Vol. 9 No. 11 (November 1999) pp. 506-508.
THE APPEARANCE OF EQUALITY: RACIAL GERRYMANDERING, REDISTRICTING, AND THE SUPREME COURT by Christopher M. Burke. Westport, CT: Greenwood Press, 1999. viii, 212 pp. Cloth $59.95.
Reviewed by Richard L. Engstrom, Department of Political Science, University of New Orleans.
Christopher Burke begins the preface to THE APPEARANCE OF EQUALITY with some words of caution for his readers. The warning, which is very appropriate given the title of his book, is: Do not expect to find, in the pages that follow, an answer as to what constitutes fair representation; how to arrive at its measure; or concrete suggestions as to how to remedy its lack (p. vii).
Given the subtitle of the book, RACIAL GERRYMANDERING, REDISTRICTING, AND THE SUPREME COURT, a more extensive warning should have been provided, because readers also should not expect to learn much about redistricting generally, racial gerrymandering more specifically, nor Supreme Court decision-making in this area. Those already familiar with the Court's decisions on redistricting and gerrymandering will learn very little about this area of the law by reading this volume. And those not previously familiar would learn much more about these topics by reading one of the recently edited volumes by Anthony Peacock (1997), Bernard Grofman (1998), or Mark Rush (1998).
So what is it that Burke, an Assistant Attorney General in Wisconsin's Department of Justice, provides in this book? In his language, he attempts "to describe and undo various liberal and communitarian strategies of justification that structure United States Supreme Court opinions in the area of political representation" (p. 1). There is nothing in this analysis to suggest that "structure" in that statement has a causal denotation, in terms of determining the outcome of political representation cases. Rather, the review of these strategies is much more suggestive of after-the-fact rationalizations for decisions. The strategies provide philosophical frameworks in which the decisions are cast. Burke argues that these strategies are not inherently liberal or conservative in a political sense, and that "conservatives and liberals [on the Court] trade philosophical justifications of fair representation from case to case" (p. 2). Indeed, Burke claims that ". the same justice may employ both liberal and communitarian justifications in her opinion" (p. 6, "her" is meant to be inclusive of justices generally, and not a referent to Sandra Day O'Connor).
Burke notes that egalitarian liberal rhetoric, in which the individual is the focus, dominated the reapportionment cases, beginning with REYNOLDS v. SIMS (1964) that imposed the "one person, one vote" rule on districting arrangements. When the issue shifted to the dilution of the voting strength of racial and language
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minorities protected by the Voting Rights Act (VRA) the dominant rhetoric changed to what Burke calls "race-conscious communitarianism." In this "narrative" the group replaced the individual as the focus of the justification scheme. The high point of this communitarian justification was the THORNBURG v. GINGLES (1986) decision, concerning the 1982 amendment to the VRA that provided a "results" test for dilution. According to Burke:
Under GINGLES ... minority communities were presumed to be politically
homogeneous. Moreover, they were presumed to be better represented by
their own members. Fair representation meant proportional group
representation (p. 86).
Burke is engaging in some rhetorical excess of his own at this point. GINGLES, in fact, made it crystal clear that minority plaintiffs had the evidentiary burden of proving that minority voters were "politically cohesive," and left it up to minority voters to decide for themselves, through their votes, whether they preferred to be represented by members of their group or someone else. In addition, the measure of "fair representation" provided in GINGLES was the number of opportunities minority voters would have to elect representatives of their choice under a single member districting arrangement, which is not a proportional representation standard.
Another shift occurred, Burke informs us, with SHAW v. RENO (1993), a case in which the politically conservative majority of the Court recognized as justiciable an allegation that specific majority African American districts constitute "racial gerrymanders" in violation of the equal protection clause. This complaint asserted a district-specific complaint of gerrymandering divorced from any allegation that the voting strength of the complainants' racial group (whites) was being diluted. The majority in SHAW reinstated an individual-based liberal narrative as the dominant justification strategy, and has continued to employ that strategy, along with a corresponding rhetoric of neutrality, in subsequent cases raising this claim.
There is more to Burke's effort to "describe and undo" these strategies, of course, but what we gain through his analysis is far from clear. The "theory" in this book provides more fa‡ade than guidance, and the "analysis" is certainly not systematic. The considerable jargon with which the exercise is presented frankly detracts from rather than enhances understanding. We are introduced to the concept of "tropes," for example, which refers to "hinge words that invite the reader to peer past the veneer of surface-level reading . into the metaphorical meaning or subtext" (p.43). But after devoting two paragraphs to this ambiguous concept, and informing us
that important terms like "equality, "group," and "race" function as tropes, the concept is virtually ignored in the remainder of the text. We are frequently confronted with statements that have uncertain meanings, like "Justices interpret a case such as SHAW as they think it ought to look within the vernacular of the language games that describe their institutional space" (p. 100). And we are forced to struggle with commentaries like the following:
Districting is rhetorical, but not all rhetoric is equally persuasive. In other words, when we discuss the appearance of a district, we are talking about the power of rhetoric, or at least acknowledging
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that there is positively no district not infected by it. Without rhetoric, a district is indecipherable. All voting districts are dynamic and distinct. They reflect a population with particular needs and concerns. In this sense, all districting is local (pp. 56-57). The result of reapportionment, and reapportionment litigation, is, the distribution of political power. As such, it may be impossible to distinguish the perception of political power from the distribution of political power. The rhetoric of political legitimacy incorporates the perception and the distribution of political power. That is, the distribution of political power allows for a particular perception of political power and VICE VERSA (p. 94, emphasis in original).
THE APPEARANCE OF EQUALITY: RACIAL GERRY-MANDERING, REDISTRICTING, AND THE SUPREME COURT is an alluring title, especially given the Supreme Court's recent decisions on representational districts and the round of redistricting that will follow next year's census. However, this book will not help us understand those decisions, nor what constraints they will impose on those designing and adopting districts following that census. The book itself, unfortunately, delivers little that is likely to be of interest to students of judicial politics.
Grofman, Bernard, ed. 1998. RACE AND REDISTRICTING IN THE 1990S. New York: Agathon Press.
Peacock, Anthony A., ed. 1997. AFFIRMATIVE ACTION AND REPRESENTATION: SHAW V. RENO AND THE FUTURE OF VOTING RIGHTS. Durham, NC: Carolina Academic Press.
Rush, Mark A., ed. 1998. VOTING RIGHTS AND REDISTRICTING IN THE UNITED STATES. Westport, CT: Greenwood Press.
REYNOLDS v. SIMS, 377 U.S. 533 (1964).
SHAW v. RENO, 509 U.S. 630 (1993).
THORNBURG v. GINGLES, 478 U.S. 30 (1986).