Is Voting Rights Law Now at War with Itself?: Safe Election Districts Versus Coalitional Districts in the 2000s

Abstract

In the 1990s, the combination of social-scientific evidence of racially-polarized voting patterns and the legal compulsion of the Voting Rights Act required the construction of "safe" minority-election districts in much of the United States. This article explores whether changes in voting-rights law during the 1990s, and changes in what emerging social-science evidence now shows about the extent of racially polarized voting today, will require or permit changes in the "safe" districting approach in the redistricting of the 2000 decade. In particular, the article asks whether "coalitional" districts, in which minority voters are less than a controlling majority but can realistically, through interracial political coalitions, elect minority candidates, are now legally required, or permitted, where law and facts instead required "safe" majority-minority districts in the 1990s. As part of this analysis, the article argues that in the 2000 round, the constitutional constraints on race-conscious districting that in the 1990s applied to constrain the geographic shapes of districts are likely to be extended to the population concentrations of minority voters. Acceptable "safe" districts of the 1990s are now, in light of current social-science evidence, likely unconstitutionally to overconcentrate minority voters. The article also suggests that the complexity of applying voting-rights law in the 2000s will follow from the tension courts will face between the attractiveness of easy to administer, bright-line formal rules, and the realities of empirically complex questions of what is necessary, excessive, or insufficient to ensure meeting the Voting Rights Act requirement that minority voters have an equal opportunity to elect candidates of their choice.