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The Obama Administration’s Affirmative Action: The Voting Rights Act
The Obama Administration’s Affirmative Action: The Voting Rights Act
William M. Leiter
This Post Concerns: The Nature of Affirmative Action and its Diversity Rebadging; The Voting Rights Act--Sections 2, 5, & 203; The Obama Civil Rights Division and its Voting Rights Section; Popular Acceptance and the Morality of Public Consent
Prologue: Affirmative Action and Its Rebadging
Affirmative action differs from other antidiscrimination initiatives in that (1) it targets and seeks to remedy societal bias (as manifested in public and private illegal action), not individual malefactors; (2) it mandates race, ethnic, gender, disability-conscious remedies for the disproportionately-adverse effects -- the so-called disparate impact -- of societal discrimination on protected groups, whether or not specific discriminatory intent on the part of individual defendants can be isolated; and (3) it seeks to integrate institutions by race, ethnicity, disabled condition, and sex. [1] Race/ethnic affirmative-action objectives have been actively pursued by the Obama Administration in its administration of the 1965 Voting Rights Act (VRA).[2]
Affirmative action connotes remedial consideration of race, ethnicity, disability, or sex as a factor, among others, in decision-making about outreach, jobs, government contracting, K-12 student assignment, university admission, voting rights and housing. The goal of this process is to redress the disadvantage under which members of disparately-impacted groups are said to labor. The relative weight accorded to race, national origin/ethnicity, sex, or disability varies from program to program. Thus, affirmative action remedies range from disseminating job information to preferential employment and admissions practices, classroom integration, the creation of majority-minority legislative districts, and court-ordered employment quotas in egregious discrimination cases.
Affirmative action has been “rebadged.” The need for “diversity” in school and workplace populations—and the supposed difference in ideas and practices different groupings bring-- has become a dominant rationale used to support the race/ethnic/sex/disability-conscious remedies typical of traditional affirmative action. Why the “retheorization”? Why the “paradigm shift”? For one, diversity theory does not require the demonstration of past or present forbidden discrimination required by the U.S. Supreme Court since 1989[3] as necessary constitutional support for disparate-impact affirmative action. Ideational diversity, as the diversity theory has it, is required to spur productivity and intellectuality, irrespective of past or present discrimination. Alternatively, Harvard sociologist Frank Dobbin argues that diversity rebadging was a self-preservation “cover” created by affirmative-action devotees in personnel departments casting about for a theory which could thwart the Reagan Administration’s efforts to reduce the undesired affirmative-action treatment afforded protected groups. Professor Dobbin finds a bridge between diversity and disparate-impact thinking in American political thought. To him, mainstream American thinking and disparate-impact theory have both subscribed to fair and equal treatment. Fair and equal treatment and its rejection of racism and comparable invidious animosities, to the advocates of affirmative action, would lead naturally to diverse populations at work and in education.[4] Besides, employing diversity themes lubricates the advance of affirmative action by making its controversial dimensions more politically palatable. Thus, in his exultation over Section 5 of the VRA[5] (the preclearance mechanism which has been important in affirmative-action’s creation of controversial majority-minority legislative districts designed to elect minorities), U. S. Attorney General Holder coupled the making of these districts with other civil rights laws. And these efforts, the Attorney General noted, have opened doors to previously excluded groups, “helping to ensure equal access to schools and public spaces, to restaurants and workplaces, and – perhaps most important of all – to the ballot box. Our great nation was transformed.”[6] " We are a better nation now than we were because more people are involved in the electoral process,'' Holder said in an interview. "The beauty of this nation, the strength of this nation, is its diversity, and when we try to exclude people from being involved in the process . . . we weaken the fabric of this country.''[7]
The VRA’s Affirmative-Action Apparatus: The Literacy [8] and Language Minority [9] Dimensions of VRA’s Sections 203 and 4
At the onset of the VRA in 1965, its Section 4 abolished literacy tests in states and/or their political jurisdictions where fewer than 50% of the voting-age population voted for president in the 1964 election. The former Confederate States were targeted by this formula, and much of that region was consequently prohibited from using literacy tests to prevent Blacks from voting. These covered jurisdictions were required to preclear any changes in voting procedures with either the U.S. attorney general, or a special three-membered U.S. District Court located in the District of Columbia. Later extensions of the “fewer than 50% of the voting-age population” formula was made applicable to states and/or the political jurisdictions within states (e.g., cities and counties) for the presidential elections of 1968 and 1972. In this way Texas, Alaska, Arizona, and portions of California, New York, New Mexico, New Hampshire , South Dakota, and Michigan were required to abolish literacy tests and preclear changes in voting procedure with the attorney general or the above-named district court.[10] Dramatically large numbers of African Americans, Hispanics, and Asians gained suffrage by these VRA provisions. By 1976, the voter registration rate for all citizens in the preclearance areas equaled that of the national average. Sixty-eight percent of the Black population in the original 1965 preclearance areas was registered to vote for the 2004 presidential election—a rate higher than in the nation’s population as a whole.[11]
It should be noted that the VRA literacy test abolition and preclearance requirements were the progeny of statistically low voting rates, and not the demonstration of intentional racism by any particular VRA-covered area. The VRA assumption was that low turnout resulted from systemic racial and ethnic discrimination pulsating within the societies subject to VRA requirements. Congress extended this notion of systemic rot (where intent need not be established) when it abolished literacy tests for voting nationally in 1970. Additionally, Congress, in 1975 (in VRA’s Sections 203 and 4) noted a concern with the societally systemic discriminatory burdens placed on language minorities statutorily defined as Asians, Hispanics, and Native Americans. The VRA requires that voting materials be provied in English and the applicable minority language in jurisdictions where the defined language minorities constitute more than 10,000 in number or 5% of the jurisdiction’s population if that language minority suffers an illiteracy rate higher than the national average—that is, the inability “to speak or understand English adequately enough to participate in the electoral process"[12] in English. About 19 million language minorities of voting age reside in covered jurisdictions.[13]The head of the Obama Civil Rights Division of the Department of Justice had this to say about the Division’s concern with Section 4’s language-minority provisions[14]:
In the past two years, the Department has successfully resolved violations of the language minority requirements to protect limited English proficient citizens all around the country:
We've resolved separate lawsuits to protect Spanish-speaking voters in Cuyahoga County, Ohio, and Lorain County, Ohio (Cuyahoga is the Cleveland metro area, it's the largest county in the state; and Lorain is just to the west - part of the greater Cleveland area).
A few months ago we reached a settlement with Alameda County, California - the East Bay area, including Oakland and Berkeley - to protect the voting rights of Spanish-speaking and Chinese-speaking citizens.
We also reached an innovative settlement with Shannon County, South Dakota, which was the Justice Department's first new case in more than a decade to protect Native American voters with limited English proficiency. Shannon County is within the Pine Ridge Reservation of the Oglala Sioux Tribe, and includes part of the Badlands National Park. It has the largest Native American population in the state. It's also among the poorest counties in the entire country, so resolving concerns about language access in election administration presented unique challenges. We were ultimately able to achieve a great result in this case, in part by identifying available state funds, and with innovative remedies that include a Lakota-language audio ballot for voters who need one.
We had two other important cases recently regarding Native American voters, one in Cibola County, New Mexico, and one in neighboring Sandoval County, New Mexico. In both counties we negotiated extensions to earlier settlement agreements to ensure that all phases of the election process were as accessible to Native American populations as they are to the remainder of the counties' populations. These cases involved a number of different Native American languages, including Keresan, Navajo, and Towa, which are all traditionally unwritten languages; and so our remedy also required oral instructions or assistance where necessary.
And just a few weeks ago, a court approved a settlement agreement to resolve a lawsuit we filed against Colfax County, Nebraska, to protect Spanish-speaking voters in that county.
Colfax County is a great example of the importance of strong enforcement of the language minority provisions of the Voting Rights Act. The Hispanic population in Colfax has increased from about 26% of the county population ten years ago to about 41% of the county population today.
And a significant portion of those citizens are limited English proficient - which, for purposes of the Voting Rights Act, means "unable to speak or understand English adequately enough to participate in the electoral process." This is a perfect example of the importance of our voting rights laws - nearly half of the Colfax County population is Hispanic, and a significant portion of those Hispanic citizen voters would be unable to participate meaningfully in elections without bilingual ballots, polling place notices, and other election materials.
And as I have said, our efforts to secure compliance with voting rights laws are not limited only to litigation. We currently are engaged in outreach to every jurisdiction covered by the minority language requirements and are working with them to explain their obligations and bring them into compliance.
So when we talk about ensuring access to the ballot and guaranteeing nondiscrimination in election administration, the language minority provisions are a critical aspect of the Justice Department's enforcement efforts. We'll continue to enforce these provisions around the country - from the Bay Area to the Badlands, from Cleveland down to Colfax County, Nebraska.
VRA’s Section 5[15] and Preclearance
As noted, covered jurisdictions under Section 4 of the VRA are required by Section 5 to submit changes in voting procedures for federal preclearance. Voting changes, under the initial statute, “could not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color….”[16] In 1969, the Supreme Court, in Allen v. State Board of Elections[17] interpreted denial/abridgment of the right to vote to incorporate any voting change diluting the right to an effective vote.[18] Allen's extremely broad ruling established that all arguable electoral changes must be submitted for preclearance. In administering the "effect" prong of Section 5's purpose/effect test, the U.S. Department of Justice (DOJ) acted on the affirmative-action premise that the Voting Rights Act's ultimate objective was not merely to pry open the doors of the voting booth, but also to help minorities elect minority candidates, and that race/ethnic‑based districting was the sine qua non of fair minority representation, and the means of remedying the systemic-societal discrimination which gave rise to the African-American historic inability to elect Black officials.[19] Early on, DOJ's preclearance policy was to withhold approval of potentially discriminatory redistricting plans unless the redistricters agreed to include some form of majority‑minority districting.[20] By the mid‑1970s, it was common practice to include one or more "super" majority‑minority districts (65 percent or more) in new districting plans in order to pass preclearance scrutiny.[21] Although this antidilution program was initiated under the preclearance provisions of VRA Section 5, since 1982 it has been conducted largely under amended VRA Section 2. From the beginning, race‑based districting has applied to Latino groups as well as African Americans,[22] with the goal—in Abigail Thernstrom’s persuasive view of achieving minority elected officials proportionate to their population size without the need to prove invidious anti-minority animosity[23]—a goal to which the Obama Administration is committed.
President Obama’s Attorney General, along with his Assistant, the head of the Department of Justice’s Civil Rights Division (responsible for the VRA’s implementation) have referred to Section 5 as the “keystone” of the Voting Rights Act.[24] Pertinent provisions of the current Section (amended in 2006)[25] regarding preclearance for covered jurisdictions are:
(b) Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color… to elect their preferred candidates of choice denies or abridges the right to vote ….
(c) The term “purpose” in … this section shall include any discriminatory purpose.
(d) The purpose of subsection (b) of this section is to protect the ability of such citizens to elect their preferred candidates of choice.
As of 2012, the salient/nationally-publicized[26] Section 5 undertakings of the Obama DOJ were preclearance rejections of the voter ID requirements of South Carolina and Texas, as well as the objection to Kinston, North Carolina’s adoption of nonpartisan election; and the DOJ’s argument against Texas’ legislative redistricting proposal submitted by that State to the District of Columbia’s U.S. District Court. When the U.S. Supreme Court consented to evaluate the constitutionality of Section 5, the Department of Justice vigorously defended it.
Section 5 authorizes preclearance denial when it is determined that either prong of the purpose/effect is violated. In the case of the Texas and South Carolina voter ID laws, the Attorney General concluded, in true statistical affirmative-action fashion, that the effect of the state identification requirements disproportionately burdened protected minorities, and retrogressively diminished their ability to elect persons of their choice. The purpose/intent prong was not addressed. Rejection letters sent to these States on behalf of the Attorney General included the following:
South Carolina--
When disaggregated by race, the state’s data show that 8.4% of white registered voters lacked any form of DMV-issued ID, as compared to 10.0% of non-white registered voters. In other words, according to the state’s data, which compare the available data in the state’s voter registration database with the available data in the state’s DMV database, minority registered voters were nearly 20% more likely to lack DMV-issued ID than white registered voters, and thus to be effectively disenfranchised by Act R54’s new requirements. We note that the voter registration data matched against the DMV database, and provided to us by the state, does not include several categories of existing registered voters listed as inactive voters, and hence, the number of registered voters without DMV-issued ID may well be higher than even these numbers suggest….Because we conclude that the state has failed to meet its burden of demonstrating that section 5 of Act R54 will not have a retrogressive effect, we do not make any determination as to whether the state has established that the proposed changes to its voter identification requirements were adopted with no discriminatory purpose.[27]
Texas--
[A]ccording to the state's own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification. Even using the data most favorable to the state, Hispanics disproportionately lack either a driver's license or a personal identification card issued by [the Department of Public Safety], and that disparity is statistically significant…. In conclusion, the state has not met its burden of proving that …the proposed [voter identification] requirement will not have a retrogressive effect, or that any specific features of the proposed law will prevent or mitigate that retrogression. Additionally, the state has failed to demonstrate why it could not meet its stated goals of ensuring electoral integrity and deterring ineligible voters from voting in a manner that would have avoided this retrogressive effect. Because we conclude that the state has failed to meet its burden of demonstrating that the proposed law will not have a retrogressive effect, we do not make any determination as to whether the state has established that the proposed changes were adopted with no discriminatory purpose.[28]
Recall that Section 5 proclaims that any voting procedure which “has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color… to elect their preferred candidates of choice denies or abridges the right to vote ….” This dictate requires DOJ’s Civil Rights Division (CRD) to make race/ethnic-conscious evaluations as to whether redistricting proposals from covered jurisdictions diminish the ability of protected minorities to elect candidates of their choice. The Obama CRD notes, in its Guidance to nonfederal governments on the matter,[29] that its determinations will be rooted in a consideration of “benchmark” districts (i.e., those associated with the year 2000 CRD-approved districts), and whether race/ethnic benchmark capacity to elect has been denigrated. A multidimensional analysis is to be undertaken including an investigation of apportionment history; population increase/decrease/shifts; and statements of officials concerned with district shaping. CRD is not to be restricted to majority-minority districting for ability-to-elect districts can consist of a coalition of minority groups. But, clearly, it would be a breach of Section 5 for CRD to disapprove of existing majority-minority districts where population stability exists. Majority-minority districts have been, in large part, responsible for the dramatic increase in minority elected officials.[30] Of course CRD has been given enormous discretion in determining what makes an “ability to elect preferred-candidate district.” The law does not provide a specific methodology. However, a prominent student of Section 5--Professor Nathan Persily of Columbia-- reported that his initial survey of the Obama redistricting process indicated that “the practices of the DOJ either since 2006 or since 2008 do not seem, at first blush, to be systematically different than those of earlier years.”[31] To the senior Circuit Court of Appeals Judge in the District of Columbia, preclearance in the “earlier years” was marked by DOJ’s “pursuit of maximizing majority-minority districts at any cost.”[32]
The DOJ challenged the recent Texas legislative redistricting plan when that plan was submitted to the D.C. District Court for preclearance. Texas had gained four congressional seats resulting from a population increase reported in the 2010 decennial census. Most of this population increase was Hispanic, but, to the DOJ, no additional Hispanic ability-to-elect districts had been created by the Republican-dominated Texas legislature--thus having the effect of diminishing Hispanic capacity to choose a preferred candidate. Likewise, the new Texas plan had moved low-turnout Hispanics into some districts, while moving high-turnout Hispanics into other districts, thus, according to DOJ, showing a purpose to discriminate on the basis of ethnicity.[33] But one person’s purpose to discriminate improperly is another person’s appropriate quest for partisan advantage, and no law can take politics out of politics. How to distinguish the two in the redistricting process is a most difficult if not impossible task. As of this writing, though, DOJ views have prevailed in the district-court arena.[34]
Another salient DOJ preclearance rejection of considerable notoriety concerned Kinston, North Carolina, a community with a Black majority population which had voted to adopt a nonpartisan ballot for local elections. The rejection (later withdrawn unceremoniously) cited that the absence of a Democratic ballot label could impede crossover voting for a Black because African-American candidates are typically Democrats, and a Democratic label could provide helpful policy cues for the undecided to vote for an African American. Nonpartisanship, once the darling of American Progressives, consequently diminished the capacity of Kinston’s Black population to select preferred Black candidates.[35]
VRA’s Section 2[36]
Section 2 of the VRA also requires DOJ to exercise race/ethnic consciousness. Pertinent segments follow:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color… of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Section 2’s results test is comparable to the effects dimension of affirmative-action’s disparate-impact theory. As explained above (page 1), disparate-impact theory seeks the elimination of systemic animosities towards racial/ethnic groups. The application of the results test, as also noted, has led to the DOJ-aided and abetted creation of majority-minority legislative districts designed--and successfully so-- to elect minorities. The judicial guidepost prompting this districting profusion was crafted by a Supreme Court opinion, Thornburg v. Gingles (1986).[37]
In setting an evidentiary standard to determine whether, as a result of districting construction, minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” the Gingles Court majority employed two standards: the level of minority electoral success, and the extent of racial bloc voting.[38] As Justice Brennan said in the majority opinion:
The essence of a Section 2 claim is that a certain electoral law, practice or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by Black and white voters to elect their preferred representatives.…[M]ultimember districts and at‑large voting schemes "may operate to minimize or cancel out the voting strength of racial [minorities]." …The theoretical basis for this type of impairment is that where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters. Multimember districts and at‑large voting schemes, however, are not per se violative of minority voters' rights.…Minority voters who contend that the multimember form of districting violates Section 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates.…[39]
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single‑member district.…Second, the minority group must be able to show that it is politically cohesive.…Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc as to enable it—in the absence of special circumstances, such as the minority candidate running unopposed—usually to defeat the minority's preferred candidate.[40]
In true disparate impact fashion, what counted for the Gingles majority was whether—not why—racial bloc voting diluted minority votes.[41] The Gingles rule is that, irrespective of intent, a voting district that has the effect of impermissibly diluting the voting strength of an identifiable minority group violates Section 2 and warrants affirmative relief. The three‑part Gingles test is not restricted to multimember systems, as in Gingles itself. It applies also in single‑member districts where the plaintiffs have achieved some representation, but claim that their ability to “elect representatives of their choice” has been diluted.[42] Significantly, Gingles indicated that difficulty in electing minority‑preferred candidates and the extent of racially polarized voting outweighed geographical compactness in importance.[43] This ruling enabled the ignoring of compactness in the creation of many new majority‑minority districts.
Gingles concluded that “the single‑member district is generally the appropriate standard” for minority representation[44] --a conclusion that triggered the courts and DOJ to promote creation of single‑member, majority‑minority districts in the 1990s. The resultant explosion of new majority‑minority districts augmented the constitutional dilemmas about racial gerrymandering.[45] Gingles gave rise to an ideological clash in the Court. In her Gingles concurrence, Justice O’Connor rejected the rationale of the ruling on the ground that it was tantamount to an endorsement of “rough” proportionality, which while “not quite the same as a right to strict proportionality…[is] inconsistent with Section 2’s disclaimer and with the results test that is codified in Section 2.”[46] O’Connor’s concern regarding proportionality remains to this day.
Since the 1965 passage of the VRA, the number of African-American and Hispanic publicly -elected office holders has risen dramatically. At VRA’s onset, there were fewer than 100 elected Black officeholders in the Section 5-targeted states, and less than 200 nationwide. By 1990, these numbers had soared to 3,394 in these states, and 7,370 nationally.[47] In the states with the greatest Hispanic populations—Arizona, California, Florida, New Mexico, New York, and Texas—the number of elected Latino officials rose from 1,280 in 1973 to 3,592 in 1990.[48] Nationwide, the number of Black and Hispanic officials increased from 3,063 to nearly 5,000 between 1984 and 1990 alone.[49] There were five African Americans and three Hispanics in the 1965 Congress. In 1996, there were seventeen Hispanics and thirty‑eight Blacks, a six and sevenfold increase.[50] A significant African American and Hispanic presence in public office has continued into the new millennium.[51] For example, in states where African American and Hispanics constituted more than 10% in the year 2000 census, their state legislative office holding numbers rose significantly.[52]
These impressive minority office-holding increases resulted, to a great degree, from the VRA-prompted package: abolition of invidious voting tests; preclearance requirements; and expanded minority registrations; followed by increased minority voter turnout. But, even though Blacks and Hispanics have been elected where minorities were not a majority (think President Obama), a crucial factor has been the adoption of majority‑minority legislative districts.26 For example, when fourteen Blacks and six Latinos came to Congress in 1992—the greatest absolute increase in Black representation ever in a single year—almost all of them were elected from majority‑minority districts drawn under Sections 2 and 5.27
Section 2’s protections go beyond districting. They prohibit political jurisdictions from imposing any “qualification or prerequisite to voting or standard, practice, or procedure … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color….” These protections were underscored by President Obama in a recent radio interview concerned with the Supreme Court’s current consideration of Section 5’s constitutionality.[54]
SiriusXM host Joe Madison: “If the Supreme Court were to strike down Section 5 of Voting Rights Act [in the current case of Shelby v. Holder]…what are the consequences, in particular to the Black and Latino communities?”
President Barack Obama: “Historically, the voting rights act was the lynchpin of expanding our democracy during the civil rights movement. By passing the Voting Rights Act what you did was to ensure that those regions of the country, those areas that had a history of preventing African-Americans or Latinos or other ethnic groups from voting, they would have to be cleared by the Justice Department in any changes they had to their voting practices. And the idea was, basically, not only would you outlaw the kinds of tools that were used in the past—like charging people fees for voting or poll taxes and things like that—but what you would also then catch would be any new mechanisms that prevented people from voting. If Section 5 of the Voting Rights Act is struck down, then that pre-clearance process would go away. Now, you’d still have laws in place that would insist that everybody has the right to vote, but the difference is that you’d now have to wait until after…some of these mechanisms had been put into place before you filed suit to try to get them struck down. And obviously, if it’s after an election, it’s a lot harder to give people relief and there are some parts of the country where obviously folks have been trying to make it harder for people to vote, and so generally speaking, you’d see less protection before an election with respect to voting rights and people could keep coming up with new schemes each election, even if ultimately they were ruled to violate the Voting Rights Act, it would be hard for us to catch those things up front to make sure that elections are done in an equitable way.
Now this is part of the reason why at my State of the Union I said it’s very important that we work together to make sure everybody gets a chance to vote, and we clear away a lot of this nonsense. And if we have some national guidelines and rules working with states [and] counties to make sure that people aren’t waiting in line for six, seven hours [and] that there aren’t new tricks that discourage people from voting. If we’ve got those in place, then obviously it’s not as good as if we keep Section 5 of the Voting Rights [Act] in place, which I think we should, but I think it’s still possible obviously to make us to make sure that everybody is able to exercise their rights.”…
But [Section 5 is] not the only tool that we have. It’s a critical tool, but it’s not the only tool. I know in the past some folks have worried that somehow, if the Supreme Court strikes down Section 5 of the Voting Rights Act, somehow people are going to lose the right to vote. That’s not the case. People will still have the same rights to not be discriminated against when it comes to voting, you just won’t have this mechanism, this tool, that allows you to kind of stay ahead of certain practices that may discourage people from voting.
The Supreme Court’s review of Section 5 (Shelby v. Holder) is focused on the question of whether the preclearance-covered areas are more discriminatory than the remainder of the country. The Court could discuss other affirmative-action issues associated with the VRA in this case, and we await an opinion. And critical issues abound:
· Is it socially desirable for government to create legislative districts based on a population’s color or ethnicity?
· Do minorities require minorities for good government?
· Should forbidden discrimination be assumed through statistical analysis as disparate-impact theory allows? Should not the demonstration of invidious antiminority animosity be required?
· Does not the VRA Section 203 requirement of providing voting materials in non-English languages to language minorities undercut social cohesiveness? Should not literacy in English be required?
· It is difficult to imagine any voting impediment (e.g., photo ID’s; prohibitions against felons from voting; standing in long voting lines) that do not disproportionately affect minorities and diminish their voting capacities. What is the extent of VRA coverage?
During Shelby’s oral arguments, Justice Scalia noted that “[t]his Court doesn't like to get involved in -- in racial questions” associated with VRA’s affirmative-action dimensions. Nor, he noted, does the Congress.[55] It should be added that, with respect to the critical VRA issues bulleted above, the President has remained publicly silent, as have—in major addresses on the VRA-- his Attorney General and DOJ’s head of the Civil Rights Division.[56] At this juncture, Adlai Stevenson’s acceptance of the presidential nomination in 1952 should be recalled. “Let’s face it. Let’s talk sense to the American people.” Let us storm walls of ignorance through truth, courage and morality, “contemptuous of lies, half truths, circuses and demagoguery.”[57] A 1996 persuasive social science-survey on the subject tells us that the American people as a whole are generally distrustful of and opposed to affirmative action.[58] It would be appropriate to determine if that attitude prevails in connection with the VRA -- all the more reason for our political leaders to vent critical issues. If a majority opposes VRA’s affirmative action, this attitude might be changed through a thoughtful discussion of the issues led by our political leaders. And democratic theory has it that there is a great morality to majoritarian consent and dissent. Informed majoritarianism should help remedy the “disappointing” unprofessionalism and “deep ideological polarization” which the DOJ’s Inspector General found in the DOJ’s Voting Rights Section of the Civil Rights Division—a Section which administers the VRA.[59]
Copyright © 2013 by William M. Leiter. All Rights Reserved.
[1] Here, "discrimination" means invidious (i.e., unfair or unjust) treatment of people. "Societal (systemic, disparate-impact) discrimination" means societally-rooted invidious treatment of people on account of group membership or affiliation. "Protected group" means the racial and ethnic (national origin/ancestral) groups, sexuality groups, and disabled people covered by anti-discrimination laws and regulations. "Minorities" are the racial and ethnic groups so covered. "Affirmative action" means the general policy for treating societal discrimination. There are many specific policies for implementing this general policy.
[2] Codified as amended at 42 USC § 1973 et seq.
[4] Frank Dobbin, Inventing Equal Opportunity (Princeton & Oxford, 2009), 101-160. The concepts “rebadging” and “retheorization” are from this volume.
[5] 42 U.S.C. § 1973c(a) (2011). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973c.htm
[6] U.S. Department of Justice, Attorney General Eric Holder Speaks at the Lyndon Baines Johnson Library & Museum, Austin, TX, Tuesday, December 13, 2011. http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-111213.html
[7] Cited in Jerry Marken & Krissan Thompson, Holder Joins Debate On Voting Laws’ Turnout Effect, Washington Post, Suburban Edition, December 13, 2011, A-Section, p. A02.
[8] 42 U.S.C. § 1973b (a)(b)(c)(2011). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973b.htm
[9] 42 U.S.C. § 1973b(f) (2011). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973b.htm
[10] Abigail Thernstrom, Voting Rights and Wrongs, The Elusive Quest for Racially Fair Elections (AEI Press, 2009), 225-228.
[11] Id at 193.
[12] See 42 U.S.C. § 1973aa-1a(b)(3)(B). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-B.htm
[13] U.S. Department of Commerce, Bureau of the Census, Voting Rights Amendment of 2006, Determinations Under Section 203, 76 Federal Register No. 198, October 13 2011.
[14] Thomas Perez, U.S. Enforcement of the Voting Rights Act, 64 Rutgers L. Rev. 939, Summer 2012, 947-949. Footnotes omitted.
[15] 42 U.S.C. § 1973 c(a)(2011). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973c.htm
[16]42 U.S.C. § 1973b (a)(b)(c)(2011). Emphasis added. http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973b.htm
[17] 396 U.S. 544.
[18] Allen v. Board of Elections, 393 U.S. 544.
[19] David Lublin, The Paradox of Representation (Princeton U. Press, 1997), 5-6.
[20] Id. at 6, 28-29.
[21] Kathryn Abrams, Raising Politics Up, 63 NYU L. Rev. 449, 470-471 n139 (1988).
[22] Lublin, Paradox of Representation at 6, 7, 28 (cited in note 19).
[23] Abigail Thernstrom, Voting Rights and Wrongs, The Elusive Quest for Racially Fair Elections (AEI Press, 2009), 8 and passim.
[24] U.S. Department of Justice, Attorney General Eric Holder Speaks at the Lyndon Baines Johnson Library & Museum, Austin, TX, Tuesday, December 13, 2011. http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-111213.html ; Thomas Perez, U.S. Enforcement of the Voting Rights Act, 64 Rutgers L. Rev. 939, Summer 2012, 943.
[25] 42 U.S.C. § 1973c(a) (2011). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973c.htm
[26] Nathaniel Persily, Drawing Lines in Shifting Sands: The DOJ, the VRA, and the 2011 Redistricting Process, 23 Stan. L. & Pol’y Rev. 345 (2012), p 357.
[27] Letter from U.S. Assistant Attorney General to Deputy Assistant South Carolina Attorney General on South Carolina Voter Identification, December 23, 2011. http://www.justice.gov/crt/about/vot/sec_5/ltr/l_122311.php
[28] Letter from U.S. Assistant Attorney General to Texas Director of Elections, March 12, 2012. http://www.justice.gov/crt/about/vot/sec_5/ltr/l_031212.php
[29] U.S. Department of Justice, Guidance Concerning Redistricting, 27 Federal Register No. 27, February 27, 2011. http://www.justice.gov/crt/about/vot/sec_5/sec5guidance2011.pdf
[30] See pp. 13-14 below.
[31] Persily, Drawing Lines in Shifting Sands, 23 Stan. L. & Pol’y Rev. 345 (2012), 357 (cited in note 26).
[32] Shelby v. Holder, U.S. Court of Appeals for the D.C. Circuit, No.11-5256; 2012 U.S. App. LEXIS 10027, 103-104.
[33] Texas v. U.S., The U.S Opening Trial Brief, U.S. District Court, D.C. January 13, 2012, 2, 4-5.
[34] Texas v. U.S., No. 11-1303 (2012), 2012 U.S. Dist. LEXIS 121685.
[35] Letter from U.S. Acting Assistant Attorney General to James Cauley, Objection to Kinston’s Nonpartisan Elections, August 17, 2009. http://www.justice.gov/crt/about/vot/sec_5/ltr/l_081709.php
[36] 42 U.S.C.§ 1973 http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973.htm
[37] 478 U.S. 30.
[38] Id. at 48, and ns 15, 49.
[39] Id. at 47.
[40] Id. at 50-51(emphasis added).
[41] Editors’ Notes and Questions on Gingles in Samuel Issacharoff, Pamela Karlan, and Richard Pildes, eds, The Law of Democracy (Foundation, 1998), 464, 466.
[42] See Johnson v. DeGrandy, 512 U.S. 997, 1008; Editors’ Notes on Section 2 in Issacharoff, Karlan, and Pildes, Law of Democracy, 499-500, 506-509 (cited above).
[43] Thornburg v. Gingles, 478 U.S. 30 (1986), 44, 49n17.
[44] Id. at 50 n17
[45] Alexander Keysaar, The Right to Vote (Basic Books, 2000), 294; David Lublin, The Paradox of Representation (Princeton, 1997), 30.
[46] Thornburg v. Gingles, 478 U.S. 30, 96
.
[47] Pei-te Lien, The Voting Rights Act and its Implications for Three NonBlack Minorities, 140-143 in Richard M. Valelly ed, The Voting Rights Act: Securing the Ballot (Congressional Quarterly Press, 2006).
[48] Id.
[49] Keith J. Bybee, Mistaken Identity (Princeton U Press, 1998) 28.
[50] David Lublin, The Paradox of Representation (Princeton U Press, 1997), 22.
[51] Abigail Thernstrom, Voting Rights and Wrongs, The Elusive Quest for Racially Fair Elections (AEI Press, 2009), 11.
[52] David Lublin, et al, Has the Voting Rights Act Outlived Its Usefulness? In a Word,“No,” 34 Legislative Studies Quarterly 525 (November, 2009), 529.
[53] Morality concept from title of Alexander M. Bickel’s book, The Morality of Consent (Yale Press, 1975).
[54] Joe Madison Talks With President Obama About the Voting Rights Act, Sirius XM Radio, February 22, 2013.http://politic365.com/2013/02/22/joe-madison-talks-with-obama-on-sequestration-voting-rosa-parks-and-tiger-woods/
[55] Transcript of Oral Arguments in Shelby v. Holder, No. 12-96, February 27, 20013, p.46. http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf
[56] U.S. Department of Justice, Attorney General Eric Holder Speaks at the Lyndon Baines Johnson Library & Museum, Austin, TX, Tuesday, December 13, 2011. http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-111213.html ; Thomas Perez, U.S. Enforcement of the Voting Rights Act, 64 Rutgers L. Rev. 939, Summer 2012.
[57] Adlai E. Stevenson, Major Campaign Speeches of Adlai E. Stevenson, 1952, Random House, 1953), 10.
[58] Donald R. Kinder and Lynn Sanders, Divided by Color (U Chicago press, 1996).
[59] Cited by Charlie Savage, Report Finds Political Splits and Unprofessionalism in Voting Agency, New York Times, National Edition, March 13, 2013, p A16. For entire report, see http://www.justice.gov/oig/reports/2013/s1303.pdf
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