Civil rights are on the nation's docket in a major way. Sometime this month, the U.S. Supreme Court will decide an important voting-rights case, Shelby County v. Holder, in addition to another case involving racial discrimination in higher education and two potentially landmark cases on gay marriage. By the end of June, the nation's civil-rights profile may look quite different.
In Shelby County, the justices are weighing whether the 1965 Voting Rights Act should continue to apply specially to designated regions of the country with ugly histories of racial discrimination. These regions, including the entire state of Alabama as well as eight other states and more than 60 counties, currently must seek "preclearance" from the Department of Justice for any changes to their voting laws and practices (changes can still be challenged after enactment). Officials in Shelby County, Alabama, say "times have changed," that Shelby County is no longer the cesspool of Jim Crow racism it once was, and so the high court should overturn the preclearance requirement, known in legal parlance as Section 5.
Despite the protestations of Shelby County and other jurisdictions, mountains of evidence show that there is little doubt that Section 5 is still needed, including in Shelby County. If anything, preclearance requirements should probably be extended to more parts of the country. Every election reveals new and deviously crafted efforts at voter suppression, from voter-ID laws to intimidation and long lines at the polls that by coincidence seem to afflict minority precincts more than others. Republican legislators in various states continue to push laws that will clearly have a disproportionate impact on minority voters. Section 5's preclearance has been a powerful disincentive against discrimination in elections that, sadly, is still very present today. If the Supreme Court guts Section 5 -- as voting-rights advocates fear will happen, given the Court's conservative majority -- the nation will be jumping off a cliff into unknown territory.
But it would be a mistake to think that, though many Republicans want to see Section 5 struck down, they oppose other sections of the Voting Rights Act. Quite the contrary: The GOP has found the VRA to be a great ally. It turns out the act, as traditionally applied, has helped the party win a great number of legislative races. It also has become a potent obstacle to the Democrats retaking the U.S. House of Representatives.
Beginning in the civil-rights era in the 1960s, the Republican Party -- the party of Lincoln -- became the loudest opponent of race-based remedies to discrimination, whether in school admissions, hiring, or minority representation. The Democrats, once the party of segregation (some people forget that segregationists George Wallace and Strom Thurmond were elected governors of Alabama and South Carolina, respectively, as Democrats) did a dramatic about-face in the 1960s and became the party of civil rights. Acting under the legal strength and moral authority of the Voting Rights Act, the Democrats led the charge to draw so-called "majority-minority districts" -- ones packed so full of minority voters that they usually resulted in electing a minority representative, as intended. The number of minority representatives jumped exponentially from the 1960s through the 1980s, with the number of black House members increasing from five to 24 by 1989.
But just in time for the redistricting in 1990, some enterprising Republicans began noticing a rather curious fact: The drawing of majority-minority districts not only elected more minorities, it also had the effect of bleeding minority voters out of all the surrounding districts. Given that minority voters were the most reliably Democratic voters, that made all of the neighboring districts more Republican. The black, Latino, and Asian representatives mostly were replacing white Democrats, and the increase in minority representation was coming at the expense of electing fewer Democrats. The Democrats had been tripped up by a classic Catch-22, as had minority voters: Even as legislatures were becoming more diverse, they were ironically becoming less friendly to the agenda of racial minorities.
Newt Gingrich embraced this strategy of drawing majority-minority districts for GOP advantage, as did the Bush Administration Justice Department prior to the 1991 redistricting, even as GOP activists like now-Chief Justice John Roberts campaigned against the VRA because they opposed any race-based remedies. The tipping point was the 1994 midterm elections, when the GOP captured the U.S. House of Representatives for the first time in 35 years and Gingrich because speaker. Many experts on both the left and the right, from The Nation's Ari Berman and prominent GOP election lawyer Ben Ginsberg (who spearheaded the 1991 effort to maximize the number of majority-minority districts), attribute the Republican success that year to the drawing of majority-minority districts; indeed, African-American membership in the House reached its highest level ever, at 40.
VRA districts undoubtedly played a role in the GOP takeover, but they were not the only factor, since Republicans made big gains that year in lots of places outside the South. But in the hardscrabble battles of the 50-50 nation, any advantage at all was embraced, and prominent Republicans like Ginsberg and Gingrich became the loudest proponents of drawing majority-minority districts. Many Republicans still promote this strategy today, and it's the only race-based remedy the GOP has supported in the modern era. The party has been more than willing to shelve its ideology when it suited their naked political interests.
So in Shelby County, many Republicans are trying to have their cake and eat it too. They want the Supreme Court to gut Section 5 of the Voting Rights Act, which prevents them from enacting various voter-suppression laws. But they want to preserve the other parts of the VRA that provide the legal impetus for drawing majority-minority districts. One can't help but admire their cleverness.
Meanwhile, it's only going to get worse for the Democrats. Not only has the drawing of majority-minority districts led to fewer elected Democrats, but today single-seat districts themselves have become a huge barrier to Democrats retaking the House. That's because shifting partisan demographics have left Democratic voters more geographically concentrated than Republican voters. The problem is easy to see in urban areas, where Democratic votes are heavily concentrated. Urban Democrat House members -- a large number of whom are minority -- win with huge majorities, but winning a district with 80 percent doesn't help the party gain any more seats than winning with 60 percent. It just bleeds more Democratic voters out of the surrounding districts.
Yet it's not just urban districts that reflect the tilted partisan landscape. Election simulations have shown that partisan demographics -- even more than the gerrymandering of district lines -- give the GOP a natural, built-in edge in a majority of House districts. Those simulations predict that in 2014 the GOP will maintain control of the House even if Democrats win the nationwide House vote by nearly 10 percentage points. This dynamic was illustrated in the 2012 election, when President Obama defeated Mitt Romney by nearly five million votes nationwide, but Romney's vote was more efficiently dispersed -- he won 226 House districts to Obama's 209. That means Democrats can win a House majority only if their candidates win numerous districts won by Romney, a steep uphill climb. This explains the oddity of 2012, when the Democrats won the most votes nationwide in House races but still ended up with a minority of seats.
Many analysts incorrectly blame this partisan tilt on the extreme gerrymandering of legislative districts for partisan advantage. While gerrymandering contributes a bit to this bias, its impact is marginal -- the big culprit is single-seat, winner-take-all districts themselves, combined with the over-concentration of Democratic voters. These partisan demographics have made it far easier for GOP map drawers in Georgia, Ohio, Pennsylvania, and elsewhere not only to pack Democratic voters into fewer districts but also to pick off many white Democratic House members and "racialize" the Democratic Party. In 1991, white Democrats held 81 of 133 House seats in the South, but today that number has dwindled to 18 out of 145. This is why some zealous GOP activists have mounted a campaign to award presidential electors by congressional districts instead of on a statewide basis. Doing so would have resulted in Romney winning the presidency, even though he lost the national popular vote by a sizable margin.
This Republican edge also exists in most state legislatures, and it has been consistent for decades. But it was masked by the previous success of Southern Democrats in conservative districts, which was a legacy of Jim Crow and of Democrats being the party of segregation. Today, it's like having a footrace in which one side (the Republicans) starts out 10 yards ahead of the other (the Democrats).
Democratic leaders have tried to address this asymmetrical battlefield by controlling redistricting wherever and whenever they can, but they've had decreasing success as these partisan demographics have become more deeply rooted into the political landscape. Unfortunately for the Democrats, this fundamental dilemma over majority-minority districts strikes at the heart of its identity as a political party. It's to the party's credit that it walked away from its segregationist past and became the party of civil rights, but in 2013 the reality is that majority-minority districts and the continued use of one-seat, winner-take-all districts have painted the Democrats into a corner.
The most mutually beneficial arrangement for the Democrats and racial minorities would be for the electoral system to evolve from the current single-seat blueprint to a multi-seat system elected by proportional representation. With proportional voting, parties win seats in proportion to their vote share -- in a five-seat district, a party winning 40 percent of the vote wins two seats instead of nothing, and a party with 60 percent of the vote wins three seats instead of everything.
That would allow minorities to win their fair share of representation without gerrymandering any districts, and to do so without hurting the electoral chances of other Democratic Party candidates. In the South, such a plan would elect more black and white Democrats; it also would enfranchise more minority voters, since in every southern state a majority of the state's black voters continue to live in white majority districts where they have little to no influence. A proportional system would make these voters influential no matter where they live.
Interestingly, the U.S. has not always used single-seat districts to elect House members. In 1967 the Democrats controlling Congress passed a law that mandated the use of single-seat districts for federal House races, both to prevent some recalcitrant southern Democrats from going to statewide winner-take-all elections to dilute the black vote and also as a way to facilitate the gerrymandering of majority-minority districts. Ironically, now it's that very same district-based system that is dragging the Democrats underwater. Passing a proportional representation method looks unlikely in the short term, but it can be done by mere statute without a constitutional change. Rep. Mel Watt, a North Carolina Democrat, introduced legislation to allow states this option not that long ago. Democrats could partially outfox the GOP by embracing Watt's approach and pushing for a "home-rule" option within the 50 states for the use of proportional systems in U.S. House races as a voting-rights remedy.
In the meantime, the GOP must be cackling with glee at the Democrats' dilemmas, even as Republicans champion more majority-minority districts while fighting against every other race-based remedy to historical discrimination. Politics is often like a game of chess -- a very down and dirty version -- and one can't help but conclude that the Republicans are outsmarting the Democrats in this gambit.
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