Race and representation in the United States: The constitutional validity of majority-minority congressional districts

Journal of American Studies

Volumn 33, Issue 3, 1999, Pages 491-507

  McKeever, Robert J ^a  

^a UNIVERSITY OF READING   (United Kingdom)

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[No Author keywords available]

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EID: 77949949221     PISSN: 00218758     EISSN: 14695154     Source Type: Journal    
DOI: 10.1017/S0021875899006210     Document Type: Article

References (62)

1. L. Guinier, "The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success," Michigan Law Review, 89: 5 (1991), 1077-1154
2. The major decisions are Shaw v. Reno, 509 US-, 125 L Ed 2d 511, nj S Ct 2816, (1993), now referred to as Shaw 1; Miller v. Johnson, 515 US - , 132 L Ed 2d 762, 115 S Ct - , (1995); Bush v. Vera, 517 US -, 135 L Ed 2d 248, 116 S Ct -, (1996); Shaw v. Hunt (Shaw II), 517 US- 135 L Ed 2d 207, 116 S Ct-(1996) and Abrams v. Johnson, Docket no. 95-1425 (1997). The Shaw decisions involved North Carolina, Miller and Abrams involved Georgia and Bush involved Texas.
3. The Washington Post, 14 June 1996, A33.
4. Chief Justice William H. Rehnquist was put on the Court as an Associate Justice by President Nixon in 1972 and then elevated to Chief Justice by President Reagan in 1986. Reagan also placed Sandra Day O'Connor (1981), Antonin Scalia (1986), and Anthony Kennedy (1987) on the Court. The fifth Justice in this voting bloc is Clarence Thomas, placed on the Court by President Bush in 1991. It should be noted, however, that another Bush appointee, David H. Souter (1990), has consistently dissented in all these cases. As of 1996, the other dissenters are John Paul Stevens (Ford, 1975), Ruth Bader Ginsburg (Clinton, 1993), and Stephen G. Breyer (Clinton, 1994).
5. The relevant part of the Equal Protection clause reads: " (No State shall) deny to any person within its jurisdiction the equal protection of the laws." While neither race nor colour is mentioned in the Fourteenth Amendment, its legislative history and its passage in the aftermath of the Civil War make clear that it was particularly concerned with the rights of freed slaves and other blacks.
6. B. Grofman, L. Handley, and R. Niemi, Minority Representation and the Quest for Voting Equality (Cambridge: Cambridge University Press, 1994), 21-23
7. 478 US 30, 92 L Ed 2d 25, 106 S Ct 2752, (1986).
8. Alternatively, states could seek approval of changes from the federal District Court for the District of Columbia.
9. African Americans constitute a majority in only 5 of the state's 100 counties. Shaw I, p. 520.
10. Drawing on a number of sources, Justice O'Connor described the Twelfth thus: "It winds in snake-like fashion through tobacco country, financial centres, and manufacturing areas until it gobbles in enough black neighbourhoods. Northbound and southbound drivers on 1-8 5 sometimes find themselves in separate districts in one county, only to trade districts when they enter the next county. Of the 10 counties through which District 12 passes, five are cut into three different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. One state legislator has remarked that 'if you drove down the interstate with both car doors open, you'd kill most of the people in the district,'" Shaw I, p. 521.
11. Shaw I, pp. 525, 529.
12. Shaw I, Ibid., p. 542.
13. Shaw I, Ibid., p. 529.
14. Shaw I, Ibid., p. 555.
15. "The Supreme Court 1992 Term," Harvard Law Review, 107 (1993), 194-204, at 199-200.
16. Ibid., 200, 204.
17. The Review's anonymous author is rather puzzling in his or her insistence upon the determinative importance of the colour-blind principle, given that the article also registers Justice O'Connor's specific refutation that colour-blindness prohibits all forms of race-conscious districting, p. 197, fn. 21.
18. R. Pildes and R. Niemi, "Expressive Harms, 'Bizarre Districts,' and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno" 506-507
19. Shaw I, p. 533.
20. See, for example, A. Kull, The Colour-BIind Constitution (Cambridge, Mass: Harvard University Press, 1992) in defence of the principle;
21. and N. Gotanda, "A Critique of 'Our Constitution is Colour-Blind'," StanfordImw Review, 44 (1991), 1-68, attacking it.
22. 163 US 537, 41 L Ed 256 (1896).
23. Plessy, 559.
24. The Court did not actually use the phrase "colour-blind" in its opinion in Brown, but the official Annotation of the case in the US Law Reports said, "The decision in the Brown case vindicates Mr Justice Harlan's dissent in Plessy v. Ferguson where he said: 'Our Constitution is colour-blind and neither knows or [sic] tolerates classes among citizens.'" 347 US 483, 98 L Ed 873, 74 S Ct 686, p. 496 (1954).
25. Shaw I, p. 525.
26. O'Connor, Shaw I, p. 529.
27. Miller, p. 773.
28. Ibid., p. 777.
29. Ibid., pp. 779-780
30. Ibid., p. 780
31. Ibid., p. 781.
32. Ibid., p. 784.
33. Ibid., p. 785.
34. Ibid., p. 787.
35. Ibid., p. 795.
36. Ibid., p. 795.
37. Ibid., pp. 797-799
38. Ibid., p. 800.
39. Shaw II, p. 220.
40. Vera, p. 257.
41. Most of the State's population increase since 1980 had occurred in urban minority areas. Thus District 30 was an African-American majority district in Dallas County; District 29 was an Hispanic majority district in and around Houston; and District 18, adjacent to District 29, was a reconfigured seat with an African-American majority, Vera, pp. 255-256
42. Vera, Ibid., p. 253. The study is Pildes and Niemi, see fn. 17, above.
43. Vera, Ibid., p. 258.
44. Vera, Ibid., p. 258-259
45. Vera, Ibid., p. 259.
46. Vera, Ibid., p. 266.
47. Vera, Ibid., p. 262.
48. Vera, Ibid., p. 263.
49. Vera, Ibid., p. 262.
50. Vera, Ibid., p. 272.
51. Vera, Ibid., p. 272.
52. R. Engstrom, "Voting Rights Districts: Debunking the Myths," Campaigns and Elections (April 1995), 24.
53. CQ Weekly, 1 July 1995, p. 1948.
54. See, for example, Engstrom, "Voting Rights Districts," 46.
55. Docket No. 95-1425. Justice Kennedy spoke for the Court and accepted the District Court's finding that it could not create a second majority-minority district without making race the predominant factor in its plan.
56. Both quotations from CQ Weekly, 16 December 1995, p. 5838.
57. Quoted in S. MacManus, "The Appropriateness of Biracial Approaches to Measuring Fairness of Representation in a Multicultural World," PS: Political Science & Politics (March 1995), 42-47, at 44.
58. The strength of the evidence of the 1996 elections is uncertain. The elections in North Carolina were fought on the 1994 districting plan because a federal court deemed the new plan too late for implementation. And, although the Texas seats were contested under a post-Vera plan, the majority-minority districts were not drastically altered in favour of Republican candidates.
59. Rep. Cleo Fields (D-La.).
60. Ironically, the only black incumbent to be defeated in November, 1996, was a conservative Republican, Gary Franks, in Connecticut's 5th District.
61. J.Rowley, "The History Train: How a Black Congressional Incumbent Won a Landslide Renomination in a New Majority White Georgia District," Campaigns and Elections (September 1996), 57-139
62. In other formerly majority-minority seats fought on new redistricting plans, Sanford Bishop (D-Ga.) defeated his Republican opponent in the 2nd District by 54-46%; in the 18th District of Texas, Shirley Jackson Lee (D) retained her seat with 77% of the vote in an open primary; Eddie Bernice Johnson (D) did likewise in the 30th District with 5 5 % of the vote; and Gene Green (D), the white incumbent of the 29th District, defeated his Republican opponent with 67 % of the vote. All results from Roll Call, vol.42, 7 November 1996.