Essay by Mark E. Rush*
1 Fordham L. Voting Rts. & Democracy F. 289
Section 2 of the Voting Rights Act of 1965 (“VRA”) identifies two fundamental aspects of the franchise. The first is that the “political processes leading to nomination or election . . . [must be] equally open to participation.”152 U.S.C. § 10301(b). The second is that all voters should have an equal opportunity to elect “representatives of their choice.”2Id. The VRA therefore prohibits electoral arrangements that give members of a class of citizens defined by race or color “less opportunity” than other citizens “to participate in the political process and to elect representatives of their choice.”3Id. Through statistical and legal analysis, this Essay offers observations about the latter aspect of the franchise by drawing upon Virginia state legislative election data from 2001 to 2019.
Using measures of performance drawn from FairVote,4FairVote is a nonpartisan election reform organization that publishes research and advocates for legislative changes. See infra notes 14, 37, 44. this Essay suggests that the VRA has been at best a perverse success in Virginia. As a result of decades of litigation, minority voters, at least those in districts drawn in VRA compliance, do indeed have the opportunity to elect “representatives of their choice.” But it is one that is as poor as, if not worse than, that of voters in other districts across the Commonwealth. This is due to the use and impact of the single-member district system of elections. Therefore, this Essay suggests that compliance with the VRA’s promotion of electoral choice should require dispensing with single-member districts in favor of some form of multi-member district proportional representation.
I. Section 2 of the Voting Rights Act and Redistricting in Virginia
Section 2 of the VRA prohibits voting laws, practices, or maps that result in the “denial or abridgement” of the franchise on account of race or color.552 U.S.C. § 10301(a). Despite nearly six decades of redistricting under the auspices of the VRA and constant calls for different electoral reforms6See generally Douglas J. Amy, Real Choices/New Voices: How Proportional Representation Elections Could Revitalize American Democracy (2002); Lee Drutman et al., The Case for Enlarging the House of Representatives, Am. Acad. of Arts & Scis. (2021), https://www.amacad.org/sites/default/files/publication/downloads/2021_Enlarging-the-House.pdf [https://perma.cc/22LH-5SCB]; Andrea Benjamin et al., Achieving Multiracial, Multiparty Democracy,Union of Concerned Scientists (2022), https://www.ucsusa.org/sites/default/files/2022-07/achieving-multiracial-multiparty-democracy.pdf [https://perma.cc/8T9A-E9RF]; Lee Drutman, Elections, Political Parties, and Multiracial, Multiethnic Democracy: How the United States Gets It Wrong, 96 N.Y.U. L. Rev. 985 (2021). as part of the “perpetual crisis” of American democracy,7Richard S. Katz, If the Cure for the Ills of Democracy Is More Democracy, Might the Cure Be Worse than the Disease?, 45 Scandinavian Pol. Stud.68, 68 (2021). the single-member district remains the tool of choice for American elections.8See, e.g., Thornburg v. Gingles, 478 U.S. 30, 50 n.17 (1986) (“[The] single-member district is generally the appropriate standard against which to measure minority group potential to elect.”). Unlike legislatures in various other democratic systems, legislatures across the United States generally employ these districts, which contain one representative.9See Alex Tausanovitch, It’s Time to Talk About Electoral Reform, Ctr. for Am. Progress (Jan. 31, 2023), https://www.americanprogress.org/article/its-time-to-talk-about-electoral-reform [https://perma.cc/R84J-9VQ6]. See also Daniel Hays Lowenstein et al., Election Law: Cases and Materials 157 (7th ed. 2022) (noting that while the “United States is one of numerous countries . . . that employs . . . single-member districts. . . . America is virtually alone in allowing the elected branches to design these districts.”). In contrast, multi-member districts send two or more representatives to a legislative chamber.10Across fifty state legislatures, 876 legislators from 7,386 seats (11.9 percent) are elected from districts with more than one member. See State Legislative Chambers That Use Multi-Member Districts, Ballotpedia, https://ballotpedia.org/State_legislative_chambers_that_use_multi-member_districts [https://perma.cc/RH6Y-VDD7] (last visited Mar. 31, 2023).
In 1967, Congress enacted a law requiring states to use single-member districts to elect U.S. House members.11Pub. L. No. 90-196, 81 Stat. 581 (1967) (codified at 2 U.S.C. § 2c). Previously, from 1929 to 1967, states had employed both single- and multi-member districts.12See Christopher A. Suarez, Democratic School Desegregation: Lessons from Election Law, 119 Penn St. L. Rev. 747, 756 (2015). Congress’s single-member district requirement was in response to the VRA’s success. For instance, before the VRA passed, several Southern states adopted multi-member districts with winner-take-all voting in state and local elections, which served to limit the number of successful Black candidates.13In practice, states drew districts large enough to ensure that white voters constituted a majority and held at-large winner-take-all elections for all seats in the district. This, in turn, locked Black voters out of representation. See Austin Plier, Challenging Congress’s Single-Member District Mandate for U.S. House Elections on Political Association Grounds, 61 Wm. & Mary L. Rev. 1719, 1722–23 (2020) (“The immediate impact of the law, combined with the powerful enfranchising effect of the VRA, was undeniable: in just five election cycles after single-member districts were mandated, the number of [B]lack congressmembers elected to the U.S. House tripled from five to fifteen.”). Nonetheless, Congress’s single-member districting requirement has had far-reaching consequences for the Nation’s political health, including increased partisan polarization and decreased levels of electoral competition.14See In a Politically Polarized Era, Sharp Divides in Both Partisan Coalitions, Pew Rsch. Ctr. (Dec. 17, 2019), https://www.pewresearch.org/politics/2019/12/17/in-a-politically-polarized-era-sharp-divides-in-both-partisan-coalitions [https://perma.cc/NK5D-AGL5]. See generally FairVote, Monopoly Politics 2020: The Root of Dysfunction in the U.S. House of Representatives (2020), https://fairvote.app.box.com/s/uk2w2hklbg79maypvdx1ofntmr6jggcp [https://perma.cc/9A36-WKZD] [hereinafter Monopoly Politics 2020].
Single-member districts, however, are not constitutionally required. Several state and numerous local legislatures still use multi-member districts.15See supra note 9. Congress and state legislatures could change to an alternative system of elections using ordinary legislative channels. Yet, single-member districts endure despite their deleterious impact on the quality of electoral competition.
In the twenty-first century, Virginia’s state-level redistricting is illustrative of the status of minority voters’ rights and ongoing debates about electoral reform. In November 2020, Virginians approved a constitutional amendment that reformed the redistricting process.16See Graham Moomaw, In Historic Change, Virginia Voters Approve Bipartisan Commission to Handle Political Redistricting, Va. Mercury (Nov. 4, 2020, 1:17 AM), https://www.virginiamercury.com/2020/11/04/in-historic-change-virginia-voters-approve-bipartisan-commission-to-handle-political-redistricting [https://perma.cc/3EQR-SEF6]. The amendment transferred the constitutional responsibility of drawing electoral maps for Virginia congressional delegations, as well as the state house of delegates and senate, from the state legislature to a bipartisan commission.17V.A. Const. art. II, § 6-A (2020). During the 2021 redistricting process, however, the commission failed to approve any maps.18See Peter Galuszka, Virginia Supreme Court Rejects Map Drawers, Va. Mercury (Nov. 12, 2021, 1:45 PM), https://www.virginiamercury.com/2021/11/12/virginia-supreme-court-rejects-map-drawers [https://perma.cc/A75M-2C9G]. Under the enabling legislation and new amendment, the Supreme Court of Virginia was required to appoint two special masters to draw the maps.19V.A. Code Ann. § 24.2-304.04 (West 2020); V.A. Const. art. II, § 6-A(g). Some suggest that the new state maps drafted by the court-appointed special masters “were largely free of gerrymandering” and “free of extreme partisan bias.”20Alex Keena, 2021 Redistricting in Virginia: Evaluating the Effectiveness of Reforms, 26 Rich. Pub. Int. L. Rev. 85, 104–05 (2021). Still, data from the first two decades of the century demonstrate that despite constant litigation and redrawing of district lines, legislative elections remained uncompetitive with abysmally low participation.21See infra Parts II, III. At the same time, however, one study analyzing the “ease of voting” across states ranked Virginia twelfth in 2020 (as compared to forty-ninth in 2016). Scott Schraufnagel et al., Cost of Voting in the American States: 2020, 19 Election L.J. 503, 508 (2020) (noting that the state “passed an automatic voter registration law, got rid of the in-person registration deadline, and made Election Day a national holiday.”). This is especially true for the districts drawn to comply with the VRA.22See infra Tables 2, 3.
II. Two Decades of Redistricting in Virginia
In Virginia, several factors—including the VRA, other state and federal requirements mandating equipopulous voting districts, the preservation of political subdivisions and municipal boundaries, and a tradition of incumbent protection—render the redistricting process especially contentious and have resulted in extensive litigation. In 2017, seven years after the decennial census, the United States Supreme Court declared in Bethune-Hill v. Virginia State Board of Elections23580 U.S. 178, 182–83 (2017). that eleven of the twelve districts in the Virginia House of Delegates drawn to comply with Section 2 of the VRA were unconstitutional because race predominated in their construction.24See id. at 196. The key issue for the Court was whether Virginia’s use of a 55 percent base for Black voting age population (“VAP”) in the districts indicated that race was the predominant factor in drawing the districts’ borders.25See id. at 181. If so, these districts were violative of the Equal Protection Clause, even though Virginia used the 55 percent threshold to comply with the VRA.
With the exception of the state legislator in District 75, minority incumbents in the VRA districts argued that they could win elections with less than a 55 percent minority VAP.26See Transcript of Oral Argument at 20–21, Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. 178 (2017). Therefore, deliberately adding more Black voters to these “crossover” districts,27A “crossover district” is defined as a district “where some majority voters ‘cross over’ to vote with racial minorities to elect the minority-preferred candidate.” See Redistricting: Key Terms, All About Redistricting, https://redistricting.lls.edu/wp-content/uploads/Basics-English10.pdf [https://perma.cc/M269-9UCH] (last visited Mar. 31, 2023). known as “packing,” to create a majority-minority VAP was unnecessary. Doing so indicated that race had predominated in the drawing of the district lines.
In 2019, the Commonwealth hired a special master to redraw the state house districts for a single election.28See Virginia Redistricting Process, Am. Redistricting Project, https://thearp.org/state/virginia [https://perma.cc/8E78-7QS7] (last visited Mar. 31, 2023) (“After the General Assembly failed to enact a remedial state House plan pursuant to the court’s order, the court took responsibility for implementing a remedial plan and appointed a special master to assist in doing so.”). The special master decreased the overall Black population of the twelve districts by 67,106 (11.6 percent).29Va. Dep’t of Elections, https://www.elections.virginia.gov/index.html [https://perma.cc/37ZL-MATD] (last visited Mar. 31, 2023). As a result, whereas 35.6 percent of the Black population of the Commonwealth had been in the twelve VRA districts in the wake of the 2010 census, only 31.4 percent resided in them for the 2019 election.30Id. Table 1 below shows that the Black VAP in each district decreased by as little as 0.8 percent or as much as 18.6 percent.
Table 1: Black Voting Age Population in State House of Delegates Districts
Virginia House District | Black voting age population, Percentage (2017) | Black voting age population, Percentage (2019) |
63 | 59.50 | 47.50 |
69 | 55.20 | 54.40 |
70 | 56.40 | 52.30 |
71 | 55.30 | 54.00 |
74 | 57.20 | 54.40 |
75 | 55.40 | 52.40 |
77 | 58.80 | 40.20 |
80 | 56.30 | 51.40 |
89 | 55.50 | 54.90 |
90 | 56.60 | 41.90 |
92 | 60.70 | 53.90 |
95 | 60.00 | 47.40 |
In the ensuing 2019 election, all twelve incumbents in the VRA districts were re-elected.31Historical Elections Database: 2019 House of Delegates, Va. Dep’t of Elections, https://historical.elections.virginia.gov/elections/search/year_from:2019/year_to:2019/office_id:8/stage:General [https://perma.cc/XBH5-M8FM] (last visited Mar. 31, 2023). And in seven of the twelve districts, the election was uncontested.32Virginia House of Delegates Elections, 2019, Ballotpedia, https://ballotpedia.org/Virginia_House_of_Delegates_elections,_2019 [https://perma.cc/UU2N-RLQ7] (last visited Mar. 31, 2023). Two elections were competitive: in District 63, the incumbent Democrat won with 55.4 percent;33See 2019 House of Delegates Special Election District 63, Va. Dep’t of Elections, https://historical.elections.virginia.gov/elections/view/134701 [https://perma.cc/M3NG-FP8M] (last visited Mar. 31, 2023). in District 75, the incumbent Democrat won with 51 percent.34See 2019 House of Delegates Special Election District 75, Va. Dep’t of Elections, https://historical.elections.virginia.gov/elections/view/134558 [https://perma.cc/22CN-CJA4] (last visited Mar. 31, 2023). Otherwise, the elections were decided by lopsided margins.35See generally Virginia House of Delegates Elections, 2019, supra note 32.
The fallout from Bethune-Hill raises an important question: Does the ongoing use of single-member districts drawn to comply with the VRA achieve the goal set forth in Section 2? The VRA specifically protects the opportunity for minority voters to “elect representatives of their choice.”3652 U.S.C. § 10101(b). Yet, while minority incumbents were reelected, the lack of competitive elections and lopsided victory margins belie any notion that the voters in the twelve districts had any real choice on election day.
Studies, such as FairVote’s biennial Monopoly Politics,37See generally Monopoly Politics 2020, supra note 14; FairVote, Monopoly Politics 2022 (2022), https://fairvote.app.box.com/s/tsnhzfp3kbe3s9328bwywqtzwrv4djoz [https://perma.cc/G93X-TTTJ]. demonstrate that the single-member district, combined with partisan gerrymandering and finance laws that favor the two major parties, renders American elections lopsided, predictable, and uncompetitive. Despite critical analyses showing how single-member districts negatively impact election quality,38See, e.g., Amy, supra note 6, at 1 (“The American electoral system is outmoded, unfair, and undemocratic.”); Benjamin et al., supra note 6, at 4–17; Drutman, supra note 6, at1014–19. the single-member district remains the tool of choice for implementing the VRA in congressional and state legislative elections. The results have been mixed at best.
The use of single-member districts has positively increased the number of minority representatives in Congress and across state legislatures.39See Plier, supra note 13, at 1274–75. But, as the 2019 legislative election in Virginia demonstrates, it has not necessarily offered minority voters meaningful candidate choices. The 2019 legislative election was not unique. Drawing upon Virginia state legislative election data, Part III demonstrates that this same pattern of poor voter choice has persisted—especially in VRA districts—over the past two decades.
III. Analyzing Virginia’s Legislative Elections: 2001-2017
Part III’s analysis draws upon results from nine elections to the Virginia House of Delegates and five to the Virginia Senate from 2001-2017. This includes five state legislative elections from the 2000 redistricting, and four from that of 2010.40This analysis does not include the 2019 election results because that election took place in districts redrawn specifically for that one election before being redrawn again in response to the 2020 census. In sum, the data set contains nine election results for each of the one-hundred districts in the house of delegates41The data set contains nine election results from 2001, 2003, 2005, 2007, 2009, 2011, 2013, 2015, and 2017. See Va. Dep’t of Elections, supra note 29. and four for each of the senate districts.42The data set contains four election results from 2003, 2007, 2011, and 2015. See id. The Commonwealth created twelve minority districts in the house of delegates and five senate districts.43In both rounds of redistricting, the state house districts included districts 63, 69, 70, 71, 74, 75, 77, 80, 89, 90, 92, and 95. The state senate districts included districts 2, 5, 9, 16, and 18. See id.
Part III draws upon several of the variables used by FairVote44See FairVote, Dubious Democracy 2020 (2022) https://fairvote.org/report/dubious_democracy_2020 [https://perma.cc/TN22-ZAEB]; FairVote, Dubious Democracy 2020 Full Data Set (2022), https://docs.google.com/spreadsheets/d/1TKIRoAXpiZWx9CvmvOj7VYFJcm7a7TkNFa4lfihahPM/edit#gid=2049902568 [https://perma.cc/VRY2-2SEM]. to offer an overview of Virginia elections and a comparison between VRA districts’ and other districts’ performances. For each variable, this study employed a simple t-test45“A t-test is an inferential statistic used to determine if there is a significant difference between the means of two groups and how they are related.” Adam Hayes, T-Test: What It Is with Multiple Formulas and When to Use Them, Investopedia (2022), https://www.investopedia.com/terms/t/t-test.asp [https://perma.cc/ZP8D-F4X3]. The t-test produces a “t-value,” which is a ratio of the difference between the mean of two sample sets (here, the “VRA Districts” and the “Other Districts”) and the variation that exists with the sample sets. See infra Table 2. comparison of average results across the 900 house elections and 160 senate elections.
Table 2: Virginia House of Delegates
Variable | VRA Districts (n=108) | Other Districts (n=792) | t-value (sig) |
Winner’s Total Vote | 10,848 | 12,617 | -3.79 (0.000) |
Winner’s Percentage | 0.887 | 0.783 | -7.31 (0.000) |
Registered Voters | 42,992 | 48,540 | -8.24 (0.000) |
Total Vote | 12,473 | 16,788 | -7.85 (0.000) |
Turnout Percentage | 0.289 | 0.345 | -4.92 (0.000) |
State legislative elections generally reflect the assessments made by critics of single-member districts. Turnout is uniformly low.46Of course, state legislative turnout varies depending on whether there is a high-profile statewide election. Nonetheless, across this dataset, the average turnout levels are unquestionably low. Yet, for each measure, the VRA districts lag in comparison to others. Indeed, across the nine elections to the house of delegates, on average some 6,000 fewer voters were registered in VRA districts than in the other districts.47See supra Table 2; Historical Elections Database: 2019 Virginia Senate, Va. Dep’t of Elections, https://historical.elections.virginia.gov/elections/search/year_from:2019/year_to:2019/office_id:9/stage:General [https://perma.cc/QA2Q-ANVH] (last visited Mar. 31, 2023). Moreover, winning candidates in the VRA districts needed 1,800 fewer votes than their counterparts elsewhere.48See supra Table 2. Despite needing fewer votes to win in these “cheap seats,”49James E. Campbell, Cheap Seats: The Democratic Party’s Advantage in House Elections 39–43 (1996) (explaining that “cheap seats” are in districts where “any party whose adherents have characteristics associated with low turnout and are geographically concentrated.”). the VRA district winners experienced even greater “blowout” victories: an average winning percentage of 88.7 percent as compared to 78.3 percent in other districts.50See supra Table 2. Overall, some 4,000 fewer votes were cast in the VRA districts than in others, and turnout was 20 percent lower in the former as compared to the latter.51See id.
Table 3: Virginia Senate
Variable | VRA Districts (n=20) | Other Districts (n=140) | t-value (sig) |
Winner’s Total Vote | 17,342 | 23,753 | -4.73 (0.000) |
Winner’s Percentage | 0.868 | 0.753 | -3.31 (0.002) |
Registered Voters | 108,667 | 120,976 | -2.98 (0.007) |
Total Vote | 20,296 | 33,074 | -7.77 (0.000) |
Turnout Percentage | 0.186 | 0.273 | -7.13 (0.000) |
Results from state senate elections demonstrate the same pattern of underperformance in the VRA districts.52See supra Table 3. In the VRA senate districts, turnout and turnout percentage are significantly lower, seats are cheaper to win (in terms of the number of votes the winner receives), and voter registration lags.53See id.
One last comparison highlights the plight of voters in the VRA districts. One would hope that there would be at least the same number of candidates in the VRA districts as in the other districts. Otherwise, if there are fewer, this Essay suggests that minority voters are receiving poorer candidate options. As Table 4 below indicates, elections in the VRA districts are much more likely to be uncontested than those in other districts across the state. Indeed, over the course of nine state house elections, nearly half of the contests featured candidates running unopposed.54See infra Table 4. Yet, voters in the VRA districts were nearly 40 percent more likely to vote in an uncontested election than voters in other districts.55See id. In senate races, where more than half of the elections were uncontested, voters in the VRA districts were nearly 60 percent more likely to experience an uncontested election.56See id.
Table 4: Uncontested State Legislative Elections in Virginia, 2001-2017
VRA Districts | Other Districts | |
Virginia Senate | 13/20 (60%) | 53/140 (37.8%) |
Virginia House | 70/108 (64.8%) | 373/792 (47%) |
IV. The Perverse “Success” of the Voting Rights Act in Virginia and the Crisis of Democracy
The data indicate that the use of single-member districts to implement the VRA in Virginia has been, at best, a qualified “success.” Indeed, voters in the VRA districts have candidate choices that are as poor as, if not poorer than, those for voters in other districts across the Commonwealth.57See id. This may come as no surprise to advocates of alternative electoral systems. However, the failure of single-member districts also manifests the criticisms made long ago by Professor Lani Guinier and Justice Clarence Thomas.
Guinier had acknowledged that the use of majority-minority districts “may result in the election of more [B]lack officials”58Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 Mich. L. Rev. 1077, 1080 (1991).—but meaningful voter participation entailed more than what she referred to as simply “[B]lack electoral success.”59Id. at 1078, 1080. She argued that relying on single-member districts to ensure nothing more than the election of minority representatives “ignores the [voting rights] movement’s concern with broadening the base of participation and fundamentally reforming the substance of political decisions.”60Id. at 1080. Thus, Guinier contended, majority-minority districts “may not necessarily result in more responsive government.”61Id. Even more relevant for this analysis, Guinier argued that the focus on majority-minority districts “ignores critical connections between broad-based, sustained voter participation and accountable representation.”62Id.
Justice Clarence Thomas echoed Guinier’s concerns in Holder v. Hall.63512 U.S. 874, 891 (1994) (Thomas, J., concurring in judgment). There, Justice Thomas argued that the single-member district was not constitutionally required despite its prevalence across American elections: “[T]here is no principle inherent in our constitutional system, or even in the history of the Nation’s electoral practices, that makes single member districts the ‘proper’ mechanism for electing representatives to governmental bodies or for giving ‘undiluted’ effect to the votes of a numerical minority.”64Id. at 897. In criticizing the use of single-member districts, Justice Thomas rejected the notion that “members of any numerically significant minority are denied a fully effective use of the franchise unless they are able to control seats in an elected body.”65Id. at 899. Thus, in rejecting the need to construct majority-minority districts—in favor of creating minority influence or crossover districts—Justice Thomas anticipated the issues that underpinned the litigation in Bethune-Hill.
While Justice Thomas and Guinier acknowledged that the notion of an “effective vote” is a contested concept,66See, e.g., Reynolds v. Sims, 377 U.S. 533, 555 (1964) (discussing “fair and effective representation”). As Justice Warren’s majority opinion demonstrates, “fairness” (in terms of equally-weighted voting, for example) is not the same as “effectiveness.” See Guinier, supra text accompanying notes 58–62. both maintained the importance of ensuring the sort of meaningful choice embodied in Section 2 of the VRA. To that end, Guinier advocated for legislative representatives “to be elected through a system of cumulative voting from multi-member districts, rather than by plurality voting from single-member districts.”67Richard Briffault, Lani Guinier and the Dilemmas of American Democracy, 95 Colum. L. Rev. 418, 420 (1995) (citation omitted) (citing Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994)). Such a system would at least provide competitive, meaningful choices without relying on contorted electoral districts to ensure the election of minority candidates.68See Benjamin et al., supra note 6, at 16–17. See generally Richard L. Engstrom, Cumulative and Limited Voting: Minority Electoral Opportunities and More, 30 St. Louis U. Pub. L. Rev. 97 (2010).
Yet, ensuring that voters have a meaningful choice on election day will be merely one step towards addressing Guinier’s concerns about the relationship between legislators and constituents, or Justice Thomas’s about the meaningful impact of a ballot. Of course, a transition to proportional representation would come at a cost.69See generally Kevin St. John, Why Proportional Representation Will Not Stem Redistricting Litigation but Will Undermine Normative Representative Values, 21 Federalist Soc’y Rev. 102 (2020). For a balanced discussion of the merits of single-member districts and proportional representation, see Mark E. Rush & Richard L. Engstrom, Fair and Effective Representation?: Debating Electoral Reform and Minority Rights (2001). Grafting it onto an existing political and constitutional system without making other significant systemic adjustments would be, at best, shortsighted. Different electoral systems and laws embody various components of the contested notion of democracy. Accordingly, trading single-member districts for proportional representation would beget a different set of challenges and scholarly criticisms. Regardless, the use of single-member districts continues to undermine the goals of the VRA.
Conclusion
This Essay’s analysis of twenty years of election results in Virginia confirms Professor Guinier’s observations and highlights Justice Thomas’s criticisms. Ensuring the success of minority elected officials has not enhanced the fortunes or the quality of elections for their constituents.70See Guinier, supra note 58, at 1134. Minority voters in Virginia now have choice of candidate options that are as poor as the options presented to other voters. Sixty years of litigation have produced equality at the expense of quality.
* Waxberg Professor of Politics and Law and Director of International Education, Washington and Lee University.