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C. Frontiers, boundaries, limits

The End of the African American Political Space? The Court, Redistricting and Black Interests in Contemporary America

Lisa Veroni
p. 211-221

Abstract

Afin de transcender les espaces politiques identitaires et satisfaire les principes de démocratie, il semble nécessaire que la simple représentation numérique des Afro-Américains au Congrès se transforme en représentation substantielle. Or, alors qu’ils gagnent dans les circonscriptions à population majoritairement noire, les Afro-Américains perdent celles dont la population noire n’excède pas les 40 %. A l’intérieur du Parti démocrate, le Congressional Black Caucus demeure certes l’organisation la plus à même à représenter les intérêts afro-américains, mais ses performances législatives sont mitigées. De plus, l’hétérogénéité économique au sein de la communauté et la résurgence d’un courant conservateur dans les années 80 et 90 laisse supposer que la notion même d’intérêts spécifiquement afro-américains devienne de plus en plus difficile à cerner. Quel impact le redécoupage électoral en fonction de l’appartenance ethnique a-t-il aujourd’hui sur la composition de la Chambre des représentants ?

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1American electoral representation has always been understood in spatial terms. Modern congressional representation is based on single-member districts, which enable small, geographic communities to send their own representative to legislative assemblies District boundaries determine which residents are grouped together to elect the representative of their choice. However, the drawing of district lines raises a major problem: even if, every decade, new districting plans are created to make sure that each district has its equal share of constituents, they can also be created with the purpose of excluding minority groups, especially African Americans. This discriminatory device, called racial gerrymandering, shares similarities with older devices such as poll taxes, literacy tests and white primaries. The difference between older strategies and new ones is that the former were a denial of minority voting rights, whereas racial gerrymandering is a dilution of minority voting strength. Each strategy shows that the American political space is not only shaped by geography, but also by race. Electoral representation results from the tension between the American political space and the political space of minority groups. Because of its history of past oppression, the African American community has found it extremely difficult to achieve electoral representation. The Voting Rights Act of 1965 and its extensions, as well as the various reapportionment cases of the 1980s, have made representation of specific black interests possible through the creation of majority black or "safe" districts (in which the black voting age population is above 50%. However, many civil rights advocates consider as "safe" a district which reaches a proportion of 65% or over). In the 1990s though, the Supreme Court’s understanding of the VRA started to change, and great emphasis was put upon the ideal of colorblindness. Race could not be the "predominant factor" in determining district lines. In 2003, the Court questioned the necessity of maintaining majority black districts (Georgia ν Ashcroft). Coalitional or influence districts (in which the minority voting age population is between 30-50%) could serve the same purpose: promoting minority interests - as well as white interests. If the ideal of color blindness were a reality, this would mean that there was absolutely no difference between black and white interests. The tension between the African American and the American political spaces would come to disappear.

2The Voting Rights Act is due to expire in two years. This act and its extensions of 1972, 1975 and 1982 reinforce the principles of the Fourteenth and the Fifteenth Amendments. Has this institutional counter device reached its goal? Are African Americans now fairly represented in legislative assemblies? With its 2003 ruling, this is the message that the Court seems to send. Furthermore, legal, voting rights scholars and politicians are, for the first time, extremely divided on the issue. There is no consensus on whether the 2003 ruling will have a positive or negative impact on minority voting rights. However, it seems clear that because of the election of a growing diversity of black congressmen, and of the widening spectrum of black interests, the tension between the African American and the American political spaces might be at least partially resolved.

Electoral representation and the African American political space

3In the 1960s, most Southern states did yet not seem ready to abandon their long history of black voter exclusion. The passage of the Voting Rights Act of 1965 helped ban district configurations which had the effect of diluting minority votes. There are two main strategies of minority vote dilution "packing," which consists in concentrating minorities in a single district so that they form a super-majority and "cracking," which divides a group of minority voters into several districts. In both cases, minority voters cannot choose their preferred candidate. It is assumed that their interests are not represented either in the surrounding districts or in the district in which they live. Section 2 and Section 5 are the central parts of the Act.

4Section 2 was primarily a restatement of the Fifteenth Amendment (Grofman & al 1992, 16). As amended in 1982, it made possible the filing of lawsuits against districting plans which did not guarantee the equal protection of minority voters and established a vote dilution standard.

5Section 5 of the VRA prohibits any change in voting rules having a "discriminatory effect" or a "discriminatory purpose" in "covered" jurisdictions. Section 5 targets more specifically states or localities which have in the past repeatedly changed the rules in order to exclude African American voters.

6With the retrogression standard, the Supreme Court established that jurisdictions must show that new redistricting plans will not have a weakening effect on the voting power of minority voters (Beer ν United States, 1976). Then, in 1986, the Supreme Court confirmed that the amended Section 2 put the emphasis on "discriminatory effect" rather than "discriminatory purpose" (Thornburg ν Gingles). Challenging one single-member district and six multimember districts of North Carolina, it also created a set of standards for vote dilution. To claim discrimination, a minority group must demonstrate its geographic compactness, its political cohesiveness and the negative impact of racially polarized voting on its preferred candidate. This notion of a "minority’s preferred candidate" or "representative of the minority’s choice" has been highly controversial. Must candidates of choice for African Americans be black? Does that mean that only black elected officials can receive a majority of African American votes? Legislative assemblies and courts did not reach an agreement on either the meaning of this concept or its relation to race. However, what the decision made clear was that the creation of majority black districts was required in order to avoid vote dilution lawsuits (Canon, 1999a, 73).

7As was bound to happen, in the post-Gingles period, a large number of lawsuits were filed to dismantle discriminatory district plans, especially after the 1990 census. This led to the election of a greater number of black officials (Grofman et al, 1992, 80).

  • 1 Which established that courts could provide remedies in case of malapportionment.
  • 2 Which established that congressional seats should be redistributed among the states on the basis of (...)
  • 3 In "descriptive" representation, representatives are in their own persons and lives in some sense t (...)
  • 4 See Pitkin, 61-90, for a thorough definition of descriptive representation.

8In its early stages, the VRA had a tremendous effect on the election of black elected officials. With the suspension of literacy tests and the organization of voter mobilization campaigns in the Southern states, African Americans became entitled to full citizenship for the first time. By the end of the year 1965, some 250,000 African Americans were newly registered. These new votes made the number of black elected officials (BEOs) rise sharply. Meanwhile, as a result of Baker v. Carr1 (1962) and Wesberry ν Sanders2 (1964), Western and Northern states began reapportioning their districts to respect the "one person, one vote" principle without any "diluting" effect on minority votes. In 1966, there were only 6 black members of Congress. By 1971, black Congressional membership had risen to 13 members, an unprecedented number. Because of the extremely small number of black office holders prior to year of the passage of the VRA, there was a sharp demand for descriptive representation.3 The new black office holders bore the responsibility of defining as well as promoting specific black interests. They were the "mirror" of the black community. They "stood for" African Americans locally and nationally.4

9At the federal level, black members of Congress chose to form the Congressional Black Caucus, with the explicit aim of representing and advancing black interests. At the local level, the more African-Americans there were in a constituency, the higher the chances that the black candidate would be elected. If the black voting population of a given district was below 40% of the total voting age population, it was highly unlikely that the preferred candidate of the minority group would be elected. In the days of the passage of the VRA, white voters, especially in the Southern states, were not willing to vote for black candidates. The creation of majority black districts or "safe" districts was the only opportunity for African Americans to elect a representative of their choice.

10Because of racially polarized voting, reapportionment and the Voting Rights Act, along with black demographic concentration, are at the basis of black congressional representation (Singh, 1998, 52-53). The need for safe districts is based on the link between black office holders and black voters on one hand, and white office holders and white voters on the other. The African American political space is closed: white voters do not vote for a black candidate, and white office holders are not responsive to black interests.

11Despite demands for descriptive representation, it is evident that the African American community is also asking for substantive representation. Both forms of representation come together for those who believe that Black congressmen are the only persons capable of "authentic" representation. Group identity, a history of past oppression, and the need for electoral representation lead to the conclusion that Black legislators will promote specific black interests. African Americans have been strongly bound by a sense of group identity, even though their political views have changed greatly since the 1970s. Thus, even if a "group’s interest" is usually difficult to define, it may be that, because of their sense of "common fate," it is easier to define a specific set of "black interests" (Haynie 2001, 19). In terms of vote, most African Americans now identify with the Democratic Party, which shows that they have been in the past decades a cohesive group, at least in terms of partisanship. Losing their radicalism as the civil rights movement came to an end, Blacks became increasingly liberal in their policy preferences (Nie, Verba & Petrocik, 1999). Using her 1984 NBES (National Black Election Studies) survey, Katherine Tate concluded that African Americans were extremely liberal, were willing to support race-specific programs, and held views on the latter which contrasted with those of Whites (Tate, 1994, 29-38). This would lead us to think that African Americans are also a cohesive ideological group. In this case, specific black interests are still as clearly identifiable as they were in the 1960s.

12An evaluation of black interests will also necessarily involve the use of tangible factors. Reports of socioeconomic conditions indicate that African Americans as a group still do not fare as well as others. Income inequalities are persistent as black median household incomes are still below those of whites. The unemployment rate of African Americans is usually at least twice as high as that of Whites (Canon, 1999a, 24). They are still lagging behind in terms of educational achievement (Haynie, 1998, 20-23; Dawson, 1994; Canon, 1999a, 22-26). If the socioeconomic differences between Whites and Blacks still remain, this should not obscure the fact that there has been undeniable progress since the 1960s (Canon, 1999a, 23), although socioeconomic progress has not reached everyone. There have been growing internal divisions within the African American community, with the emergence of a black middle-class, and an increasing number of urban ghetto residents. Thus, as Robert Dahl had predicted, the African American community is not as socially homogeneous as it used to be, and even though the effects of social background variables on African American policy views are mixed (Tate 1994), it cannot be denied that internal social divisions have an impact on the way Blacks perceive redistribution policies.

13If black interests are indeed becoming divergent, the representation of black interests becomes a complex issue, and the ties between black representatives and black interests inevitably lose their strength. But even if African Americans still share a great number of common values, understanding the African American political space as closed has its limits, solely because descriptive and substantive representations do not necessarily come hand in hand. Considering that majority black districts cannot always be drawn, completely excluding the possibility that representatives from one ethnic origin might be capable of representing the interests of a minority group from another weakens the chances that this minority group will be represented at all. This issue is at the heart of reapportionment cases of the 1990s, which eventually led to a devaluation of majority black districts.

"Only Blacks can represent Blacks": The limits of closed political spaces

14Justice O’Connor, delivering the opinion of the Court in the Shaw ν Reno ruling of 1993, argued that North Carolina’s reapportionment plan was unconstitutional on the grounds that the district’s bizarre shape bore evidence that constituents have been categorized solely in terms of race. To the "one person, one vote" and to the vote dilution criteria that could be used to file malapportionment suits was added another: one did not need to prove that the exclusion of a specific category of voters was intended in a redistricting plan; the shape of the district bore sufficient proof. Irregularly shaped districts were thus equated with districts producing racial gerrymandering. As a consequence. North Carolina’s congressional districts following the 1990 census were the subjects of a series of lawsuits which lasted nearly the entire decade.

15From Shaw ν Reno (1993) to Hunt ν Cromartie (2001), the Supreme Court ruled that race can be taken into consideration in redistricting plans, as long as it is not "predominant & controlling" (Canon, 1999a, 99). With new census data available in 1990, black majority districts were created in order to guarantee a fair representation of minority interests. Many of these new districts were declared unconstitutional following Shaw (Canon, 1999b, 342).

16As race could be used as predominant factor either to enhance or undermine a fair representation of minority interests, the Supreme Court rulings of the 1990s, striking down redistricting plans based on race, cast doubt on the need for majority minority districts. The law permitted majority minority districts, but did not require them. Even if they were created to comply with anti-discrimination laws, this did not mean that they could not be challenged in court. There was no proof that they always guaranteed a fair representation of minority interests. In fact, the blind promotion of majority minority districts might push American legislatures away from the goal of a political system in which race is no longer a factor at all.

17The links between a minority group and its preferred candidate are no longer only articulated in racial terms. But then how much importance is given to race when a minority selects a candidate of its choice? Are we closer to a political system in which race no longer matters? To put it differently, should the African American political space of the 1990s be considered as closed, open, or interchangeable?

  • 5 The two political spaces can also be considered as separate. A category of nationalists and radical (...)

18The African American and American political spaces can be understood as closed, which means that only Blacks can represent Blacks and Whites Whites. This leads to claims for representation of specific black interests. A certain category of black office holders, targeting the African American community in their campaigns and during their mandates, are viewed as the only "authentic" representatives of their community.5

19If both political spaces are open, black office holders can represent white interests, in the same way that white office holders can represent black interests. Furthermore, black interests are not narrowly construed. Nevertheless, race matters, thus African Americans still need to be descriptively represented in American institutions.

20Both political spaces can be interchangeable if race is not taken into account. Explicit demands for descriptive representation in the American institutional system become irrelevant, as political space cannot be built along racial lines. As the qualification of interchangeability negates the very existence of an African American space, race can never be a factor in the drawing of district lines. It is a literal application of Justice O’Connor’s vision of a "color-blind" political system (Shaw ν Reno 1993). Carol Swain argues that African Americans will be able to get fair representation in legislative assemblies only if they can transcend racial barriers in terms of policies and goals (Swain, 1993, 243). Studying two white Democrats in minority black districts (Robin Talion [D-SC] and Tim Valentine [D-NC]), and comparing their political styles with black legislators, she comes to the conclusion that white representatives in Southern districts are perfectly capable of representing black interests (Swain, 1993, 145-169).

  • 6 With a black population of above 50% - Grofman and Handley rejected the 65% rule.

21The studies based on the 1980 census data show that the election of black legislators in Southern states could occur almost only in majority black districts6 thus showing no decline in racially polarized voting between 1980 and 1990 (Grofman, Handley and Niemi 1992, 134). In fact, only 1% of majority white districts had chosen Black congressmen between 1972 and 1992.

22However, studies based on the 1990 data are more optimistic. It is true that the instances in which black legislators are elected in majority white districts are still far from numerous. With the election of Gary Franks (1991-1996), Sanford Bishop (1992-), JC Watts (1995-2002), or David Scott (2002-), elections of black representatives in non-majority black districts are becoming less exceptional. The 1999 statistics on African American representatives indicate that 11 out of 37 (29.7%) of Representatives were elected in districts which were not majority black. The presence of Latinos in the total population is a significant factor that has often been neglected by researchers. If the total percentage of minority populations is taken into account, the number of Black representatives elected in non-majority minority districts comes down to 5 out of 37. Notwithstanding this fact, black representatives are no longer exclusively elected in majority black districts. Many contemporary studies acknowledge that districts with a black population of between 45 and 55% can elect black representatives.

23The political style of African American legislators has changed. The civil rights generation gave way to new-style politicians, who can no longer afford to appeal only to their black constituents. In heterogeneous districts, black elected officials need to appeal to a broader spectrum of potential voters; they emphasize deracialization or commonalities between the races. Forging biracial or multiracial coalitions is becoming an increasingly large component of black electoral success, although these coalitions are not always necessary.

24Gary Franks’ election to the US House from the Connecticut Fifth District in November 1990 was highly mediatized. He became the first black Republican congressman elected in decades and the only Republican in the Congressional Black Caucus. JC Watts became the second. Franks’ district was only 4% black. Therefore Franks’ election can be understood as an anomaly in the African American political landscape, along with that of JC Watts five years later, particularly since Franks only served two terms and Watts three. All the other black Republican conservatives who run for political office in 1988 were unsuccessful. Franks and Watts, representing an ideological and partisan alternative, are nevertheless interesting cases because they endorse an extreme version of deracialization, or the de-emphasis of race, a trend which was rapidly growing in the 1990s. Canon has built a theoretical model of political styles which shows that according to the field of candidates in which they compete, black candidates adjust their political style to maximize their chance for success. He concludes that the Congressional Black Caucus is neither politically cohesive nor united (Canon 1999a). The analysis of roll call votes of Caucus members supports his conclusion, as Sanford Bishop, a representative from Georgia serving since 1993 and Harold Ford Jr, a representative from Tennessee serving since 1997 are both blue dog Democrats, and vote in favor of economically conservative policies.

25The variety of political styles and political views of black representatives gives less credence to descriptive representation. Even if black Republican representatives are an exception to the rule, substantive representation must be primarily sought.

26Blacks are becoming increasingly conservative. However, this has no effect in terms of partisanship, as Blacks still vote overwhelmingly democrat. More and more African Americans identify themselves as independent, but black votes for Republicans still represent less than 10% of the total black votes. Consequently, strategies for increasing substantive representation usually rely on an increase of districts which are majority Democrat districts. Can this lead us to an understanding of the African American political space as being interchangeable?

27In Georgia ν Ashcroft, the Supreme Court has made a move in this direction. In this 2003 ruling, the Supreme Court has also given less credibility to majority minority districts. Majority black districts are no longer viewed as the best opportunity to protect black voting strength.

From an open to an interchangeable ... back to a closed African American political space?

28Racial redistricting in the early 90s has not brought concrete change in the protection of minority voting strength. Thus, a better way to protect minority voting strength would be the creation of influence or coalitional districts (Lublin 1997). Coalitional districts are defined as districts in which white and black voters agree to form an interracial political coalition in support of minority candidates. Recent studies have provided evidence that one-third of white voters regularly select a Black candidate in primary and Congressional elections in the South (Bullock & Dunn, 48, in Benson, 2004, 496). Can coalitional or influence districts replace majority minority districts under the Voting Rights Act?

29The Supreme Court, in Georgia ν Ashcroft, compared the previous districting plan with the new one. The new plan reduced the number of safe districts and increased the number of districts with a black voting age population between 25 and 50% by 5. It also created more majority-Democrat districts (Benson, 2004). The Court concluded that the plan had no retrogressive effect on minority voting rights. This weakening of the retrogressive standard has raised considerable debate within the voting rights and the legal research communities. Some (Pildes, 2002; Swain, 1993) have argued that because of a decrease in racially polarized voting, coalitional districts do not harm minority voting strength, whereas others (Karlan, 2000; Issacharoff & Karlan, 2004; Canon, 1999, 2002) contend that safe districts are still needed.

30The Supreme Court stated that section 5 of the Voting Rights Act did not require states to create majority black districts, in which the election of the minority’s preferred candidate was highly likely. Relying on Hannah Pitkin’s theory of representation, Justice O’Connor, delivering the majority opinion, argued that Georgia could choose whether it should give enhanced value to descriptive representation or concentrate on substantive representation. Influence or coalitional districts can fulfill the role of protecting minority voting rights, maybe not as well as safe districts, but, the switch from safe to influence districts cannot be considered as retrogressive. Political space is thus understood by the court as being open. As white Democrats are responsive to black interests, the representation of black interests in legislative assemblies need not be equated with the election of black office holders. Giving more power to the states, and less protection to safe districts, the Court’s new interpretation of the retrogression standard seems to indicate that the Voting Rights Act has partially fulfilled its role (Pildes, 2004).

31To reach this conclusion, the Court also took into consideration the fact that 10 of 11 black senators and 33 of 34 black representatives supported the plan, the most vocal of whom was John Lewis (D-Ga), a former civil rights activist.

32Despite the Court’s decision and the near unanimity among black Congressmen from Georgia, there is no consensus as to whether majority black districts should still be protected under the Voting Rights Act.

33Proponents of influence-districts argue that safe districts are dangerous because they minimize minority voting strength in the surrounding districts (the "bleaching theory"). Moreover, even if descriptive representation decreases, substantive representation increases thanks to the election of Democratic representatives. Pildes adds that thanks to a decrease in racially polarized voting in the South, coalitional districts are now a possible strategy for protecting minority voting rights (Pildes, 2002).

34Pamela Karlan offers a strong counterargument by stating that influence districts replace a guarantee with a 50-50 chance of success. She contends that the proponents of influence districts are too optimistic and do not take into account other factors such as incumbency and Latino voters. (Karlan, 2000; Benson, 2004, 495-498). As long as racially polarized voting exists, the electoral representation of minority groups will depend on the good will of the majority.

35Now that a two-party system exists in the South, Black office holders can no longer afford to ignore white voters. The Congressional Black Caucus has been a minority within a minority ever since the Republicans took control of Congress. It has also been argued that the Republican 1994 landslide victory was partly a consequence of the existence of safe districts. Safe districts, or the packing African Americans voters in one district also means that it will be easier for white Republicans to win seats in the surrounding districts (bleaching theory). If safe districts are no longer protected, it becomes a necessity for black candidates to adapt their political styles to their new environment. Forming interracial coalitions can be the best strategy to maximize minority voting strength, if one considers that white Democrats can be responsive to the growing diversity of black interests, and both the majority and dissent in Georgia ν Ashcroft accept this fact (Gerken, 2004, 518; Hutchings, McClerking & Charles, 2004). But replacing safe districts with influence districts automatically leads to a decrease in descriptive representation.

36Descriptive representation is valued by African Americans, even if they paradoxically support the standard of color blindness (Tate, 2004, 122). When normative theorists criticize descriptive representation on the ground that nondescriptive representatives are perfectly able to represent the substantive interests of their constituents, they do not take into consideration the fact that the African American identity remains a collective identity, even if this sense of common fate is not as strong as in the 1960s. It does not mean that all Blacks think and act alike. On the contrary, black interests are becoming more diverse as the community is further incorporated into the existing political system and Black legislators are an increasingly diverse group. Today, the African American political space is open: interracial coalitions are formed, although not systematically. Data on the 108th Congress shows that, even if a majority of CBC members represented majority black districts, 1/3 of members represented non-majority black districts.

37New style African American politicians, such as Sanford Bishop, Robert Scott, and Jim Clyburn have increased their percentage of support from white voters with each successive election. They have paved the way for a new definition of the African American political space.

38Integration and incorporation remain the ultimate goals for black politics (Canon, 2002), although it does not mean the African American and the American political spaces can become completely interchangeable. Here lies the paradox: as the African American political space becomes more open, allowing Blacks to be further incorporated in the political system, the increasingly diverse set of Black interests, as well as the broader range of Black political styles do not lead Blacks closer to the Republican Party. Thus African Americans remain alienated from the two-party system.

39As Dahl had predicted, African American socioeconomic diversity led to political diversity. However diversity is limited: Blacks have not been yet able to articulate their views within the two-party system. The goal of integration, which would lead to the transcendence of the African American political space won’t be reached as long as racially polarized voting exists, and as long as African Americans remain captive of the Democratic Party.

40Articulating the African American political space in terms of partisanship does not provide answers. It only moves the debate from racial to partisan gerrymandering, and in terms of partisan gerrymandering, the Supreme Court has apparently reached a dead end (see Vieth ν Jubilerer). The Supreme Court thus needs to move away from the "political thicket". By letting states and legislators have more flexibility in choosing the type of representation they deem the best—either descriptive or substantial, the Supreme Court did just that.

41It is now the Congress’s turn to deal with Section 5 of the Voting Rights Act. The way it will clarify issues of race and redistricting holds the key to the protection of minority voting rights.

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Notes

1 Which established that courts could provide remedies in case of malapportionment.

2 Which established that congressional seats should be redistributed among the states on the basis of state populations: "The Equal Protection Clause requires that scats in both houses of a bicameral legislature must be apportioned on a population basis" (Singh, 1998, 53).

3 In "descriptive" representation, representatives are in their own persons and lives in some sense typical of the larger class of persons whom they represent. Black legislators represent Black constituents, women legislators represent women constituents, and so on (Singh, 1998, 1).

4 See Pitkin, 61-90, for a thorough definition of descriptive representation.

5 The two political spaces can also be considered as separate. A category of nationalists and radicals refuses to integrate the American political system. This understanding of political space can go to extremes. It can lead to demands such as the creation of a separate nation within the nation, or an exodus of people of African descent.

6 With a black population of above 50% - Grofman and Handley rejected the 65% rule.

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References

Bibliographical reference

Lisa Veroni, « The End of the African American Political Space? The Court, Redistricting and Black Interests in Contemporary America », Caliban, 19 | 2006, 211-221.

Electronic reference

Lisa Veroni, « The End of the African American Political Space? The Court, Redistricting and Black Interests in Contemporary America », Caliban [Online], 19 | 2006, Online since 13 December 2016, connection on 20 October 2018. URL : http://journals.openedition.org/caliban/2460 ; DOI : 10.4000/caliban.2460

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About the author

Lisa Veroni

Université de Bordeaux 3

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Copyright

Licence Creative Commons
Caliban – French Journal of English Studies est mis à disposition selon les termes de la licence Creative Commons Attribution - Pas d'Utilisation Commerciale - Pas de Modification 4.0 International.

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