Race and Representation 

Ever since the Fifteenth Amendment (1870) to the Constitution guaranteed the right to vote regardless of race or colour, the United States has struggled to secure for African-Americans the ability to exercise that right in a meaningful way. The Voting Rights Act of 1965 finally eliminated the practices which had long prevented many African-Americans in the South from actually voting at all, but significant problems relating to the representation of African--American interests remained.

Most importantly, it proved extremely difficult, if not impossible, to elect African-American candidates to the US House of Representatives. Yet, as Lani Guinier noted in her 1991 Michigan Law Review  article, both the civil rights movement and black nationalists were firmly convinced that only such 'authentic' representation could further their agenda of black empowerment.

Electoral Power

The difficulty in electing African-American members of the House had two principal causes. First, the 'at large' electoral system that operated in many Southern states and which had the effect of 'diluting' the African-American vote (usually around 20-30 per cent statewide) in the majority white vote; and, secondly, a deep level of racial polarization which meant that very few white voters would support a black candidate.

In the 1980s, therefore, the United States had overcome the basic disfranchisement of the African-American community, only to find itself facing the new and more problematic challenge of making the black vote 'meaningful'. Since most black activists considered the election of African-American legislators to be a precondition of meaningful electoral power, the federal government and the states gradually moved to the adoption of what appeared to be logical solution to the problem: the creation of 'majority-minority' congressional districts within a single-member constituency structure.

The idea of majority-minority districting is simple: using computer technology and a database of detailed racial residency patterns, state legislatures draw congressional district boundaries so that one or more districts has an African-American (or Hispanic) electoral majority. This all but guarantees the election of a minority member of the Congress. Many Southern states created majority-minority districts during the redistricting exercise that followed the 1990 Census. Moreover, under pressure from the US Department of Justice, whose approval of redistricting plans was required, these states pursued a maximization policy of creating as many majority-minority districts as was numerically possible, even where this led to the creation of bizarrely shaped districts which undermined traditional districting principles such as compactness and contiguity.

The new plans were effective in that the 1992 House elections saw an increase of thirteen in the number of African-American Representatives (from twenty-five to thirty-eight), all from majority-minority districts; and of five Hispanic members (from thirteen to eighteen).

Constitutional Obstacle

However, the very concept of majority-minority districting quickly ran into constitutional difficulty. White voters, usually supported by the state Republican Party, challenged the districts as a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution. In the hands of the modern Supreme Court, the Equal Protection Clause had been the most potent weapon in outlawing racial discrimination against African-Americans and other ethnic minorities. The Court had developed an Equal Protection jurisprudence whereby all racial classifications were deemed constitutionally suspect and subjected to 'strict scrutiny', the most testing level of judicial review. In fact, a common understanding of strict scrutiny was 'strict in theory, fatal in practice'.

The guiding principle of this race equality jurisprudence was the notion of 'colour-blindness'. Used by liberals to attack segregation and other discriminatory practices, constitutional colour-blindness in its most absolute form forbids government from classifying citizens by race or indeed from taking race into account in any respect. More moderate forms of colour-blindness permit racial classifications if they are clearly conceived for remedial purposes - to compensate for past discrimination - or if they do not stigmatize members of any race.

Ironically, then, it was this essentially liberal jurisprudence which the Court was asked to bring to bear when reviewing the constitutionality of majority-minority districts - districts which were intended to be benign in respect of African-Americans, rather than discriminatory.

Constitutional adjudication in the United States frequently involves both judicial and political elements, but the Supreme Court is expected to uphold the fundamental values and principles of the Constitution as expressed in the text and history of the Constitution and in prior judicial decisions. On the other hand, constitutional interpretation also leaves considerable scope for reasonable disagreement about what the law requires in any given case. Unsurprisingly, then, the nine Justices of the Supreme Court were sharply divided when they reviewed this most difficult of issues.

A series of cases saw a five-four majority on the Court declare the challenged majority-minority districts unconstitutional: Shaw v. Reno  (1993), Miller v. Johnson  (1995), Bush v. Vera  and Shaw v. Hunt  (both 1996), and Abrams v. Johnson  (1997). The Court majority insisted on applying strict scrutiny to these benign forms of racial classification and found no compelling justification for allowing race to predominate over all other considerations in drawing district boundaries. Racial classifications are clearly highly disfavoured under the Constitution and the Court feared that such crude racial line-drawing would further balkanize American society into hostile racial groups and move the nation further from its constitutional ideal of colour-blindness.

Because the five-Justice majority on the Court are usually identified as its five most conservative members, critics dismissed the decisions as merely part of the conservative backlash against affirmative action that is currently sweeping the United States. This is a rather superficial analysis, however. The very fact that, until a few years ago, the Court's reliance on colour-blindness principles would have been identified as the embodiment of racial liberalism principles indicates that much.

It makes more sense to see the Court's decisions as highlighting the dilemma inherent in pursuing an ideal of racial equality in a society where a formal requirement of equality exists alongside a reality of inequality and under-representation in the national legislature.

Biracial Politics

But, regardless of the Supreme Court's motivations, the United States is left with a serious problem. Now that the device of the majority-minority district has proved a constitutional cul-de-sac, how can progress be made on making sure that minority interests are adequately represented? The conservative solution, to rely on the 'virtual representation' of minorities by white legislators, seems unacceptable, if only because of the perception in the African-American and Hispanic communities of the need for authentic representation. A second solution, coming from the left - Lani Guinier - would change the electoral system to provide for 'proportionate representation': but, given the attacks already mounted on Guinier for advocating 'representative quotas', this would appear to stand little chance of success. What remains, then, is a return to politics and a renewed faith in the original ideals, though not necessarily the policies, of the civil rights movement. There would appear to be no alternative to biracial, coalition politics which not only pursues the constitutional ideal of creating a society where race 'doesn't matter', but which also adopts a strategy that embodies rather than threatens that ideal.

Robert J. McKeever is a Lecturer in Politics at the University of Reading. This is an edited version of a talk he gave to the CSD Research Seminar in May 1997.