Jack Salzman, Cornel West Struggles in the Promised

Affirmative Action: Jewish Ideals, Jewish Interests \\ 309
became the focus of a generation of controversy, are on their faces simple. Section
2 prohibits in elections any device that discriminates; Section 5, the "predearance"
provision, which requires the Justice Department's approval for any new
voting (or other) procedure, aims to guard against renewed disenfranchisement—
"retrogression," in the words of the Supreme Court—so as to prevent the use of
the back door to let in disenfranchisement once the front door was locked.
"Preclearance" protected Blacks against obvious disenfranchisement devices,
while also being useful in preventing more subtle "diluting" practices.
Three key events set the stage for controversy: the 1980 U.S. Supreme Court
decision in City of Mobile u Balden; the 1982 congressional debate over and passage
of amendments to the 1965 act; and the 1986 Supreme Court decision in
Tkornburg v. Gingles.
In interpreting Section 2 of the Voting Rights Act, Mobile v. Bolden contradicted
prior court: decisions and ruled that in order to violate the act, a discriminatory
intent, and not merely a discriminatory result, had to be demonstrated. The
Court in essence said that as long as voting methods in a given district had not
been designed to keep Blacks from holding office, Blacks and whites are still considered
on an equal political footing.
Predictably, Blacks (and the civil-rights movement generally) were exceedingly
unhappy with Bolden; they wanted an "effect," and not an "intent," test.
When, in 1982, the act was before Congress for its third renewal, there was an
extended debate, which resulted in the "Dole Compromise." Crafted by Senator
Robert Dole (R-KS), the amendments included an "effect" test: Congress outlawed
electoral practices that remit in denial of equal political opportunity based
on race. Also included was explicit language that no one, including members of
a "protected" group, 47 has a right to proportional representation. In other words,
the fact that minority-group members may not be elected in numbers proportionate
to their population does not constitute a violation of Section 2.
As is clear from the amendment's legislative history, its aim was to enable
minority voters to shape electoral districts so as to minimize racism's impact in
communities where racism was yet a factor.
Here's where the trouble began.
The third, and most difficult to understand, development was the Supreme
Court's decision in Thornburg v. Gingles (1986), which dealt with multi-member
districts (similar in concept to "at-large" districts). One issue here was the question
of proportional representation, explicitly outlawed in the amended Section 2.
Another was the question of minority-group representation in multi-member districts.
It was this question that the Court analyzed in Gingles. The Court reasoned
that minorities, in a democracy, will lose elections. Tautologically, that is what
a minority is. But the Congress in effect had decreed, "Yes, but not for certain
minorities." If a minority group is never able to elect its members in a
multi-member district, a single-member district must be created, in which the
"minority" (now perhaps a majority) will win. In order to create such a "majori-