Chapter 4 discusses the types of cases that are the most consequential: those challenging the existing system of judicial selection and those concerning proposed or enacted changes to the system. The majority of challenges to systems were brought under the Voting Rights Act, which the US Supreme Court found to cover judicial elections, at least in certain ways. Efforts to challenge judicial elections under the one person, one vote doctrine were not successful because that doctrine applied only to “representatives,” a category not including judges. There were unsuccessful challenges brought on other grounds as well. The cases involving proposed and enacted changes covered a wide range of such changes.

Given America’s history of racial oppression, addressing racial discrimination has been the Court’s most transformative engagement with democracy. The Reconstruction Amendments’ prohibition of racial discrimination explicitly legitimizes judicial advancement of racial equity in elections. Relying on this mandate during the Civil Rights era, the Court struck down explicitly discriminatory laws (and permitted robust congressional action) with little controversy. However, in recent decades the Court has been fiercely divided over the substance of racial equity. Conservatives have argued that racial equity requires only ensuring formal equality in terms of race. Progressives have argued for a substantive constitutional conception of racial equity that would permit laws and rulings that benefit disadvantaged minorities and afford them substantive political power. The chapter first observes the unity of this debate across applying Equal Protection Clause to districting, Section 2 of the Voting Rights Act, and the preclearance requirement of the Voting Rights Act. It then analogizes the struggle on the bench to Rawls’s and Nozick’s famous debate over the fair allocation of resources.

Legacies of past institutionalized political discrimination reverberate in present-day patterns of commercial drinking water consumption. We investigate several case studies – redlining, the Voting Rights Act implementation in North Carolina, institutionalized neglect in Appalachia, and political marginalization of Hispanics in the Southwest – to illustrate the relationship between moral distrust of government and citizen-consumer behavior. We find that areas redlined in the 1930s are more likely to host present-day water kiosks. Parts of North Carolina protected by the Voting Rights Act in 1965 have lower present-day bottled water sales than unprotected areas. Counties located within Appalachia have higher bottled water sales than counties outside of Appalachia. Water kiosks in the Southwest today are most likely to be located in predominantly Hispanic communities. Commercial water companies capitalize upon these legacies of moral distrust to market commercial water products to politically marginalized populations. “Cultural” preferences for commercial water stem from citizen-consumers’ beliefs about the competence and morality of government.

Argued April 20, 1993.Decided June 28, 1993.

Justices Guy-Uriel CHARLES and Luis FUENTES-ROHWER delivered the opinion of the Court.

The years of prosperity after World War II are known as Les Trente Glorieuses. But while they were glorious for white Americans, African Americans were left out of the economic expansion. The Great Migration continued as Blacks tried to improve their lot, but good jobs were getting more scarce as the economy was experiencing technical change that destroyed factory work. Blacks were cut out of the GI bill because it was administered by states. Blacks therefore could not get good education for the new technology, mortgages for houses in the new suburbs, and were often denied membership in unions. Brown v. Board of Education was designed to create integrated classrooms, but whites moved to private schools and suburbs to avoid integration. Lyndon Johnson’s 1965 Voting Act provided wars to outlaw Jim Crow laws, but it was severely limited in its effect by the Supreme Court. Some Blacks were able to get a good education and graduate from college. They became a Black Elite.

The 2016 presidential election brought on a blizzard of foreboding announcements about American democracy. Yet as political scientists and pundits alike turned their gaze toward the spectacle of Trump’s Washington, fewer seemed as concerned about what was happening in places like Raleigh or Jefferson City. In fact, scholars and commentators troubled by abuses of power in the executive branch pointed to federalism as “the most effective tool” for protecting democracy, “especially if other constitutional checks fail.” States, it was argued, provided crucial venues for dissent and the formation of alternative governing coalitions. And while new analyses of democratic backsliding mentioned gerrymandering in state legislatures and state-level episodes of “constitutional hardball,” they tended to focus their attention on the national level.

We investigate the impact of Voting Rights Act reforms that have required states to draw “majority-minority” districts and to abandon the use of multimember state legislative districts. Have these changes led to more bias in districting, as is often claimed? Our findings show that Republican bias is not an unavoidable outcome of minority districting. When Republicans are in charge, we often find more bias in states with large and geographically segregated Black and Latinx populations. In this regard, Republican gerrymanderers appear to use majority-minority districting as a tool for creating partisan advantage. But we do not see the same outcomes when Democrats, both parties, or independent actors are in charge. We also find that among the handful of states that still use multimember districts to elect state legislators, the average district magnitude in a state legislature imposes a ceiling on the level of bias achievable. However, when partisans are not in charge, multimember districts do not appear to limit partisan bias. Once again, the key variable in predicting the occurrence of bias in districting is whether or not one party controlled redistricting.

Finally, chapter 11 considers “differentiated” citizenship. This model would incorporate people into the political life of the city as members of their cultural subgroups rather than as individuals. Differentiated citizenship thus enables historically marginalized groups to assert collective rights that have often been denied them under the individualistic liberal model. These groups would have the ability to exercise control over places with which they share deep cultural, economic and political ties. Differentiated citizenship thus attempts to steer between republican and postmodern citizenship. It calls for recognition of normative subgroups in society, but in a manner that will incorporate those subgroups into political life, rather than enabling them to withdraw from political life. Differentiated citizenship rejects both the republican insistence upon a homogenous political community that rigidly polices its borders as well as the postmodern refusal to draw boundary lines at all. Ultimately, differentiated citizenship is problematic because it reinforces the marginalization of the groups it wishes to empower by legitimizing the status quo of racially identified places.