[E]racing Democracy: The Voting Rights Cases Comment 108 Harvard Law Review 1994-1995

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108 Harv. L. Rev 109 (1994-1995)
[E]racing Democracy: The Voting Rights Cases

handle is hein.journals/hlr108 and id is 127 raw text is: [E]RACING DEMOCRACY: THE VOTING RIGHTS CASES
Lani Guinier*
The American people are infected with racism - that is the peril. Para-
doxically, they are also infected with democratic ideals - that is the
hope.
MARTIN LUTHER KING, JR.'
Race is an issue that continues deeply to divide American politics.
Many Americans vote along racial lines2 or identify themselves in racial
terms.3 Americans of color still suffer disadvantage in racial, as well as
economic, terms.4 Even Supreme Court Justices who condemn the as-
sumption that race defines political interests acknowledge the practical
importance of race in drawing election districts.5 Despite this clear evi-
dence that race matters, however, the Supreme Court's jurisprudence of-
fers little direct guidance on how to structure democratic competition
among racial groups that seek political power and influence.
The question of group representation plays out with particular acri-
mony in the voting rights arena because of two competing forces: the
inescapable race consciousness of the Voting Rights Act6 and the ideo-
* Professor of Law, University of Pennsylvania. I thank Harlon Dalton, Pamela Karlan, and
Susan Sturm for their very helpful criticisms of an earlier draft. Professors Charles Beitz and
John Ferejohn gave me invaluable feedback at the Sept. 2, 1994 American Political Science Asso-
ciation Roundtable on Group Representation.
1 MARTIN L. KiNc, JR., Showdown for Nonviolence, in A TESTAMENT OF HOPE: THE ES-
SENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 64, 71 (James M. Washington
ed., iggi).
2 See, e.g., Peter Applebome, From Atlanta to Birmingham, Blur of Progress and Stagnation,
N.Y. TiAEs, Aug. 3, 1994, at A14 (More often than not, [votes in the New South are] cast along
racial lines .... (B]Ilacks and whites have political agendas as divergent as they were 30 years
ago.'); U.S. District Court Upholds 'Gerrymander'for Blacks, N.Y. TIMES, Aug. 3, 1994, at A12
(Mt's not just past discrimination.... We've got discrimination now. There is no way that a
district 28 to 30 percent black is ever going to elect a black person to Congress. People ... will
always vote along racial lines. What difference does it make whether the district looks pretty?)
(quoting La. State Sen. Dennis Bagneris) (internal quotation marks omitted); see also Stephen M.
Feldman, Whose Common Good? Racism in the Political Community, 80 GEo. L.J. 1835, 1848
(X992) (arguing that racial intolerance and racial group interests influence political activity much
more than individualistic interests).
3 See infra note ioo.
4 See, e.g., Johnson v. De Grandy, ii4 S. Ct. 2647, 2656, 2658 (1994) (accepting the district
court's finding that Hispanics continued to suffer adverse social, economic, and political effects as
a result of historic discrimination) (citing De Grandy v. Wetherell, 815 F. Supp. i55o, 1573-74
(N.D. Fla. 1992)). Current discrimination in areas such as health care, education, or employment
may be probative of a Voting Rights Act violation. See Thornburg v. Gingles, 478 U.S. 30, 36-37
(1986) (citing S. REP. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N.
177, 205-07).
5 See infra note 12.
6 See 42 U.S.C. 壯 1971-I974e (1988).