For 30 years I have fought for election districts that are fair to people of color and make it possible for everyone to participate equally. I’ve filed lawsuits challenging districts drawn by Democrats and districts drawn by Republicans. At various times in our history, Democrats and Republicans alike have built barriers for racial minorities. But a new bill before Congress, the Fair Representation Act—a comprehensive new approach that rethinks our approach to districting and voting itself—offers a real way to transcend the redistricting wars.
When North Carolinians elected Eva Clayton and Mel Watt to Congress in 1992, they were the first African Americans to represent the state in Washington, DC, since George White in 1901. Their victories were made possible by the groundbreaking civil-rights cases won by Julius Chambers, one of my mentors, and because the Reagan administration helped push for the creation of majority-minority districts when the Voting Rights Act was reauthorized in the early 1980s. After the creation of many such districts in 1991, the number of people of color in the US House increased from 37 to 59.
The constitutionality of these districts was challenged almost immediately in what became Shaw v. Reno—a case brought originally as a partisan gerrymander claim by a white Democrat who had grown accustomed to having a member of Congress who came from his community. Democrat Mel Watt didn’t fit that bill. In general, Democratic parties throughout the South counted on the reliable votes of African Americans, and distributed them throughout as many districts as possible.
As voting remained racially polarized, and few Southern whites were willing to vote for black candidates, this toxic combination of race, geography, and districting made these majority-minority districts crucial if African Americans were to have any representation in Washington at all. I spent the first part of my career trying to convince courts that it was important to protect minority voting rights. I found myself defending, again and again, and ultimately unsuccessfully, some of the gains Julius Chambers achieved.
More recently, Republicans in the South have cynically used the Voting Rights Act to justify redistricting for their political advantage. The state legislative maps and congressional maps drawn in North Carolina in 2011 represent some of the worst racial gerrymanders that we’ve ever seen in this country—and last month, the Supreme Court agreed.
During our litigation, it came out that the state Senate president who helped draw these maps went to then-Congressman Watt and tried to convince him that the majority-minority seats they drew were good for the black community. But it was easy to see what was going on: The purpose was to pack as many African American voters into two districts so as to diminish their influence everywhere else.
Political life in North Carolina has evolved since those days when African Americans needed to be more than 50 percent of a district’s population in order to have a chance of electing a candidate of their choice. The way we think about districting, however, hasn’t changed at all. It must, if we want to ensure that these gains remain permanent, that coalitions between whites and blacks are strengthened, and that our democracy is reinvigorated.
Majority-minority districts have been a crucial part of this fight. Yet, as Julius Chambers was preparing to argue the Shaw case before the Supreme Court, he told me that he always expected that majority-black districts would be a temporary remedy, a tool that would empower black voters and make sure their voice was heard.
There is a way forward. If we want to stop gerrymandering, and move beyond constant litigation over how lines are drawn, we must rethink the way we do districting itself. That’s why the Fair Representation Act, recently introduced before Congress by Representative Don Beyer of Virginia and Representative Jamie Raskin of Maryland, creates such an exciting path forward. It would stipulate that all 435 US House members be elected by ranked-choice voting. States with fewer than six seats will elect all members at-large. Larger states will have independent commissions draw multi-winner districts of three, four, or five representatives.
Yes, at-large elections have historically been used to dilute the votes of racial-minority communities. But that’s been made possible by winner-take-all voting rules that allow a handful of voters to control all the seats. With ranked-choice voting, winning requires a lower share of the vote. FairVote has simulated the impact with two national plans: Both times, the number of racial minority voters in a position to elect a candidate of their choosing has soared—from 38 percent in our current system, to nearly 60 percent. The number of potential minority seats jumps significantly as well, from 71 now to 101.
Indeed, the Voting Rights Act helps prove the value of alternatives to single-member districts. Similar fair-representation systems have been instituted in communities to settle cases brought under Section 2 of the Voting Rights Act. In Alabama, Texas, North Carolina, New York and South Dakota, these settlements have led directly to the election of racial-minority candidates for the first time in at-large elections, despite racially polarized voting. Ranked-choice voting in multi-winner districts had a similar impact when enacted in the 1920s and ’30s in cities like Cincinnati and New York, before running into a backlash from majority communities that weren’t yet ready for such minority representation..
Getting away from single-member districts—and majority-minority districts—allows us to give voice to new coalitions that are forming across racial lines. Coalitions are more effective when they can run a slate of candidates. And as the population becomes more diverse across the country, if you have to be a majority in a district to win, it becomes much harder to find representation. But if you can be 26 percent of a district and still control a seat, you’re going to have a better chance of having a real voice.
In states like Texas, for example, where black and Latino populations live close together, those communities are often pitted against each other for the one majority-minority seat. A multi-winner district, and a genuine multi-racial slate, would decrease tension between racial minorities, while increasing their voice.
Important partisan gerrymandering litigation in Wisconsin, as well as in North Carolina which I am involved in, has utilized the “efficiency gap” as a standard to determine when mapmakers go too far in tilting districts toward either the Republicans or the Democrats. That seems to be a good way to crystallize the problem: In any winner-take-all election, 49 percent of the voters don’t get their way. In more semi-proportional systems, more voters cast ballots for someone who wins.
Under the Fair Representation Act, how you draw the lines will become less decisive as to whether the districts fairly represent voters. It is a lot harder to use either of the two traditional gerrymandering techniques—“packing” one party into as few seats as possible, or “cracking” them and scattering across as many districts as possible—to unfairly weight the votes of one group over another. The people we elect to Congress would also become more representative of all the voters, rather than just the extremes.
Nothing in this act would alter the Voting Rights Act. And, while it uses a different process than majority-minority districts to guarantee minority representation, African Americans and Latinos will experience greater voting power. Single-winner districts do not inherently empower people of color. It’s all about making their votes count by putting them in a majority position to elect. Ranked-choice voting in multi-winner districts lowers that threshold, down to 17 percent in a five-winner district—and greatly expands who has the power to elect.
It is a straightforward way to ensure every African American would be in a position to help elect someone directly in the entire block of Southern states from North Carolina through South Carolina, Georgia, Alabama, Mississippi, and Louisiana. Every Latino voter would have that same power throughout states like California, Nevada, New Mexico and Texas. Native Americans and Asian Americans will have greater voice, as well. Because ranked-choice voting avoids vote-splitting and encourages candidates to reach out beyond their base, even those people of color below the victory threshold will have real influence—and be positioned to win seats when their preferred candidates can top the threshold.
We must always be skeptical and considered when examining serious structural reforms to our voting systems. As one example, we need to be attentive to the impact of lower voter turnout of some communities of color. But the Fair Representation Act has the potential to be transformative. It’s time to take the next step in racial minority representation: Let’s broaden the conversation and push beyond the stalled debate about redistricting. Let’s imagine fair representation for all of us–and the more perfect union that springs from government that’s truly of, by, and for the people.