Representation Rights and the Burger Years by Maveety Nancy L.;

Author:Maveety, Nancy L.; [Maveety, Nancy]
Language: eng
Format: epub
ISBN: 3414775
Publisher: University of Michigan Press
Published: 1991-07-14T16:00:00+00:00

The Demographics of Competition

To summarize, the case data described by the conceptual type of demographic representation concerned two kinds of districting policies—race-based and partisan-based districting. In analyzing the political and constitutional legitimacy of each, the chapter classified the cases according to whether they presented statutory or constitutional legal issues, to avoid conflating these distinct categories of voting rights. Race-based districting was both a statutory and constitutional issue, and partisan-based districting raised only constitutional questions; whether this jurisdictional difference was relevant to demographic districting policies is a point we can now consider.

Clearly, constitutional voting rights policies are more permanent, so it is especially important to understand how the Court derives and/or interprets them. Moreover, in segregating the statutory from the constitutional cases, we are able to highlight the interaction between the judicial and legislative branches over policies for racial political equality. I particularly wanted to avoid interpreting judicial decisions on a statute’s construction as confirming the conceptualization of demographic representation, when those decisions were possibly more dependent on statutory directives than judicial initiative. Additionally, all the constitutional gerrymandering cases were analyzed together to focus on the issue of compatible standards for racial and partisan vote dilution. This facilitates evaluation of what compatible standards do or do not imply about a districting policy of compensatory majoritarian competition.

To review the findings with respect to the case data, the statutory cases involving the Voting Rights Act are best summarized as “pre-results test” versus “post—results test” rulings. The results test of section 2, part of the 1982 amendments to the act, changed the tenor of that statute; arguably, the results test subtly affected judicial construction of the standards of preclearance under section 5 of the act. The Burger Court decided five “pre-results test” decisions: Georgia, Richmond, Beer, Rome, and Mobile. All but the last case dealt with section 5 preclearance and with the nonretrogression standard for local electoral changes; Mobile was the ruling that did much to precipitate the 1982 amendments to section 2. In the aggregate, the “pre—results test” rulings were consistent with the conceptual type of demographic representation, though their endorsement of compensatory majoritarian competition was somewhat tentative. Of the three “post—results test” rulings—Port Arthur, Lockhart, and Thornburg—only the latter actually interpreted the meaning of the new section 2. Port Arthur and Thornburg confirm the conceptual type of demographic representation because of their enthusiasm for demographic districting as political compensation for less competitive racial groups.159 Generally, the statutory vote dilution decisions fall within the explanatory power of this conceptualization.

The second set of cases, those raising constitutional challenges to gerrymandered districts, should be subdivided by gerrymandered group rather than case chronology. The particular problem of the racial gerrymandering decisions was that district-based elections, which are supposed to partially accommodate plural interests, distorted the racial demographics of the electorate and biased the competitive environment. This bias was sometimes combined with the competitive advantage that at-large electoral systems give to an electoral majority. The Burger Court decided three racial gerrymandering decisions—Whitcomb, White v. Regester, and UJO—the first two of which concerned the problem of the at-large competitive environment.

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