Michigan Journal of Race and Law Volume 7 2002 Redefining American Democracy: Do Alternative Voting Systems Capture the True Meaning of "Representation"? James Thomas Tucker United States Department of Justice, Civil Rights Division Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Civil Rights and Discrimination Commons, Election Law Commons, and the Law and Politics Commons Recommended Citation James T. Tucker, Redefining American Democracy: Do Alternative Voting Systems Capture the True Meaning of "Representation"?, 7 MICH. J. RACE & L. 357 (2002). Available at: https://repository.law.umich.edu/mjrl/vol7/iss2/3 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. REDEFINING AMERICAN DEMOCRACY: DO ALTERNATIVE VOTING SYSTEMS CAPTURE THE TRUE MEANING OF "REPRESENTATION"? James Thomas Tucker* I. INTRODUCTION .................................................................... 358 II. GEOGRAPHICAL REPRESENTATION: CONSENT DEFINED BY TREES OR ACRES ........................................................................ 366 A. GeographicalRepresentation:The Early A merican Framework ........................................................... 366 B. Geographical Representation:TheRise of Political Gerrym andering...................................................... 371 C. Geographical Representation:Attempts to Reform DiscriminatoryDistricting Practices ........................................ 375 D. Alternatives to GeographicalRepresentation ............................... 385 III. RELATIONAL REPRESENTATION: CONSENT DEFINED BY CONSTITUENT SERVICE .............................................................. 387 A. Representing Communities of Interest:The Origins of Relational R epresentation.................................................. 387 * Attorney, United States Department of Justice, Civil Rights Division,Voting Sec- tion. SJ.D., LL.M., University of Pennsylvania; J.D., University of Florida; M.PA., University of Oklahoma; B.A.,Arizona State University. This is the last of four pieces that comprise my dissertation for the Doctor of the Science of Law (SJ.D.) program at the University of Pennsylvania Law School. I am grate- ful to the members of my dissertation committee, Dean Michael Fitts, Professor Seth Kreimer, and Professor Kim Scheppele, for their advice and critical analysis of this essay. Dean Fitts was especially instrumental in encouraging me to examine the topic of alterna- tive voting systems and critically examine the extent to which they may be reconciled with the American political system. I also want to express my gratitude to Professor Jacques de Lisle for coordinating my graduate studies. Denise McGary, the Associate Di- rector for Law School Admissions at Penn, was a joy to work with and provided invaluable assistance in facilitating the progress of my doctoral dissertation. Professor Lani Guinier, who now is at Harvard Law School, challenged me early on to question the conventions of what "voting" and "representation" mean in this country, which is reflected in this piece. A special thanks to Chris Coates, Peyton McCrary, Toby Moore, and Steve Pershing and several others in the Voting Section for their insight, critiques, and support of this endeavor. While many people have helped to inform the views contained in this Article, any errors or omissions are mine alone. Finally, I cannot begin to express my gratitude to my wife, Sue, whose perseverance and encouragement over the last four years allowed me to com- plete my dissertation. The opinions expressed in this Article do not necessarily reflect those of the United States Department ofJustice. MichiganJournal of Race & Law [VOL. 7:357 B. Representing Communities of Interest:The Contemporary A m erican System ............................................................... 390 C. Representing Communities of Interest:The Utility of Proportional and Semi-ProportionalRepresentation Models ............................ 396 IV MAJORITARIAN REPRESENTATION: CONSENT DEFINED BY N UM BERS ................................................................................406 A. MajoritarianRepresentation: Falling Short of the Framers' Ideal ......406 B. The Limits of ProportionalRepresentation:Allocation of Seats vs A llocation of Power.......................................................... 419 V Two-PARTY REPRESENTATION: CONSENT DEFINED BY MAJOR PARTY A FFILIATION ........................................................................425 A. The Evolution of the Two-Party System .................................... 425 B. Inherent Conflict?: Whether Maintaininga Two-Party System and Obtaining Majority Consent are Mutually Exclusive .............. 429 VI. C O N C LU SIO N .........................................................................437 [T]he Court has declared that strict constitutional scrutiny must be applied whenever race is "the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district .... " If continued pursuit of minority political representation is going to remain a goal of public policy, the time to consider alternatives other than race-conscious districting has arrived. Richard Pildes & Kirsten Donoghue' I. INTRODUCTION The Supreme Court's creation of an equal protection claim for racial gerrymandering in Shaw v. Reno2 has left defenders of minority voting rights in much the same position as the proverbial Dutch boy-trying to stop too many leaks without enough fingers. Over the past quarter century, civil rights advocates have built a dike in the form of majority- minority single-member districts3 to stem the tide of racial bloc voting, the practice by which White voters in a particular district consistently vote in a manner that thwarts minority voters' attempts to elect their 1. Richard H. Pildes & Kirsten A. Donoghue, Cumulative Voting in the United States, 1995 U. CHI. LEGAL F.241 (1995) (quoting Miller v.Johnson, 515 U.S. 900,916 (1995)). 2. 509 U.S. 630 (1993) ("Shaw F') (holding that irrational reapportionment schemes that are meant to segregate voters on the basis of race are unconstitutional under the Equal Protection Clause). 3. That is, districts electing a single representative in which racial, ethnic, or language minorities comprise a majority of the population. See DAVID BUTLER & BRUCE CAIN, CONGRESSIONAL REDISTRICTING: COMPARATIVE AND THEORETICAL PERSPECTIVES 159-60 (1992) (defining "majority minority districts" and "single-member district"). SPRING 20021 Redefining American Democracy candidate of choice.When the Shaw Court initially punched a hole in this dike by striking down a district map designed to create a majority Black district,4 minority voting rights groups responded by attempting to plug the opening with settled principles of constitutional law. But the Court remained undeterred, side-stepping' its own precedents and rupturing the dike anew with each passing decision.6 The deluge of the Court's reasoning threatened to breach the dike in its entirety and again dilute the ability of minority voters to have the same opportunity as "other members of the electorate to participate in the political process and to elect representatives of their choice' 7 Like the Dutch boy, many civil rights advocates believe they do not have enough fingers to fill all of the holes in the crumbling dike of majority-minority single-member districts. 4. Shaw 1, 509 U.S. at 633,644. 5. Shaw 1, 509 U.S. at 659 (White,J., dissenting). 6. See, e.g., Abrams v. Johnson, 521 U.S. 74 (1997) (finding the district court's redis- tricting plan for Georgia did not violate the Voting Rights Act's retrogression provision because the appropriate benchmark was the current plan containing one majority-Black district and not proposed plans creating two majority-Black districts that had never been in effect and were found to be unconstitutional); Bush v.Vera, 517 U.S. 952 (1996) (con- cluding that evidence supported findings that racially motivated gerrymandering had greater influence on drawing ofTexas congressional district lines than political gerryman- dering and was accomplished in large part by use of race as proxy for political data such as precinct general election voting patterns, precinct primary voting patterns, and legislators' experience); Shaw v. Hunt, 517 U.S. 899 (1996) ("Shaw Ii') (holding that remedying racial discrimination in redistricting is not a compelling state interest unless discrimination is identified and the redistricting jurisdiction has a strong basis in evidence to conclude that remedial action was necessary before it embarked on affirmative-action program); Miller v. Johnson, 515 U.S. 900 (1995) (holding that a Shaw claim could be stated by alleging that race was the predominant factor in the creation of district boundaries); United States v. Hayes, 515 U.S. 737 (1995) (holding that a person residing in an allegedly racially gerry- mandered district has standing to bring a Shaw claim because that person has been denied equal treatment through use of racial criteria and accordingly has suffered special harm not experienced by persons residing outside the district). 7. 42 U.S.C. § 1973(b). For an extended critique