A Voting Rights Act at War With Itself

by Steven Hill

The recently concluded session of the U.S. Supreme Court saw a continuing bombardment of liberal policy and interpretation of the Constitution. Affirmative action, school desegregation, separation between church and state, the Voting Rights Act -- all received direct hits.

In Johnson v. Miller, the High Court ruled on perhaps the most basic affirmative action issue in a democracy -- political representation in a democracy. In a split 5-4 decision, the Justices invalidated a Georgia congressional district of a black Congresswoman, ruling that using race as a predominant factor in drawing district lines violated the Constitution.

It is deeply ironic that such "colorblindness," once the passionate plea of Rev. Martin Luther King in his "I Have a Dream" speech, should now be part of a conservative policy agenda rolling back thirty years of voting rights activism and litigation. Lik e a slick carnival magician, official colorblindness creates an illusion of one thing while actually delivering another: it proclaims to aim for fairness and justice for all, regardless of race. But instead it preserves the status quo, restricting gover nment remedies for minority vote dilution and by default aiding those who benefit most from historical discrimination. Johnson v. Miller is a dramatic expansion of previous court rulings that chipped away at the Voting Rights Act, and is a major s etback for the traditional methods of improving the continued underrepresentation of racial minorities at federal, state and local levels of government.

It makes sense to take stock for a moment and ask: What went wrong, between the steps of the Lincoln Memorial in 1965 and the High Court in 1995? And more importantly, what strategies should be pursued by the supporters of broad-based political represen tation and democratic pluralism? The gut reaction is to blame this retreat simply on the national conservative mood, and on a Democratic Party unable or unwilling to defend its own past handiwork. Yet a closer reading reveals that the seeds of the prese nt predicament were sown at the outset, when the Voting Rights Act was planted in the soil of a majoritarian winner take all voting system. The Voting Rights Act has been at war with itself ever since.

"You Can't Get There From Here"

Gaining representation for minority constituencies, be they racial, political, gender, religious, or sexual oriented, has always been difficult in a winner take all voting system. By virtue of being a minority, the candidates of minority constituencies u sually cannot attract a majority of votes. A majority of votes is a heck of a lot of votes to win, requiring a large campaign war chest as well as "mainstreaming" of the candidate. Thus the issues of minority constituencies can seldom be addressed, even when one of their own is running.

The U.S. version of winner take all, which was adopted from 18th century Great Britain, has the potential to leave 49.9% of voters in any given district unrepresented. A Republican and Democrat can live next door to each other in a winner take all system , but only one of these can gain representation -- the one who votes for the winner. Supporters of the Green Party, New Party, Libertarians, United We Stand America, We The People and others can forget about winning an election altogether. Of 1935 state senate seats around the U.S., none are held by third parties. Only three of 5440 state house seats are held by third parties, and one of 535 Congressional and U.S. Senate seats. In the face of such overwhelming odds, third party supporters are stuck be tween a rock and a hard place -- they have the mock choice of either wasting their votes on their unelectable candidates, holding their noses and voting for the "lesser of two evils," or not bothering to vote at all. There have been over a thousand unsuc cessful third parties in the two hundred year history of the U.S., yet they are only a memory now for trivia junkies and TV game shows. Thus was born the "inside/outside" strategy vis a vis the Republican or Democrat Parties, depending on which of the tw o evils one could stomach more.

The Voting Rights Act, first passed in 1965 and amended several times since then, tried to correct for this strong tendency of a majoritarian winner take all system to exclude minority constituencies. But it was focused exclusively on those minority cons tituencies identified by their race. All other minority constituencies were left stranded on the political margins. The most underrepresented "minority" has always been women, who have never held more than 11% of seats in the U.S. House of Representativ es and 8% in the Senate, though they are a majority of the population. Women were not included in the Voting Rights Act, and neither were any political/ideological minority constituencies. Despite the fact that third parties have been so notoriously uns uccessful, to this day little thought has been given as to how to level the playing field for these underrepresented constituencies.

Still, you take what progress you can, and the efforts to include racial minorities in the nation's legislative bodies was a worthy and noble cause. Armed with the Voting Rights Act, intrepid legal experts, politicians and civil rights activists set out to dismantle U.S.-style apartheid. It was not an easy task. Besides a profoundly racist legacy, the demographic mechanics were daunting: in order to give representation to a minority group in a majoritarian system, it is necessary to be able to draw a district around them. But what happens if the individuals of that group don't all live in the same area? What happens if the minority voters are spread out, as they quite often are, or if they don't all think and vote alike? And what happens when the mo stly white incumbents drafting the districts are trying to protect their own seats? Such demographic nightmares raised the messy specter of racial and incumbent gerrymandering. The gerrymandering contortions necessary to craft "majority minority" distri cts led to some bizarre shapes, including some that looked like dumbbells, ear muffs, Rorschach ink blot tests and the infamous "Z" shaped district in Louisiana. One North Carolina Congressional district was compared to the shape of a smashed mosquito; a nother district snaked for 160 miles through the center of North Carolina, in some places no wider than Interstate 95 as it opened and closed to capture pockets of black voters.

It was a gerrymander built to blow. Though many of these districts were no more bizarre-shaped than those drawn to protect one white incumbent or another, it was perhaps inevitable that when the political climate changed -- as it always does -- the race- conscious districts would be challenged as a form of "affirmative action" for racial minority voters.

Let's be clear about one thing: racial gerrymandering is not the fault of racial minorities for wanting political representation. It is the fault of a majoritarian winner take all voting system that routinely excludes minority voters -- racial or otherw ise. This has resulted in dogged efforts for the past thirty years to graft onto an inadequate voting system a hodgepodge of gerrymandered districts to make up for that inherent inequality. Even at its best moments, these attempts had mixed results. Ra cial minorities increased their representation to its highest point in the 1992 elections -- African Americans now comprise seven percent -- 38 seats -- of the Congress (and 12 percent of the population), and Latinos have 3 percent of Congressional seats (and 10 percent of the population). As a result of the Voting Rights Act, city councils went from 3 percent black to 55 percent black in majority-black cities. But women and political minorities, having been left out of the affirmative action of the Voti ng Rights Act, have never reached levels of political representation anywhere near their numbers, and currently are still languishing at the margins of political life in this country.

Some critics of the Voting Rights Act have questioned whether or not such affirmative action is needed to help racial minorities get elected. In a previous Supreme Court ruling Justice Anthony Kennedy declared that "the assumption that...majority-white d istricts elect only white representatives, is false as an empirical matter." This criticism was echoed by several prominent academic commentators and legislators, some of them black, as well as Justice Clarence Thomas. As evidence, these critics point t o several highly visible black politicians elected from majority-white electorates, like Illinois Sen. Carol Mosley Braun, former Virginia governor Douglas Wilder, U.S. Representative Garry Franks from Connecticut, as well as the mayors of New York, Seatt le and Denver.

Yet a recent book, Quiet Revolution in the South, convincingly demonstrates that, absent race-conscious districting, black political representation in the South would be nearly invisible. Quiet Revolution shows that cities with mixed electi ons -- with both at-large and individual districts -- provide an ideal test for the role of "safe" districts. In southern cities whose black population was 30 to 50 percent, black candidates won 41 percent of the district seats but only four percent of th e at-large ones. In cites with 10 to 30 percent black population, blacks won 23 percent of districted seats but only two percent of the at-large ones. In Alabama, Mississippi and South Carolina, no black official was elected to a city council from an at -large seat in any majority-white city. No black has ever been elected to Congress from the South in a majority-white district. The facts have not been as thoroughly studied in other parts of the country, but in the South at least voting is still racial ly polarized, meaning that the absence of any "safe" minority districts will translate into less and less black officeholders.

Despite such jarring evidence, a divided Supreme Court threw out districts based on race, opting for a conservation usurpation of a colorblind society. Ironically, as a result of Miller, safe districts for racial minorities are now unconstitutiona l, but safe districts for the mostly white male incumbents -- the representatives of a "majority" that comprises only 32% of the population -- are not.

The South African Experiment

Four score and seven years ago -- give or take a hundred and thirty years -- the young United States democracy was known in certain quarters as the Great Experiment. De Tocqeuville thought the experiment an innovative and bold one; Lincoln's Gettysburg A ddress captured the spirit of this "new nation conceived in liberty" and "dedicated to the proposition" that "all men are created equal."

But in the dawn of the 21st century, the challenges of democracy are quite different than the 18th and 19th centuries. Certainly one of the greatest challenges today is presented by the complexities of providing adequate political representation in a mul ti-racial, multi-ethnic, multi-religious, and multi-gendered world. The torch of bold democratic innovation has passed -- from the United States, stuck in its majoritarian winner take all ways -- to countries like the new democracy of South Africa.

As the South Africans dismantled decades of apartheid, they had to wrestle with a truly vexing problem: how to give political representation to its various racial and ethnic groups, particularly when one of these groups constitutes a clear majority. Com pared to the United States, the racial demographics of South Africa are almost exactly reversed. In South Africa, the majority is black, comprising about 74% of the population. The white minority comprises about 14% of the population, with coloreds (9%) and Asians (3%) making up the rest. In the United States whites comprise 75%, blacks 12%, Hispanics 9%, Asians 3% and Native Americans 1%. Nelson Mandela and other black South African leaders wisely realized that the success of their new fragile democr acy depended on the degree to which their government gave adequate representation to its various minority groups, particularly the white minority which owned most of the private wealth of the country, as well as the various ethnic minorities like the Zulu -centered Inkatha Party. If the white minority was shut out of power, South Africa may have ended up like its winner take all neighbor to the north, Angola, where Jonas Savimbi's UNITA refused to accept unfavorably lopsided election results and tragically launched Angola's latest round of civil war.

So the challenge of South Africa's black majority was how to share power with its racial minority groups in a way that was fair and equitable. And there were essentially two choices available to Mandela: winner take all, or some form of a proportional r epresentation voting system.

South Africa had already tried racially segregated homelands and neighborhood. So they chose proportional representation, specifically a party list system. With the party list system, legislative seats are weighted equally in multi-member districts, rat her than the U.S.-style single member districts. For instance, in a ten seat district each seat is worth about 10% of the at-large vote. If a party wins 40% of the vote they get four seats, 20% wins two seats. If an independent candidate wins 10% of th e vote, they too win a seat. A party or candidate need not come in first to win a seat, significantly opening the door to political and racial minorities, and to third, fourth, fifth parties, and independent candidates, without having to gerrymander a si ngle district.

When the results of the first South African elections were in, not only was the white minority not shut out of representation, but the effectiveness of a voter's vote was not limited only to those who happened to live in the right district. Eighty six pe rcent of eligible South African voters saw their vote help elect someone, an astounding figure considering that in the 1994 U.S. Congressional elections only 22 percent of voters had an effective vote that helped elect their Congressperson.

Stirrings in the Tall Grass

The example of South Africa is instructive. At times, the clash of race and politics in the United States approaches the apartheid intensity of South Africa, yet the United States continues to use a 200 year old system of winner take all democracy that r outinely denies representation to its various minority groups unless one can draw a gerrymandered district around them -- not always an easy task, and always a controversial one.

Proportional representation voting systems have been proposed as a race-neutral method of remedying minority vote dilution. Ironically, these developments have brought back to the limelight Professor Lani Guinier, the Clinton Administration's rejected no minee to the Justice Department, who is widely recognized as the foremost proponent in the United States of alternative voting schemes like proportional representation.

"I think this debate is going to take root," Guinier said in a New York Times interview last year, "because I think many Americans, not just racial minorities, feel alienated from politicians who ostensibly represent them. For a premier democracy, our le vel of [voter] participation is an embarrassment. Some may say that reflects contentment with the status quo. I think it represents...rational behavior by voters who realize their votes don't count."

Some see an opportunity as a result of Miller to find new ways to gain representation, not only for racial minorities but also for women and political/ideological minorities. Already over the last few years, interest in alternative voting systems had been rising. Charter commissions in San Francisco, Oakland, Santa Fe, Detroit, Miami Beach, Missoula (MT) and Cincinnati have recently given serious consideration to various proportional voting schemes to solve the dilemmas of representation in diver se urban settings. Campaigns for voters initiatives to adopt such systems are underway in Eugene (OR) and Seattle, and Cincinnati voters narrowly rejected such an initiative in 1991. Leading progressives like Jesse Jackson, Ralph Nader, Dolores Huerta, Ellie Smeal, Manning Marable and Joel Rogers have joined more centrist thinkers like John Anderson, Kevin Phillips, Hendrik Hertzberg and syndicated black columnists William Raspberry and Clarence Page in advocating consideration of proportional systems. A recent USA Today editorial enthusiastically endorsed PR as a race-neutral way to comply with the Voting Rights Act and to "seek a Congress that looks, broadly, like the nation."

Indeed, there is a startling convergence of thought, from both the left and the right, about the possibilities offered by proportional voting schemes. Conservative black Justice Clarence Thomas in a recent opinion urged consideration of voting mechanisms "that can produce proportional results without requiring division of the electorate into racially segregated districts," specifically mentioning two systems, preference voting and cumulative voting. Black liberal Rep. Cynthia McKinney, whose 11th Congre ssional district was declared unconstitutional in Miller, stood on the steps of the Capitol the day of the Supreme Court ruling and dramatically announced her intention to introduce legislation into the House that will allow states the option of electing their Congressional delegations using preference, cumulative or limited voting. The McKinney bill (known as HR 2545) is essential since a 1967 federal law -- ironically passed to aid the goals of the Voting Rights Act -- mandates single member districts for Congressional elections.

It is a tempting thought for some voting rights proponents to end run the conservative "colorblind" agenda by switching strategies away from gerrymandered districts to proportional voting. There is strength in numbers, and they recognize that they could join with others who were left out of the Voting Rights Act, like women's groups and third parties. Still, there are other voting rights proponents who have been resisting this approach, clinging to a hope that the traditional methods may still be useful , particularly since their increased incumbency from the 1992 elections may give them the clout to ensure that future districts are drawn to their liking. Time will tell which approach will be more effective, or whether a consensus can be reached that wi ll salvage some vestige of the Voting Rights Act.

PR? Doesn't that Stand for "Public Relations?"

Proportional representation -- PR -- is the voting system of choice for most of the world's major democracies. In these democracies there are generally a number of predictable results: 1) more political choice for voters, including electable third, four th, and fifth parties, independent candidates and more; 2) since there are more viable choices for voters, engendering greater voter enthusiasm rather than "the lesser of two evils" blues, eligible voter turn-outs are typically 70-90% (by comparison, 199 4 eligible voter turnout in the U.S. was a typically low 39%) ; 3) PR is a form of campaign finance reform, since a lower percentage of votes are needed to win, and so the amount of money a candidate needs to spend to win a seat is correspondingly decreas ed; 4) PR gives wider representation to class-based perspectives, racial and political minorities and women. In most PR countries women generally compose 25-40% of the national legislature, whereas in 1992 the U.S. broke out into great huzzahs of democra tic fawning -- even boldly declaring it the "Year of the Women" -- when representation jumped to 6% women in the U.S. Senate and 11% in the House.

In short, PR generally ensures that the legislative body, whether federal, state or local, reflects the different perspectives present in the electorate. Compared to winner take all, PR greatly facilitates minority representation but majority rule, withou t having to gerrymander a single district.

The recent global popularity of the German "mixed member" proportional system suggests some interesting possibilities for U.S. voters. The German system's combination of U.S.-style winner take all districts with a party list PR system that elects politic al parties in proportion to their share of the popular vote would be very familiar to U.S. voters. Voters have two votes in the German system: one for their district representative, just like U.S. voters have now, and one for their desired party. This system has allowed the Green Party and other minority parties to be a potent force in German politics; the Greens have never won any district seats, but they usually win seats in the proportional vote. In the October 1994 national elections, the Greens w on 49 seats, third highest in the Bundestag. This form of PR -- as well as any of the other various forms of PR -- could easily be adopted in the U.S. at local, state and federal levels without constitutional amendments, merely by changing applicable law s.

Another type of PR, preference voting, has been used successfully to elect the city council of Cambridge MA since 1941. Voters rank candidates in their order of preference (1,2,3,4, etc.) and candidates win by reaching a threshold of votes established by dividing the number of contested seats into the number of votes cast. Surplus votes of winning candidates and the votes of losing candidates are transferred to the next preference on voters' lists until all seats are filled. Very few votes are wasted w ith PR systems, and voters are not stuck choosing between the lesser of two evils. Besides electing Cambridge's city council, preference voting is also used to elect New York City's community school boards, and various governments in Europe as well as th e Australian upper chamber. Earlier this century, preference voting was used by two dozen U.S. cities to elect their local governments, including New York, Cincinnati, Cleveland, Worcester (MA) and Boulder CO. It was tossed out in some of these locales in a fit of McCarthyite and racist backlash because it elected a few Communists and blacks to office. Also, the complexities of the transferable ballot count, which today is handled by computers, gave fuel to the anti-reform interests. The history of pr oportional representation in this country, like so much about the McCarthy era, is largely a buried one. Try going to a local library and checking out a book on the subject -- most of the available resources are twenty years old or more, written for acad emic audiences. In 1993, Columbia University Press published New Choices, Real Voices by Professor Douglas Amy, the first layperson's resource on PR published in the U.S. in over thirty years.

The trend in the world is decidedly toward adoption of PR systems, and away from winner take all. In the conversion from Communism to democracy, almost all the countries of Eastern Europe adopted some form of PR. New Zealanders, after using the winner t ake all system for over 140 years, voted in a national referendum two years ago to scrap it in favor of the German mixed member system. Over the past two years, Japan, Russia, Mexico and Italy all adopted a less proportional version of the mixed member s ystem.

Critics of PR point to the potential horrors of gridlock created by adding more cooks to the legislative stew. They like to point to the political quagmires of Italy and Israel as the examples of what will result from proportional representation election s. Yet this ignores the fact that far more countries have been successful than not with their proportional representation systems, including Germany, Sweden, Netherlands, Switzerland, Austria, Brazil, and more. If the issue is lack of representation, ev en Israel elects Arab legislators to the Knesset without having to gerrymander a single district.

PR proponents say that the U.S. needs a voting system for the twenty first century, not the eighteenth. When the American republic was young and dotted with small communities barely connected by slow communication and transportation, the interests of cit izens were generally those of their neighbors. Geographic representation made sense. But society is more mobile today, more multicultural and diverse. People living next door to each other often have completely opposite viewpoints, yet with winner take all elections only one of these voters will receive representation. Simple geographical representation can no longer ensure fair representation for all. A twenty first century voting system must be able to accommodate a multiracial, multi-partisan socie ty in a way that is fair and equitable -- definitely not a strength of winner take all.

PR enthusiasts are hoping that the United States will follow the multi-racial example of South Africa and convert to a PR system. The process of conversion may seem daunting, but not nearly so much as laboring forever in the increasingly barren wasteland of post-Miller two party winner take all politics. Otherwise, they warn, the U.S. will continue to be plagued by the tensions of race and politics, stumbling in and out of voting rights lawsuits, as a result of the inherent exclusivity of its winner tak e all voting system. And racial minorities will watch a slow erosion of their representation, eventually joining the ranks of women and political minorities standing on the sidelines, while the white guys in neckties representing the "32 percent majority " once again make all the decisions affecting everybody's lives.