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    The Future of Representation

    November 15, 2023, 9:30 am – 4:00 pm

    Lester Pollock Room, Furman Hall, New York University School of Law

    On the eve of the American Revolution, John Adams wrote in his Thoughts on Government that the representative bodies at the heart of a functioning democracy should be “an exact Portrait, in Miniature, of the People at large.”

    That ideal has never been fully realized in practice, but as the United States approaches the 250th anniversary of its national independence, there are troubling signs that the nation is moving even further away from the aspiration.

    The stress points are many.

    In recent decades, communities of color have increasingly powered the country’s population growth, but in many places they have been deprived of an appreciable share of governing power — sometimes deliberately, sometimes because of weaknesses in the electoral systems we use.

    At the same time, anti-democratic extremists, alarmingly, are increasingly finding electoral success and access to power even as their views are rejected by a majority of voters. If the goal of representation is to have representative bodies that broadly mirror the people of the nation, our existing systems of representation don’t seem to be delivering it — and may not be capable of delivering it.

    This gathering will bring together thought leaders with diverse areas of focus to start an important conversation about weaknesses in the current representation systems and to explore whether there are alternatives that would work better for the modern United States’ politically complex, diverse, multiracial democracy.

    Discussion Guides

    Representation Puzzle #1: Representation in a Democracy with No Racial Majority (10:00–11:45)

    At the time of passage of the Voting Rights Act, the United States was a much simpler country demographically. During the six decades of the law’s enforcement, diversity has exploded amid mass immigration from Latin America, Asia, Africa, and the Caribbean. This increased diversity has complicated traditional notions of representation, drawing backlash from those who once enjoyed majority status but also, in many places, fostering a zero-sum competition for power among old and new groups who may live in proximity to one another but who may have very distinct, and sometimes opposing, viewpoints and representational needs.

    The legal framework we use to enforce voting rights also often fits uncomfortably with the reality of a more diverse and demographically complicated nation. Legal protections in current law are built around the idea of protecting a racial or ethnic minority from the overweening power of a dominant majority. But in the United States of the 21st century, there often is no majority but rather a dynamic and diverse array of groups whose interests map drawers must try to balance and accommodate.

    At present, the law provides the possibility of a remedy, however imperfect, for maps that advantage white voters at the expense of minority voters. But it is largely silent when it comes to mediating among sometimes competing claims to power of Black, Latino, and Asian voters (or, for that matter, how to navigate between the competing claims of different subgroups of Latino or Asian voters for representation).

    And even when there is discrimination by a white majority against an ethnic minority, the existing legal frameworks are becoming harder to use. Already, a majority of Black, Latino, and Asian voters in the country’s metro areas live not in cities but in diverse suburbs where there is less residential segregation, more crossover voting, and, in many cases, less in-group cohesion. Maps still may have a discriminatory effect, but legal frameworks struggle to provide a remedy. The ways to lose cases are numerous.

    This session will explore what it means to be a truly multiracial democracy and whether it is possible to better accommodate the interests of different groups in a non-zero-sum way.

    Discussion Starters:

    • In what ways do our current systems of representation facilitate or hinder a truly multiracial democracy?

    • What, if any, big or small changes to the legal framework would make the law work better for the diverse, multiracial United States of the 21st century? Which of these could be implemented nationally (i.e., would produce benefit everywhere), and which are more of a case-by-case call?

    • Would alternative systems do better at eliminating the zero-sum nature of redistricting politics (such as recently seen in Los Angeles)? Similarly, would different electoral systems give growing and diverse communities of color greater flexibility to define themselves in heterodox ways, both politically and in terms of ethnic identity?

    • What additional research is needed to help drive this conversation?

    Representation Puzzle #2: The Limits of Geography-Based Representation (12:45–2:00)

    Six decades ago in Reynolds v. Sims, the Supreme Court enunciated the principle that “legislators represent people, not trees or acres.” But though Reynolds brought about more equitable representation by ending egregious malapportionment, it did not change the fundamental orientation of American representation around geography. Americans continue to elect lawmakers at virtually all levels of government using geographically based districts.

    As the country approaches its 250th anniversary, it’s worth asking whether this enduring commitment to geography-based representation continues to make sense.

    After all, at the country’s founding, most Americans rarely ventured far from the town or village or rural community where they lived. By contrast, today’s Americans today are much more mobile and interconnected, frequently going to work and school and socializing in communities other than those where they go to sleep at night. This means that while Americans of the 21st century may feel ties to the communities where they sleep, they often have ties that are just as strong to other communities, both geographical and nongeographical.

    Current map-drawing rules tend to strongly prioritize preserving counties, cities, and other political subdivisions. But this can create significant tensions with other communities of interest that are important to people and have significant unmet representational needs. A racial or religious community, for example, may have significant shared representational needs and interests but end up being divided among multiple districts simply because their community crosses political subdivision lines. Ditto many communities defined by class or socioeconomic needs.

    Geography-based districts also turn out to be very suspectable to manipulation for both partisan and racially discriminatory reasons.

    Consider the suburbs. In contrast to urban and rural areas — which tend to be either deep blue or deep red — the nation’s diversifying suburbs have become one of the few places in a divided country that remain battlegrounds. In 2018, when Democrats won 41 districts to take back control of the U.S. House from Republicans, 38 were suburban districts. The Republican path back to a majority in 2022, likewise, largely ran through the suburbs. But map drawers know this — and they gerrymander by ruthlessly carving up suburban communities.

    If the goal is better representation for the communities that matter to people, is the answer to abandon geography-based districting or simply to develop better rules about how to define communities in the map-drawing process?

    This session will explore the challenges and limits of geography-based districting and consider whether there are viable alternatives that might better represent the actual communities that Americans consider most fundamental.

    Discussion Starters:

    • What are the benefits and downsides of geography-based districts?

    • Can the rules for geography-based districting be improved within the confines of the current single-member district system?

    • Do political subdivision rules, as currently structured, hurt or help? Can they be made more effective? Are the community-of-interest rules that have been adopted in a growing number of states workable, especially when legislatures draw maps? Is there a way to more objectively define communities of interest to reduce their malleability?

    • Some have argued that multimember districts are the answer to the problems associated with geography-based representation. What are the tradeoffs and risks of different kinds of multimember district systems? What about a hybrid system combining single-member districts and some districts allocated through proportional representation, like those used in New Zealand and Germany?

    • Are there other less dramatic, and more politically realistic, reforms that could reduce the unrepresentativeness of American elected bodies (e.g., increasing the number of representatives)?

    • What additional research would help advance this discussion?

    Representation Puzzle #3: Electoral Systems and the Rise of Extremism (2:15–3:45)

    One of the alarming trends in recent years in American politics has been the rise of elected officials who espouse, and often act on, extremist and antidemocratic views. This phenomenon is not limited to the United States. Far-right parties in France and Germany are currently polling at 24 percent and 22 percent, respectively. In Italy, Poland, and Hungary, the percentage is even higher. Similar trends are playing out in Latin America and elsewhere in the world.

    But the United States is unique in that the rise of extremism is taking place within one of its two major political parties rather than in relatively new fringe parties. In some instances, the politics of successful extremist candidates seem to mirror the politics of their districts’ constituents, but in other cases, there seems to be a significant mismatch. The ability of extremists to, in essence, capture one of the country’s major parties has made American politics especially volatile and dysfunctional. Political science has taught that a strong party system tends to encourage ideological moderation and eschew extremism, but recent trends provide important counterevidence to this thinking.

    This session will explore why American politics are becoming more extreme. Is the emergence of extremism just an unavoidable function of the country’s political realignment and the shift of the country’s population center to the South? What role, if any, does the design of American electoral systems play in helping extremist candidates win when facts on the ground suggest that they should not?

    Discussion Starters:

    • Does the system of primaries, single-member districts, and first-past-the-post elections used in the United States make the country especially vulnerable to the rise of antidemocratic extremism or extremism in general? What is the evidence in favor and against this notion?

    • Would a different system, such as a top-four primary, be less susceptible to going off the rails?

    • What frictions would changes potentially cause?

    • What additional research is needed?

    Attendee Bios

    Brennan Center Attendee Bios