A Black Party? Timmons, Black Backlash and the Endangered Two-Party Paradigm

Terry Smith, A Black Party? Timmons , Black Backlash and the Endangered Two-Party Paradigm, 48 Duke. L .J. 1 (1998).

Abstract:  In a pair of 1997 electoral decisions, the Supreme Court decided that Minnesota could prohibit fusion candidacies in the interest of maintaining a strong two-party system, but that Georgia could not create two new majority- minority congressional districts because the redistricting process had been impermissibly infected by race. In this Article, Professor Smith argues that these two decisions unavoidably conflict. While the fusion case reaffirmed the states’ interest in maintaining a strong two-party system, the racial gerrymandering case severely undercut the states’ ability to achieve this interest in jurisdictions where the major parties are racially stratified. He demonstrates that blacks operating in a third party could constitutionally obtain the creation of majority-black congressional districts, a result that the Court has denied them when they act within one of the major parties. Professor Smith argues that such an anomaly encourages black exit from the two-party system. He argues that the Court’s failure to insist on an injury to voting in the racial gerrymandering case makes it impossible for the Court to fashion relief that is consistent with states’ interest in two-party stability.

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