The Voting Rights Act and the Paradox of Representation

Yesterday, the Supreme Court considered a provision of the Voting Rights Act that requires a federal remedy if a members of a minority group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” This provision has created a very complex body of law through a series of often badly split decisions. In the 1986 case Thornburgh v. Gingles, the Court held that the provision required the creation of “majority-minority” districts where a geographically compact minority had its preferences diluted through redistrcting. In yesterday’s case, however, the Court held that the VRA does not require the creation of “crossover” districts; that is, districts where a geographically compact group does not form a majority but constitutes a large enough portion of a district’s population to form a coaliton with white voters to elect their preferred candidate. Kennedy’s pluarilty opinion (joined by Roberts and Alito) argued that Gingles doesn’t require crossover districts, Thomas (joined) by Scalia concurred in the judgment but urged that Gingles be overruled, while the Court’s four more liberal members dissented.

This is a difficult case, and all of the constructions of the statute advanced by the various opinions are plausible. One thing to add is that the problem of representation is especially complex because redistricting regulations that enhance the possibility of minority candidates being elected also tend to hurt the electoral interests of the party that most minority voters prefer (concentrating minority voters is particular districts helps the Republican Party on balance.) This isn’t a question with a right answer; both the election of more minority representatives and ensuring that the partisan preferences of minority voters aren’t excessively diluted are valid considerations of representation. Given the difficulty of the problem and the inherently arbitrary nature of determining what percentage of minority voters triggers a crossover district requirement, there may be a certain wisdom in Kennedy’s opinion. This is particularly true since, as Justice Ginsburg noted in her short dissent, Congress is free to establish a requirement for crossover districts if it chooses.