This Article considers the Supreme Court's two approaches to race and representation: the constrained proportionality of the vote-dilution cases and the strict scrutiny of racially motivated districting. Part I traces the development of these two doctrines, examines their conceptual underpinnings, and considers some of the questions the Court will have to answer as it elaborates its new approach to the use of race in the design of electoral systems.
Part II explores the tension between the Court's two approaches. The concern with racial motivation proceeds from an underlying normative assumption about the place of race in politics that is profoundly at odds with vote dilution's empirical premises about the significance of race in voting behavior. Thus, Johnson's lofty and laudable aspiration to take race out of politics conflicts with the finding in many vote-dilution cases that race already plays a role in politics through the decisions of voters. By forcing governments to be color-blind even when voters are not, Johnson may severely limit voluntary state and local actions to increase the representation of racial minorities in political institutions.
Part III attempts to reconcile these two divergent doctrines. Johnson reflects a normative determination that government ought not to act on racial stereotypes – on the easy assumption that racial groups constitute political groups – when it makes decisions concerning the structure of representation. The vote-dilution doctrine, however, is predicated on empirical findings that, in particular jurisdictions, racial groups are in fact politically cohesive and racial divisions are actually salient to politics. Color blindness and vote dilution, then, can be reconciled by enabling a government unit to take race-conscious action to promote minority representation when that unit can demonstrate that it is acting based, not on proscribed stereotypes, but on a finding that race plays a role in voting behavior, that racial groups in practice function as cohesive political groups, and that race is, thus, an important factor in its politics. Such action ought to be treated as politically motivated, and thus permissible in the absence of vote dilution, rather than racially motivated within the meaning of the nascent color-blindness doctrine. Just as the vote-dilution doctrine was shaped by the Court's acceptance of political values other than minority representation in the design of electoral structures, the color-blindness approach can permit governments to take race into account when race is actually a significant consideration in local politics. Not only would this hold together the Court's increasingly divergent approaches to race and representation, but, by allowing states and localities to respond to their particular political conditions and their own appraisals of political fairness, this approach would also advance the value of state and local self-determination that is at the heart of federalism.
Law | Law and Politics | Law and Race
Race and Representation After Miller v. Johnson,
U. Chi. Legal F.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3011