Understanding the Right to an Undiluted Vote

Abstract

This Article offers a new approach for conceptualizing vote dilution claims. Professor Gerken argues that abridgment of the right to an undiluted vote is a special kind of injury, one that does not fit easily within a conventional individual rights framework. She demonstrates that vote dilution claims require a court to examine the relative treatment of groups in determining whether an individual has been harmed. Professor Gerken terms rights that share this special characteristic "aggregate rights." After closely examining the unique attributes of aggregate rights, the Article uses the Supreme Court's decision in Shaw v. Huntspecifically its application of a traditional form of strict scrutiny to a remedy for vote dilutionto explore how the differences between conventional individual rights and aggregate rights play out in practice. Professor Gerken demonstrates that a doctrinal structure built around a traditional conception of individual rights fails to achieve its purpose when applied in the context of an aggregate harm. She further explains how a doctrine like strict scrutiny can be tailored to fit within an aggregate rights framework. Finally, Professor Gerken examines the difficult normative questions raised by an aggregate rights approach. She suggests that although an aggregate right does notfit easily with conventional assumptions about individual rights, it nonetheless can properly be deemed an individual right. She notes, however, that to the extent that the group-based characteristics of aggregate rights seem inconsistent with individualist principles, there is no easy doctrinal fix for this problem because these characteristics stem from the nature of the underlying injury. Thus, she concludes that the Court's adherence to a highly individualist notion of rights in Shaw v. Hunt portends a serious constitutional battle. At stake will be the constitutionality of ? 2 and other measures to redress civil rights injuries that share dilution's unique attributes, as well as some of the basic principles that undergird our representative democracy. course: the highly individualistic view of rights developed by the *Assistant Professor, Harvard Law School. A.B. i99i, Princeton; J.D. I994, University of Michigan. I am grateful for the extraordinarily helpful comments and suggestions of a number of voting-rights scholars and democratic theorists-Lani Guinier, Samuel Issacharoff, Frank Michelman, and Richard Pildesas well as for close readings from people outside the field, including Samuel Bagenstos,

Redistricting and the Causal Impact of Race on Voter Turnout

“…T he Voting Rights Act of 1965 (VRA) removed many formal barriers to African American political participation. With a substantial increase in black voter registration, attention soon turned to ensuring African American (and later Latino, Asian American, and Native American) votes would have an impact on outcomes (Gerken 2001;Grofman, Handley, and Niemi 1992). Underlying such efforts was the notion that electoral institutions, especially district boundaries, can modify the representation and influence that individuals have in the political process; in short, the political context in which one votes matters.…”

A Logical Model for Predicting Minority Representation: Application to Redistricting and Voting Rights Cases

“…The panel shows that any percentage larger than 48.2% is sufficient to elect minority candidates with the specified probability or higher, while 48.2% is what Lublin et al (2019) call an electoral sweet spot. Building on this application, the logical model can also quantify the degree of potential vote dilution via "packing," by which a large number of minority voters are concentrated into a single district beyond the point that they can effectively influence the electoral outcome inside and outside the district (Bullock 2010;Gerken 2001). Panel C shows that one can measure such a degree by subtracting C at the sweet spot from the percentage of minority voters in a given district plan (e.g., C 0 ¼ 70 in Panel C).…”

“…Finally, I illustrate how researchers can use the logical model to answer many important questions in redistricting and voting rights cases (for other useful tools in redistricting, see e.g., Cho and Cain 2020;Gelman and King 1994;Kaufman, King, and Komisarchik Forthcoming;McGhee 2020). I demonstrate that the logical model can be used to (1) predict the probability of minority electoral success in various conditions (e.g., with different percentages of minority voters, levels of minority bloc voting and white crossover, and voter turnout), (2) compute how much increasing the percentage of minority voters in a district from A (e.g., less than 50) to B (e.g., over 50) changes the probability of minority electoral success (Hicks et al 2018), (3) discover what percentage of minority voters is "sufficient to provide [them] with a realistic opportunity to elect their candidates of choice" in given districts (Davidson and Grofman 1994, 5) with an electoral "sweet spot" (Lublin et al 2019), (4) quantify how much a given district may potentially dilute minority voting strength by "packing" minority voters (Bullock 2010;Gerken 2001), and (5) predict the number of minority officeholders at the jurisdiction level Lublin 2001, 1387). To facilitate future applications, I offer an easy-to-use R package logical that implements all the procedures discussed in this article and Appendix C.…”

Reconciling Shared Rule: Liberal Theory, Electoral-Districting Law and “National Group” Representation in Canada

“…It must be emphasized, however, that liberal tolerance for grouping voters for the purpose of districting is distinct from assigning rights to groups themselves (Gerken, 2001). The US Supreme Court emphatically denied in Shaw v. Hunt that the “right to an undiluted vote … belongs to the minority as a group and not to its individual members.…”