Only with great trepidation do I undertake to comment upon Professor Karlan's fine Article.1 Much of what I know about voting rights law I have learned from her work, and her contribution to this Symposium is characteristically erudite, detailed, and cogent. I will therefore limit myself to offering four modest observations about her argument. My central point is simple: While Professor Karlan successfully identifies several empirical questions that critics of majority- black voting districts must answer, those same questions also raise problems for defenders of majority-black districts (including Professor Karlan herself).
Professor Karlan's argument is directed against what I shall call "the Assembly Backlash Hypothesis": the idea that districting plans that increase the number of black legislators may nevertheless produce legislative assemblies less receptive to black interests. The Hypothesis maintains that by packing minority voters into a few districts, racial gerrymanders increase the likelihood that the state's remaining districts will elect representatives hostile to minority interests. If the Assembly Backlash Hypothesis were true, it would provide a reason for proponents of minority rights to oppose the creation of majority-black districts. Such districts might do nothing more than produce token representatives who would be doomed to lose again and again in unsympathetic assemblies.
Professor Karlan demonstrates that the Assembly Backlash Hypothesis holds only when multiple conditions are met. Some of these conditions describe the nature of black political interests: Black political interests must differ from white political interests (otherwise there would be no need to worry that black representatives would become persistent losers in unsympathetic legislatures), but they must not differ too radically (otherwise black voters could never form coalitions with white voters). Other conditions apply to white political behavior: If whites resent black political power, then white voters may realign to oppose black interests whenever black voters acquire sufficient clout to influence an election. Professor Karlan concludes that the truth of the Assembly Backlash Hypothesis depends on the ability of black voters to reinforce the power of the Democratic political party. "[V]irtual, party-based representation is the key to any realistic account of how [the Assembly Backlash Hypothesis] works," says Professor Karlan.
Christopher L. Eisgruber,
Democracy, Majoritarianism, and Racial Equality: A Response to Professor Karlan,
50 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss2/5