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Why Conservatives Should Back State Voting Rights Acts

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Why Conservatives Should Back State Voting Rights Acts

With modifications, they can advance worthy goals while increasing minority representation. October 23, 2020
Politics and law

Though it once enjoyed broad bipartisan support, the federal Voting Rights Act has become anathema to conservatives. Jurists from Clarence Thomas to John Roberts have derided it as a “sordid” recipe for “divvying us up by race.” Worse, critics allege the VRA reinforces racial stereotypes and exacerbates racial polarization, by promoting racially homogeneous districts in which minority candidates can get elected without any white support and white candidates without minority support. The law has been a death knell for at-large local elections—those in which every resident gets to vote for all of the seats on a city council—in cities with large, geographically concentrated minority populations. This has had terrible consequences for local land-use and fiscal policy.

Now comes a new threat, or so it may seem: the state VRA. Much as states in the 1970s copied and extended federal environmental laws, left-leaning states such as California, Washington, and Oregon are enacting their own versions of the Voting Rights Act, filling gaps and patching the weaknesses of the federal law. A particularly audacious bill is pending in New York.

Yet conservatives should see state VRAs not as a threat but as an opportunity. The state VRA is—or rather, can be—a statutory lever to accomplish a variety of worthy goals, including dismantling off-cycle elections, which grossly amplify the political power of public-sector unions and antidevelopment homeowners; negating the most objectionable feature of the federal VRA, namely, its privileging of single-member-district elections; and even providing conservative and moderate voters with meaningful opportunities to elect candidates of their choice to city councils now dominated by the left and further left. Further, conservative state legislators, even in deep-blue coastal states, have a real opportunity to shape state VRAs because the agenda behind them exposes fissures within the Democratic coalition.

The conservative case for state VRAs is not merely opportunistic, moreover. Backing these laws is also a way for conservatives to build bridges to minority communities and to channel political competition toward the persuasion of voters (as opposed to gerrymandering of districts or selective mobilization or demobilization of narrow factions within the electorate). American democracy will be more stable in the long run if the electorate picks its politicians rather than the other way round.

The federal VRA disallows electoral arrangements that dilute the voting strength of racial groups and certain non-English-speaking minorities. Racial vote dilution is a complex idea, but as delineated by the Supreme Court, it usually occurs when a politically cohesive minority group, up against a politically cohesive majority, is unable to elect as many of its “candidates of choice” as would be possible under a “fair map” of single-member districts—that is, one that draws minority-controlled districts in rough proportion to the minority’s share of the citizen voting-age population.

To bring a vote-dilution claim under the federal VRA, plaintiffs must first prove that they’re part of a minority community large enough to comprise a majority of a compact, single-member district; that their community is politically cohesive; and that under the current map or electoral system, their preferred candidates are “usually defeated” by a cohesive white majority.

Proponents of state VRAs find fault with several features of the federal law. First, they think minority voters should be able to bring a vote-dilution claim even if the minority community is not large or geographically concentrated enough to constitute a majority in a compact, single-member district. Some advocates suggest that a small minority community that would have substantial influence in primary elections if placed into a district with white Democrats should be able to challenge a map that lumps them instead into a district dominated by white Republicans, where the Democratic primary is irrelevant.

Second, state VRA proponents object to the U.S. Supreme Court’s privileging of single-member district elections. If “rough proportionality” is the representational ideal, shouldn’t vote dilution be remedied with voting systems that tend to result in roughly proportional representation, such as at-large elections with ranked-choice voting? Single-member district elections usually generate a winner’s bonus, providing the majority faction with a seat margin about twice as large as its vote margin. (For example, a political party that wins 55 percent of the vote will usually gain about 60 percent of the seats.) Minority factions cannot expect to achieve proportional representation within a system of single-member districts unless the districts are intentionally gerrymandered for minority representation, yet intentional racial gerrymanders are presumptively unconstitutional.

Third, proponents want a more powerful tool for attacking voting systems that result in racial minorities being underrepresented in the electorate, not just in legislative chambers. When plaintiffs have mounted federal VRA attacks on voter-ID requirements and other barriers to voting, courts have conceptualized the injury as one of “vote denial” rather than “vote dilution.” These cases are therefore tough to win unless the challenged requirement makes it substantially difficult for minority voters to cast a valid, duly counted ballot. Yet even small burdens can have big effects on turnout in the aggregate, since the act of voting provides few immediate, tangible benefits to the voter. Election timing is a great example: it’s not exactly hard to vote in an off-cycle election, but the hassles are big enough to dissuade lots of voters from doing it.

State VRAs emerged from these critiques. The California, Oregon, and Washington statutes, and the bill pending in New York, expressly authorize claims by minorities too small or dispersed to make up a single-member-district majority. The statutes also authorize “alternative voting system” remedies, such as ranked-choice voting in at-large or multimember districts. Indeed, the Campaign Legal Center’s model state VRA (“Model Bill”) would declare a statutory preference for non-districting remedies in cases where at-large elections have been found to dilute minority votes. The Model Bill, along with the New York State bill, would also permit challenges to the timing of elections and any other aspect of the voting process that tends to result in disproportionately low rates of participation by minorities relative to whites. In this respect, these bills extend the California Voter Participation Act of 2015, which requires local governments to switch to on-cycle elections if turnout during an off-cycle contest falls below 75 percent of average turnout in the previous four statewide general elections.

To be clear, no state legislature has enacted anything approaching the Model Bill or New York bill. The state VRAs now in effect have significant limitations—indeed, in California’s case, dysfunctional ones. The California Voting Rights Act makes it trivial to challenge at-large elections, yet it allows no claim against dilutive single-member-district maps. As such, it does nothing to ensure that the replacement for a system of at-large elections will better represent minorities. Faced with demand letters from private attorneys threatening legal action, local governments in California have almost invariably responded by switching to districted elections. Only in a subset of cities with large, geographically concentrated minority populations has this resulted in more minority representation. Yet across the board it’s caused a steep decline in the production of housing, especially multifamily housing. (Representatives elected from single-member districts tend to fight off development in their district.) Meantime, housing shortages in California’s supply-constrained coastal cities are driving minorities away.

Oregon and Washington haven’t immunized districted elections like California, but their VRAs have other questionable features. Oregon’s law applies only to school board elections, for example. And neither statute defines the term “vote dilution,” or provides instructions for its measurement.

At first glance, state VRAs look like Democratic Party wish lists. Isn’t prohibiting electoral-district maps that dilute the “influence” of minority voters tantamount to licensing gerrymandering by Democrats while banning Republicans from doing it? And isn’t the goal of equalizing rates of voter participation across racial groups both a boon to Democrats and abhorrent to anyone who believes in equalizing opportunities rather than outcomes?

These objections miss the mark. The first presupposes that state VRAs will protect minority influence by requiring electoral-district boundaries to be redrawn to maximize the share of Democratic districts. But what state VRA proponents really want is to enable geographically dispersed minorities to elect their candidates of choice. To bring this about, conventional at-large elections must be replaced not with single-member districts gerrymandered for Democrats, but with semi-proportional voting systems such as at-large elections with ranked-choice voting. This is why the Model Bill declares a remedial preference for alternative voting systems. Conservatives should insist that state VRAs require semi-proportional voting systems whenever such a remedy would allow minority communities to elect their candidates of choice, rather than wield a modicum of influence within single-member districts dominated by white Democrats.

The immediate effect of the Model Bill would probably be a slew of vote-dilution claims by Asian-Americans, who tend to be too geographically dispersed to fare well in single-member-district, plurality-winner elections. For example, only 4 percent of the members of New York City’s governing body are Asian-American, though this group comprises more than 12 percent of the city’s citizen voting-age population. Broadly distributed across the city, Asian-Americans make up at least 10 percent of the citizen voting-age population in 21 of the 51 councilmanic districts. The only way for the city to provide Asian-Americans with a realistic chance to elect a roughly proportionate number of their candidates of choice would be to adopt a semi-proportional voting system—for example, large multimember districts with ranked-choice voting.

The adoption of semi-proportional voting system would benefit all geographically dispersed political minorities, not just racial and ethnic minorities. In the big cities where Democrats tend to cluster, this would be a boon for Republicans. Semi-proportional voting systems would make space for local candidates to test out different visions of what it means to be a Republican today, in an increasingly diverse and urbanized nation. Local Republican officials who demonstrate crossover support could then make their case to other party elites, as the various intraparty factions collaborate and compete to define the party’s brand.

The new voting systems would almost certainly end the convention of aldermanic privilege, whereby members of the city council defer to one another on proposed land-use changes in their districts. On a city council elected from large, multimember districts, it would no longer be possible to associate each rezoning with one territorial representative. It would also become easier for city council members to reject the appeals of discrete clusters of homeowners in their (large) districts, as the voting system would enable candidates to form winning coalitions around ideological rather than territorial concerns. I would expect much more rezoning for high-density development, which even left-liberals like New York mayor Bill de Blasio tend to support unless they’re representing a small territorial district where the rezoning would occur.

State VRAs could also be used to change remedial conventions under the federal VRA. A long line of cases holds that federal courts must defer to the defendant’s choice of remedy when an electoral system has been found to violate federal law. Federalism is the root of this principle, and its purpose is to protect states, not local governments. If a state statute declares that vote dilution should be remedied with an alternative voting system, that declaration would supersede a local government’s preference for single-member districts in federal VRA cases.

Now let’s consider the other big piece of the state VRA agenda, namely, the goal of equalizing voter-participation rates across racial groups. Whatever one may think of it as a matter of abstract philosophy, this norm has real value as a pragmatic check on the efforts of incumbent politicians to gerrymander the electorate, as it were, in their favor. And in practice, it should help Republicans achieve important municipal-reform objectives.

By far the most serious impediment to broad and roughly equal voter participation across demographic groups is the decision to hold local elections at a different time than state and national elections. Who benefits from “off cycle” local elections? Well-organized groups, principally public-sector unions, according to Sarah Anzia’s research. Homeowners who want to zone out newcomers take advantage, too. Joe Ornstein finds that switching from off-cycle to on-cycle elections substantially reduces overrepresentation of homeowners (relative to renters) among voters who turn out, while increasing the number of building permits the city issues by 200 to 400 percent. Anti-growth ballot measures are also more likely to be defeated in on-cycle elections.

Republicans have been pushing election-date consolidation bills for years, usually in the teeth of opposition from Democrats allied with public-sector unions. As Eitan Hersh has quipped, off-cycle local elections are the Democrats’ tool of choice for voter suppression. The Campaign Legal Center’s Model Bill gives Republicans a chance to realize their election-timing objectives by reframing the issue as a matter of civil rights and by tying it to the electoral-reform priorities of other members of the Democratic Party coalition.

One other concern merits a response. Conservatives have long maintained that the drawing of majority-minority electoral districts will “balkanize us into competing racial factions,” as Justices Clarence Thomas and Sandra Day O’Connor put it, eliminating political incentives for cross-racial campaigning and compromise. This thesis was always overstated (many candidates in majority-black districts angle for white support), but it’s true that semi-proportional voting systems would enable the election of some factional candidates who make common cause only with the like-minded. By contrast, the regime of single-member district, plurality-winner elections is said to induce the formation of bridging, big-tent political parties, which compete for control of the legislative body and field candidates who tamp down rather than inflame sectarian divisions. The two-party system also helps voters hold the government accountable, since it makes clear who’s in charge.

But as David Schleicher, Dan Hopkins, and others have emphasized, this standard normative account of the two-party system badly mischaracterizes elections for subnational legislative bodies. Most voters pay vanishingly little attention to local politics, and they vote in local legislative elections largely on the basis of their national party identification. So in big cities, where Democrats cluster, there’s no semblance of two-party competition for city council control. Nearly all city officials are Democrats, and they work things out with conventions like aldermanic privilege rather than by campaigning and governing on the basis of shared, stable policy platforms. Because no effective partisan competition exists for control of the city council, there’s no collective accountability, either.

That citizens pay so little attention to local politics reduces the threat of balkanization from a semi-proportional voting system. No one’s going to pattern their identity on the racial chauvinist who ran for school board, even if they did vote for him.

That said, it’s certainly worth thinking about ways to combine semi-proportional voting systems with mechanisms that would help moderate voters coalesce around moderate candidates. One possibility is to let mayors make ballot-printed endorsements in city council elections, akin to the party label in state and national elections. As David Schleicher and I have argued, mayors tend to be better known than other local officials, so their endorsement can provide voters with a useful signal about where candidates for local legislative bodies stand on local issues. Mayors also have a political incentive not to stake out positions too distant from the citywide median voter because they compete in citywide races against other high-profile candidates. Mayors are likely to be a force for moderation in a world where semi-proportional voting systems have opened city councils to a broader range of politicians.

Conservatives should not back state VRAs reflexively or without trying to improve the bills. But at a time when right-leaning thinkers have plenty of ideas for better big-city governance but no blue-state audience that will listen to them, state VRAs offer a rare chance to mend fences and put ideas to work.

Photo by Jessica McGowan/Getty Images

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