they are, what they have, or what they represent culturally, politically, or ideologically. In previous work, I have referred to political leaders as "elites," drawing upon political science jargon to identify political entrepreneurs who seek to lead the public, form groups, and initiate collective action for political ends. See Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and "Disclosure Plus," 50 UCLA L. REV. 1141, 1162-65 (2003);
29. see also JOHN R. ZALLER, THE NATURE AND ORIGINS OF MASS OPINION 6 (1992) (defining elites as "persons who devote themselves full time to some aspect of politics or public affairs"). In referring to political leaders or elites, I do not mean to invoke an explicitly class-based or neo-Marxist definition of elites.
30. See generally C. WRIGHT MILLS, THE MARXISTS 117-18 (1962);
31. Kenneth Anderson, A New Class of Lawyers: The Therapeutic as Rights Talk, 96 COLUM. L. REV. 1062 (1996) (book review). Instead, I mean in this Article only to indicate self-identified political entrepreneurs, regardless of social, cultural, or economic position, who effectively lead public opinion and help coordinate collective action.
32. The Court has explained that the Voting Rights Act secures for racial minorities an equality of political opportunity to elect, not a guarantee of electoral success. See, e.g., Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994) (distinguishing "equality of opportunity" from "a guarantee of electoral success for minority-preferred candidates"). But the typical majority-minority district as ratified by courts provides a reasonable assurance of electoral success. The government produces the aforementioned racial guarantee, in the form of safe majorityminority districts, through the use of facially neutral classifications drawn by district lines on a geographic map.
33. See Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663, 1695-96 (2001)
34. ("[W]e cannot look at a district line and immediately conclude that the government has employed a racial classification ...."). Nonetheless, the obvious reference to racial considerations in drawing district lines led the Court to apply strict scrutiny in Shaw v. Reno, 509 U.S. 630 (1993), and later cases and strike down as unconstitutional majority-minority districts where race served impermissibly as a "predominant, overriding factor" in the redistricting process.
35. See Michael S. Kang, When Courts Won't Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy, 68 OHIO ST. L.J. 1097, 1108-10 (2007) (describing Shaw and the introduction of the predominant factor standard). The Court, however, effectively made clear that raceconsciousness in districting tailored to comply with the Voting Rights Act, as described above, does not violate Shaw.
36. See, e.g., Bush v. Vera, 517 U.S. 952, 958 (1996) ("Strict scrutiny does not apply merely because redistricting is performed with consciousness of race.");
37. Miller v. Johnson, 515 U.S. 900, 916 (1995) ("Redistricting legislatures will, for example, almost always be aware of racial demographics; but it does not follow that race predominates in the redistricting process.");
38. see also Bush, 517 U.S. at 990-95 (O'Connor, J., concurring). Even Justices Scalia and Thomas later noted that they agreed the Voting Rights Act provides a compelling state interest under Shaw.
39. See LULAC, 126 S. Ct. at 2667 (Scalia, J., concurring in the judgment in part, dissenting in part).
40. A separate debate, only indirectly implicated here, is whether majority-minority districts optimally advance the policy preferences of the racial minority group. Compare CAROL M. SWAIN, BLACK FACES, BLACK INTERESTS: THE REPRESENTATION OF AFRICAN AMERICANS IN CONGRESS 200-05 (1993),
41. Charles Cameron, David Epstein & Sharyn O'Halloran, Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?, 90 AM. POL. SCI. REV. 794 (1996),
42. and Bernard Grofman, Lisa Handley & David Lublin, Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, 79 N.C. L. REV. 1383 (2001),
43. with David Lublin, Racial Redistricting and African-American Representation: A Critique of "Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?," 93 AM. POL. SCI. REV. 183 (1999),
44. Kenneth W. Shorts, Does Racial Redistricting Cause Conservative Policy Outcomes? Policy Preferences of Southern Representatives in the 1980s and 1990s, 65 J. POL. 216 (2003),
45. and Kenneth W. Shotts, Racial Redistricting's Alleged Perverse Effects: Theory, Data, and "Reality," 65 J. POL. 238 (2003). Political scientists disagree about whether majority-minority districts undercut the substantive interests of the racial minority at the level of the entire legislature by packing voters of color into a few districts and thereby bleaching the rest of the jurisdiction toward Republican control.
46. Compare Issacharoff, supra note 6,
47. and Pildes, supra note 6,
48. with Karlan, supra note 2,
49. and Michael J. Pitts, Let's Not Call the Whole Thing Off Just Yet: A Response to Samuel Issacharoff's Suggestion To Scuttle Section 5 of the Voting Rights Act, 84 NEB. L. REV. 605 (2005).
50. See generally Issacharoff, supra note 6, at 1730-31;
51. Nathaniel Persily, Options and Strategies for Renewal of Sections of the Voting Rights Act, 49 HOW. L.J. 717 (2006);
52. Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174 (2007)
53. [hereinafter Persily, Promise and Pitfalls];
54. Pitts, supra note 20.
55. See generally PAUL FRYMER, UNEASY ALLIANCES: RACE AND PARTY COMPETITION IN AMERICA (1999);
56. V.O. KEY, JR., SOUTHERN POLITICS IN STATE AND NATION (1949);
57. J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS: SUFFRAGE RESTRICTION AND THE ESTABLISHMENT OF THE ONE-PARTY SOUTH, 1880-1910 (1974).
58. See Issacharoff, supra note 6, at 1730-31.
59. See Pamela S. Karlan, Loss and Redemption: Voting Rights at the Turn of a Century, 50 VAND. L. REV. 291, 313-22 (1997) (describing the collapse of the New Deal coalition in the South after the passage of the VRA).
60. See ROBERT J. COTTROL, RAYMOND T. DIAMOND & LELAND B. WARE, BROWN V. BOARD OF EDUCATION: CASTE, CULTURE, AND THE CONSTITUTION 235-36 (2003).
61. MARSHALL FRADY, WALLACE 289 (1996).
62. See EDWARD G. CARMINES & JAMES A. STIMSON, ISSUE EVOLUTION: RACE AND THE TRANSFORMATION OF AMERICAN POLITICS 74 (1989);
63. FRYMER, supra note 22, at 26.
64. See generally Alan I. Abramowitz & Kyle L. Saunders, Ideological Realignment in the U.S. Electorate, 60 J. POL. 634 (1998);
65. Persily, Promise and Pitfalls, supra note 21.
66. Pildes, supra note 6, at 97.
67. See, e.g., Samuel Issacharoff & Pamela S. Karlan, Groups, Politics, and the Equal Protection Clause, 58 U. MIAMI L. REV. 35, 47-49 (2003) (describing the political leverage of minority groups);
68. Pildes, supra note 6, at 95-99 (arguing that the VRA embodies a command-and-control regime outdated in the face of two-party competition nationwide).
69. See T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH. L. REV. 588, 601-03 (1993) (defining "filler people");
70. John Hart Ely, Standing To Challenge Pro-Minority Gerrymanders, 111 HARV. L. REV. 576, 584-85 (1997) (discussing the problem of "filler people") ;
71. Lani Guinier, Groups, Representation, and Race-Conscious Districting: A Case of the Emperor's Clothes, 71 TEX. L. REV. 1589, 1614-16 (1993) (discussing the problem of "wasted votes").
72. See generally Gerken, supra note 18.
73. See McDonald, supra note 10, at 232-33.
74. See Nathaniel Persily, In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116 HARV. L. REV. 649, 667-73 (2002).
75. See id. at 679 (arguing that competitive districts "leave almost half the political consumers with a bitter taste in their mouths for two or more years");
76. see also Thomas L. Brunell, Rethinking Redistricting: How Drawing Uncompetitive Districts Eliminates Gerrymanders, Enhances Representation, and Improves Attitudes Toward Congress, 39 PS: POL. SCI. & POL. 77 (2006) (arguing that minimizing competitive districts promotes voter satisfaction).
77. The degree to which a majority-minority district can be considered electorally safe varies somewhat. It was once the case that the racial minority group within a majority-minority district needed to constitute at least sixty-five percent of the district's total population for the district to be considered "safe" as a minority guarantee under the VRA. See United Jewish Orgs, of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) (establishing the sixtyfive percent rule). More recently, courts have been willing to recognize districts as safe with bare popular majorities for the racial minority. I refer to majority-minority districts generally as "safe," even though a few individual majority-minority districts may not be electorally safe in a given election.
78. See supra note 6.
79. Issacharoff, supra note 6, at 1729.
80. Heather K. Gerken, A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach, 106 COLUM. L. REV. 708, 714 (2006).
81. League of United Latin Am. Citizens v. Perry (LULAC), 126 S. Ct. 2594 (2006).
82. See generally Michael S. Kang, The Bright Side of Partisan Gerrymandering, 14 CORNELL J.L. & PUB. POL'Y 443, 465-68 (2005) (describing the Texas re-redistricting in 2003).
83. See 126 S. Ct. at 2612-26.
84. See id. at 2613.
85. Id.
86. Id. at 2621.
87. Id. at 2622.
88. Id. at 2623.
89. Id. at 2624.
90. See Georgia v. Ashcroft, 539 U.S. 461, 492 (2002) (Souter, J., dissenting) (comparing majority-minority districts "in which minorities can elect their candidates of choice by their own voting power, to coalition districts, in which minorities are in fact shown to have a similar opportunity when joined by predictably supportive nonminority voters");
91. Richard H. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000S, 80 N.C. L. REV. 1517, 1529-39 (2002) (explaining the politics of "coalitional districts").
92. LULAC, 126 S. Ct. at 2624.
93. Id. at 2625.
94. Id. The factual record established that Frost's district had been safely Democratic; insulated from challenges; crafted for Frost himself; and at least according to one witness, drawn specifically to elect a white Democrat.
95. See id.
96. Id. at 2624.
97. See Katz, supra note 16, at 1171-73.
98. Id. at 1177.
99. LULAC, 126 S. Ct. at 2621.
100. Katz, supra note 16, at 1180.
101. See Guy-Uriel E. Charles, Race, Redistricting, and Representation, 68 OHIO ST. L.J. 1185 (2007) (arguing that the Court doubted the authenticity of Frost's representation in the absence of genuine electoral competition).
102. Session v. Perry, 298 F. Supp. 2d 451, 503 (E.D. Tex. 2004).
103. LULAC, 126 S. Ct. at 2623.
104. See Daniel R. Ortiz, Cultural Compactness, 105 MICH. L. REV. FIRST IMPRESSIONS 48, 50 (2006), http://www.michiganlawreview.org/firstimpressions/vol105/ortiz.pdf.
105. LULAC, 126 S. Ct. at 2623.
106. Katz, supra note 16, at 1164.
107. See id. at 1166 (arguing that LULAC "rests on a nascent conception of political harm experienced by all voters - regardless of race - when a political system is rigged to block competition").
108. See Guy-Uriel E. Charles, Constitutional Pluralism and Democratic Politics: Reflections on the Interpretive Approach of Baker v. Carr, 80 N.C. L. REV. 1103, 1142 (2002) (listing "majority rule, political participation, accountability, responsiveness, substantial equality, and interest representation" in a nonexhaustive list). In fact, Pildes admits that his prioritization of electoral competition purposely sets aside other important values for the sake of parsimony and judicial focus.
109. See Pildes, supra note 8, at 690 (claiming the need to "reduce the welter of values behind democracy to a structure that will helpfully orient judicial oversight of politics around one set of questions"). As I argue above, however, the question is whether the costs of parsimony outweigh its benefits such that a competition-oriented approach fails to appreciate the interconnectedness of other democratic values with the goals of electoral competition.
110. Pildes, supra note 13, at 1607.
111. See Pildes, supra note 8, at 691-95 (acknowledging that "how politicians give information to voters and how voters inform one another ... is critical to well-functioning competitive politics").
112. ALBERT WEALE, DEMOCRACY 98 (1999).
113. Pildes departs from the LULAC decision, however, with respect to other concerns.
114. See, e.g., Pildes, supra note 14, at 1153-55 (objecting to the Court's concerns about essentialization).
115. Pildes, supra note 6, at 97-98.
116. See infra Part III.
117. Democratic contestation should not be confused with Philip Pettit's "contestatory democratization." Philip Pettit, Republican Freedom and Contestatory Democratization, in DEMOCRACY'S VALUE 163, 178-88 (Ian Shapiro & Casiano Hacker-Cordón eds., 1999). Rather than referring to a political process of public deliberation, Pettit introduces contestatory democratization as an institutional regime under which government decisions may be challenged by individuals as inconsistent with a shared, nondiscriminating system of democratic government.
118. Id. at 179-80.
119. ROBERT W. BENNETT, TALKING IT THROUGH: PUZZLES OF AMERICAN DEMOCRACY 34 (2003).
120. See WILLIAM H. RIKER, THE STRATEGY OF RHETORIC: CAMPAIGNING FOR THE AMERICAN CONSTITUTION 131 (Randall L. Calvert, John Mueller & Rick K. Wilson eds., 1996) ("The practical consequence of the existence of a cycle of tastes is that there are many potential majorities.");
121. see also Kenneth A Shepsle, Losers in Politics (and How They Sometimes Become Winners): William Riker's Heresthetic, 1 PERSP. ON POL. 307 (2003)
122. (discussing Riker's theory that losers may propel fresh or reframed issues into the political debate).
123. See E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA 66 (1960) (noting that "each new cleavage produces a new allocation of power").
124. A loser seeks, not necessarily to change the position of individual voters on a particular issue, but instead to change individual voters' minds about what particular issue they should focus on. See id. at 68 (arguing that "the definition of the alternatives is the supreme instrument of power" (emphasis omitted)).
125. Cf. Edward L. Rubin, Public Choice, Phenomenology, and the Meaning of the Modern State: Keep the Bathwater, But Throw Out That Baby, 87 CORNELL L. REV. 309, 337-40 (2002) (describing political discourse as a process through which people create and respond to competing political meanings).
126. See infra Section III.B.
127. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 183-88 (2002). To illustrate their views about territorial districting, Guinier and Torres describe a thought experiment in which citizens of "Old Verona" sit inside a large amphitheater watching a rabbi and bishop argue on stage below. Citizens sit too far away to hear the argument and are instead entitled to elect a group representative from their respective seating section who would observe the argument on their behalf, report back his findings, and lead a subsequent group discussion of the topics at issue on stage. Guinier and Torres hope that the thought experiment helps illustrate that territorial proximity is an arbitrary way to determine representation and conclude that allowing citizens to wander the amphitheater in search of their desired group discussion would be preferable.
128. Id. at 187.
129. See generally AVINASH K. DIXIT & BARRY J. NALEBUFF, THINKING STRATEGICALLY (1991);
130. THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT (1980).
131. See KEY, supra note 22, at 245-95 (emphasizing the centrality of political leadership and organization);
132. SCHATTSCHNEIDER, supra note 74, at 35-60 (describing politics as organization and counterorganization of the public by competing leaders);
133. id. at 138 ("The emphasis is on the role of leadership and organization in a democracy, not on the spontaneous generation of something at the grass roots.").
134. See infra Section III.B.
135. See, e.g., POSNER, supra note 8, at 158-64 (castigating participatory and deliberative approaches as unrealistic, elitist, and invariably disappointed by real politics);
136. JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 250-68 (3d ed. 1950) (criticizing the classical doctrine of democracy as hopelessly unrealistic).
137. Pildes, supra note 8, at 693 (using the term to criticize theories of deliberative democracy).
138. SCHUMPETER, supra note 82, at 250.
139. See AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 101 (1996) ("In a deliberative democracy, then, the principle of publicity requires that government adopt only those policies for which officials and citizens give public justifications.");
140. JOHNRAWLS, POLITICAL LIBERALISM 241-54 (expanded ed. 2005) (requiring "public reason" to be the centerpiece of the political process);
141. Henry S. Richardson, Democratic Intentions, in DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 349, 376 (James Bohman & William Rehg eds., 1997) (requiring commitment to the public good).
142. See, e.g., POSNER, supra note 8, at 144 (arguing that theorists of competitive democracy, like himself, "don't believe politics has intrinsic value or that political activity is ennobling").
143. This emphasis on individual participation and engagement distinguishes a theory of democratic contestation from deliberative democracy and civic republicanism, which tend to value elite deliberation as an end in itself rather than as a catalyst for grassroots participation and engagement. See, e.g., Edward L. Rubin, Getting Past Democracy, 149 U. PA. L. REV. 711, 747-55 (2001) (contrasting a deliberative democratic or civic republican emphasis on the quality of deliberation and a participatory emphasis on citizen involvement).
144. See generally HANNAH ARENDT, BETWEEN PAST AND FUTURE (Penguin Books 1968) (1954);
145. BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (1984);
146. JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (George Routledge & Aons, Ltd. 1928) (1861);
147. Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 FLA. L. REV. 443 (1989).
148. See generally MILL, supra note 88;
149. CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 22-34 (1970);
150. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 336-63 (2000);
151. JEAN-JACQUES ROUSSEAU, OF THE SOCIAL CONTRACT (Donald A Cress trans., Hackett Publ'g Co. 1987) (1762).
152. See Dennis F. Thompson, The Role of Theorists and Citizens in Just Elections: A Response to Professors Cain, Garrett, and Sabl, 4 ELECTION L.J. 153, 157 (2005) (disclaiming hopes that "all citizens [will] 'fly to the assembly' to talk all day" and urging "modest aims" in democratic deliberation).
153. See ROGER W. COBB & CHARLES D. ELDER, PARTICIPATION IN AMERICAN POLITICS: THE DYNAMICS OF AGENDA-BUILDING 43-62, 101-24 (1972) (describing a dynamic process in which parties expand the scope of sociopolitical conflict and draw in the larger public);
154. SCHATTSCHNEIDER, supra note 74, at 3-17 (describing politics as a contest over the socialization of conflict in which losers attempt to call in outside help by expanding conflict).
155. See, e.g., R. MICHAEL ALVAREZ & JOHN BREHM, HARD CHOICES, EASY ANSWERS: VALUES, INFORMATION, AND AMERICAN PUBLIC OPINION 216-24 (2002) (describing how people reason sensibly about difficult political questions by drawing upon basic value predispositions);
156. BENJAMIN I. PAGE & ROBERT Y. SHAPIRO, THE RATIONAL PUBLIC: FIFTY YEARS OF TRENDS IN AMERICANS' POLICY PREFERENCES 383-98 (1992) (concluding that people deliberate rationally at a general level and respond sensibly to information on broad questions of public affairs);
157. SAMUEL L. POPKIN, THE REASONING VOTER: COMMUNICATION AND PERSUASION IN PRESIDENTIAL CAMPAIGN (2d ed. 1994) (describing the accurate use of basic information by people to reach sensible conclusions about politicians and policy preferences);
158. JAMES A. STIMSON, TIDES OF CONSENT: HOW PUBLIC OPINION SHAPES AMERICAN POLITICS 31-57 (2004) (describing the responsiveness of the mass public and how the public modulates its preferences to current political events);
159. Edward G. Carmines & James A. Stimson, The Two Faces of Issue Voting, 74 AM. POL. SCI. REV. 78 (1980) (distinguishing public reasoning on "easy" and "hard" issues).
160. As E.E. Schattschneider explained succinctly, the people are a sovereign that "can speak only when spoken to," and "whose vocabulary is limited to two words, 'Yes' and 'No.'" E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT 52 (1942);
161. see abo V.O. KEY, JR., POLITICS, PARTIES, AND PRESSURE GROUPS 247 (1942) ("[A] mass of people cannot act as a unit; a small inner circle has to narrow the choices for public office and to formulate questions of public policy.").
162. See SCHATTSCHNEIDER, supra note 74, at 135 ("Democracy was made for the people, not the people for democracy.");
163. Kang, supra note 17, at 1163 (arguing that models of participatory democracy should "accept how people think about politics, rather than denying and hoping to change how people think about politics").
164. See POSNER, supra note 8, at 130-57 (contrasting Concept I and Concept II theorists along similar lines);
165. SCHUMPETER, supra note 82, at 250-83 (contrasting what he calls the classical doctrine of democracy with his theory of competitive leadership);
166. Gerken, supra note 38, at 748-51 (contrasting participatory and elite-centered views of democracy).
167. POSNER, supra note 8, at 153.
168. See, e.g., id. at 168-69 ("People have a pretty good idea of their own interests, or at least a better idea than officials do.").
169. See, e.g., Elizabeth Garrett, Hybrid Democracy, 73 GEO. WASH. L. REV. 1096 (2005) (discussing the competitive interaction between direct and representative democracy);
170. Gerken, supra note 18 (discussing the relative merits of competition across and within institutions);
171. Issacharoff & Pildes, supra note 8 (arguing in favor of intradistrict partisan competition) ;
172. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312 (2006) (arguing in favor of partisan competition as a substitute for institutional rivalry between branches of government) ;
173. Persily, supra note 33, at 661-62 (arguing in favor of competitive primary elections and interdistrict competition).
174. See, e.g., Chad Flanders, Deliberative Dilemmas: A Critique of Deliberation Day from the Perspective of Election Law, 23 J.L. & POL. 147, 164-65 (2007) (discussing potential tradeoffs between deliberation at the legislative level and deliberation at the citizen level).
175. See Kang, supra note 40, at 459-61 (describing the benefits of "defensive gerrymandering" to protect incumbents).
176. See Nathaniel Persily, Thad Kousser & Patrick Egan, The Complicated Impact of One Person, One Vote on Political Competition and Representation, 80 N.C. L. REV. 1299, 1314-17 (2002).
177. Cf. Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099, 1124-26 (2005) (contrasting values of different forms of intra- and interinstitutional diversity). What is more, even safe one-party districts that exhibit almost no interparty competition, like many majority-minority districts protected under the VRA, may be home to deep ideological democratic contestation as valuable as that seen in highly competitive two-party districts.
178. See generally R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION (1990) (describing the interaction of coalition leaders, politicians, and the public in legislative lawmaking);
179. FRANK R. BAUMGARTNER & BETH L. LEECH, BASIC INTERESTS: THE IMPORTANCE OF GROUPS IN POLITICS AND IN POLITICAL SCIENCE 37-38 (1998) (explaining that "much of the important work in lobbying is in setting the agenda, in defining the alternatives for decision makers, in gathering evidence, and in convincing others that certain types of evidence are germane to the decision at hand");
180. R. SHEP MELNICK, BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS (1994) (describing interest group activism in the courts);
181. Julie L. Andsager, How Interest Groups Attempt To Shape Public Opinion with Competing News Frames, 77 JOURNALISM & MASS COMM. Q. 577 (2000) (discussing efforts by interest groups to influence news coverage);
182. Elisabeth R. Gerber & Justin H. Phillips, Development Ballot Measures, Interest Group Endorsements, and the Political Geography of Growth Preferences, 47 AM. J. POL. SCI. 625 (2003) (examining the role of interest groups in development ballot initiatives);
183. Robert D. Tollison, Public Choice and Legislation, 74 VA. L. REV. 339, 351-63 (1988) (discussing interest group activism in the regulatory process).
184. As Dennis Thompson puts it nicely, "[e]lections can occur without democracy, but democracy cannot endure without elections." DENNIS F. THOMPSON, JUST ELECTIONS: CREATING A FAIR ELECTORAL PROCESS IN THE UNITED STATES 1 (2002).
185. To this point, commentators argue that the law of free expression under the First Amendment, even in nonelectoral contexts, should be motivated by normative commitments to competitive discourse that are somewhat akin to democratic contestation. Most obviously, the notion that the First Amendment protects and cultivates a "marketplace of ideas" pervades First Amendment law and commentary. See, e.g., Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail ....");
186. THOMAS I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 7-8 (1963);
187. Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 2-3 ("Scholars and jurists frequently have used the image of a 'marketplace of ideas' to explain and justify the first amendment freedoms of speech and press."). The marketplace model has influenced campaign finance law, but nothing like the theory of democratic contestation has been applied to the VRA as here, or to other areas of election law, such as gerrymandering or direct democracy, where it might be equally appropriate. It is worth noting, however, that Heather Gerken suggests that Justice Kennedy may be linking the First Amendment to race and redistricting along parallel lines, but the theory underlying this jurisprudence still appears strikingly undeveloped.
188. See Heather K. Gerken, Justice Kennedy and the Domains of Equal Protection, 121 HARV. L. REV. 104 (2007).
189. See infra notes 122-124.
190. See, e.g., ARTHUR F. BENTLEY, THE PROCESS OF GOVERNMENT: A STUDY OF SOCIAL PRESSURES 208-64 (1949) (assuming that group interests naturally manifest themselves in pressure-group representation);
191. DAVID B. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION 57 (1953) (explaining simply that the "proliferation of associations is inescapable" as the need arises);
192. see also MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 48-51 (1965) (criticizing pluralist theorists for failing to question why and how groups organize).
193. See ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 133 (1956).
194. See generally ROBERT A. DAHL, DILEMMAS OF PLURALIST DEMOCRACY: AUTONOMY VS. CONTROL (1982);
195. ROBERT A. DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES: CONFLICT AND CONSENT (1967);
196. KEY, supra note 22;
197. TRUMAN, supra note 107.
198. See, e.g., MELISSA S. WILLIAMS, VOICE, TRUST, AND MEMORY: MARGINALIZED GROUPS AND THE FAILINGS OF LIBERAL REPRESENTATION 179 (1998) ("Individuals secure the representation of their interests in public policy decisions by organizing pressure groups to influence policy makers.");
199. Cass Sunstein, Beyond the Republican Revival, 97 YALE
200. See, e.g., Thomas M. Boyd & Stephen J. Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History, 40 WASH. & LEE L. REV. 1347, 1412-13 (1983);
201. Samuel Issacharoff, Groups and the Right To Vote, 44 EMORY L.J. 869, 884-86 (1995).
202. 42 U.S.C. § 1973 (2000).
203. See, e.g., Davis v. Bandemer, 478 U.S. 109, 167 (1986) (Powell, J., concurring in part and dissenting in part) ("The concept of 'representation' necessarily applies to groups: groups of voters elect representatives, individual voters do not.");
204. Issacharoff, supra note 111, at 883-84 ("[A]ny sophisticated right to genuinely meaningful electoral participation must be evaluated and measured as a group right, that of groups of voters seeking the outcomes promised to them through the electoral system.").
205. See also Issacharoff, supra note 111, at 883 ("To be effective, a voter's ballot must stand a meaningful chance of effective aggregation with those of like-minded voters to claim a just share of electoral results.").
206. See generally Gerken, supra note 18 (explaining and defining group entitlements under the VRA).
207. See JOHN HART ELY, DEMOCRACY AND DISTRUST 73-104 (1980) (describing the judiciary as a referee within the political process).
208. Lani Guinier, [E]racing Democracy: The Voting Rights Cases, 108 HARV. L. REV. 109, 137 (1994). Justice Stevens, for instance, argues for just such a comprehensive legal conception of political representation that encompasses all political groups, from racial minorities to political parties.
209. See generally Pamela S. Karlan, Cousins' Kin: Justice Stevens and Voting Rights, 27 RUTGERS L.J. 521 (1996). In short, Justice Stevens proposes a uniform doctrinal approach to questions of group-based vote dilution that focuses on the dilutive intent of the government and looks to deviation from usual practice to discern such intent.
210. See Vieth v. Jubelirer, 541 U.S. 267, 335-37 (2004) (Stevens, J., dissenting);
211. Karcher v. Daggett, 462 U.S. 725, 753-55 (1983) (Stevens, J., concurring);
212. City of Mobile v. Bolden, 446 U.S. 55, 90-91 (1980) (Stevens, J., concurring);
213. see also Presley v. Etowah County Comm'n, 502 U.S. 491, 510-26 (1992) (Stevens, J., dissenting) (applying in practice a similar test);
214. Cousins v. City Council, 466 F.2d 830, 859 (7th Cir. 1972) (Stevens, J., dissenting) (proposing a similar test).
215. See, e.g., ELY, supra note 115, at 152 ("[I]t is of the essence of democracy to allow the various persons and groups that make up our society to decide which others they wish to combine with in shaping legislation.");
216. Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201, 1218 (1996) ("[U]nless black voters are able to elect candidates of their choice, their particular bundle of interests, for which race serves as a shorthand, may be undersatisfied relative to the number of individuals asserting these interests and the intensities of their preferences.").
217. See, e.g., Baker v. Carr, 369 U.S. 186, 300 (1962) (Frankfurter, J., dissenting) (arguing that election law requires courts "to choose among competing bases of representation-ultimately, really, among competing theories of political philosophy");
218. HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 167 (1967) (contending that any concept of representation rests on one's "metapolitics - his broad conception of human nature, human society, and political life");
219. Keith J. Bybee, Democratic Theory and Race-Conscious Redistricting: The Supreme Court Constructs the American Voter, in THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS 219, 222 (Howard Gillman & Cornell Clayton eds., 1999) ("Since representation can be interpreted in a wide range of ways, the kind of political community to be forged by representative government is itself open to debate. The result is that representational debates are always anchored in disputes over the nature of the political community.").
220. See RUSSELL HARDIN, COLLECTIVE ACTION (1982);
221. WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM (1982).
222. See ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 207-37 (1957);
223. SCHUMPETER, supra note 82, at 262.
224. See generally MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS 213-15 (1996);
225. PAGE & SHAPIRO, supra note 92, at 9-15.
226. See, e.g., BRIAN BARRY, SOCIOLOGISTS, ECONOMISTS AND DEMOCRACY 14-23 (1970) (discussing the "infinitesimal" instrumental value of voting);
227. DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY 47-71 (1994) ;
228. Andrew Gelman, Gary King & W. John Boscardin, Estimating the Probability of Events That Have Never Occurred: When Is Your Vote Decisive?, 93 J. AM. STAT. ASS'N 1, 2 (1998) (noting the tiny direct personal value gained from voting given the exceptionally low probability that one's vote will be decisive).
229. See Kang, supra note 17, at 1153;
230. cf. Gary S. Becker, A Theory of the Allocation of Time, 75 ECON. J. 493, 495-98 (1965) (discussing a household production function in which individuals allocate time across various needs and demands).
231. Daniel R. Ortiz, The Democratic Paradox of Campaign Finance Reform, 50 STAN. L. REV. 893, 903 (1998).
232. THE FEDERALIST NO. 10, at 46 (James Madison) (Clinton Rossiter ed., 1961).
233. See MICHAEL C. DAWSON, BEHIND THE MULE: RACE AND CLASS IN AFRICAN- AMERICAN POLITICS 12 (1994) ("In advanced industrial societies, however, citizens have multiple identities, as the pluralists have been pointing out for much of the second half of the twentieth century. Further, many scholars have pointed out that preferences are not exogenous-they do not fall like manna from the sky. Preferences are clearly endogenous.");
234. MARTHA MINOW, NOT ONLY FOR MYSELF 20 (1997) (referring to the "complex interactions among people, historical settings, and events" inherent in group identification). Martha Minow concludes that "[e]ach of us is a unique member of the sets of endless groupings that touch us."
235. Id. at 39. In politics, "for strategic purposes we may choose to affiliate along one or a few lines of group membership, but these lines may shift as our strategies and goals change."
236. Id.
237. Larry Alexander, Lost in the Political Thicket, 41 FLA. L. REV. 563, 575 (1989);
238. see abo Akhil Reed Amar, Lottery Voting: A Thought Experiment, 1995 U. CHI. LEGAL F. 193, 203 ("You're never going to be able to cast a vote for someone who looks like you along every dimension-if you are, say, a conservative black Catholic woman, you might have to decide which of those attributes is the most essential part of your political identity.");
239. Karlan & Levinson, supra note 117, at 1204 (noting that the "list of potential criteria for creating voting groups is exceedingly long"). Political alignment necessitates this sort of choice, disaggregating and weighing the many components of personal identity.
240. See, e.g., Jon Gertner, The Very, Very Personal Is the Political, N.Y. TIMES, Feb. 15, 2004, § 6 (Magazine), at 42, 46-47 ("To look at this country the way direct marketers might, through the prism of data, is to see an America of almost uncountable religious and ethnic segmentations, or a country of homeowners, parents, college graduates, high-school dropouts, entrepreneurs, fishermen, regular voters, absentee voters and irregular voters.").
241. See Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063, 1074 (1980) ("One cannot speak of 'groups' as though society were objectively subdivided along lines that are just there to be discerned.").
242. See DONALD GREEN, BRADLEY PALMQUIST & ERIC SCHICKLER, PARTISAN HEARTS AND MINDS: POLITICAL PARTIES AND THE SOCIAL IDENTITIES OF VOTERS 3 (2002) ("Of the seemingly 'fundamental' social identities, only race is a powerful predictor of electoral choice.").
243. See, e.g., SIDNEY VERBA, KAY LEHMAN SCHLOZMAN & HENRY E. BRADY, VOICE AND EQUALITY: CIVIC VOLUNTARISM IN AMERICAN POLITICS 170 (1995) (observing that "what constitutes a politically relevant characteristic changes with new times and new circumstances").
244. See JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 77 (Adrienne Koch ed., Ohio Univ. Press 1966) (1840) (remarks of James Madison) (noting that group formation is complicated when there are "so great a number of interests [and] parties, that in the [first] place a majority will not be likely at the same moment to ... be apt to unite in the pursuit of it") ;
245. Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & EGON. 211, 213 (1976) ("It is not enough for the successful group to recognize its interests; it must organize to translate this interest into support for the politician who will implement it.").
246. See HARDIN, supra note 119, at 16-37 (discussing the difficulty of collective action and central importance of "political entrepreneurs" in group coordination);
247. JOHN W. KINGDON, AGENDAS, A LTERNATIVES, AND PUBLIC POLICIES 129-30, 188-93 (1984) (describing the role of "policy entrepreneurs" in promoting issues throughout the policy-making process);
248. Robert H. Salisbury, An Exchange Theory of Interest Groups, 13 MIDWEST J. POL. SCI. 1, 11-15 (1969) (explaining the role of "entrepreneurs/organizers" in investing up-front capital necessary to overcome problems of collective action).
249. Absent external coordination from democratic contestation, they will remain disorganized, as what Mancur Olson describes as a "latent group." OLSON, supra note 107, at 48-51.
250. See generally KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 63-83 (2d ed. 1963);
251. DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS 46-51 (1958). Even worse, the difficulties of coordination can preclude collective action even when a desire for collective action is overwhelmingly and desperately shared by a vast majority. A dramatic example is how the lack of information and coordination delayed the fall of communism in Eastern Europe, where Eastern Europeans were unable to coordinate until shared preferences were revealed and suddenly brought forth enormous change in shockingly quick fashion once coordination was facilitated.
252. See Timur Kuran, Now Out of Never: The Element of Surprise in the East European Revolution of 1989, 44 WORLD POL. 7 (1991);
253. Susanne Lohmann, The Dynamics of Informational Cascades: The Monday Demonstrations in Leipzig, East Germany, 1989-91, 47 WORLD POL. 42 (1994).
254. Of course, not all possible lines of political differentiation are equally salient. Many recur with frequency across societies, most prominently race, as discussed further in Part III. However, as many have established, even racial meaning is socially constructed, and race's political salience has varied with attempts by leaders to mobilize voters along racial lines. See, e.g., Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 CONST. COMMENT. 295, 311-17 (2000) (arguing against the mistake of assuming the permanence and inelasticity of race's sociopolitical force even within the historical context of the Jim Crow South).
255. See Michael S. Kang, The Hydraulics and Politics of Party Regulation, 91 IOWA L. REV. 131, 141-73 (2005) (describing political parties as evolving "supralegal creatures" and identifying intraparty politics as a vital form of political rivalry).
256. See Paul Frymer & Albert Yoon, Political Parties, Representation, and Federal Safeguards, 96 NW. U. L. REV. 977, 981 (2002) (declaring that parties lack "any fundamental, enduring, and essential nature").
257. Kang, supra note 137, at 142-46.
258. See John F. Bibby, State Party Organizations, in THE PARTIES RESPOND 19, 19-46 (L. Sandy Maisel ed., 4th ed. 2002) (describing major changes to state parties since the 1960s);
259. Morris P. Fiorina, Parties and Partisanship: A 40-Year Retrospective, 24 POL. BEHAV. 93, 103 (2002) (describing parties as malleable entities that party leaders "invent and reinvent to solve problems that face them at particular times in history"
260. (citing JOHN H. ALDRICH, WHY PARTIES? THE ORIGINS AND TRANSFORMATION OF POLITICAL PARTIES IN AMERICA (1985)));
261. Paul S. Herrnson, National Party Organizations at the Dawn of the Twenty-First Century, in THE PARTIES RESPOND, supra, at 47, 47-78 (describing major changes to national parties since the 1960s);
262. see also supra note 27 (describing the realignment of the major parties following passage of the VRA).
263. See Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986);
264. see also Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 MICH. L. REV. 1833, 1845-56 (1992) (discussing the emergence of the racial polarization requirement after the 1982 amendments).
265. See GROFMAN ET AL., supra note 3, at 82-108;
266. Bernard Grofman, A Primer on Racial Bloc Voting Analysis, in THE REAL Y2K PROBLEM: CENSUS 2000 DATA AND REDISTRICTING TECHNOLOGY 43-80 (Nathaniel Persily ed., 2000);
267. see also Pildes, supra note 7, at 1373 (stating that racially polarized voting remains a "pervasive fact of political life in the South" that makes descriptive representation for racial minorities improbable in the face of persistent majority opposition).
268. See generally Gerken, supra note 18.
269. See DAWSON, supra note 126;
270. DONALD R. KINDER & LYNN M. SANDERS, DIVIDED BY COLOR: RACIAL POLITICS AND DEMOCRATIC IDEALS (1996);
271. see also DAVID T. CANON, RACE, REDISTRICTING, AND REPRESENTATION: THE UNINTENDED CONSEQUENCES OF BLACK MAJORITY DISTRICTS 20-59 (1999);
272. SWAIN, supra note 19, at 5-19;
273. Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 CAL. L. REV. 1209, 1232-39 (2003).
274. See, e.g., Whitcomb v. Chavis, 403 U.S. 124, 153 (1971) (expressing concern that vote dilution becomes "a mere euphemism for political defeat at the polls");
275. Bruce E. Cain, Voting Rights and Democratic Theory: Toward a Color-Blind Society?, in CONTROVERSIES IN MINORITY VOTING: THE VOTING RIGHTS ACT IN PERSPECTIVE 268 (Bernard Grofman & Chandler Davidson eds., 1992) ("[I]f the system has worked for years on the premise that disproportionate outcomes were the price of single-member districts and simple plurality winners, then why should this right be given to blacks and Latinos?");
276. Issacharoff & Pildes, supra note 8, at 701 (observing the task is "to distinguish contexts in which minorities lose elections in the same manner as any other insufficiently powerful interest groups").
277. See Issacharoff, supra note 111, at 886 (observing that the VRA was designed to redress the "central features of the black experience in the U.S.- in particular, a history of de jure discrimination and segregation") ;
278. see also James F. Blumstein, Defining and Proving Race Discrimination: Perspectives on the Purpose vs. Results Approach from the Voting Rights Act, 69 VA. L. REV. 633, 677 (1983) (noting that the VRA was "designed as a remedial device to overcome a history of obstructionist resistance to the enfranchisement of blacks").
279. See generally ERIC FONER, FOREVER FREE: THE STORY OF EMANCIPATION AND RECONSTRUCTION (2005);
280. ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION: 1863-1877 (1988);
281. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) ;
282. KOUSSER, supra note 22.
283. See, e.g., Issacharoff, supra note 111, at 885-86 (explaining that the VRA premised its protections on a "history of discrimination-bred disadvantage").
284. ELY, supra note 115, at 152-60.
285. Id. at 153 (arguing that race-conscious measures are justified when racial groups are known "to be the object of widespread vilification, groups we know others (specifically those who control the legislative process) might wish to injure").
286. See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 724-26 (1985) (replying to Ely that discrete and insular groups actually exercise disproportionate political strength) ;
287. see also OLSON, supra note 107, at 22-36;
288. Peltzman, supra note 132.
289. See HARDIN, supra note 119, at 38-49 (describing the advantages of small group size);
290. OLSON, supra note 107, at 22-36, 44-65 (explaining the surprising tendency for the exploitation of the great by the small) ;
291. Ackerman, supra note 150, at 724-26.
292. Ackerman, supra note 150.
293. Frank I. Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 CAL. L. REV. 275, 315 (1972).
294. ELY, supra note 115, at 152.
295. See Karlan & Levinson, supra note 117, at 1218 (arguing that polarization is generated by the decisions of African American, Latino, and other minority voters "to unite politically and to 'pull, haul, and trade' their way into electoral power" (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994))).
296. See, e.g., Issacharoff, supra note 111, at 887-88;
297. Karlan & Levinson, supra note 117, at 1217-19.
298. See, e.g., Charles, supra note 144, at 1225-26 (describing the Court's "top-down understanding of racial identity claims");
299. see also Jeffrey A. Roy, Carolene Products: A Game-Theoretic Approach, 2002 BYU L. REV. 53 (arguing from a game-threoretic perspective that race offers a particularly easy focal point for stable coordination).
300. To say that white and African American political views are racially polarized is not to imply that African American (or white) political views are monolithic. See CANON, supra note 144, at 94-97. That is, the polarized divide between whites and African Americans obscures the fact that there is great intragroup diversity of political views for both whites and African Americans. On nonracial issues, whites and African Americans display the same level of ideological dispersion and diversity.
301. See id. at 30. The rest of the Article argues that a majority-minority district, by relieving the pressure of racial polarization, permits white and minority voters to rediscover this commonality on nonracial grounds and develop alternate frameworks for encountering politics.
302. See GUINIER & TORRES, supra note 78, at 11-31 (describing the essential need in a democracy for citizens to identify cross-racially and choose freely among multiple political identities).
303. Thanks to Jennifer Nou for the term "discursive polarization." It is important to clarify as well that discursive polarization need not be defined by (though it may be characterized as) an exclusive fixation on explicitly racialized issues, such as affirmative action. Instead, discursive polarization is defined by static sets of disagreements that divide the polity consistently along racial lines, whether or not the issues themselves are explicitly racialized, and reinforce racially polarized politics where both whites and the racial minority block themselves into permanent opposition along racial lines.
304. See also Lani Guinier, More Democracy, 1995 U. CHI. LEGAL F. 1, 4 ("Race, unfortunately, or fortunately, depending on your perspective, still defines the political interests of many Americans, and it should not surprise us that this is true given the fact that we live in such a racially defined world.").
305. See generally DAWSON, supra note 126 (showing that African Americans overwhelmingly subordinate political identity along class and other lines to racial identity).
306. See Thornburg v. Gingles, 478 U.S. 30 (1986) ;
307. Karlan & Levinson, supra note 117, at 1216.
308. See, e.g., Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003, 1046-64 (1995) (describing the powerful psychological underpinnings of race discrimination as a means of status production and detailing the accompanying social psychology literature).
309. See FRYMER, supra note 22, at 10 ("Precisely because racism is so divisive and repelling, African Americans are in the unique position of not being able to join in the give-and-take of normal coalition politics."). Obviously, the race-specific purpose of the VRA also distinguishes the treatment of race from other important, potentially divisive sociopolitical differences such as religion, ideology, and class. In other societies, alternate bases of political differentiation may dominate in similar fashion analogous to racial polarization in the United States.
310. See, e.g., DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 573-77 (1985) (describing deep tribal and other forms of ethnic conflict requiring consociational arrangements in Asia and Africa).
311. See Robert Cooter, Market Affirmative Action, 31 SAN DIEGO L. REV. 133, 153-56 (1994) (describing Jim Crow practices as cartel behavior);
312. Daria Roithmayr, Racial Cartels (Univ. of S. Cal. Law Sch. Law and Econ. Working Paper Series, Paper No. 66, 2007), available at http://law.bepress.com/cgi/viewcontent.cgi?article=1067&context=usclwps (characterizing racial discrimination in politics along these lines).
313. Terry v. Adams, 345 U.S. 461 (1953);
314. Smith v. Allwright, 321 U.S. 649 (1944);
315. Gravey v. Townsend, 295 U.S. 45 (1935);
316. Nixon v. Condon, 286 U.S. 73 (1932);
317. Nixon v. Herndon, 273 U.S. 536 (1927).
318. See, e.g., Issacharoff & Pildes, supra note 8, at 655-68 (describing white cohesion across ideological lines during the White Primary Cases but defining the White Primary Cases in terms of electoral competition);
319. Pildes, supra note 13, at 1621 (suggesting that judicial intervention in the White Primary Cases would have been unnecessary under conditions of partisan competition);
320. Roithmayr, supra note 164, at 23-31 (describing racial exclusion in the White Primary Cases as anticompetitive mutual disarmament).
321. See KEY, supra note 93, at 533 (concluding that the effect of Reconstruction was "the wiping out of party differences between the whites, formerly divided between the Whig and Democratic parties");
322. KOUSSER, supra note 22, at 16-17, 25 (describing economic divisions among Southern whites in the early Jim Crow South);
323. C. VANN WOODWARD, ORIGINS OF THE NEW SOUTH 1877-1913, at 321-49 (1951) (explaining how shared support for white supremacy unified whites within the Democratic Party and overrode economic and political rifts exposed by Southern populism);
324. C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 60-77 (2d rev. ed. 1966) (same).
325. See, e.g., Katz, supra note 16, at 1180 ("Majority-minority districts are invariably also noncompetitive districts.").
326. MINOW, supra note 126, at 96.
327. Kathryn Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the Voting Rights Act, 63 N.Y.U. L. REV. 449, 497 (1988) (discussing the need for and value of intraminority debate when race is an indeterminate guide for political choice).
328. See, e.g., Pildes, supra note 6, at 97-99.
329. For discussion of the tension within the African American community regarding the issue of gay marriage, see Esther Kaplan, The Religious Right's Sense of Siege Is Fueling a Resurgence, NATION, July 5, 2004, at 33, which discusses the divisiveness of gay marriage within the Democratic Party.
330. See also David Mattson, The Struggle To Redefine Marriage, INSIGHT, Aug. 5-18, 2003, at 30 (noting African American support for a federal marriage amendment);
331. State of the Union, ECONOMIST, NOV. 22, 2003, at 29 (identifying gay marriage as a wedge issue).
332. See Quentin Kidd et al., Black Voters, Black Candidates, and Social Issues: Does Party Identification Matter?, 88 SOC. SCI. Q. 165 (2007);
333. Quentin Kidd et al., Social Conservatism in the 2004 Election: Assessing the Pull of Values Issues on African American Voters (Sept. 1-4, 2005) (unpublished manuscript, on file with The Yale Law Journal).
334. See Gerken, supra note 102, at 1106-08
335. see also McAdams, supra note 162, at 1049 (explaining how fixing the racial minority group as the relevant voting "majority" within a majority-minority district helps counteract the subordination effort underlying race discrimination).
336. See Gerken, supra note 102, at 1151 (praising second-order diversity for "help[ing] vary participatory experiences over the course of a civic life").
337. Id. at 1150.
338. See LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY 5-7 (1994) (advocating turn taking);
339. Gerken, supra note 102, at 1142-60 (arguing that allowing the minority to "turn the tables" offers a form of second-order diversity useful in democracy);
340. George Kateb, The Moral Distinctiveness of Representative Democracy, 91 ETHICS 357, 360-61 (1981) (praising taking turns standing for the whole).
341. See, e.g., Christopher E. Smith & Linda Fry, Vigilance or Accommodation: The Changing Supreme Court and Religious Freedom, 42 SYRACUSE L. REV. 893, 942 (1991) (noting that racial minorities are underrepresented nationally but are achieving greater representational success at the municipal or local level).
342. In a controversial twist during April 2007, the state of Nebraska divided Omaha public schools into three racially identifiable districts in an effort ostensibly intended to give racial minorities control of dedicated school districts. See Sam Dillon, Law To Segregate Omaha Schools Divides Nebraska, N.Y. TIMES, Apr. 15, 2006, at A9 [hereinafter Dillon, Law] ;
343. Sam Dillon, Schools Plan in Nebraska Is Challenged, N.Y. TIMES, May 17, 2006, at A17;
344. Rick Montgomery, Omaha Schools: Divide and Conquer?, SEATTLE TIMES, Apr. 27, 2006, at A7. The only African American state senator in Nebraska, Ernie Chambers, sponsored the plan and argued that it was necessary to "carv[e] our area out of Omaha Public Schools and establish[] a district over which we would have control."
345. Dillon, Law, supra (quoting Neb. State Sen. Ernie Chambers);
346. see also Kathleen A. Bergin, Mixed Motives: Regarding Race and Racial Fortuity, 23 CONST. COMMENT. 271, 271-72 (2006)
347. (reviewing DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OFEDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM (2004)) (discussing the Chambers plan).
348. Cf. Richard Briffault, Home Rule and Local Political Innovation, 22 J.L. & POL. 1 (2006) (describing how diversity across localities produces political innovation);
349. Heather K. Gerken, Dissenting By Deciding, 57 STAN. L. REV. 1745, 1759-74 (2005) (arguing that outlying dissent improves the quality of the marketplace of ideas) ;
350. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 288-90 (2005) (arguing that the "polyphony" of disaggregated authority supports plurality, dialogue, and redundancy).
351. GUINIER, supra note 177, at 85;
352. see also Phil Duncan, Minority Districts Fail To Enhance Turnout, 51 CONG. Q. WKLY. REP. 798 (1993);
353. Phil Duncan, New Minority Districts: A Conflict of Goals, 51 CONG. Q. WKLY. REP. 2010 (1993).
354. See, e.g., supra note 19 (citing studies on the ideological impact of majority-minority districts).
355. See Matt A. Barreto, Gary M. Segura & Nathan D. Woods, The Mobilizing Effect of Majority-Minority Districts on Latino Turnout, 98 AM. POL. SCI. REV. 65, 74 (2004) ("Latinos vote more when in a majority-Latino district, contrary to the expectations of those who expected or feared minority demobilization.");
356. Gary M. Segura & Nathan D. Woods, Majority-Minority Dbtricts, Co-Ethnic Candidates, and Mobilization Effects, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006: PERSPECTIVES ON DEMOCRACY, PARTICIPATION, AND POWER 133, 141 (Ana Henderson ed., 2007) (concluding that "the effect of living in districts with greater Latino population is mobilizing for Latinos").
357. But see Kimball Brace et al., Minority Turnout and the Creation of Majority-Minority Districts, 23 AM. POL. Q. 190, 192-200 (1995) (reporting that over-time comparison suggests that minority turnout increases in majority-minority districts but that cross-sectional analyses yield mixed results).
358. See Barreto et al., supra note 183, at 70-74;
359. Segura & Woods, supra note 183, at 141-43.- Of course, there are many important forms of political participation besides voting that deserve consideration for purposes of democratic contestation.
360. See VERBA ET AL., supra note 131, at 37-48 (surveying the range of political participation);
361. see also Michael S. Kang, Counting on Initiatives?: An Empirical Assessment, 4 ELECTION L.J. 217 (2005)
362. (reviewing JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW (2004);
363. DANIEL A SMITH & CAROLINE J. TOLBERT, EDUCATED BY INITIATIVE (2004)) (discussing different political science measures for political participation and civil society).
364. See Barreto et al., supra note 183, at 72;
365. see also Brace et al., supra note 183, at 197 (finding a similar result for nested African American districts).
366. See ARCHON FUNG, EMPOWERED PARTICIPATION: REINVENTING URBAN DEMOCRACY 125-27 (2004).
367. See F. Glenn Abney & John D. Hutcheson, Jr., Race, Representation, and Trust, 45 PUB. OPINION Q. 91 (1981);
368. Lawrence Bobo & Franklin D. Gilliam, Jr., Race, Sociopolitical Participation, and Black Empowerment, 84 AM. POL. SCI. REV. 377 (1990);
369. Susan E. Howell & Deborah Fagan, Race and Trust in Government, 52 PUB. OPINION Q. 343 (1988);
370. see also David A. Bositis, The Future of Majority-Minority Districts and Black and Hispanic Legislative Representation, in REDISTRICTING AND MINORITY REPRESENTATION: LEARNING FROM THE PAST, PREPARING FOR THE FUTURE 9 (David A. Bositis ed., 1998) ;
371. D. Stephen Voss & David Lublin, Black Incumbents, White Districts: An Appraisal of the 1996 Congressional Elections, 29 AM. POL. RES. 141 (2001).
372. See Claudine Gay, The Effect of Black Congressional Representation on Political Participation, 95 AM. POL. SCI. REV. 589, 594-99 (2001);
373. see also Brace et al., supra note 183, at 196-200 (finding similar turnout increases in the general election for state house districts but not for congressional or state senate districts).
374. See Claudine Gay, Spirals of Trust? The Effect of Descriptive Representation on the Relationship Between Citizens and Their Government, 46 AM. J. POL. SCI. 717, 728-29 (2002).
375. One might expect a basic tradeoff between electoral competition in the primary and general elections with corresponding effects on voter turnout, such that even if turnout decreases for a less competitive general election, it should increase on average for the more competitive primary election in a majority-minority district. See Persily, supra note 33, at 661-62. However, empirical work in political science thus far focuses exclusively on general elections and likely understates the net increase in participation in majority-minority districts. In addition, for purposes of gauging democratic contestation, it would be useful to consider other measures of political participation and civic engagement besides voting and turnout.
376. See, e.g., VERBA ET AL., supra note 131, at 37-48 (describing a diverse range of political participation and arguing against a narrow focus on voting and turnout).
377. A robust line of empirical research on ethnic heterogeneity points in this direction, though a full exploration of its implications extends far beyond this Article. In short, empirical research across a wide range of social contexts and participatory measures finds ethnic heterogeneity negatively associated with civic engagement and political participation. See generally Robert D. Putnam, E Pluribus Unum: Diversity and Community in the Twenty-First Century: The 2006 Johan Skytte Prize Lecture, 30 SCANDINAVIAN POL. STUD. 137, 149-51 (2007) (surveying studies and concluding that inhabitants of ethnically diverse communities tend to withdraw from collective life).
378. See McAdams, supra note 162, at 1044-62 (reviewing the psychology literature).
379. See Karlan & Levinson, supra note 117, at 1224.
380. See generally Grofman, supra note 142, at 43-67.
381. See Pamela S. Karlan, Politics by Other Means, 85 VA. L. REV. 1697, 1723 (1999) (citing examples). It is important to recognize, however, that other studies find that political participation by whites in majority-minority districts tends to decrease.
382. See Barreto et al., supra note 183;
383. Gay, supra note 189.
384. CANON, supra note 144, at 93-142.
385. See id. at 137-42.
386. See Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts, " and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-07 (1993) (articulating a theory of expressive harm from the creation of majorityminority districts).
387. See Gerken, supra note 102, at 1134
388. (noting that minority legislators can serve as "conversational entrepreneurs" in promoting awareness of their group concerns (quoting BENNETT, supra note 72, at 36-37));
389. Karlan, supra note 10, at 98-99 (arguing that legislative fora offer special opportunities for pluralist bargaining and deliberation on minority issues).
390. See generally Duncan Black, On the Rationale of Group Decision-Making, 56 J. POL. ECON. 23 (1948) (introducing the median voter theorem).
391. See Persily, supra note 33, at 661-62 (discussing the tradeoff between competition in the primary and general election). A further argument is that dismantling majority-minority districts and replacing them with "coalition districts,"
392. see infra Section III.C, enhances policy responsiveness to the racial minority by increasing the likelihood that its political party will win the legislature. Even assuming that the correct unit of analysis is the whole legislature instead of the individual district, there is a fierce social scientific debate about whether the coalitional strategy is actually successful in practice as a matter of substantive policy.
393. See supra note 19. Moreover, the strategy is inherently risky for the racial minority, which may end up controlling neither the district nor the legislature. Just so, the coalitional strategy backfired in the Georgia redistricting of Georgia v. Ashcroft, 539 U.S. 461 (2003), where it was most prominently featured.
394. See Pamela S. Karlan, Georgia v. Ashcroft and the Retrogression of Retrogression, 3 ELECTION L.J. 21, 29 (2004).
395. See Issacharoff, supra note 6;
396. Katz, supra note 16, at 1165-66.
397. Katz, supra note 16, at 1181.
398. Ortiz, supra note 60, at 50.
399. League of United Latin Am. Citizens v. Perry (LULAC), 126 S. Ct. 2594, 2619 (2006).
400. 509 U.S. 630, 642-52 (1993).
401. See generally Gerken, supra note 31, at 1718-20 (describing the concerns about essentialization in Shaw, defined as "the drawing of inferences about an individual's substantive preferences based on her group membership").
402. Ortiz, supra note 60, at 50.
403. LULAC, 126 S. Ct. at 2613 (internal citations omitted) (quoting Session v. Perry, 298 F. Supp. 2d 451, 502, 512 (E.D. Tex. 2004)).
404. Id. at 2618
405. (quoting Session, 298 F. Supp. 2d at 512).
406. Id. at 2619.
407. Id. at 2618 (quoting Miller v. Johnson, 515 U.S. 900, 920 (1995));
408. see abo Shaw, 509 U.S. at 647 (criticizing as impermissible stereotyping the purposeful districting together of individuals with "little in common with one another but the color of their skin").
409. Pildes, supra note 14, at 1146.
410. See J. Eric Oliver, The Effects of Metropolitan Economic Segregation on Local Civic Participation, 43 AM. J. POL. SCI. 186, 187-88 (1999).
411. See generally J. ERIC OLIVER, DEMOCRACY IN SUBURBIA (2001).
412. See Oliver, supra note 212, at 199-204.
413. See Ellen D. Katz, Race and the Right To Vote After Rice v. Cayetano, 99 MICH. L. REV. 491, 516-27 (2000) (attributing to the Court the belief that race-based voting classifications preempt political self-constitution).
414. LULAC, 126 S. Ct. at 2618
415. (quoting Johnson, 515 U.S. at 920);
416. see also Shaw, 509 U.S. at 647. Justice Kennedy and the Court continued along these antiessentialist lines last Term.
417. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2796-97 (2007) (Kennedy, J., concurring);
418. see also id. at 2767 (majority opinion) (arguing that raceconscious government action "demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities" (internal quotation marks omitted) (quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000))).
419. LULAC, 126 S. Ct. at 2618.
420. See Georgia v. Ashcroft, 539 U.S. 461, 492-93 (2003) (Souter, J., dissenting);
421. Metts v. Murphy, 363 F.3d 8, 11 (ist Cir. 2004) (en banc) (per curiam);
422. see also Grofman et al., supra note 19, at 1407-09;
423. Pildes, supra note 48, at 1534-39.
424. See Pildes, supra note 48, at 1534-35.
425. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994).
426. 539 U.S. at 482-84, 492-93.
427. Id. at 481 (quoting Johnson, 512 U.S. at 1020).
428. See, e.g., Heather K. Gerken, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum, 153 U. PA. L. REV. 503, 531-39 (2004);
429. Pildes, supra note 6, at 92-98.
430. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (codified as amended at 42 U.S.C.A. 1973 to 1973bb-1 (West 2006));
431. see also Persily, Promise and Pitfalls, supra note 21, at 236-37 (noting tension between the House and Senate reports but concluding that coalition districts would be protected under the renewed VRA).
432. League of United Latin Am. Citizens v. Perry (LULAC), 126 S. Ct. 2594, 2625-26 (2006).
433. Id. at 2624.
434. See 1 Joint Appendix at 56, 92-103, LULAC, 126 S. Ct. 2594 (Nos. 05-204, 05-254, 05-276, 05-439), 2006 WL 64437 (report of Allan J. Lichtman on Voting-Rights Issues in Texas Congressional Redistricting).
435. Georgia v. Ashcroft, 539 U.S. 461, 481 (2003) (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)).
436. LULAC, 126 S. Ct. at 2648 (Souter, J., concurring in part and dissenting in part).
437. Ashcroft, 539 U.S. at 481
438. (quoting De Grandy, 512 U.S. at 1020).
439. LULAC, 126 S. Ct. at 2625. Of course, undisputed testimony in the LULAC record explained that Frost may not have faced primary challengers precisely because he was genuinely the African American voters' candidate of choice.
440. See, e.g., 1 Joint Appendix, supra note 226, at 241-43 (testimony of Roy Brooks);
441. id. at 238-41 (testimony of Ron Kirk);
442. id. at 256-57 (testimony of Royce West). Dallas Mayor Ron Kirk testified that he "[did] not believe that you could elect an African-American candidate, including perhaps [him] self, against Martin."
443. Id. at 241.
444. LULAC, 126 S. Ct. at 2625.
445. 1 Joint Appendix, supra note 226, at 260 (testimony of Royce West).
446. LULAC, 126 S. Ct. at 2622.
447. Cf. Janai S. Nelson, White Challengers, Black Majorities: Reconciling Competition in Majority-Minority Districts with the Promise of the Voting Rights Act, 95 GEO. L.J. 1287, 1300-01 (2007) (discussing the risk that entry of multiple African American candidates who split the African American vote in a majority-minority district allows a white candidate to win office).
448. See Karlan & Levinson, supra note 117, at 1223-24.
449. See supra notes 226-230.
450. See 1 Joint Appendix, supra note 226, at 107 (report of Allan J. Lichtman).
451. See Gerken, supra note 38, at 733 ("[T]here was relative unanimity among African American representatives about the wisdom of the plan.");
452. Pildes, supra note 6, at 96 (noting the "nearly unanimous support of a large black political delegation").
453. See Michael S. Kang, De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform, 84 WASH. U. L. REV. 667, 691-94 (2007);
454. see also Karlan, supra note 200, at 33 (questioning community support among African Americans).
455. See Brief of Georgia Coalition for the Peoples' Agenda as Amicus Curiae in Support of Appellees, Georgia v. Ashcroft, 539 U.S. 461 (2003) (No. 02-182).
456. Ashcroft, 539 U.S. at 481 (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)).
457. Id. at 482-84.
458. See generally FRYMER, supra note 22, at 87-119 (discussing the problem of electoral capture within the Democratic Party that squelches interparty competition for minority votes).
459. See Kang, supra note 137, at 141-42;
460. Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REV. 750, 805-20 (2001).
461. See Kang, supra note 137, at 141-44.
462. See id.
463. Courts may be institutionally ill-equipped to decide the value-laden and empirical questions that an affirmative account of democratic contestation necessarily requires. See Kang, supra note 239, at 686-99 (arguing that politically insulated institutions such as courts are poorly suited for questions of democratic theory).
464. See id. at 675-99 (describing redistricting commissions, actual and proposed, and their challenges).