While the marriage equality decisions are rightly getting a lot of attention, the 5-4 Supreme Court ruling on Tuesday striking down a section of the Voting Rights Act has raised concern among many, myself included, for what it means for minority representation in this country.
On Tuesday, a 5-4 decision struck down Section 4 of VRA, which determines which states are covered by Section 5, and which are not – meaning certain areas of the U.S. which previously had to submit changes to their voting rules to the Department of Justice for approval, now can pass laws without it. (However, that doesn't mean people won't be watching, so expect more lawsuits in the wake of new voter ID requirements, registration rules and reapportionment, among other voting issues.)
In writing for the majority, Chief Justice Roberts said, "[racial] conditions that originally justified these measures no longer characterize voting in the covered jurisdictions." The crux of his opinion was that the coverage formula used in Section 4 to identify these conditions was 50 years out of date. Therefore, Justice Roberts lobbed a pass to Congress to develop a coverage formula using contemporary data.
I hope that our polarized and partisan Congress is up to the task. I paid attention to redistricting in 2011 and can tell you that GOP mapmakers know how to make the VRA work for them. Before this week's ruling, the GOP committees that drew district maps in many Section 5 jurisdictions packed racial minorities in majority-minority districts. The creation of these VRA districts then takes the pressure off the blatant political gerrymanders in the rest of the state.
For example, In Alabama's 7th congressional district, the African American Democrat won 76 percent of the vote. President Obama won a whopping 72% percent. Let me tell you why this is good for the GOP in congressional races: All those packed voters only won the Democrats a single seat. Under "winner-take-all" rules, even a hypothetical 100 percent voter turnout in a district still means winning one seat. This surplus of votes does nothing to help Democratic voters stuck in GOP districts in the rest of the state.
In Alabama's seven-seat House delegation, the partisan split is six to one for Republicans, with the sole Democrat in the majority-minority district. But wait a minute; the state partisanship split is GOP 64% and Democratic 36%. Doesn't it make sense for Democrats to win two seats? The reason why Democrats do not win two seats is their voters are packed in one district and cracked – i.e., diluted - in the rest of the state.
As a result of this week's ruling, the places previously covered under Section 5 could try to crack instead of pack the entire Democratic vote. This could mean no Democratic seats in places with redistricting controlled by the GOP – just as there hasn’t been a single Massachusetts Republican elected to the U.S. House for nearly two decades. But it’s more likely that they’ll keep packing as many Democrats as they can into a single district - in part because it works for partisan purposes and because other parts of the VRA will protect minority voting.
Under winner-take-all rules, majority groups of all definitions get far more representation than their votes deserve – indeed often all representation, whether it is Democrats winning all House seats in New England, or Republicans winning all House seats in a swath of states running from Arkansas to Idaho. For lasting change, we need to take on the idea that winner-take-all is any way to run a democracy. And the key can be found in the VRA with methods that go beyond the majority-minority district.
We can look to our own history of fair representation voting methods. Consider that Chilton County, Alabama (directly adjacent to Shelby County), settled a lawsuit brought under the Voting Rights Act by giving its voters cumulative voting rights: that is, the ability to vote for as many candidates as there were seats on its legislative body. For example, when three seats are up for election, every voter gets three votes. The powerful part is that voters can choose how to cast those votes. You can give three of your favorite candidates one vote apiece, or if you so like, spilt your three votes among two candidates. You can even go as far as giving one candidate all three of your votes; it's up to the voter to decide how use their votes. This way of voting, used in many VRA locations, prevents a racially-polarized block-voting majority from controlling every seat in the at-large election.
Once granted cumulative voting rights, the substantial African American population of Chilton County successfully elected Bobby Agee – the first black representative elected in Chilton County since reconstruction. In fact, Mr. Agee received more votes than any other candidate, despite being outspent by more than ten to one, and he has been repeatedly re-elected ever since.
Importantly, breaking up winner-take-all in Chilton County not only gave African Americans the representation they had previously been denied, but it seems to have begun to break down racially polarized voting in Chilton County itself. A 1995 study conducted by New York University Law Professor Richard Pildes and Kristen Donoghue found that with cumulative voting, white voters began voting more often for black candidates, including Mr. Agee. Mr. Agee also reported seeing a decrease in racial polarization, with white constituents reaching out to him and white candidates campaigning in black neighborhoods.
Extending cumulative voting rights is only one of several ways we can break up winner-take-all elections and enact fair representation voting. Many other cities and counties throughout Alabama and Texas have done the same thing by reducing the number of votes each voter may cast, so that candidates must be elected by different groups of voters instead of one racially-polarized block-voting majority. For example a voter gets one vote to elect three candidates.
In fact, that has long been the norm in counties throughout Pennsylvania and cities in Connecticut where it is proven to protect political minorities from the excesses of partisan reapportionment. In other words, Democrats and Republicans, regardless of their race, win fair representation instead of being a political minority as a result of reapportionment. And these places don't even fall under the VRA. They're simply using a proven and constitutionally protected method of electing public officials.
The fair representation voting system with the most history in our biggest cities is ranked choice voting, today used to elect the at-large local offices in Minneapolis and Cambridge, and with past history in cities like Cincinnati, Cleveland, Sacramento and New York. Choice voting consistently contributed to election of racial minorities in these cities, and the DOJ upheld its use in local school boards elections in New York.
In a major report last year, FairVote, a group that I chair, showed how the U.S. Congress itself could be elected by states using alternative systems. A follow-up analysis found that doing so would likely increase the number of African American candidates of choice in the racially polarized south from 10 to 14 and would increase the number of African Americans in the South able to elect a candidate of choice from about 32% to 100%. Such rules can – and should – be established by a new congressional law.
Until racially polarized voting is remedied, we need to keep working on inclusion in representation. We need to keep voting. And we need to keep the Voting Rights Act intact in its entirety. Nowhere in the VRA does it mention the use of majority-minority districts. Utilizing these winner-take-all districts is a political decision – and thus producing political outcomes. If we increased the use of alternatives to the majority-minority district, we wouldn't need pre-clearance with redistricting. We would put the voters in charge of their own representation.