VICE PRESIDENT AND GENERAL COUNSEL
CENTER FOR EQUAL OPPORTUNITY
HOUSE JUDICIARY COMMITTEE
SUBCOMMITTEE ON THE CONSTITUTION
A BILL "TO PROVIDE THAT STATES
MAY USE REDISTRICTING SYSTEMS FOR CONGRESSIONAL DISTRICTS
OTHER THAN SINGLE-MEMBER DISTRICTS"
SEPTEMBER 16, 1999
RAYBURN HOUSE OFFICE BUILDING 2226
Good morning, Mr. Chairman. My name is Roger Clegg, and I appreciate the opportunity to testify before this subcommittee today. I graduated from Yale Law School in 1981, clerked on the U.S. Court of Appeals for the District of Columbia Circuit, and then served at the U.S. Department of Justice from July 1982 to January 1993, including four years as a deputy in the Civil Rights Division. I am now the vice president and general counsel of the Center for Equal Opportunity, a nonpartisan, Section 501(c)(3) research and educational organization, where I write and speak on civil rights issues.
H.R. 1173 is a bill "To provide that States may use redistricting systems for Congressional districts other than single-member districts." Its text is quite straightforward. Currently federal law (2 U.S.C. sec. 2c) requires that states entitled to more than one Representative in the U.S. Congress must "establish by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative …." H.R. 1173 would change this, so that states may choose to have their Representatives "elected from single-member districts, multi-member districts, or a combination of single-member and multi-member districts …."
My expertise does not extend to Article I, Section 4 of the Constitution. But I will say that, by its terms, it gives Congress the authority to pass this legislation. I will assume in my testimony that Congress has this authority.
That does not, however, mean that it would be wise for Congress to pass this bill--just that it can if it wants.
I should also note that, even when Congress has authority to pass legislation, if it abuses that authority by acting with discriminatory animus when it does so, the law might still be struck down as unconstitutional. Even in circumstances where Congress otherwise has authority to pass a law, and even if the law is not race-based on its face, if the law is passed with the idea of helping or hurting one race at the expense of another, it is still unconstitutional. Of course, acting with such a motive would be objectionable from a policy perspective even if no court struck down the legislation. Nor, finally, may Congress pass a statute permitting what the Constitution forbids.
It might be objected that these general principles should not apply here, since at worst the statute is merely giving states a power that they might abuse; it is not mandating such abuse. I'm not so sure about this, though. Suppose that a state repealed a lynch law, knowing and hoping that there would be more lynchings. Is that action permissible because the state would not actually be doing the lynching? Or suppose that a state had passed a law like H.R. 1173 with the hope and expectation that municipalities would implement at-large systems to the disadvantage of minorities. Is that action permissible because, again, Congress has merely facilitated but not actually taken the final step?
In all events, in my view it is a very bad thing whenever Congress passes legislation to help one racial group at the expense of another. And this is especially so when the issue is voting, the right on which all others depend in our republic.
One might suppose that those sympathetic with federalism concerns would favor this legislation, since it gives states greater freedom than they currently have. There are, however, two reasons why this is not so.
First, if the result of this legislation is to increase the number of at-large representatives, the principle of more local representation--which is a very important reason for federalism--would actually be undercut.
And it does indeed seem likely that this legislation would create enormous pressure for the adoption of at-large representation. It certainly seems likely, in particular, that in any state where one party clearly has the upper hand, an at-large system will be adopted. Why settle for a 6-4 majority when it can be 10-0? And even if the local party were not especially inclined to pile on this way, the national party would be, and could bring pressure to bear on its state members to do so.
Second, the national legislature has a strong claim to authority and expertise in deciding how its members ought to be chosen. That, indeed, is presumably the reason that this ultimate authority is apparently given to Congress by Article I, Section 4.
There are a number of reasons why this body might wish to preserve greater local representation. Since Senators are elected at-large, that kind of representation is already present in the national legislature. The more local representation that single-member districts provide in the House should not be lost. In this regard, it is interesting to note that James Madison, in No. 56 of The Federalist Papers, contemplated single-member districts in which the Representatives had a good understanding of the local issues. It is interesting that one by-product of single-member districts is a wider range of viewpoints being represented in Congress (as reflected, for instance, in the House Judiciary Committee). This makes it ironic that those supporting H.R. 1173 also support cumulative voting with the argument that it will have a similar effect.
There is already a danger that Americans will come to ignore geographic community in favor of other common interests. But in some respects geographical building blocks form a more solid foundation than ideological coalitions. In all events, we should be reluctant to give up an important, remaining geographical tie for what will inevitably be a more transitory and ideological or racial set of alliances.
Finally, with multi-member districts, it will be much more difficult for constituents to hold a particular Representative accountable.
Where a jurisdiction is racially polarized, at-large systems can be used to ensure that racial minorities are kept from electing any representatives. This is hardly a novel observation. Indeed, much of the history of the Voting Rights Act's enforcement has been about its use to ensure that at-large systems at the local level not be used to this end. It is, therefore, rather ironic that it is now being proposed by Representative Watt and others that at-large elections be considered for the election of Representatives to the House.
Of course, racial gerrymandering can take place with single-member districts, too. But the recent decisions of the Supreme Court, starting with Shaw v. Reno, have circumscribed this danger by, for instance, making it hard to justify such gerrymandering when it results in badly misshapen districts. But it is easy to think of situations where, while it might be impossible to draw a compact single-member district that favors a particular race, it is possible to draw a compact two-member district that would do so.
The basic point is that, by adding a whole variety of additional ways to draw districts that favor one race or the other, the chances that this sort of abuse will occur are greatly increased. It also increases the likelihood of litigation, if for no other reason than there will be a whole new range of approaches on which litigants might insist.
Moreover, the Voting Rights Section of the U.S. Justice Department's Civil Rights Division will surely seize upon the opportunity for abuse that H.R. 1173 will give it. Up until now, the Section has been limited in the ways it can insist that district lines be drawn to ensure safe seats for minority candidates. Now, however, they will have many more opportunities for this mischief.
Further, if the federal government has a law that blesses the use of any combination of single-member and multi-member districts, the Section will be better able to insist that all state and local districts have this flexibility, too.
The kind of discrimination to which H.R. 1173 will open the door can hurt racial minorities in some situations and nonminorities in others. Besides, when voting systems are corrupted by racial considerations, everyone loses.
Racial gerrymandering discourages interracial coalition-building. It marginalizes the importance of black voters. Frequently the concentration of minority voters may reduce electoral competition and indirectly discourage political participation. It encourages identity politics and discourages voters from thinking for themselves.
Finally, cumulative voting is unlikely to be adopted if single-member districts are used. For multi-member districts, however, this system becomes a real possibility. Lani Guinier has advocated this system as better suited to achieve social justice than nondiscriminatorily-drawn single-member districts. But cumulative voting--even more so than outright gerrymandering--discourages coalition building and facilitates identity politics and, especially, racial politicking. H.R. 1173 is written in such a way as clearly to allow the use of cumulative voting.
Over two hundred years ago, the great British statesmen Edmund Burke warned against radical changes in governance, arguing that there should be a strong presumption in favor of existing systems that have worked well. One of the favorite sayings of the late, great constitutional scholar Alexander Bickel was: "Unless it is necessary to change, it is necessary not to change." And Walter Bagehot wrote, "The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions that they have created."
I would urge the Subcommittee to ask whether the system is broken before trying to fix it.