Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis, Second Edition

6 Affirmative Action and the Political Representation of Minorities

Six Affirmative Action and the Political Representation of Minorities Prologue In this chapter we review affirmative action’s record in securing fair representation for America’s racial/ethnic minorities and women. The initial object of the Voting Rights Act (VRA) of 19651 was the enfranchisement of minority groups who had been denied the ballot through the governmental use of literacy, educational, or character tests. The act banned such tests according to a prescribed formula; it did not require a showing of intentional discrimination before the ban took effect. The test ban was triggered by low voting or low voter registration figures in the states and their subdivisions. The assumption of the act was that such data reflected the oppressive societal burdens (such as poor schools) imposed on African Americans and other minorities—burdens that resulted in greatly limiting their voting. The act’s objective was to remove or reduce these discriminatory voting restraints. In brief, the Voting Rights Act was an affirmative action measure initially focused on several Southern states where impediments to black voting were particularly egregious. Not much later, literacy tests for voting were totally banished nationwide on the obviously correct assumption that the South had no monopoly on the mistreatment of people of color. Thus, affirmative action in voting test abolition began its work contemporaneously with affirmative action in employment and education. From the beginning, enforcement of the act focused on securing access of protected minority groups to the polls. Early too, a primary target of the act became “dilution,” the claimed weakening of minority voting power through state and local election laws and practices. The government’s antidilution program has included strong support for the creation of “majority-minority” voting districts by state and local redistricting authorities. These districts, in which protected minorities comprise effective voting majorities, are designed to further the election of minority-preferred candidates for office. 191 192 AFFIRMATIVE ACTION IN ANTIDISCRIMINATION LAW AND POLICY In the 1990s decade, racial/ethnic districting encountered serious legal difficulties. The Supreme Court has invalidated a number of majority-minority districts on constitutional grounds, and has disapproved the policy of maximizing the number of such districts. Affirmative action’s future voting rights role is uncertain. This chapter is much concerned with the rancorous dispute over electoral affirmative action in redistricting. Is the VRA intended only to prevent racial/ethnic disenfranchisement, or also to assist in the election of minority-preferred candidates? Does fair representation require proportionality in the election of minority officeholders? Are racial/ethnic minorities underrepresented? Is partisan gerrymandering entitled to greater deference than racial/ethnic districting? Is the VRA intended to provide remedies for vote dilution? Does a numerical majority in districts actually help minorities to attain their electoral goals? If not, what are the alternative methods for safeguarding their interests? These questions are main themes in the ideological war over affirmative action as we face the decennial census. Adding to the complexity are the revolutionary demographic shifts which are now under way throughout the country. The 1965 Voting Rights Act and Its Amendments The Central Portions of the 1965 Voting Rights Act The right to vote epitomizes the shared functions of our federal system. Federal law protects this right,2 but does not create it. Instead of a single national suffrage law, we must contend with a bewildering multiplicity of state and local systems. On the one hand, federal law imposes substantial constraints on the states’ electoral prerogatives. On the other, the states, in large measure, control voter eligibility, districting, and the rules and procedures for all elections, federal as well as state. At bottom, the history of suffrage reform is the record of a never-ending federal-state battle for the upper hand in this tempestuous relationship.3 It is a twice-told tale that VRA came into being only when Congress finally realized that drastic federal intervention would be needed to end the almost century-old disenfranchisement of Southern blacks.4 In South Carolina v. Katzenbach (1966), the Supreme Court, 8-1, upheld the constitutionality of VRA’s Sections 4 and 5 as appropriate enforcement of the Fifteenth Amendment.5 In his opinion for the Court, Chief Justice Warren wrote: The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting which has infected the electoral process in parts of our country for nearly a century. 193 AFFIRMATIVE ACTION AND THE POLITICAL REPRESENTATION...