William M. Leiter
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Affirmative Action
and its Thesis of White Venom
Affirmative
action
differs from other antidiscrimination initiatives in that (1) it targets
and seeks to remedy White systemic societal bias (as manifested
in public and private illegal discrimination), not individual malefactors; (2) it mandates
race, ethnic, gender, disability-conscious remedies for the disproportionately-adverse
effects -- the so-called disparate impact -- of venomous societal
discrimination affecting 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 by providing the same proportional benefits available to non-minorities.
Race/ethnic affirmative-action objectives have been actively pursued by the
Obama Administration and its predecessors in their implementation of the 1965 Voting Rights Act (VRA).[3] During
the Obama years, however, the rationale for the VRA’s affirmative-action regulations,
namely that White systemic antiminority-animus
badly undercuts minority voting and its effectiveness, was rejected by
the Supreme Court in Shelby County v.
Holder[4]
where a slim majority of five insisted that America has cast off its historic
antiminority venom preventing Black/Hispanic participation in voting and
office-holding. That view was rejected in a sometimes anguished dissent by four
members of the High Court.
The VRA’s Coverage/Preclearance Formula and its Abolition in Shelby v. Holder
At
the onset of the VRA in 1965, its Section 4 abolished literacy tests and other
such devices (e.g., good character and knowledge tests and character vouching
by other citizens) as preonditions for
voting in states and/or their political subdisions where fewer than 50% of the
voting-age population was registered to vote or voted for president in the 1964
election. The former Confederate States of
Alabama, Georgia, Louisianna, Mississippi, South Carolina, Virginia, and 39
North Carolina counties were targeted by this coverage formula, and were
consequently required--by Section 5 of the VRA-- 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. By an amendment to VRA’s Section 4 in 1970, the test
abolition and preclearance /coverage formula applicable to the former
Confederate areas was extended to states and their political subdivision where
less than 50% of the voting-age population was registered or voted in the 1968
presidential election. In this way, several counties in California, New
Hampshire, and New York became subject to preclearance. Congress in 1970 also
abolished literacy tests and other such devices as preconditions for voting
nationwide. This nationwide prohibition was made permanent in 1975 when
Congress also promulgated other VRA-Section 4 amendments: preclearance was
extended to states/political subdivisions where fewer than 50% of the
voting-age population was registered to vote or voted for president in 1972; preclearance
was also extended to those political divisions where English-only voting
materials were provided and where over 5% of the voting-age citizens spoke a
single language other than English. As a result of these 1975 amendments, Alaska, Arizona, Texas and several counties in
California, Florida, Michigan, New York, North Carolina, and South Dakota were
required to preclear voting changes. Additionally in 1975, Congress forbade
voting discrimination based on language-minority status to correspond to VRA’s
ban on race or color discrimination.[5]
The
preclearance/coverage formula of VRA’s Section 4 was found unconstitutional in Shelby County v. Holder (2013).[6]
That Section’s affirmative-action assumption that various areas of the country
were --because of voter turnout/registration--systemically and particularly
prone to pursue prohibited racial/ethnic voting discrimination was found by the
Supreme Court to be outdated. “Our country has changed,” the
Supreme Court’s majority opinion insisted, “and while any racial discrimination
in voting is too much, Congress must
ensure that the legislation it passes to remedy that problem speaks to current
conditions.” [7] The
coverage/preclearance dimension of Section 4 does not conform with the country’s
current racial/ethnic conditions and attitudes, especially those in the former
Confederate areas where White supremacy was most emphasized. Central portions
of the Shelby
Nearly 50 years …[since the passage
of the VRA], things have changed dramatically. … In the covered jurisdictions,"[v]oter
turnout and registration rates now approach parity. Blatantly discriminatory
evasions of federal decrees are rare. And minority candidates hold office at
unprecedented levels." The tests and devices that blocked access to the
ballot have been forbidden nationwide for over 40 years.
Those conclusions are not ours
alone. Congress said the same when it reauthorized the Act in 2006, writing
that "[s]ignificant progress has been made in eliminating first generation
barriers experienced by minority voters, including increased numbers of
registered minority voters, minority voter turnout, and minority representation
in Congress, State legislatures, and local elected offices." The House
Report elaborated that "the number of African-Americans who are registered
and who turn out to cast ballots has increased significantly over the last 40
years, particularly since 1982," and noted that "[i]n some
circumstances, minorities register to vote and cast ballots at levels that
surpass those of white voters." That Report also explained that there have
been "significant increases in the number of African-Americans serving in
elected offices"; more specifically, there has been approximately a 1,000
percent increase since 1965 in the number of African-American elected officials
in the six States originally covered by the Voting Rights Act.
The following chart, compiled from
the Senate and House Reports, compares voter registration numbers from 1965 to
those from 2004 in the six originally covered States. These are the numbers
that were before Congress when it reauthorized the Act in 2006:
1965
|
2004
|
|||||
White
|
Black
|
Gap
|
White
|
Black
|
Gap
|
|
69.2
|
19.3
|
49.9
|
73.8
|
72.9
|
0.9
|
|
62.[6]
|
27.4
|
35.2
|
63.5
|
64.2
|
-0.7
|
|
80.5
|
31.6
|
48.9
|
75.1
|
71.1
|
4.0
|
|
69.9
|
6.7
|
63.2
|
72.3
|
76.1
|
-3.8
|
|
75.7
|
37.3
|
38.4
|
74.4
|
71.1
|
3.3
|
|
61.1
|
38.3
|
22.8
|
68.2
|
57.4
|
10.8
|
|
The 2004 figures come from the
Census Bureau. Census Bureau data from the most recent election indicate that
African-American voter turnout exceeded white voter turnout in five of the six
States originally covered by §5, with a gap in the sixth State of less than one
half of one percent. The preclearance statistics are also illuminating. In the
first decade after enactment of §5, the Attorney General objected to 14.2
percent of proposed voting changes. In the last decade before reenactment, the
Attorney General objected to a mere 0.16 percent.
It
should be restated that the VRA literacy test abolition, preclearance, and
language-minority protection were the outgrowth of notions of pervasive White systemic
discrimination, and not the demonstration of intentional racism by any
particular VRA-covered area affecting individuals who did not vote. 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 White systemic
discrimination nationally when it abolished literacy tests countrywide in 1970
and again in 1975.
The Obama Administration and VRA’s Section
5[9]
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….”[10]
In 1969, the Supreme Court, in Allen v.
State Board of Elections[11]
interpreted denial/abridgment of the right to vote to incorporate any voting
change diluting the right to an
effective vote.[12] 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.[13] 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.[14] 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.[15]
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,[16]
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[17]—a
goal to which the Obama Administration is committed.
In his exultation over Section 5 of the VRA’s[18]
preclearance role in the creation of controversial majority-minority
legislative districts designed to elect minorities, President Obama’s Attorney
General Holder coupled the making of these districts with other civil rights laws. 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.”[19]
" We are a better nation now than we were because more people are
involved in the electoral process. 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.''[20]
Attorney
General Holder along with his former Assistant Attorney General, 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.[21] Pertinent
provisions of the current Section (amended in 2006)[22]
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[23]
Section 5 undertakings of the Obama DOJ were preclearance rejections of the
voter ID requirements of South
Carolina and Texas ,
the objection to Kinston , North Carolina 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.
As
we have seen, before its nullification in Shelby
County v. Holder, Section 5
authorized preclearance denial when it was determined that either prong of the
purpose/effect was 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:
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.[24]
[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.[25]
Recall
that amended Section 5 proclaimed 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
required 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 noted, in its Guidance to nonfederal governments on the
matter,[26]
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 was to be undertaken including an investigation of
apportionment history; population increase/decrease/shifts; and statements of
officials concerned with district shaping. Under its standards, CRD approval
was 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
have been a breach of Section 5 for CRD to disapprove of existing
majority-minority districts where population stability existed.
Majority-minority districts have been, in large part, responsible for the
dramatic increase in minority elected officials.[27]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.”[28]
The Obama 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.[29]
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.
Another salient
DOJ preclearance rejection of considerable notoriety concerned Kinston , North
Carolina Kinston ’s
Black population to select preferred Black candidates.[30]
VRA’s Section 2[31]
Section 2 of the
VRA, formally unaffected by Shelby County
v. Holder, remains an Obama
Administration vehicle for pursuing voting-rights affirmative action--along
with its assumption of societally-systemic antiminority views-- as it is currently
doing in connection with the redistricting and voter ID issues in Texas
mentioned above.[32]
Pertinent segments of Section 2 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… , 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, seeking the elimination of
systemic animosities towards racial/ethnic groups which according to the Shelby County v. Holder (2013) opinion has evaporated
insofar as minority voting rights are concerned. Are then the
affirmative-action dimensions of Section 2 still constitutionally viable? With
that question in mind it must be noted that the application of the results test
in Section 2 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).[33]
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
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.…[35]
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.[36]
In true disparate impact fashion, what counted
for the Gingles majority was
whether—not why—racial bloc voting diluted minority votes.[37]
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.[38]
Significantly, Gingles indicated that
difficulty in electing minority‑preferred candidates and the extent of racially
polarized voting outweighed geographical compactness in importance.[39]
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[40]
--a conclusion that triggered the courts and DOJ to promote creation of single‑member,
majority‑minority districts. The resultant explosion of new majority‑minority
districts augmented the constitutional dilemmas about racial gerrymandering.[41]
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.”[42]
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.[43] 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.[44]
Nationwide, the number of Black and Hispanic officials increased from
3,063 to nearly 5,000 between 1984 and 1990 alone.[45]
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.[46] A
significant African American and Hispanic presence in public office has
continued into the new millennium.[47] 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.[48]
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.[49]
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.[50]
In his Holder v. Hall (1993)[51]
concurrence, Justice Clarence Thomas exposed many of the issues associated with
the creation of majority districts and similar devices meant to increase the
number of minority elected officials. These issues are serious ones and should
be discussed by the public, but thus far the discussion has been largely
restricted to a small group of scholars interested in voting rights. Excerpts
from the Thomas opinion follow:
Only a "voting qualification
or prerequisite to voting, or standard, practice, or procedure" can be
challenged under § 2. . . . . In my view, however, the only principle limiting
the scope of the terms "standard, practice, or procedure" that can be
derived from the text of the Act would exclude . . .challenges to allegedly
dilutive election methods that we have considered within the scope of the Act
in the past. . . .
A review of the current state of
our cases shows that by construing the Act to cover potentially dilutive
electoral mechanisms, we have immersed the federal courts in a hopeless project
of weighing questions of political theory -- questions judges must confront to
establish a benchmark concept of an "undiluted" vote. Worse, in
pursuing the ideal measure of voting strength, we have devised a remedial
mechanism that encourages federal courts to segregate voters into racially
designated districts to ensure minority electoral success. In doing so, we have
collaborated in what may aptly be termed the racial "balkanization"
of the Nation.
If one surveys the history of the Voting
Rights Act, 42 U.S.C. § 1973 et seq., one can only be struck by the sea change
that has occurred in the application and enforcement of the Act since it was
passed in 1965. The statute was originally perceived as a remedial provision
directed specifically at eradicating discriminatory practices that restricted
blacks' ability to register and vote in the segregated South. Now, the Act has
grown into something entirely different. In construing the Act to cover claims
of vote dilution, we have converted the Act into a device for regulating,
rationing, and apportioning political power among racial and ethnic groups. In
the process, we have read the Act essentially as a grant of authority to the
federal judiciary to develop theories on basic principles of representative
government, for it is only a resort to political theory that can enable a court
to determine which electoral systems provide the "fairest" levels of
representation or the most "effective" or "undiluted" votes
to minorities. . . .
The Court's decision in Allen
v. State Bd. of Elections, 393 U.S. 544 (1969), however, marked a
fundamental shift in the focal point of the Act. . . . The decision in Allen
thus ensured that the terms "standard, practice, or procedure" would
extend to encompass a wide array of electoral practices or voting systems that
might be challenged for reducing the potential impact of minority votes.
As a consequence, Allen also
ensured that courts would be required to confront a number of complex and
essentially political questions in assessing claims of vote dilution under the
Voting Rights Act. . . . But in setting the benchmark of what
"undiluted" or fully "effective" voting strength should be,
a court must necessarily make some judgments based purely on an assessment of
principles of political theory. As Justice Harlan pointed out in his dissent in
Allen, the Voting Rights Act supplies no rule for a court to rely upon
in deciding, for example, whether a multimember at-large system of election is
to be preferred to a single-member district system; that is, whether one
provides a more "effective" vote than another. "Under one
system, Negroes have some influence in the election of all
officers; under the other, minority groups have more influence in the
selection of fewer officers." Allen, supra, at 586. The choice is
inherently a political one, and depends upon the selection of a theory for
defining the fully "effective" vote -- at bottom, a theory for
defining effective participation in representative government. In short, what a
court is actually asked to do in a vote dilution case is "to choose among
competing bases of representation -- ultimately, really, among competing
theories of political philosophy." .
Perhaps the most prominent feature
of the philosophy that has emerged in vote dilution decisions since Allen
has been the Court's preference for single-member districting schemes, both as
a benchmark for measuring undiluted minority voting strength and as a remedial
mechanism for guaranteeing minorities undiluted voting power. Indeed,
commentators surveying the history of voting rights litigation have concluded
that it has been the objective of voting rights plaintiffs to use the Act to
attack multimember districting schemes and to replace them with single-member
districting systems drawn with majority-minority districts to ensure minority
control of seats.
The obvious advantage the Court has
perceived in single-member districts, of course, is their tendency to enhance
the ability of any numerical minority in the electorate to gain control of seats
in a representative body. But in choosing single-member districting as a
benchmark electoral plan on that basis the Court has made a political decision
and, indeed, a decision that itself depends on a prior political choice made in
answer to Justice Harlan's question in Allen. Justice Harlan asked
whether a group's votes should be
considered to be more "effective" when they provide influence
over a greater number of seats, or control over a lesser number of
seats. See 393 U.S. [544]
at 586. In answering that query, the Court has determined that the purpose of the
vote -- or of the fully "effective" vote -- is controlling seats. In
other words, in an effort to develop standards for assessing claims of
dilution, the Court has adopted the view that members of any numerically
significant minority are denied a fully effective use of the franchise unless
they are able to control seats in an elected body. 5 Under this
theory, votes that do not control a representative are essentially wasted;
those who cast them go unrepresented and are just as surely disenfranchised as
if they had been barred from registering. Such conclusions, of course, depend
upon a certain theory of the "effective" vote, a theory that is not
inherent in the concept of representative democracy itself. 6
In fact, it should be clear that
the assumptions that have guided the Court reflect only one possible understanding
of effective exercise of the franchise, an understanding based on the view that
voters are "represented" only when they choose a delegate who will
mirror their views in the legislative halls. See generally H. Pitkin, The
Concept of Representation 60-91 (1967). 7 But it is certainly
possible to construct a theory of effective political participation that would
accord greater importance to voters' ability to influence, rather than control,
elections. And especially in a two-party system such as ours, the influence of
a potential "swing" group of voters composing 10% to 20% of the electorate
in a given district can be considerable. 8 Even such a focus on
practical influence, however, is not a necessary component of the definition of
the "effective" vote. Some conceptions of representative government
may primarily emphasize the formal value of the vote as a mechanism for
participation in the electoral process, whether it results in control of a seat
or not. Under such a theory, minorities unable to control elected posts would
not be considered essentially without a vote; rather, a vote duly cast and
counted would be deemed just as "effective" as any other. If a
minority group is unable to control seats, that result may plausibly be
attributed to the inescapable fact that, in a majoritarian system, numerical
minorities lose elections. . . .
Once one accepts the proposition
that the effectiveness of votes is measured in terms of the control of seats,
the core of any vote dilution claim is an assertion that the group in question
is unable to control the "proper" number of seats -- that is, the
number of seats that the minority's percentage of the population would enable
it to control in the benchmark "fair" system. The claim is inherently
based on ratios between the numbers of the minority in the population and the
numbers of seats controlled. As Justice O’Connor has noted, "any theory of
vote dilution must necessarily rely to some extent on a measure of minority
voting strength that makes some reference to the proportion between the
minority group and the electorate at large."Gingles, 478 U.S. [30]at 84.
As a result, only a mathematical calculation can answer the fundamental
question posed by a claim of vote dilution. And once again, in selecting the
proportion that will be used to define the undiluted strength of a minority the
ratio that will provide the principle for decision in a vote dilution case -- a
court must make a political choice.
The ratio for which this Court has
opted, and thus the mathematical principle driving the results in our cases, is
undoubtedly direct proportionality. . . .
The dabbling in political theory
that dilution cases have prompted, however, is hardly the worst aspect of our
vote dilution jurisprudence. Far more pernicious has been the Court's
willingness to accept the one underlying premise that must inform every
minority vote dilution claim: the assumption that the group asserting dilution
is not merely a racial or ethnic group, but a group having distinct political
interests as well. Of necessity, in resolving vote dilution actions we have
given credence to the view that race defines political interest. We have acted
on the implicit assumption that members of racial and ethnic groups must all
think alike on important matters of public policy and must have their own
"minority preferred" representatives holding seats in elected bodies
if they are to be considered represented at all.
It is true that in Gingles
we stated that whether a racial group is "politically cohesive" may
not be assumed, but rather must be proved in each case. See 478 U.S. [30] at 51,
56. But the standards we have employed for determining political cohesion have
proved so insubstantial that this "precondition" does not present
much of a barrier to the assertion of vote dilution claims on behalf of any
racial group. Moreover, it provides no test -- indeed, it is not designed to
provide a test -- of whether race itself determines a distinctive political
community of interest. According to the rule adopted in Gingles,
plaintiffs must show simply that members of a racial group tend to prefer the
same candidates. See 478 U.S. [30]
at 61-67. There is no set standard defining how strong the correlation must be.
. . .
As a result, Gingles'
requirement of proof of political cohesiveness, as practically applied, has
proved little different from a working assumption that racial groups can be
conceived of largely as political interest groups. And operating under that
assumption, we have assigned federal courts the task of ensuring that
minorities are assured their "just" share of seats in elected bodies
throughout the Nation.
To achieve that result through the
currently fashionable mechanism of drawing majority-minority single-member districts,
we have embarked upon what has been aptly characterized as a process of
"creating racially 'safe boroughs.'” We have involved the federal courts,
and indeed the Nation, in the enterprise of systematically dividing the country
into electoral districts along racial lines -- an enterprise of segregating the
races into political homelands that amounts, in truth, to nothing short of a system
of "political apartheid." Blacks are drawn into "black
districts" and given "black representatives"; Hispanics are
drawn into Hispanic districts and given "Hispanic representatives";
and so on. Worse still, it is not only the courts that have taken up this
project. In response to judicial decisions and the promptings of the Justice
Department, the States themselves, in an attempt to avoid costly and disruptive
Voting Rights Act litigation, have begun to gerrymander electoral districts
according to race. . . .
The assumptions upon which our vote dilution
decisions have been based should be repugnant to any nation that strives for
the ideal of a color-blind Constitution. "The principle of equality is at
war with the notion that District A must be represented by a Negro, as it is
with the notion that District B must be represented by a Caucasian, District C
by a Jew, District D by a Catholic, and so on." Wright v. Rockefeller,
376 U.S.
52, 66 (1964) (Douglas, J., dissenting). Despite Justice Douglas' warning
sounded 30 years ago, our voting rights decisions are rapidly progressing
toward a system that is indistinguishable in principle from a scheme under
which members of different racial groups are divided into separate electoral
registers and allocated a proportion of political power on the basis of race.
Under our jurisprudence, rather than requiring registration on racial rolls and
dividing power purely on a population basis, we have simply resorted to the
somewhat less precise expedient of drawing geographic district lines to capture
minority populations and to ensure the existence of the "appropriate"
number of "safe minority seats."
That distinction in the practical
implementation of the concept, of course, is immaterial. 14 The
basic premises underlying our system of safe minority districts and those
behind the racial register are the same: that members of the racial group must
think alike and that their interests are so distinct that the group must be
provided a separate body of representatives in the legislature to voice its
unique point of view. Such a "system, by whatever name it is called, is a
divisive force in a community, emphasizing differences between candidates and
voters that are irrelevant."
Justice Douglas correctly predicted the results of state sponsorship of
such a theory of representation: "When racial or religious lines are drawn
by the State, . . . antagonisms that relate to race or to religion rather than
to political issues are generated; communities seek not the best representative
but the best racial or religious partisan." Id.
As a practical political matter,
our drive to segregate political districts by race can only serve to deepen racial
divisions by destroying any need for voters or candidates to build bridges
between racial groups or to form voting coalitions. "Black-preferred"
candidates are assured election in "safe black districts";
white-preferred candidates are assured election in "safe white
districts." Neither group needs to draw on support from the other's
constituency to win on election day. As one judge described the current trend
of voting rights cases: "We are bent upon polarizing political
subdivisions by race. The arrangement we construct makes it unnecessary, and
probably unwise, for an elected official from a white majority district to be
responsive at all to the wishes of black citizens; similarly, it is politically
unwise for a black official from a black majority district to be responsive at
all to white citizens."
As this description suggests, the
system we have instituted affirmatively encourages a racially based
understanding of the representative function. The clear premise of the system
is that geographic districts are merely a device to be manipulated to establish
"black representatives" whose real constituencies are defined, not in
terms of the voters who populate their districts, but in terms of race. The
"black representative's" function, in other words, is to represent
the "black interest.". . .
In my view, our current practice
should not continue. Not for another Term, not until the next case, not for
another day.
Remembering Adlai Stevenson and the Morality of Consent[52]
Abolishing the
affirmative action dimensions of the VRA and their assumption of White racist
and ethnic venom would be a way of conforming to the Thomas critique recited
above. It has been argued here that the majority opinion in Shelby County v. Holder abolished the
White-venom rationale of affirmative action for minority voting. It follows
that the VRA should be restricted to prohibiting that which can be solidly
proven (and not assumed) to be an intentional effort to block minority voting?
Of course the scope of the VRA is debatable. For example, the four-member
minority dissent in Shelby County v.
Holder (2013) lamented (over 37
pages),[53] that
there still exists an amplitude of antiminority animosity that disallowed any
change in Section 5, yet alone Section 2. Of course, the public should be concerned with whether
Justice Thomas’ provocative critique should be adhered to. But we get little
help from the Obama Administration which has insisted upon the expansion of
transparent government. That Administration has not publicized the racial/ethnic
Balkanization dimensions of the VRA, and has not helped the public evaluate the
merits of the federal antidilution-voing thrust.
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.”[54] 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[55]--
all the more reason for our political leaders to vent critical voting-rights 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. Democratic
theory holds 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.[56]Among
the issues of the VRA that should be publicly discussed are:
·
Has White America really changed in terms of
allowing nonwhites to vote and participate in political activities as they see
fit. Or is this political activity badly impeded by White antiminority
attitudes?
·
Is it socially desirable for government to
create legislative districts based on a population’s color or ethnicity?
·
Do minorities require minority office-holding to
be afforded 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 impediments
(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 should the VRA prohibit?
Copyright © 2013 by William M. Leiter. All
Rights Reserved.
[1] Slip Opinion, No. 12-96 , June 25, 2013 . Available at http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
[4] Shelby County
[9] 42 U.S.C. § 1973 c(a)(2011). Available at http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973c.htm
[10]42 U.S.C. § 1973b (a)(b)(c)(2011).
Emphasis added.
Available at http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973b.htm
[11] 396 U.S. 544.
[12] Allen
v. Board of Elections, 393 U.S. 544.
[13] David Lublin, The Paradox of Representation (Princeton
U. Press, 1997), 5-6.
[14] Id. at 6, 28-29.
[15] Kathryn Abrams, Raising Politics Up, 63 NYU L. Rev. 449, 470-471 n139 (1988).
[17] Abigail Thernstrom, Voting Rights and Wrongs, The Elusive Quest for Racially Fair Elections
(AEI Press, 2009), 8 and passim.
[18] 42 U.S.C. § 1973c(a) (2011). Available at http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973c.htm
[19] U.S. Department
of Justice, Attorney General Eric Holder Speaks at
the Lyndon Baines Johnson Library & Museum, Austin , TX Tuesday, December 13, 2011 .
Available at http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-111213.html
[20] 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.
[21] U.S. Department of Justice, Attorney General Eric Holder Speaks at the
Lyndon Baines Johnson Library & Museum, Austin, TX,
Tuesday, December 13, 2011. Available at 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.
[22] 42 U.S.C. § 1973c(a) (2011).Available at http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973c.htm
[23] 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.
[24]
Letter from U.S. Assistant Attorney General to Deputy Assistant South
Carolina Attorney General on South
Carolina Voter Identification, December 23, 2011.Available at
http://www.justice.gov/crt/about/vot/sec_5/ltr/l_122311.php
[25] Letter from U.S. Assistant Attorney
General to Texas Director of Elections, March 12, 2012. Available at http://www.justice.gov/crt/about/vot/sec_5/ltr/l_031212.php
[26] 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
[28]
Persily, Drawing Lines in Shifting
Sands, 23 Stan. L. & Pol’y Rev. 345 (2012), 357 (cited in note 23).
[29] Texas v. U.S., The U.S Opening Trial Brief, U.S.
District Court, D.C. January 13, 2012, 2, 4-5.
[30] Letter from U.S. Acting Assistant
Attorney General to James Cauley, Objection
to Kinston’s Nonpartisan Elections, August 17, 2009. Available at http://www.justice.gov/crt/about/vot/sec_5/ltr/l_081709.php
[31] 42 U.S.C.§ 1973. Available at http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap20-subchapI-A-sec1973.htm
[32] Charlie Savage, U.S is Suing in Texas Cases Over Voting By Minorities, New York Times, Aug, 23, 2012 , National Ed,
p. A12.
[33] 478 U.S. 30.
[34] Id. at 48, and ns 15, 49.
[35] Id. at 47.
[36] Id. at 50-51(emphasis added).
[37] Editors’
Notes and Questions on Gingles in Samuel Issacharoff, Pamela Karlan, and
Richard Pildes, eds, The Law of Democracy
(Foundation, 1998), 464, 466.
[38] 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).
[39] Thornburg
v. Gingles, 478 U.S. 30 (1986), 44, 49n17.
[40] Id. at 50 n17
[41] Alexander Keysaar, The Right to Vote (Basic Books, 2000), 294; David Lublin, The Paradox of Representation (Princeton,
1997), 30.
[42] Thornburg
v. Gingles, 478 U.S. 30, 96.
[43] 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).
[44] Id.
[45] Keith J. Bybee, Mistaken Identity (Princeton U Press, 1998) 28.
[46] David Lublin, The Paradox of Representation (Princeton U Press, 1997), 22.
[47] Abigail Thernstrom, Voting Rights and Wrongs, The Elusive Quest for Racially Fair Elections
(AEI Press, 2009), 11.
[48] David Lublin, et al, Has the Voting Rights Act Outlived Its Usefulness? In a
Word,“No,” 34 Legislative Studies Quarterly 525 (November, 2009), 529.
[49] David Lublin, Paradox
of Representation, 23-24 (Princeton U Press, 1997); Laughlin McDonald, The
1982 Amendments in Bernard Grofman & Chandler Davidson, eds, Controversies in Minority Voting
(Brookings, 1992) at 73-74.
[51] 512 U.S. 874, 893ff. Most citations and
footnotes omitted.
[52] Morality concept from title of Alexander
M. Bickel’s book, The Morality of Consent
(Yale Press, 1975).
[54] Adlai E. Stevenson, Major Campaign Speeches of Adlai E. Stevenson, 1952, Random House,
1953), 10.
[55] Donald R. Kinder and Lynn Sanders, Divided by Color (U Chicago press,
1996).
[56] 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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