Vol. 2 No. 11 (November, 1992) pp. 169-171

CONTROVERSIES IN MINORITY VOTING: THE VOTING RIGHTS ACT IN PERSPECTIVE by Bernard Grofman and Chandler Davidson (eds.). Washington, D.C.: The Brookings Institution, 1992.

Reviewed by Royce Hanson (The University of Texas at Dallas)

It would be hard to gainsay the claim by almost every author in Grofman and Chandler's collection of essays that the Voting Rights Act has been one of the spectacular successes of the Civil Rights Revolution and Lyndon Johnson's presidency. Especially since the enactment of the 1982 amendments to the Act, which replaced the crabbed "discriminatory intent" test of CITY OF MOBILE V. BOLDEN with a "results" test for dilution of minority voting power, it has been the instrument of choice in the continuing effort to empower black and Hispanic voters.

The result of a Brookings Conference on the Voting Rights Act, this book will be of interest to both the general reader and the specialist. Chandler Davidson's introductory chapter on the history of the Voting Rights Act is a good thumbnail sketch of the Act, its consequences, and the controversies it has generated. Morgan Kousser's chapter comparing the first and second Reconstructions is an especially welcome reminder of the importance of judicial and administrative enforcement of good intentions. Political rights -- even when guaranteed by the Constitution -- are fragile when they conflict with the political interests of a temporary "majority" or depend for their maintenance on a hostile or indifferent judiciary.

Kousser's assessment that the First Reconstruction died from too much democracy and that the second has survived because party competition has shriveled challenges us to think of a better explanation. He may, in fact provide one himself, in showing how the post Civil War Supreme Court developed doctrines that were hostile to the advancement of minority rights. Particularly illuminating is his contrast of the indifference of the post Civil War Court to the Enforcement Acts of 1870 and 1872 with the steadfastness of both the liberal and conservative Courts of the recent past to the basic thrust of the Voting Rights Act (even in spite of BOLDEN). The theme of "too much democracy," however, or at least too much majority rule, has echoes in a provocative essay by Bruce Cain. He suggests that populist and majoritarian impulses are today finding ways of weakening the political power minorities have won through the Voting Rights Act by limiting legislative power.

For the specialist in minority rights and politics, the chapters on expert witness testimony, by Bernard Grofman, and on the voting rights bar, by Gregory Caldeira, are both revealing and unsatisfying. Grofman is understandably satisfied with his own performance as an expert witness. Justice Brennan endorsed Grofman's ecological regression technique for measuring racially polarized voting in THORNBURG V. GINGLES, and Grofman manages to accept Brennan's wisdom with reasonably good grace. Ultimately, he dismisses the debate among political scientists over how best to measure vote dilution and polarization as "esoteric quibbles that lack any practical importance and that serve mostly to prolong trials and to increase the incomes of expert witnesses for both sides." Winners can afford to be generous, and one Supreme Court opinion tends to trump a royal flush of refereed articles.

This dismissal of the debate over methods of measuring polarization and dilution is ultimately unsatisfying, however artfully done. Old legal realists like me have a hard time accepting the statistical preferences of judges, even ones we greatly admire, at face value. While Grofman has defended his methods in the professional literature, I, for one, would have liked a bit more justification for dismissing multiple regression analyses that seem to show that party affiliation accounts for more of the effect than race on electoral outcomes in some circumstances.

The chapters on expert witnesses and litigation pulse with (perhaps unintended) ideas for empirical research. What, for instance, is the effect of expert testimony on judges or juries (if

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any)? How are witnesses selected and prepared for trial? To what extent do expert witnesses become, with experience, advocates for both substantive remedies and analytical techniques? How significant is the selection of plaintiffs? Is there a difference in the outcome of cases based on the way in which evidence is presented or in the relative expertise and experience of plaintiff and defense attorneys? What has been the relationship between increased minority representation as the result of Voting Rights litigation and substantive policy outcomes? If the book made no other contribution, it is a source of provocative questions that should keep our profession usefully employed.

Taken together, the essays erect a strong defense of the Voting Rights Act against the criticisms of its detractors that it has become, in its implementation, an affirmative action program for minority politicians. The defense might have been stronger and even more persuasive if Abigail Thernstrom, or someone equally critical of the Act had been included in the collection of authors. As it is, she serves as the favorite punching bag for several of the authors without an opportunity to counterpunch for herself. I agree with the editors that the Voting Rights Act is not a quota system, and that it does not REQUIRE proportional representation of minorities. I am less sanguine that it is not being bent, by both those who mean well and those who do not, to that result. There is a strong tendency among trial courts to approve redistricting arrangements that produce racially proportionate schemes of representation.

The writers are reasonably satisfied with the outcome of the results test developed by GINGLES. There are glimmers of doubt in a number of the essays about the continuing efficacy of litigation as a benign tool of political reform. Cain and others suggest serious limitations in using case-specific litigation as the principal means of reforming an intricate political instrumentality like a representative system.

As Caldeira notes, litigation works best when there are clear and verifiable outcomes. Litigation tends to be linear in its logic. If a court finds dilution of voting power as a consequence of polarized voting behavior by whites and minorities, it seeks an enforceable remedy that will vitiate the dilution (but not necessarily the polarization). More often than not, that remedy has been single-member districts that produce a distribution of legislators that is nearly proportionate to the racial distribution of the population. While such a result is by no means a requirement of the law, it is much harder to attack than any other result. It is easier to impose single-member districts as a remedy than more complicated voting methods, such as proportional representation or cumulative voting, although such approaches may offer better protection for equally empowered voters to self-select the political faction to which they wish to adhere. It is easier because it is a familiar solution and seems to be less of an intrusion by the courts into the political process. That is a good excuse for the courts. It is not a very good one for political scientists.

Ultimately, the disjunction between the necessarily narrow and linear focus of the Voting Rights Act and the broader problem of creating a functional and just polity demands a new generation of thinking. The discussion in these essays comes tantalizingly close at times to an in depth discussion of this issue. There are mentions of alternative methods of providing equal power to minorities in selecting representatives, such as proportional representation. The potential problem of political isolation of minorities in their safe districts is raised by Lani Guinier, but the debate over this problem with Grofman is not thoroughly debated.

"The Law" really is not the problem. It never set out to cure all our problems. As James Turner asserts, "It does not perceive any requirement... that adopts or promotes one theory of democratic representation over another." While we might protest that blind law can nonetheless move in one direction, and that this one has, that also begs the question of how to ensure nondiscriminatory treatment for minorities in the electoral process and to meet the challenge

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Guinier presents of creating a fair and legitimate political process.

Representation is a process, not an act. The electoral system and the scheme of representation are essential elements of that process. They affect other aspects, such as legitimacy, the ability to deliberate and resolve conflict, and the accountability of government. They also influence the way in which other mediating institutions -- the party system and groups -- function. It is these organic relationships that we often neglect in our focus on the mechanics. Yet, I see no way to induce new thinking about the organic character of democracy without tools that force us to deal with the mechanics. Ultimately, this may be the greatest of all the accomplishments of the Voting Rights Act. If we do not like its second order results, we will have to do something about them. As we start that task, this book will help us understand both the promise and the limits of legislation and litigation in improving the process. It makes us think not only about the current controversies, but of others that may be next on the agenda of equal rights.