Beyond Gingles: Influence Districts and the Pragmatic Tradition in Voting Rights Law

Abstract

[ch. 1] I. The Dual Origins of "Influence Districts". THE questions of how how or whether courts should shape electoral structures in order to maximize the "influence" of members of minority groups are not new. In his dissent in Allen v. Board of Elections, the first case in which the United States Supreme Court interpreted the Voting Rights Act to apply to electoral structures, Justice John Marshall Harlan declared that "it is not clear to me how a court would go about deciding whether an at-large system is to be preferred over a district system. Under one system, Negroes have some influence in the election of all officers; under the other, minority groups have more influence in the selection of fewer officers." Whatever the situation in 1969, after the 1982 amendments to section 2 of the Voting Rights Act, there is no doubt that Congress has decided that the standard should be that minority voters should have a fair opportunity to elect candidates of their choice--that is, to determine the choice regardless of the desires of majorities of majority group voters--and that district systems protect that right better than at-large systems. That does not, however, entirely exhaust the force of Harlan's criticism. What about the case in which members of a group cannot form a "political majority"? Should courts intervene to pool geographically compact minority group members into one or a few districts, or to stop redistricters from fragmenting them? Or should courts decide, in effect, that the groups are too small to have any cognizable rights, such that they will have to make their own way through the political thicket? In the extreme, does a group that makes up 49.9% of a "political majority" deserve no special protection as a "discrete and insular minority" under the Voting Rights Act or the United States Constitution, while a group that comprises 50.1% does? This would certainly be a concept of "group rights" with a vengeance, protecting larger groups, which presumably have a greater ability to take care of themselves through normal politics, more than it protects smaller groups, which are more at the mercy of majorities.

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