Voting Rights--and Wrongs: The Elusive Quest for Racially Fair Elections
Book Forum
This event is cosponsored by AEI and the Federalist Society.
About This Event

The 1965 Voting Rights Act is the crown jewel of American civil rights legislation; its passage marked the death knell of the Jim Crow South. But that was the beginning, not the end, of an important debate on race and representation in American democracy. When is the distribution of political Listen to Audio


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power racially fair? Who counts as a representative of black and Hispanic interests? These complex, unresolved questions are explored by Abigail Thernstrom, vice-chair of the U.S. Commission on Civil Rights, in her provocative new book,
Voting Rights--and Wrongs: The Elusive Quest for Racially Fair Elections (AEI Press, June 2009), a legal and political analysis of the forty-year history of the Voting Rights Act.

The act's original aim was simple: give African Americans the same political opportunity enjoyed by other citizens--the chance to vote, form political coalitions, and elect the candidates of their choice. But southern resistance to black political power prompted a process of radical revisions to the act in order to ensure the election of blacks and Hispanics. Proportional racial representation--equality of results rather than mere equal opportunity--became the goal.

Majority-minority districts that reserved seats for blacks and Hispanics succeeded in integrating southern politics--at a cost. By now those districts may perversely limit the potential power of black officeholders. "Max-black" districts typically elect candidates to the left of most voters; those officeholders rarely run in majority-white settings. Such race-conscious districting discourages the development of centrist, "postracial" candidates like Barack Obama (who was defeated when he stood for Congress in one such district).

The Voting Rights Act has become a period piece that today serves to keep most black legislators clustered on the sidelines of American politics--precisely the opposite of what its framers intended. A radically revised law would better serve the political interests of all Americans--minority and white voters alike.

At this discussion of Voting Rights--and Wrongs, Thernstrom will be joined by Michael A. Carvin, a distinguished voting rights attorney, and New York University School of Law professor Richard H. Pildes, one of the nation's leading voting rights scholars. AEI's Henry Olsen will moderate.

Agenda
Event Summary

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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Speaker biographies


Michael A. Carvin is a partner at Jones Day law firm in Washington, D.C. Mr. Carvin specializes in constitutional, appellate, civil rights, and civil litigation against the federal government and has argued numerous cases in the Supreme Court, including the decisions limiting the Justice Department’s ability to create “majority-minority” districts and upholding Proposition 209’s ban on racial preferences in California. He has also represented state governments, financial institutions, and telecommunications and energy companies. Prior to joining Jones Day, Mr. Carvin served at the Justice Department as special assistant to the attorney general and deputy assistant attorney general in the Civil Rights Division, as well as deputy assistant attorney general in the Office of Legal Counsel.

Henry Olsen is vice president and director of the National Research Initiative (NRI) at AEI. He disseminates and publicizes the Institute’s work to the academic community; works with AEI’s visiting, adjunct, and NRI research fellows; commissions and supervises NRI projects; and oversees the production of NRI publications. Mr. Olsen previously served as vice president for programs at the Manhattan Institute and as a judicial clerk to the chief judge of the U.S. Court of Appeals for the Sixth Circuit, Danny J. Boggs.

Richard H. Pildes is the Sudler Family Professor of Constitutional Law at the New York University School of Law. He is one of the nation’s leading scholars of public law and a specialist in legal issues affecting democracy. In the area of democracy, Mr. Pildes, along with the coauthors of his acclaimed casebook, The Law of Democracy: Legal Structure of the Political Process (now in its third edition), has helped to create a revolutionary field of study in the law schools. Mr. Pildes is widely considered one of the nation’s leading scholars on the Voting Rights Act. He is coeditor of The Future of the Voting Rights Act (Russell Sage Foundation, 2006) and has written dozens of articles on the act. His scholarship is regularly cited by the Supreme Court in cases involving the Voting Rights Act. He has written for the New York Times, the Wall Street Journal, The New Republic, The American Prospect, and similar journals. Apart from his academic work, Mr. Pildes has also served as counsel to a group of former chairmen of the Securities and Exchange Commission in litigation challenging the constitutionality of the Sarbanes-Oxley Act, as counsel in election litigation to the Puerto Rico Electoral Commission, as counsel to the government of Puerto Rico, as a federal court-appointed independent expert on voting rights litigation, and as counsel in successful Supreme Court litigation that challenged the way the U.S. Tax Court operated.

Abigail Thernstrom is an adjunct scholar at AEI, vice-chair of the U.S. Commission on Civil Rights, and a member of the board of advisers of the U.S. Election Assistance Commission. She was a senior fellow at the Manhattan Institute in New York from 1993 to 2009 and a member of the Massachusetts state Board of Education for more than a decade. In 2007, Ms. Thernstrom was awarded a Bradley Prize for Outstanding Intellectual Achievement. Her previous study of the Voting Rights Act, Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press, 1987) won four awards, including the American Bar Association’s Certificate of Merit; the Anisfield-Wolf Book Award for the best book on race and ethnicity; and best policy book from the Policy Studies Organization, a division of the American Political Science Association. Ms. Thernstrom is also coauthor (with her husband, Stephan Thernstrom) of No Excuses: Closing the Racial Gap in Learning (Simon & Schuster, 2003), which won the Fordham Foundation’s prize for distinguished scholarship, and America in Black and White: One Nation, Indivisible (Simon & Schuster, 1997), named by the New York Times as one of the notable books of the year. Her frequent media appearances have included Fox News Sunday, Good Morning America, and This Week with George Stephanopoulos. Her writing has appeared in the Wall Street Journal, the Los Angeles Times, the New York Times, The Economist, and the Times Literary Supplement (London).

This event is cosponsored by AEI and the Federalist Society.
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