Excerpted From: Darren Rosenblum, Overcoming “Stigmas”: Lesbian and Gay Districts and Black Electoral Empowerment, 39 Howard Law Journal 149 (Fall 1995) (242 Footnotes) (Full Document)


darrenrosenblumIn the United States, historically, members of racial and sexual minority groups have been prevented from effectively participating in governmental decisionmaking because the political districting system denies them adequate representation in the political process. Following the 1990 census, blacks, in particular, saw significant gains in their political representation as a result of redistricting, only to suffer a sharp reduction of their voting rights with the U.S. Supreme Court's decisions in the Shaw and Miller cases. Whereas voting rights litigation once explored ways to prevent minority vote dilution, today's jurisprudence focuses on the ramifications of the “stigma” faced by blacks in a majority-minority district and the “constitutional right to participate in a ‘colorblind’ electoral process.”

Race-conscious districting provides blacks with some guarantee of political presence in a country defined by the odious oppression of black people. Legal scholars have challenged the putative virtue of racelessness in a society fraught with racist political, economic, and cultural realities-- realities that race-consciousness accurately reflects. As one scholar phrases it, “[l] egal discourse uses the language of liberal ‘colorblindness,’ rather than that of racial inferiority, to undermine racial reform.” Even political boundaries, ostensibly raceless, anchor the political imbalance among the races. “Color-blind” district lines can serve a similar function where the electorate is racially polarized, permitting whites to dominate political representation. Race-conscious districting reduces the systematic exclusion of blacks from political power by whites.

In contrast to past judicial activism on behalf of black communities, no laws or courts have attempted structurally to reverse the lack of representation of lesbian and gay interests. Today, only seventy of the nearly one-half million elected officials in the United States are openly lesbian or gay. This underrepresentation is shocking even by the most conservative estimates of the size of the lesbian and gay population. Despite the apparently systemic exclusion of lesbians and gays from political representation, advocates have mobilized to establish some access for lesbian and gay candidates within the current districting system. Although no districting authority officially recognizes lesbian and gay people as a group whose interests must be met by districting schemes, lesbian and gay activists, using community-based evidence, have, to some extent, succeeded in asserting districting claims.

This Article argues that the renewed disenfranchisement of blacks from districting remedies may be curbed through the use of community-based evidence similar to that used by lesbian and gay activists. Section One will explore the current position of blacks in the districting system, scrutinizing recent changes in the law that deprive blacks of their previously “protected” status under the Voting Rights Act. In 1995, the Miller v. Johnson decision notably held that race cannot be the predominant factor in the drawing of district lines. Blacks wishing to ensure that their interests are represented in the political process will therefore need to employ standards for creating electoral districts that do not violate Miller. A close reading of the Miller decision indicates that evidence of community cohesiveness, rather than mere “hard” population statistics, would satisfy the Court.

Section Two will address the use of community-based evidence to establish district lines reflecting lesbian and gay interests. An examination of the 1991 redistricting for the New York City council provides a close look at the forces weighing on lesbian and gay districting efforts. Lesbian and gay districting experiences in Texas and California further clarify districting issues. These examples demonstrate the critical role community-based evidence has played in lesbian and gay redistricting efforts. The representation attained by lesbian and gay communities depends upon both the jurisdiction's contextual homophobia and the community's own strength. Community-based statistics are generally extrapolated from evidence of three primary types: maps depicting lesbian and gay businesses and community groups; maps depicting the membership of community religious, political, and social groups; and maps depicting voter support for lesbian, gay, or supportive candidates.

Section Three of this article describes ways in which lesbian and gay districting experiences may prove useful for blacks involved in gaining greater representation in districting systems. In the wake of the Miller decision, the use of the community-based statistics typically employed in lesbian and gay districting efforts is a potentially effective strategy for racial minorities attempting to achieve electoral representation.

Districting is a deeply flawed representational system, and scholars have argued that proportional representation would more effectively provide representation in a republican democracy. Indeed, race-conscious districting has been necessary because the majority- rule districting system isolates minority groups with memberships that traverse districts. However effective proportional representation may be, it has been misconstrued as election-by-quota. Although the electorate may turn to proportional representation out of frustration with the current system, minority advocates cannot rely on this possibility when districting, which has dominated the American political landscape since the early Republic, remains so ubiquitous. With the survival and empowerment of minority communities within the democratic context as a fundamental goal, advocates for racial and sexual minorities are forced to presume districting's continued predominance, lest they risk losing any voice, however faint, in the current representational system.

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Let us march on ballot boxes, until we send to our city councils, state legislatures, and the United States Congress [people] who will not fear to do justice.

The Supreme Court's tortured notions of minority representation and equal protection reveal the depths of districting's evils: as a system, districting requires an elite group to draw districts, yet makes no provisions for, and provides no safeguards against, political horse-trading and the potential conflicts of interest that accrete around incumbency. As a result of the Supreme Court's latest interpretation of the Equal Protection Clause as requiring “colorblind” districting over the interests of blacks, such elites will be free of the self-perceived political shackles imposed by black representation. The Court has transformed itself from an institution that ostensibly guarantees just enforcement of constitutionally mandated protections for minorities to one that overtly enforces the rhetoric of racelessness to ensure the reality of racial exclusiveness.

Both racial and sexual minorities come to the debate over political representation from positions of intense frustration with the legal and political systems of the United States. Both groups clearly merit far more representation in the political process than they currently command or are likely to gain in the near future. A fairer system of representation could be achieved by changing the system to allow proportional representation, which would enable all individuals to choose political identification regardless of where they live within a jurisdiction. Despite a profound lack of faith in this majority-rule republic's ability to respond to minority needs, the hope that minorities might someday achieve a fairer level of representation persists. Against the critical weaknesses of districting and its current jurisprudence, racial and sexual minorities must discover new methods that will allow them to participate in the political system, or risk being forced to withdraw from the American democratic experiment.

Associate, Flemming, Zulack & Williamson, LLP, New York, New York. B.A., 1991, University of Pennsylvania; J.D., 1995, University of Pennsylvania.