EVENTS

Date:	Thursday, June 11, 2009
Time:	2:00 PM -- 4:00 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI

WASHINGTON, JUNE 22, 2009--The 1965 Voting Rights Act (VRA) is rightly heralded as a crowning achievement of Civil Rights legislation, as its passage "marked the death knell of the Jim Crow South." The original aim of the act was simple: to ensure equal political opportunity for minorities. But four decades after its original passage, is the VRA actually harming minority political inclusion instead of helping?

At an American Enterprise Institute book forum for Voting Rights--and Wrongs: The Elusive Quest for Racially Fair Elections (AEI Press, 2009), AEI adjunct scholar Abigail Thernstrom explained that radical revisions have fundamentally altered the act, making it an ineffective law, Thernstrom says, that keeps "most black legislators clustered on the sidelines of American politics--precisely the opposite of what its framers intended." The focus of the law has changed from guaranteeing opportunity to ensuring proportional racial representation, which has created a minority legislative class generally inexperienced in putting together bipartisan coalitions, isolating minorities from mainstream politics.

Thernstrom detailed Section 5 of the VRA, which requires covered jurisdictions to seek "preclearance" from the Department of Justice when altering details about the electoral process, such as moving a polling place. This law is unprecedented in U.S. history, Thernstrom explained, as it places the "burden of proof for changes not motivated out of racial animus on the jurisdiction. She added that Section 5 has been made obsolete because the "voting rights problems now of greatest concern are of no relationship to those that plagued the South in 1965." The most recent disputes over racial exclusion in voting have come from states like Florida in 2000 and Ohio in 2004, both of which are not covered by the VRA. Also of particular concern to Thernstrom is that enforcement of the VRA rests "on the presumption that blacks need those districts." But it should not be the presumption that blacks always lose elections on account of racial hostility; partisan and ideological factors play into voters' choices as well. She explained that "original redistricting efforts can be compared with high tariffs. Tariffs protected infant U.S. industries, such as steel, from competition. Similarly, Thernstrom said that  "districts gave a chance for African-Americans to get on their feet, and today they are." Covered and non-covered states in the South are almost indistinguishable in the number of black politicians representing districts, yet, in 2006, Section 5 was extended for another quarter century. "America has been racially transformed," Thernstrom elucidated, "let's celebrate that remarkable transformation, and let's move on."

Rick Pildes, scholar on constitutional law and voting rights at New York University School of Law, offered perspective on the legislative evolution of the VRA, the Supreme Court's jurisprudence on the act, and racial redistricting as a general matter. Pildes noted that Congress's passage of the VRA in 2006 was essentially an abdication of responsibility over civil rights issues, "throwing a gauntlet down to the Supreme Court." Minority inclusion in politics has dramatically improved since the last time the VRA was considered in 1982. He explained that in the early 80s there was a "miniscule number of black representatives" and "racial polarization and voting patterns were extreme," whereas now the number of black office holders has dramatically increased. Pildes offered a few ways forward. He said we could "take the view that the law should no longer ever mandate the creation of safe minority election districts," or we may still need these districts, but "we have to modify the way the act imposes this requirement and when it imposes this requirement."

Michael Carvin from Jones Day traced the statutory evolution of the VRA. In adjusting the law, Carvin explained that Congress addressed a question that political scientists have grappled with for decades: "what does it mean to provide a minority with an equal opportunity to win elections?" At first, the act's language was basic--preventing exclusion of a voter based on skin color. But then it delved into the trickier question, "should blacks or other minorities be able to win elections?" Accordingly, as the aim changed, the Department of Justice was given more power to decide what electoral districts should look like. Carvin noted that aspects of majority-minority redistricting sated appetites on both sides of the aisle; Republicans preferred creating "max-black" districts and Democrats preferred electing minorities. But when you discuss race in the context of a fundamental right, like voting, "why would you empower judges to make these racially charged decisions?"

The VRA is an outdated law that no longer serves its primary focus, which was to ensure equal political opportunity for all Americans. It may have been able to "jump-start" circumstances  for minorities in electoral politics, but as Daniel Lowenstein of UCLA has said, "the guy who jumps your car doesn't stay with you as you drive down the freeway--he lets you go." Thernstrom concluded that it has been good for America to increase the number of black officials who gain office, despite the fact that this increase can be attributed in large part to deliberately drawing majority-minority constituencies. "But," she said, "black politicians have come of age, and black politicians can fight for their interests--even for the presidency."

--JON FLUGSTAD

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