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Article Excerpt
INTRODUCTION
I. ELECTORAL COMPETITION AND THE NEW ERA OF THE VRA A. The VRA, Representation, and Electoral Competition B. LULAC v. Perry II. DEMOCRATIC CONTESTATION A. A Theory of Democratic Contestation B. Beyond Pluralism: The Challenges of Collective Action and the Origins of Mass Politics III. RACE AND DEMOCRATIC CONTESTATION A. The Politics of Racial Polarization B. LULAC and Democratic Contestation C. The Mistake of Coalition Districts and Their Misguided Popularity CONCLUSION
INTRODUCTION
The Supreme Court once criticized the Voting Rights Act of 1965 (VRA), (1) widely regarded as the most successful intervention for racial minorities during the last century, (2) as representing merely the "politics of second best." (3) Although the VRA was needed long ago to dismantle the Jim Crow South, the Court's recent decisions reflect the view that the VRA today threatens to impose representational guarantees in place of, and often preemptive of, political resolution through electoral competition and interest group pluralism. (4) As the VRA passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, (5) liberals and conservatives once united in their support for the VRA have come to share the Court's concerns. (6) As Richard Pildes aptly put it, "the quiet era of the VRA now appears at an end." (7)
Electoral competition has become popular as the structural priority for election law, in place of representational guarantees like the VRA. (8) The VRA carves out, at least when conditions of racial polarization prevail, majority-minority districts (9) that tend to be overwhelmingly Democratic, with little intradistrict electoral competition from Republicans, by virtue of the Democratic partisanship of African American and Latino voters. (10) Particularly since the South has developed two-party competition that resembles what many view as "normal politics," (11) the establishment of majority-minority districts clashes with the normative sensibilities of an increasing number of commentators and courts. Samuel Issacharoff and Richard Pildes argue that courts instead should self-consciously focus on regulating electoral competition with the dominant structural aim of assuring a "robustly competitive partisan environment." (12) Not surprisingly, they are among the new group of skeptics (13) about the continuing value of the VRA and the "legal requirement of 'safe minority districting.'" (14) Issacharoff and Pildes argue that safe majority-minority districts under the VRA reduce electoral competition and thus may run counter to the VRA's purposes in the context of contemporary politics.
The Supreme Court also seemed to prioritize electoral competition under the VRA in its review of the 2003 Texas congressional redistricting in LULAC v. Perry. (15) The Court focused on three districts that were reconfigured in 2003, each of which faced VRA-related challenges. What was striking in the Court's handling of the VRA claims is that the Court decided to restore old District 23, the only challenged VRA district in which the racial minority had no guarantee of electing its candidate of choice. Despite a "politically active" Latino electorate, old District 23 consistently elected a Republican representative over the energetic opposition of Latino voters in close, competitive elections. Equally odd, the Court sustained the dismantling of old District 24 and ordered the dismantling of new District 25, two electorally safe districts where the minority communities successfully elected their candidates of choice. However, the Court's handling of the Texas redistricting may be explained by a growing judicial preference for electoral competition under the VRA. (16) In short, the Supreme Court may be joining with the greater skepticism about VRA majority-minority districting and its anticompetitive electoral effects.
This Article argues that this growing skepticism about the VRA is based on an impoverished account of political competition. Electoral competition is only one form of political competition. Even if the VRA and safe majority-minority districting cut against electoral competition, a structural commitment to competition in politics ought to transcend the simple maintenance of competitive elections between the major parties. Electoral competition should be judged with reference to the ultimate ends it is intended to produce-more democratic debate, greater civic engagement and participation, and richer political discourse-all of which are implicated by a deeper notion of political competition among political leaders that I term "democratic contestation." Electoral competition serves only as a proxy, a means to these greater democratic ends.
This Article offers democratic contestation as a basic value to be pursued in the law of democracy and the foundation for a theory that helps sort through and reconcile approaches to race, representation, and political competition under the VRA. Democratic contestation represents the basic competitive process among leaders to present the mass public with meaningful, attractive choices, not just about two candidates, but about what they want from government and the way they think of politics. Democratic contestation is the deliberative competition among political leaders to shape and frame the public's understandings about elective politics, public policy, and civic affairs. It encompasses the process by which leaders dare, force, and challenge the public to think about politics. Electoral competition is only one prominent element of this larger competition among political leaders for sociopolitical influence-a healthy process of democratic contestation that draws in and engages the public in that process to win the hearts and minds of citizens. (17) Although electoral competition generally coincides with democratic contestation, it also diverges in many instances that inform the way that the law of democracy should develop, particularly under the VRA.
The Article proposes a basic shift in the level of analysis from electoral competition among politically relevant groups, principally the major political parties, to a new, deeper focus on the more fundamental political competition among leaders to create and ultimately determine the character of the alignments that emerge as politically relevant in the first place. Of course, many commentators have debated the merits of different forms of electoral competition in various settings, whether the primary or general election, intradistrict or interdistrict, or within or across institutions like parties and branches of government. These debates, however, so far fail to connect those different forms of electoral competition to the deeper aspiration--represented by democratic contestation--that they all should seek to promote. This Article seeks to reorient the usual preference for electoral competition, in a way that ought to influence debate across all election law, by identifying and articulating the basic value of democratic contestation that underlies electoral competition.
Democratic contestation is both a means and an end of healthy democratic politics. It is a means in the sense that the process of democratic contestation should lead to richer, more legitimate and popular political outcomes that better respond to the hopes and needs of the sociopolitical community. But critically, democratic contestation is also an end in itself. The process by which the community entertains and confronts choices about how to define its politics is a crucial function of democracy, justly celebrated by democratic theory. It is a central tenet of a theory of democratic contestation that political leaders initiate agenda setting and frame the basic questions and alternatives in the process of democratic contestation. A theory of democratic contestation values the process of democratic contestation as a fundamental aim of the law of democracy and therefore brings a new theoretical perspective to old views and debates.
Democratic contestation offers a synthesis of democratic theory, bridging quite disparate elite and participatory perspectives. A theory of democratic contestation is distinctly leader-centered in that it envisions at its heart robust political competition among political leaders as the engine of democratic politics. It takes for granted that mass democracy, given the challenges of collective action, depends critically on the coordinating entrepreneurship of political leaders. The process of democratic contestation helps define the political alignment of the polity and constitutes the substantive politics for the community. However, diverging from traditional elite perspectives, a theory of democratic contestation prizes leadership competition precisely because that competition makes possible the central goal of promoting mass participatory politics. A process of democratic contestation draws in the mass public, makes political debate accessible, presents civic choices to the public, and instigates a broader discourse about the political future of the community. At the individual level, this process enables citizens to constitute political identity by engaging in politics and developing their particular sensibilities about public affairs. The process of democratic contestation thus integrates the personal self-constitution for individual citizens at the micro level and the collective self-constitution for the sociopolitical community at the macro level. The theory of democratic contestation that I introduce here, and plan to develop in future work, does not defy the consensus that electoral competition is valuable as a general matter over the great range of instances. Electoral competition is generally consistent as a goal with a theory of democratic contestation, serving as a regular catalyst for leadership mobilization and mass political participation. Indeed, a theory of democratic contestation helps clarify why electoral competition is valuable, by exploring its normative ends, but it also helps identify those instances when electoral competition is less useful in achieving those ends, as in the case of racial polarization under the VRA.
Once viewed through a theory of democratic contestation, the VRA can be seen as crucially procompetitive in the broader sense of democratic contestation, rather than narrowly as electorally anticompetitive. The VRA applies most forcefully under conditions of racial polarization where white and minority voters are locked into opposed voting blocs along the dominant axis of race. The VRA, by breaking this racial stasis and carving out safe majority-minority districts, may liberate the process of democratic contestation in both the white and minority communities. The majority-minority district releases both groups from the overriding pressure, imposed by racial polarization, to maintain racial in-group cohesion and therefore to avoid exploring concerns that may divide them along nonracial lines. For this reason, the majority-minority district can facilitate fraternal competition within the minority group and encourage engagement in an internal discourse that would be impossible, or at least inadvisable, in the face of racially polarized opposition. Politics, by virtue of the racial guarantee, (18) moves beyond race and racial polarization. Majority-minority districting basically removes race from intradistrict politics, counterintuitively, by districting with race as the primary consideration.
As a result, if the Supreme Court is interested in promoting political participation and civic engagement consistent with a theory of democratic contestation, its handling of the Texas districts in LULAC v. Perry may be entirely wrong. The majority-minority district may be a positive instrument, enabling the leaders and citizens of the racial minority to engage in a broader competition of ideas, through a process of democratic contestation, moving beyond the racially polarized divide that dominates politics in the absence of the majority-minority district. (19) The electoral safety of the majority-minority district, disdained by the Court in LULAC, might empower the racial minority to debate, deliberate, and decide internally about public policy and ideology, about priorities and concerns. For the racial minority, electoral politics transforms from racially polarized outcomes at the polls to the more optimistic question of who the group's candidate of choice will be and what type of politics the community wishes to develop as its own.
Part I describes the debate over the VRA and the basic tension between electoral competition and safe majority-minority districting under the VRA. Part I explains how the Court appeared to resolve the VRA claims in LULAC v. Perry by emphasizing and acting on a structural preference for electoral competition over other democratic values. Next, Part II introduces a theory of democratic contestation--a fresh account of democratic politics with particular focus on the role of political leaders in generating political discourse and action. Part II explains that a theory of democratic contestation offers a new understanding of representation, electoral competition, and the normative aims of democratic politics. Finally, Part III applies a theory of democratic contestation to the problems of racial polarization and the VRA. It argues that a theory of democratic contestation provides a powerful rationale for majority-minority districting and challenges the logic of the Court's handling of the VRA claims in LULAC v. Perry. Part III contends that the Court's new requirement of "cultural compactness" under the VRA is particularly counterproductive if the Court is serious about the normative aims emphasized in LULAC. The Article concludes by arguing, based on a theory of democratic contestation, against the popular movement toward coalition districts as substitutes for majority-minority districts under the VRA.
I. ELECTORAL COMPETITION AND THE NEW ERA OF THE VRA
A. The VRA, Representation, and Electoral Competition
Legal and political communities, once overwhelmingly supportive of the VRA, now divide on the question whether the VRA does more harm than good in today's political world. (20) The recent debate over renewal of section 5 of the VRA and the Supreme Court's decision in LULAC v. Perry were revealing about the future of the VRA, as the renewed VRA heads toward inevitable challenges in court. (21) The controversy is whether the successes of the decade-sold VRA in opening the doors to minority political gains in the South and beyond have undermined the very rationales for its existence.
The VRA was designed to end African American disenfranchisement in what was then a one-party South. The Democratic Party dominated Southern politics completely for nearly a century through the VRA's passage in 1965. (22) In the complete absence of partisan competition, the Democratic Party had no desire to destabilize its one-party hegemony by ending the historical disenfranchisement of African Americans. There were no incentives for Democrats even to consider broadening their constituency or pursuing African American votes. What is more, in the context of the one-party South, the VRA's intervention did little, at least immediately, to shift partisan advantage or otherwise entrench either party any further. (23) The VRA simply opened the door to African American representation within the Democratic Party, rather than offer opportunities for partisan mischief.
To the degree that the VRA's effectiveness was premised on nonpartisan neutrality in a one-party Democratic South, however, the VRA undermined that very premise in impressive fashion after 1965. (24) The VRA's empowerment of African American voters quickly influenced the Democratic agenda and incentivized southern Democrats to address African American political interests. (25) George Wallace, who famously declared his dedication to "segregation forever" before the VRA's passage, could be found campaigning actively for African American votes a decade later. (26) The VRA was so effective at engaging African American interests, tabled completely in the Jim Crow South, that it triggered a dramatic partisan realignment of the electorate. (27)
During the thirty years following the VRA's enactment, white conservatives fled the Democratic Party in waves, particularly in the South. They increasingly identified as Republicans and voted for Republican candidates, thereby reinvigorating what had been a moribund GOP in the South. Real partisan competition in the South emerged between the Democratic Party, newly remade with African American voters as one of its core constituencies, and the Republican Party, built on the base of erstwhile Democrats and other white conservatives. Partisan competition motivated both parties, though primarily the Democratic Party, to court African American voters aggressively in ways that appear to many commentators as the "normal, pluralist interest group politics to which the VRA aspired." (28) If the VRA provided a command-and-control method for ensuring representation of African American interests, a newly competitive partisan environment now seemed to empower African American voters as had not been seen in a century. (29)
In light of the changed politics of the South, however, critics argue that the VRA now may threaten to compromise, rather than promote, this electoral competition between the major parties. (30) Section 2 of the VRA carves out, at least when conditions of racially polarized voting prevail, majority-minority jurisdictions that assure the election of the minority group's candidates of choice as its representatives. (31) The close association between African American voters and Democrats means that representational guarantees for African Americans under the VRA inevitably produce safe districts for Democrats that are almost completely insulated from partisan competition. (32) Electoral competition here cuts against representation, and the converse is true as well. (33) A district that is electorally competitive between Republicans and Democrats, for instance, is likely to produce close elections that encourage the parties to compete aggressively, but is also likely to saddle a significant portion of the district's electorate, including the racial minority, with a representative whom it does not want. (34) Conversely, a majority-minority district designed to ensure that a racial minority voter will be represented by the candidate of her choice is likely, as a direct consequence, to be "safe" and not electorally competitive. (35)
Many commentators therefore question whether the VRA is politically necessary to ensure consideration of minority interests that might already be addressed through energetic partisan competition. (36) Indeed, VRA critics suggest that VRA representational guarantees in the form of majority-minority districts may not only be unnecessary, but may actively preempt healthy engagement and bargaining between the racial minority and the rest of the political system. Samuel Issacharoff questions whether the VRA's "narrow focus on securing the electability of minority candidates could compromise the range of political accords available to minority voters." (37) Likeminded critics have joined Issacharoffs skepticism about majority-minority districts under the VRA and now increasingly believe that "[r]ather than impos[ing] a particular view about what kind of representation is 'fair' on blacks or Latinos, we can simply let members of those groups do what any other political minority does in a healthy democracy: negotiate the best deal possible." (38)
B. LULAC v. Perry
New skepticism about safe districting under the VRA came to a head in LULAC v. Perry, (39) the Supreme Court's most recent VRA decision. LULAC addressed the infamous Texas congressional "re-redistricting" in which state Republicans broke from custom and engaged in a middecade redistricting, undoing the court-approved apportionment already in place. (40) Although public attention focused on the partisan gerrymandering claims entertained by the Court, the Court also reviewed VRA-related claims with respect to three congressional districts, namely Districts 23, 24, and 25 under the LULAC redistricting. (41) The Court's resolution of the VRA issues in the case emerged as the most interesting, provocative, and controversial element of LULAC.
Most notably, the Court's solicitude toward the VRA claims of Latinos residing in District 23 stands in sharp juxtaposition to the Court's dismissal of claims by African Americans residing in District 24. Before the LULAC redistricting, old District 23 was a majority-minority district, with Latinos constituting 57.5% of the voting-age population, but Latinos were not able to control the district electorally and select their candidate of choice. (42) Since 1996, District 23 had been represented by Republican Congressman Henry Bonilla who, while a Latino himself, was not supported by the Latino community and garnered just eight percent of Latino votes in the 2002 election immediately preceding the LULAC redistricting. (43)
What stood out for the Court, however, was that the Latino community of old District 23, by 2003, may have been on the verge of ousting incumbent Bonilla from office. Latino voters "were poised to elect their candidate of choice" and "were becoming more politically active, with a marked and continuous rise in Spanish-surnamed voter registration." (44) The LULAC redistricting, by dismantling old District 23 and splitting up Latino voting strength, "not only made fruitless the Latinos' mobilization efforts but also acted against those Latinos who were becoming most politically active." (45) The Court objected to the effort to thwart the growing efficacy of Latino voters and insulate an incumbent from dissatisfied constituents. The Court held that the dismantling of old District 23 violated section 2 of the VRA. (46)
By contrast, the Court was openly dismissive of the VRA claims brought by African Americans in old District 24, surrounding Dallas-Fort Worth. In truth, the legal foundation for their claims was shaky at best. The African American community in District 24 comprised only a quarter of the total population, (47) qualifying not as a majority-minority district, but instead only as a coalition district, in which the minority population does not by itself control the selection of the district's representatives. (48) Nonetheless, the plaintiffs contended, and the state did not dispute, that the African American community had managed consistently to elect its candidate of choice in District 24. (49) African Americans constituted a voting majority within the Democratic Party such that they successfully supported Congressman Martin Frost in the Democratic primary and then voted for him as part of a cross-racial Democratic coalition in the general election. The effect of the LULAC redistricting of the African American community was to dismantle District 24, but the protection of such coalition districts had never been clearly established under the VRA by lower courts.
The Court, however, rested its rejection of these VRA claims on somewhat surprising alternate grounds. The Court affirmed the dismissal based on a finding that Frost never qualified in the first place as the minority community's candidate of choice. (50) Despite the consistent support for Frost among African Americans, the Court doubted whether Frost, a white centrist, could be considered as their genuine candidate of choice given the lack of electoral competition in District 24. The Court explained that the "fact that African Americans preferred Frost to some others" was not determinative, because Frost simply never faced serious opposition that presented African American voters with real alternatives. (51) The Court speculated that a challenge from a credible African American candidate, perhaps in the primary, might have attracted African American votes away from Frost. The Court also speculated that "Anglos and Latinos would vote in the Democratic primary in greater numbers if an African American candidate of choice were to run." (52) In other words, the absence of electoral competition undercut the meaningfulness of African American support for Frost in an uncontested district that habitually reelected the Democratic incumbent.
The Court's disparate treatment of Districts 23 and 24 is puzzling, because it was the latter, not the former, in which the minority group was actually represented by the candidate it supported. On one hand, the Court found a VRA violation in the dismantling of old District 23, where Latinos were not represented by their candidate of choice. Latinos were instead represented by a Republican, Henry Bonilla, whom they opposed and strove to defeat. On the other hand, the Court did not find a VRA violation in the dismantling of District 24, where the effect was to deprive African American voters of Martin Frost, a representative whom they had supported for two decades.
The disparate results of LULAC make more sense, however, if the Court was focused less on representation than on electoral competition. Ellen Katz argues that the Court was not concerned that Latinos had not been represented by their candidate of choice in old District 23, but instead was outraged by the thwarting of the developing electoral competition between Republicans and Democrats in the district. (53) The Court admired the electoral competitiveness of District 23 before the redistricting and what it saw as the corresponding political vibrancy and engagement in the Latino community. Katz contends that the Court believed that "[t]he prospect of defeating Bonilla mobilized Laredo's Latino voters, while the redistricting plan eliminated that prospect and the political engagement it engendered." (54) The Court repeatedly characterized the Latino community before the redistricting as "politically active" and averred that the LULAC redistricting, by breaking it up, "undermined the progress of a racial group." (55)
Conversely, the noncompetitiveness of Martin Frost's District 24 undercut the value of its preservation, at least to the Court's eyes. If the prospect of victory stimulated vibrancy in the competitive old District 23 in a way that called for VRA protection, the Court appeared repulsed by the electoral security of old District 24. The Court seemed to believe that a "noncompetitive district [like District 24] becomes a forum unlikely to generate the engagement and vibrancy Justice Kennedy thought had been manifest in Laredo." (56) The guarantee of Frost's incumbency, in the Court's view, stripped away the value of preserving old District 24, even if it meant that the African American community would lose the congressman they consistently supported. (57) As a result, LULAC represents a decided normative choice in favor of the ideals of electoral competition, as embodied in the Court's mind by old District 23, over the representational guarantee offered by old District 24.
What is more, the Court's treatment of new District 25 only reinforces the Court's prioritization of electoral competition. New District 25 was an offset majority-minority district, stretching geographically from Austin to the Mexican border, designed to compensate for the dismantling of old District 23 in the LULAC redistricting. In fact, the district court below found that the new District 25 is "a more effective Latino opportunity district than Congressional District 23 had been." (58) Nonetheless, the Court in LULAC held that new District 25 could not serve as an adequate offset for the dismantling of the cherished old District 23. In contrast to the Court's celebration of political cohesiveness among Latinos in District 23, the Court disdained new District 25 as "an entirely new district that combined two groups of Latinos, hundreds of miles apart, that represent different communities of interest." (59)
The Court never fully analyzed the VRA merits of new District 25, but the Court did conclude that new District 25 failed to satisfy the requirement of political compactness under section 2 of the VRA, in a ruling that Daniel Ortiz dubs a requirement of "cultural compactness." (60) Part III extensively discusses this cultural compactness requirement introduced in LULAC, but it suffices to say for now that the Court rejected the replacement of old District 23 with new District 25 and expressly privileged the "growing Latino political power" (61) in an electorally competitive District 23. The Court again preferred the competitive District 23, even absent representation by the candidate of choice, over the surer guarantee of representation in another district, this time the electorally secure District 25.
The Court's linkage of the VRA claims and electoral competition is deeply intriguing and goes to the heart of VRA jurisprudence. The implication is that the VRA honors minority voters' revealed preferences only when sufficient electoral competition exists to certify their genuineness. Old District 24, an incumbent-friendly haven, stood in contrast to the competitiveness of old District 23, where Latinos appeared on the verge of overthrowing the incumbent. Under this interpretation, Ellen Katz argues that "minority voters might have a protected right to participate in a competitive political environment but not in a noncompetitive one." (62) The modern-day VRA, and the tensions it poses, expose deeper assumptions about how the Court believes democratic politics operate, how they should operate, and the perceived centrality of electoral competition in the Court's reasoning. (63)
Despite the central value placed on electoral competition by both the Court and commentators, there is need to reexamine the precise function of electoral competition in democratic theory, even as the Court begins to incorporate electoral competition more tightly into the law of the VRA. The close focus on electoral competition by both the Court and commentators has been deeply undertheorized and neglectful of other salient democratic values. (64) Electoral competition is too narrow, failing to connect with normative commitments such as participation and deliberation. A focus on electoral competition may crowd out and affirmatively cut against fulfillment of these other important normative goals whose subordination may be questionable in particular or general instances. If other democratic values deserve service at all, then advocates of electoral competition must justify the tradeoffs against those values required by the promotion of electoral competition. There may be times when the goals of participation or deliberation should trump the promotion of electoral competition.
In fact, electoral...
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