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The Decline of Legally Mandated Minority Representation

24 Pages Posted: 9 Nov 2007 Last revised: 3 Dec 2008

Richard H. Pildes

New York University School of Law

Abstract

The Supreme Court launched the practice, twenty years ago, of creating safe minority election districts. To comply with the Court's mandate, election districts throughout the United States were redrawn in the wake of the 1990 Census. Ironically, though, ever since the Court spawned this practice, it has been trying to cabin its own creation. In every single plenary decision since that initial moment of creation, the Court has cut back on the obligation to create safe minority districts, whether through constitutional limits on racial redistricting or though narrow readings of the scope of the Voting Rights Act.

Nonetheless, the politics of safe districting has retained a life of its own. Even as the Court has reduced the force of legal obligations, the political practice of safe districting remains much as it became in the early 1990s. Whether due to the increased political power of minority communities, the power of incumbent minority officeholders, or misunderstandings about the legal obligations the Voting Rights Act actually imposes today, safe minority districts where such districts can be created remains the norm.

In the first Voting Rights Act decision of the Roberts Court, the Court found part of Texas' recent congressional redistricting to violate the Act. As the first full decision on the merits to find the design of a congressional district to violate the Act, the Court's decision has been celebrated by many commentators as signaling a new Court commitment to the race-conscious design of safe election districts. This Article argues to the contrary. Properly understood, the Court's decision is yet another step in the Court's efforts to pull back from the implications of its initial intervention that revolutionized the design of election districts. Even so, this Article concludes, the political practice of safe districting will remain unaffected by the Court's most recent effort to limit it. If so, it will not be the first time a revolution has consumed its own creators.

Keywords: Voting Rights, Civil Rights, Race and Politics, Minority Voting Rights, Representation, Democracy, Supreme Court

Suggested Citation

Pildes, Richard H., The Decline of Legally Mandated Minority Representation. Ohio State Law Journal, Forthcoming; NYU School of Law, Public Law Research Paper No. 08-58. Available at SSRN: https://ssrn.com/abstract=1028607

Richard Pildes (Contact Author)

New York University School of Law ( email )

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New York, NY 10012-1099
United States
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