The Volokh Conspiracy - Looking Forward

[Starting again with some brief responses to my engaged and engaging audience. Many thanks to the reader who said, correctly, I did not mean to imply race played no part in voter preferences in the South -- or anywhere else. But, again, I would urge readers to take care in charging racism. Obama ran eleven points behind Kerry among gay voters; are we to conclude that racism is a significant presence in the gay community?

[As to the charge that "Thernstrom and her husband have long been declaring that there is no more racism towards blacks," find me a single sentence (in the thousands of pages on race that we have written) in which either of us make such a ludicrous statement.

[Last point: Preclearance is a provisions whose time has passed, I clearly believe. But of course I am not for repealing the VRA in its entirety. Most of the statute is permanent and should remain so. I wish only to see the Court revisit one of those permanent provisions -- section 2 -- and insist that it be read as originally intended. This is an argument I did not have the space to make in these posts.]

At its inception, the Voting Rights Act stood on very firm constitutional ground; it was pure antidiscrimination legislation designed to enforce basic Fifteenth Amendment rights. A clear principle justified its original enactment: Citizens should not be judged by the color of their skin when states determine eligibility to vote.

That clarity could not be sustained over time. As a result, more than four decades later, the law has become what Judge Bruce Selya has described as a "Serbonian bog." The legal land looks solid but is, in fact, a quagmire, into which "plaintiffs and defendants, pundits and policymakers, judges and justices" have sunk.

This past term, the Supreme Court had a chance to extricate itself in good measure by declaring preclearance -- intended to be very temporary -- a relic from a previous era.

It took a pass.

Northwest Austin Municipal Utility District Number One v. Holder involved a tiny Texas utility district that was formed in 1987 mainly to provide water to unincorporated areas. Because the Voting Rights Act treats all Texas localities as racially suspect, the Justice Department had to "preclear" the district's decision to move a polling place out of a private garage and into a public school -- a move "calculated to increase public access to the ballot."

Preclearance, in the plaintiff's view, was an irrational and "burdensome imposition" on the district's "sovereign rights" to manage its own electoral affairs. It had no history of electoral discrimination.

Declaring section 5 unconstitutional was not the Court's only option. With an interpretive stretch, it could read a "bailout" provision to allow relief from preclearance, and did so. However, Chief Justice John Roberts, writing for the majority, did explicitly say, "The Act's preclearance requirements and its coverage formula raise serious constitutional questions." And he spelled those questions out at considerable length.

Another case, another day, a different decision, he implied.

But surely, long before section 5 expires in 2031, the Court will be asked once again to review the constitutionality of preclearance, perhaps in a case that will raise the central question: the racial sorting of voters in a legislative quota system.

The picture that Congress accepted in 2006 of an America still spinning its wheels in the racist muck of its Jim Crow past is absurd, I argued in my previous post. Blacks are enfranchised. And thus the federalism concerns that Justice Black raised in 1966 (see my first post) are legitimate today.

African Americans and Hispanics have become politically powerful. In addition, an army of activists and lawyers monitor American elections closely. Most important, how many Americans would even want to return to the days of old? Today, the question is how best to arrive at the point at which politics are truly racially integrated.

By now, the Voting Rights Act arguably serves as a barrier to greater racial integration. Race-based districts have worked to keep most black legislators clustered together and on the sidelines of American political life -- precisely the opposite of what the statute intended, and precisely the opposite of what is needed now.

Majority-minority districts appear to reward political actors who consolidate the minority vote by making the sort of overt racial appeals that are the staple of invidious identity politics. Harvard law professor Cass Sunstein describes a larger phenomenon that is pertinent: People across the political spectrum end up with more extreme views than they would otherwise hold when they talk only to those who are similarly minded.

Districts drawn for the sole purpose of maximizing the voting power of a racial group surely encourage voters to talk only to the similarly minded. Arguably, elected representatives are left insufficiently tutored in the skills necessary to win competitive contests in majority-white settings. It is a self-fulfilling prophecy: Very few black candidates risk running in majority-white constituencies; majority-minority districts thus become the settings in which blacks are most frequently elected.

In safe minority constituencies, aspiring politicians are under no pressure to run as centrists, and are most often pulled to the left. Their politics, along with a reluctance to risk elections in majority-white settings, perhaps explain why so few members of the Congressional Black Caucus have run for statewide office

As of 2006, the entire CBC was more liberal than the average white Democrat, limiting the appeal of its members to white voters, particularly in the South.

Politicians outside the mainstream can play an important role in shaping legislative debate. But when a group that has been historically marginalized as a consequence of deliberate exclusion subsequently chooses the political periphery, it risks perpetuating its outsider status. Reinforcing the sense of difference compromises the goal of the Voting Rights Act.

Not all black politicians have been trapped in safe minority districts; the point should not be overstated. President Obama's political career actually began with his successful bid for the Illinois state senate, running from a majority-black district. But Obama was a uniquely gifted political entrepreneur with the skills to reach across racial lines. Thus, he created, saw, and seized opportunity where others have not.

Other black politicians have succeeded in majority-white settings. Journalist Gwen Ifill has described a number of such candidates in her recent book, The Breakthrough: Politics and Race in the Age of Obama. Mike Coleman was elected in 1999 as the first black mayor of Columbus, Ohio. She describes his strategy: "Woo the white voters first . . . then come home to the base later."

Nevertheless, such candidates remain the exception. The Voting Rights Act was meant to level the political playing field, so that blacks would become a political faction with the ability to enter and exit coalitions as other citizens do -- that is, if they chose to define themselves as members of a likeminded political interest group. Its ultimate goal was full political assimilation.

Instead, the law -- with its continuing stress on the urgent need for maximizing the number of safe black constituencies -- implies that most black politicians need majority-black settings in order to win.

In other respects, as well, the law today serves as a brake on black political progress, as I discuss in more detail in my book.

Thanks for listening. Thanks for responding. And much gratitude to Eugene; I was honored to be his guest for the week.

	[Abigail Thernstrom, guest-blogging, August 21, 2009 at 3:16am] Trackbacks Looking Forward [Starting again with some brief responses to my engaged and engaging audience. Many thanks to the reader who said, correctly, I did not mean to imply race played no part in voter preferences in the South -- or anywhere else. But, again, I would urge readers to take care in charging racism. Obama ran eleven points behind Kerry among gay voters; are we to conclude that racism is a significant presence in the gay community? [As to the charge that "Thernstrom and her husband have long been declaring that there is no more racism towards blacks," find me a single sentence (in the thousands of pages on race that we have written) in which either of us make such a ludicrous statement. [Last point: Preclearance is a provisions whose time has passed, I clearly believe. But of course I am not for repealing the VRA in its entirety. Most of the statute is permanent and should remain so. I wish only to see the Court revisit one of those permanent provisions -- section 2 -- and insist that it be read as originally intended. This is an argument I did not have the space to make in these posts.] At its inception, the Voting Rights Act stood on very firm constitutional ground; it was pure antidiscrimination legislation designed to enforce basic Fifteenth Amendment rights. A clear principle justified its original enactment: Citizens should not be judged by the color of their skin when states determine eligibility to vote. That clarity could not be sustained over time. As a result, more than four decades later, the law has become what Judge Bruce Selya has described as a "Serbonian bog." The legal land looks solid but is, in fact, a quagmire, into which "plaintiffs and defendants, pundits and policymakers, judges and justices" have sunk. This past term, the Supreme Court had a chance to extricate itself in good measure by declaring preclearance -- intended to be very temporary -- a relic from a previous era. It took a pass. Northwest Austin Municipal Utility District Number One v. Holder involved a tiny Texas utility district that was formed in 1987 mainly to provide water to unincorporated areas. Because the Voting Rights Act treats all Texas localities as racially suspect, the Justice Department had to "preclear" the district's decision to move a polling place out of a private garage and into a public school -- a move "calculated to increase public access to the ballot." Preclearance, in the plaintiff's view, was an irrational and "burdensome imposition" on the district's "sovereign rights" to manage its own electoral affairs. It had no history of electoral discrimination. Declaring section 5 unconstitutional was not the Court's only option. With an interpretive stretch, it could read a "bailout" provision to allow relief from preclearance, and did so. However, Chief Justice John Roberts, writing for the majority, did explicitly say, "The Act's preclearance requirements and its coverage formula raise serious constitutional questions." And he spelled those questions out at considerable length. Another case, another day, a different decision, he implied. But surely, long before section 5 expires in 2031, the Court will be asked once again to review the constitutionality of preclearance, perhaps in a case that will raise the central question: the racial sorting of voters in a legislative quota system. The picture that Congress accepted in 2006 of an America still spinning its wheels in the racist muck of its Jim Crow past is absurd, I argued in my previous post. Blacks are enfranchised. And thus the federalism concerns that Justice Black raised in 1966 (see my first post) are legitimate today. African Americans and Hispanics have become politically powerful. In addition, an army of activists and lawyers monitor American elections closely. Most important, how many Americans would even want to return to the days of old? Today, the question is how best to arrive at the point at which politics are truly racially integrated. By now, the Voting Rights Act arguably serves as a barrier to greater racial integration. Race-based districts have worked to keep most black legislators clustered together and on the sidelines of American political life -- precisely the opposite of what the statute intended, and precisely the opposite of what is needed now. Majority-minority districts appear to reward political actors who consolidate the minority vote by making the sort of overt racial appeals that are the staple of invidious identity politics. Harvard law professor Cass Sunstein describes a larger phenomenon that is pertinent: People across the political spectrum end up with more extreme views than they would otherwise hold when they talk only to those who are similarly minded. Districts drawn for the sole purpose of maximizing the voting power of a racial group surely encourage voters to talk only to the similarly minded. Arguably, elected representatives are left insufficiently tutored in the skills necessary to win competitive contests in majority-white settings. It is a self-fulfilling prophecy: Very few black candidates risk running in majority-white constituencies; majority-minority districts thus become the settings in which blacks are most frequently elected. In safe minority constituencies, aspiring politicians are under no pressure to run as centrists, and are most often pulled to the left. Their politics, along with a reluctance to risk elections in majority-white settings, perhaps explain why so few members of the Congressional Black Caucus have run for statewide office As of 2006, the entire CBC was more liberal than the average white Democrat, limiting the appeal of its members to white voters, particularly in the South. Politicians outside the mainstream can play an important role in shaping legislative debate. But when a group that has been historically marginalized as a consequence of deliberate exclusion subsequently chooses the political periphery, it risks perpetuating its outsider status. Reinforcing the sense of difference compromises the goal of the Voting Rights Act. Not all black politicians have been trapped in safe minority districts; the point should not be overstated. President Obama's political career actually began with his successful bid for the Illinois state senate, running from a majority-black district. But Obama was a uniquely gifted political entrepreneur with the skills to reach across racial lines. Thus, he created, saw, and seized opportunity where others have not. Other black politicians have succeeded in majority-white settings. Journalist Gwen Ifill has described a number of such candidates in her recent book, The Breakthrough: Politics and Race in the Age of Obama. Mike Coleman was elected in 1999 as the first black mayor of Columbus, Ohio. She describes his strategy: "Woo the white voters first . . . then come home to the base later." Nevertheless, such candidates remain the exception. The Voting Rights Act was meant to level the political playing field, so that blacks would become a political faction with the ability to enter and exit coalitions as other citizens do -- that is, if they chose to define themselves as members of a likeminded political interest group. Its ultimate goal was full political assimilation. Instead, the law -- with its continuing stress on the urgent need for maximizing the number of safe black constituencies -- implies that most black politicians need majority-black settings in order to win. In other respects, as well, the law today serves as a brake on black political progress, as I discuss in more detail in my book. Thanks for listening. Thanks for responding. And much gratitude to Eugene; I was honored to be his guest for the week. Related Posts (on one page): Looking Forward Looking Forward A Period Piece DOJ: A Law Office Working for Minority Plaintiffs Race-Conscious Districting: Needed and Costly The Messy, Murky Voting Rights Act: A Primer. Abigail Thernstrom, Guest-Blogging: