Proportional Representation by Race: The Constitutionality of Benign Racial Redistricting

Wilson raises two questions that are basic to the use of “benign” racial classifications in drawing legislative districts. First, is there a constitutional right to proportional representation and, second, if there is no such right, are there circumstances under which a scheme devised to provide proportional representation is constitutionally permissible. This Note will demonstrate that, while the Supreme Court recognizes the constitutional right of each individual to participate on an equal basis in the community’s political process and to enjoy an undiluted vote, it denies any constitutional right of groups to proportional political representation. It will then show that the use of racial criteria in any context, including redistricting to ensure representation, triggers strict judicial scrutiny of constitutionality that can only be satisfied if the racial classification is necessary to further a compelling state interest. Although decisions in the areas of school segregation and employment discrimination indicate that courts generally recognize such an interest in remedying the effects of past discrimination against a racial minority, the Note will suggest that the courts must scrutinize any proposed remedy in light of the availability of “less drastic” means to advance that interest and the extent of adverse impact that may be caused by the benign racial classification. The Note will argue that such an approach is particularly crucial in the context of redistricting, because proportional representation is an uncertain remedy for dilution of minority group voting power and because there are demonstrable adverse effects on nonminority groups. It concludes that, under a strict scrutiny analysis, the use of a benign racial classification to advance proportional representation is not a constitutionally permissible remedy for the effects of prior dilution of minority voting power.