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Affirmative Action and Electoral Reform

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Affirmative Action and Electoral Reform Affirmative Action and Electoral Reform The elimination of racial barriers to voting and to voter registration has allowed racial minorities to achieve formal political equality.' Blacks and Hispanics continue, however, to be significantly underrepresented in state and local legislative bodies relative to their numbers in the general population.2 In at-large elections, the dominant form of elections in United States cities,3 these racial minorities usually lack the numerical strength to ensure the election of minority candidates." Because of racial prejudice and the distinctness of minority interests, they frequently are unable to elect representatives by forming majority coalitions with other groups.' This Note seeks to identify a constitutionally permissible method of in- creasing minority representation. It describes the current political under- representation of blacks and Hispanics and finds that existing remedies for discrimination in voting are inadequate to correct minority under- representation. The Note argues that states should make voluntary efforts to increase the representation of these racial minorities in state and local legislative bodies. The Note proposes that such voluntary reforms are jus- tified by the goal of including all minorities in the political process. Unlike existing justifications for voluntary reform, the goal of political inclusion is both consistent with equal protection doctrine and sufficient to support thoroughgoing reform. Both gerrymandering district boundaries and 1. This Note defines formal political equality as universal equal suffrage for persons of voting age. See J. Still, Voter Equality in Electoral Systems 25-28 (May 1977) (unpublished Ph.D. thesis in Yale University Library). 2. Although a number of ethnic minorities, as well as women, are politically underrepresented, this Note focuses on the need to improve the representation of blacks, Mexican-Americans, and Puerto Ricans. Of the various ethnic minorities in the United States, these groups are the largest, see U.S. BUREAU OF THE CENSUS, DEP'T OF COMMERCE, CURRENT POPULATION REPORTS, POPULATION CHARACTERISTICS, SERIES P-20, NO. 350, POPULATION PROFILE OF THE UNITED STATES: 1979, at 2 (1980) (25 million blacks, 7.3 million Mexican-Americans, and 1.7 million Puerto Ricans in United States) [hereinafter cited as POPULATION PROFILE], and are among the poorest, see id. at 42-43 (me- dian family income $10,879 for blacks, compared with $18,368 for whites); U.S. BUREAU OF THE CENSUS, DEP'T OF COMMERCE, CURRENT POPULATION REPORTS, POPULATION CHARACTERISTICS, SE- RIES P-20, NO. 347, PERSONS OF SPANISH ORIGIN IN*THE UNITED STATES: MARCH 1979, at 3 (adv. rep. 1979) (median family income $12,800 for Mexican-Americans, and $8,300 for Puerto Ricans). Moreover, these ethnic minorities have endured a long history of racial discrimination in the electoral sphere. See U.S. COMM. ON CIVIL RIGHTS, THE MEXICAN AMERICAN 9, 222-23(1968) (describing use of language laws and physical intimidation to inhibit political participation by Mexican-Ameri- cans); U.S. COMM. ON CIVIL RIGHTS, POLITICAL PARTICIPATION 1-10 (1968) (tracing history of black disenfranchisement). 3. See [1979] MUNICIPAL Y. B. 99 (Int'l City Management Ass'n) (64% of United States cities use at-large systems to elect city council members). 4. See p. 1813 infra (at-large elections lead to substantial underrepresentation of minorities). 5. See note 14 infra (minorities frequently unable to form biracial coalitions because of racial prejudice). 1811 The Yale Law Journal Vol. 90: 1811, 1981 adopting structural voting schemes, such as proportional and cumulative voting, can further the goal of political inclusion. Structural reforms are, however, the preferred method of reform because they are the most pre- cisely tailored and least drastic means of implementing the political inclu- sion principle. I. The Persistence of Minority Underrepresentation Blacks and Hispanics are severely underrepresented in state and local legislative bodies because of racial discrimination and economic depriva- tion. These minorities would derive numerous benefits from improved representation at state and local levels. Federal statutory and constitu- tional provisions prohibiting racial discrimination in electoral systems do not successfully address the problem of minority underrepresentation. In order to increase the number of minority representatives, state and local governments should voluntarily reform existing electoral systems to facili- tate the election of more blacks and Hispanics. A. The Need to Improve Minority Representation Blacks and Hispanics are underrepresented in state and local legislative bodies." Blacks hold approximately 50% of their proportionate share of city council seats.7 Hispanics have less than 45% of their share of city council representatives.8 Blacks and Hispanics are also seriously under- represented in state legislatures.' The underrepresentation of blacks and 6. Racial minorities are also underrepresented in the United States Congress. See CONG. Q. WEEKLY REP., Jan. 24, 1981, at 200 (no black senators and only 18 black representatives in 1981); M. LEVY & M. KRAMER, THE ETHNIC FACTOR 74 (1972) (only six members of Congress are Span- ish-speaking Americans). This Note does not address the underrepresentation of ethnic minorities in the United States Congress. Although many of the arguments in this Note apply to Congress as well as to state and local legislatures, efforts to increase the number of minority representatives in Congress would involve special problems. Given that each state elects only one senator in any single election, it is impossible to devise a system for electing senators who represent every large minority group living in a state. United States Representatives could be elected using multimember district systems that foster minority representation. It would be exceedingly difficult, however, to change the long-standing tradition of singlemember congressional districts. 7. See Jones, The Impact of Local Election Systems on Black Political Representation, 11 URB. AFF. Q. 345, 350-51 (1976) (blacks occupy 43% of their proportionate share of city council seats in cities that employ at-large elections, and 61% in cities that use district systems); Karnig, Black Repre- sentation on City Councils, 12 URB. AFF. Q. 223, 226-27 (1976) (number of blacks serving on city councils represents only 53% of blacks' proportionate share). 8. See Taebl, Minority Representation on City Councils- The Impact of Structure on Blacks and Hispanics, 59 SOC. SCI. Q. 142, 145-46 (1978) (Spanish-speaking Americans have achieved 4417 of their proportionate share of representatives on city councils). 9. See T. DYE, POLITICS IN STATES AND COMMUNITIES 123 (1973) (blacks seriously under- represented in six of seven state legislatures studied). Americans of Spanish origin constitute 5.6% of the total population, see POPULATION PROFILE, supra note 2, at 2, yet fewer than 1.1% of all state legislators in the United States are of Spanish origin, see F. LEMUS, NATIONAL ROSTER OF SPANISH SURNAMED ELECTED OFFICIALS 316-409 (1973) (less than 80 state legislators in United States are of Spanish origin); COUNCIL OF STATE GOVERNMENTS, THE BOOK OF THE STATES, 1980-81, at 85 1812 Minority Representation Hispanics in state and local legislative bodies is attributable to several factors. The use of at-large municipal elections is "the single most impor- tant variable" in explaining minority underrepresentation on city coun- cils."0 Also, city councils with few members tend to include very few black and Hispanic representatives.'" In addition, the continuing economic dep- rivation these groups suffer 2 limits their ability to mobilize the resources needed to conduct effective political campaigns." Finally, racial discrimi- nation against these minorities hampers their ability to form coalitions with other groups."4 These racial minorities would benefit significantly from the election of more minority legislators. 5 Minority representatives serve as spokesmen for the minority community, facilitating debate within minority ranks" as well as expressing minority needs to the larger community. 7 Minority (1980) (7,482 state legislators in United States). 10. Berry & Dye, The DiscriminatoryEffects of At-Large Elections, 7 FLA. ST. L. REV. 85, 113- 21 (1979) (regression analysis identified at-large system as most important variable explaining minor- ity underrepresentation). 11. See Taebel, supra note 8, at 148-49 (smaller councils lead to significantly greater minority underrepresentation). 12. See note 2 supra (median family income of blacks, Mexican-Americans, and Puerto Ricans significantly less than that of whites). 13. See W. MULLEN, BLACK POLITICAL PARTICIPATION 100 (1972) (relative lack of financial re- sources hampers black efforts to obtain political power even where blacks constitute a sizeable propor- tion of the population); Note, Racial Vote Dilution in Multimember Districts: The Constitutional Standard After Washington v. Davis, 76 MICH. L. REV. 694, 718 n.122 (1978) (past employment discrimination limits number of minorities financially able to seek office or to support minority candidates). 14. See A. CAMPBELL, P. CONVERSE, W. MILLER, & D. STOKES, THE AMERICAN VOTER 166-67 (1964) (ethnic group membership affects voting independently of variables such as income and educa- tion); D. MATTHEWS & J. PROTHRO, NEGROES AND THE NEW SOUTHERN POLITICS 478-79 (1966) (many blacks in the South are a permanent
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