American Enterprise Institute

May 5, 2008

[Edited transcript from audio tapes]

12:15 p.m.	Registration and Lunch
12:30	Presenter:	Anthony A. Peacock, Utah State University
	Discussants:	Michael Carvin, Jones Day
		Daniel Lowenstein, University of California, Los Angeles
	Moderator:	Steven Hayward, AEI
2:00	Adjournment

Proceedings:

[Start of Tape 1 Side A]

Steven Hayward: -- in which most foreign students are governed when they come to this country.

And if you lay them side-by-side and you see the stark contrast between the American constitutionalism and what has got to be one of the hottest ideas of contemporary constitutionalism, which Tony avoids using the jargon in his book, much to his credit, but the jargon in Political Science is known as consociationalism.  You always know you’re in trouble when you have one of those ridiculous so-called normative words, I suppose you might say. 

And it’s the theory that the best way to manage social conflict is to try and create stable cartels of political elites that take into account, and balance, competing interests on racial and ethnic lines and so forth.  The most spectacular example in modern times being that of Lebanon, which is an interesting nation and constitution to observe.

The Lebanese Constitution, for those of you who have never seen it, explicitly apportioned seats in their national assembly along religious lines.  And these kinds of consociational constitutions, literally, in the case of Lebanon, are more peace treaties than constitutions.  And in the context of the fractious ethnic and religious conflicts you have in countries like Lebanon and even some eastern European countries.  It might be said that that’s the best you can do.

The American Constitution is obviously a very different thing.  Although it’s never explicitly articulated, although Tony brings this out in his book I think, although it’s not explicitly articulated in the Federalist Papers and other sources from the Foundings, the American Constitution, I think you would say is much more open about our future as individuals, as groups, and where the nation might go. 

And to the extent that the way we implement voting rights, ideas and take explicit account of racial and ethnic identity in this country, in a more formal and constitutional way, we begin changing our Constitution into a more consociational one.  Willy-nilly or by degrees, and actually, I think you could see the way this may work out if you compare the phenomenon; who is Barack Obama and how he has changed his political appeal as he has ascended the ladder of the kind of office he’s running for and say that the political climate of the Congressional Black Caucus, that may be one way of framing the issue.

One thing I like about Tony’s book is that it connects the jurisprudence and the evolution of jurisprudence with these broader questions of the nature of our constitutional order as it was understood by the men who wrote it.

So what we’ll do is we’ll have Tony go for 20-25 minutes or so summarizing his argument.  We have with us two distinguished commentators.  I’ll let you read their bios.  Mike Carvin, of course, is a practitioner in the field who has argued a number of these cases before the Supreme Court and other appellate fora. 

And then Dan Lowenstein from UCLA Law School who’s one of those breed of a law professors who moonlights as a political philosopher, and I actually like to tell people that if you want to see the most relevant inquiries in the political philosophy today, it’s not often in Political Science Departments, it’s in the law schools and the law reviews, and Dan is on the forefront of the cutting edge of that.  And so I suspect we’ll have a lively and penetrating discussion on this subject today.  And with that, Tony, the floor is yours.  Press your button.

Anthony Peacock:  Can everybody hear me all right?  Jon, can you hear me back there?  Okay. 

Well, Steve, thank you very much for that introduction.  As somebody who uses PowerPoint, I’ll have to remember that.  About how much -- how much it corrupts.  I can’t write and thus rely on PowerPoint notes extensively, but I’m not using them here.  What I’m going to do today is try to summarize in fairly brief terms a fairly complicated area of the law.  And if anybody has any questions about some of the details, feel free to have them clarified after I talk, and after Mike and Dan present their commentary as well.

Let me begin by thanking President DeMuth, Henry Olsen, Jon Flugstad of the National Research Initiative which gave me generous financial and other types of assistance to research and write this book, and also to thank some friends, Sam Thermstrom, Karlyn Bowman and everybody else today.  The AEI Press that -- everybody who made this a very pleasurable experience, both writing the book and having to go through the various stages of editing and production of the book. 

I am very grateful to everybody at AEI for all their support and I would like to thank them for the pretty quiet experience I’ve had writing this thing for the last couple of years.  Also, let me thank Dan and -- Dan Lowenstein and Mike Carvin for taking time out of their busy schedules to both read the book and come here and comment on it.  And thanks to Steve as well for moderating.

The book is titled Deconstructing the Republic: Voting Rights, the Supreme Court and the Founders’ Republicanism Reconsidered.  And as the title suggests, it’s a pretty critical account of the Supreme Court’s jurisprudence with respect to the Voting Rights Act, which was passed in 1965.  So we’re roughly 40 years on and the Act has gone through series of evolutions over that period of time and the book is a critical account of that historical transformation.

I explained the evolution of the Voting Rights Act on the basis of two basic ideas or concepts.  The first, I refer to is the idea of judicial rationalism.  And what I do is I take the Austrian economist Friedrich Hayek.  He was famous for having critiqued the planned economy on the basis of his theory of rationalism, namely that the advocates of the planned economy did not have the knowledge necessary to rationally reconstruct the economy in the way that they desire.  Free markets worked a lot better than planned economies in terms of utilizing the particular types of knowledge that were necessary to be used in the economy and to maximize productive efficiency.  And what distinguished free markets from planned economies was actually their better utilization of knowledge, not just the greater generation of wealth. 

And what I suggested -- what Hayek said about the political branch of the government is really equally true of the judicial branch, and in particular, the Supreme Court, from the Warren Court era on.  If you want to understand the Warren Court’s jurisprudence, you can understand it as an attempt to try to rationally reconstruct the American Republicanism from the top down in accordance with a preconceived understanding of fairness.  So that’s the first thesis in the book.  If you want to understand the Voting Rights Act, you have to understand this idea of judicial rationalism, this ideological change on the court.

The second concept is the politics of multiculturalism and this becomes institutionalized through the Voting Rights Act.  The politics of multiculturalism look at race and ethnicity, not merely as sources of identity and of mutual interest, and this is how I defined -- I have a specific definition at the outset of the book -- but as legally determinative categories that afford legitimate foundations for claims to representation and political rule. 

Basically, the idea that race is synonymous with political interests, it’s synonymous with intellect, this explains affirmative action policy like that -- that was at issue in the Grutter and Gratz decisions, the two University of Michigan cases, where the assumption is that your race defines your thinking and therefore -- there’s no other way to really explain the Grutter decision, the Gratz decision, other than on the basis of those assumptions, but it’s confined only to racial and ethnic groups.  Diversity doesn’t mean religious groups or other forms of -- if you want to call them descriptive characteristics that may affect thought.  It’s basically reduced to race and ethnicity.

So what you have in the Voting Rights Act is really a blend of these two phenomena, judicial rationalism and the politics of multiculturalism which identifies race with political interest.  And what I do, at the outset of the book, is I distinguish between Madisonian republicanism, which I identified with the republicanism of the Founders, and multicultural republicanism. 

And I gave a brief historical account of this transformation in American political thinking going back to the progressive era and how modern social science, modern multiculturalist thought has undermined the Founders’ political science.  I mean I won’t go into the details of that here, rather I’ll provide a brief historical account of what happened over the period of about 40 years with the Voting Rights Act.

So, the question is, how did the act become an instrument of the politics and multiculturalism or multicultural rationalism?  And it begins with the Reapportionment Case in the 1960s.  The reapportionment cases are those decisions, the one person, one vote decisions.  It begins in 1962 with Baker v. Carr and then further elaborated in 1964 with the Wesberry and Reynolds decisions, which mandate that all congressional electoral districts and all state electoral districts be equally populated. 

This is the one person, one vote idea that all votes have to be equally weighted.  And the Constitutional right that’s given to you in those cases is the right to effective representation.  You are effectively represented, the court says, if in fact the electoral districts in which you live are equally populated; that’s the basic holding in the reapportionment cases. 

And this is an attempt; this is where judicial rationalism, in my opinion, starts in earnest.  You can look at its application though of rather different eras but this is where it really starts because this is a radical democratization of the American constitutional process.  And what I suggest is it’s a radical democratization of the process and it also indicates a new disposition on the part of the court to radically democratize American constitutionalism, American democracy.

The Voting Rights Act was passed in 1965.  It’s a great piece of legislation.  It’s principled -- it’s a principled attempt to try to give Black Americans in the Jim Crow South a right that they’ve been denied from, constitutionally speaking, time immemorial.  And it’s also very effective.  The Black registration rates in the South go up very significantly over the first four or five years.  The Act basically achieves its overall goal within the first four or five years.  And that’s what the Voting Rights Act was intended to do, give Black Americans in the Jim Crow South the right to vote, which they’ve been precluded from exercising by such things as poll taxes, most interestingly perhaps literacy tests, white primaries, things like that.

But then in 1969 in the Allen decision, Allen v. State Board of Elections, the court creates a second right, a right to effective racial representation, and I won’t go into the details of the Allen decision.  The outcome of that case was quite understandable because it involved three cases, one from Virginia, three from Mississippi.  And the Mississippi cases were quite pernicious and it was quite evident that what Mississippi was trying to do, it was trying to dilute the effect of the Black vote that had been given the Black Americans as the result of the Voting Rights Act of 1965. 

And although the lower court didn’t find any evidence of intentional discrimination on the part of the State of Mississippi, it was pretty evident that what they were trying to do was to dilute the effect of Black voting rights.  And what they did is, they allowed County Boards of Supervisors -- they allowed jurisdictions to go from single-member districting systems, with respect to the elections of County Board of Supervisors, to what are called at-large electoral districts, where you vote for a number of different representatives and where a minority vote can get submerged in the overall total vote numbers, in an at-large electoral system in the way that it -- that can happen in a single districting system. 

So the court said, not only do you have the right to vote under the Voting Rights Act, you have the right to an undiluted vote and they affected -- and they incorporated the principle of effective representation from the reapportionment cases, the right to effective racial representation. 

But that introduced a whole host of problems.  It’s one thing to give people numerically equivalent representation, one person, one vote.  But what the heck does effective racial representation mean?  And this is what’s referred to, this right to representation, right to effective representation, is what the scholars refer to as second generation voting rights.  The right to vote is first generation voting rights and what I -- what the scholars have typically assumed is that these two rights are perfectly consistent and they flow from one another.  First, it’s just a matter of applying the principle of fairness a little bit further down the road.

But what I argue in the book is, in fact, that’s not the case.  The original right you’re granted, the right to vote, is an individual right that doesn’t require cognizance of race to be vindicated.  The second right that you were given in 1969, in the Allen decision, is a group-based right that cannot be vindicated without cognizance of race. 

So, in fact, first and second generation voting rights are antithetical.  And I’ve also formed [sounds like] the book as to suggest that second generation voting rights are in fact unconstitutional precisely because they require those very race classifications that the Constitution generally prescribes and that doesn’t become clear until sometime after 1969.

So there are really two issues that come up after 1969.  First of all, what is this new right that the Court has created?  What does this right to an undiluted vote or right to effective representation mean?  And eventually, what it will mean as the right to proportional racial representation?  You have a right to elect your designated minority candidate to office.  And then the question becomes, “Well, how many do you get to elect?”  Well, roughly a number proportionate to the racial demographics in the jurisdiction at issue.  That’s the first question. 

But the second question is:  Where the heck does the Court get this rationale for proportional racial representation?  It doesn’t exist in the legislation.  And as Justice Thomas pointed out in a series of cases in the 1990s, it just doesn’t exist.  And what I suggest is, in fact, it comes from the ideology of multiculturalism, the idea of that -- what Hugh Davis Graham, the famous civil rights historian said, was really the transition from the economic class welfare state of the Progressive and New Deal eras to the social and racial regulatory state of New Deal and beyond -- oh, I’m sorry, The Great Society and beyond. 

And that there’s a certain moral vision that has been -- that we transitioned to, in the last 30 or 40 years, as politics and multiculturalism -- where the new class warfare is defined by race and ethnicity.  And if you want to understand modern affirmative action, including the Voting Rights Act, you need to understand this ideology. 

So what I suggest in the book is that it’s not the politics of the Jim Crow South that’s driving the ideology of the Voting Rights Act from about the early 1970s onward, it’s really this ideology of multiculturalism.  And this is further accentuated by the introduction of language minorities in 1975.  And this does two things:  One, it enhances this idea of racial class-warfare, and it does in two ways because one, it gives -- it obviously gives more political power to a greater number of groups by including -- and these are the official minorities that you see as standard affirmative action boilerplate in all affirmative action policy, by giving Hispanics, Asian-Americans, and native Americans rights under the Voting Rights Act.  You now expand the beneficiary classes significantly but you also, by limiting them to just those classes, you maintain this class-warfare vision. 

Stephen Warren was a Civil Rights Commissioner in 1981 and he testified before Congress, when Congress was thinking of extending this language in order to protect -- and he said, “Look, it’s absurd.”  These are completely arbitrary because the 1980 census encoded 387 language minorities in the country and the Voting Rights Act only recognizes four or five.  Why just those four or five?  And I suggest in the book that the reason why that is, is it’s consistent, as Hugh Davis Graham points out, these classes had became recognized through bureaucratic decree. 

There weren’t -- there were no Congressional hearings on which class to recognize in affirmative action policy, and for good reason.  It would be pretty embarrassing to invite a bunch of groups to come up to Congress and then try to decide which are appropriate victim groups.  This is what Graham points out in his very good book that looks at the evolution of Civil Rights Policy from 1968-1972.

So you’ve got this transition to this what I call the Racial Class-Warfare Vision, and it’s -- and this is taking place primarily through Supreme Court jurisprudence.  In the 1997 case, United Jewish Organization v. Carey, which took place in New York where the Voting Rights Act also applies, the civic Jewish community had sued the State for dividing their Hasidim into two senate districts and two state legislative districts, whereas before the application of the Voting Rights Act, they’ve been in one district, and they want to be returned to one district. 

And they claimed that New York had divided them on the basis of race to accommodate the demands of the Voting Rights Act.  And what the Court said in simple terms is that both racial classifications and racial quotas to meet the terms of the Voting Rights Act are permissible.  And New York had done this on, basically, a PR-based, proportional racial representation basis. 

So as of 1997, a case from New York, of all places, you have this right to proportional representation essentially constitutionalized, and this becomes more acute over the 1980s.  Congress amends the Voting Rights Act, in ways I don’t need to go into details, and the Supreme Court interprets those amendments in the 1980s in a case -- the Gingles decision of 1986 that essentially requires nationwide -- any minorities that are compact and opt to be put into single-member Congressional or State districts have a right to representation if they consistently lose elections to whites or to those -- or they just consistently lose elections.

So in the 1990s, the Department of Justice, which enforces the provisions of the Voting Rights Act, and then again I can’t go into more details about how that exactly happens, but states that are covered by the Voting Rights Act have to seek pre-clearance from the Department of Justice.  And these are predominantly states in the South, although there are states and counties in other parts of the country that are also covered and have to seek pre-clearance. 

But states like Texas, North Carolina, Georgia, and Louisiana, all had to seek pre-clearance from the Department of Justice.  That is, they had to get their congressional redistricting plans approved by the Civil Rights Division of the Department of Justice before they can go ahead with elections.  And what the DOJ -- and this is a Bush’s administration DOJ then -- was mandated what the Court called “racial maximization policy” or “max black policy”.  That is, you had to maximize the number of congressional districts in your congressional redistricting plan such that the number of districts in which Blacks or Hispanics could elect Blacks or Hispanics was proportionate to the racial demographics of the state. 

And what we ended up with were all these bizarrely shaped districts, which many of you may remember from the 1990s, were litigated, until the cows came home, before the Supreme Court, the most famous of which was the North Carolina Congressional District 12 that went before the Supreme Court in Shah v. Reno in 1993.  And this was just a bizarrely contoured Congressional District 12.  There were two congressional districts at issue in that case, the most bizarre of which was Congressional District 12 which -- 160 miles on the I-85 from Charlotte in the southwesterly part of the State up to Greensboro, Winston-Salem and up to the northerly part of the State and it snaked back down to Raleigh, Durham.  One legislator joked that if you drove down the I-85 and opened both car doors, you could kill most of the residents in the district. 

So, this was just a bizarre case and it was an extreme case calling out for some sort of Supreme Court intervention.  And as you might imagine, the State got sued for classified race -- voters on the basis of race.  And the Supreme Court in this case said, “Well, yes, you have a claim.”  In 1997, they said, “You don’t have a claim.”  In 1993, they say you do.  And then in 1995, they further clarified that anytime race is used as a predominant factor in drafting these electoral districts, you’ve engaged in unconstitutional gerrymandering.

And Justice Thomas, who is obviously involved in all of these cases, in the 1996 Texas redistricting case -- because there are basically five cases that made their way to the Supreme Court, three involving North Carolina, one involving Georgia, one involving Texas, and another one involving Louisiana.  The Louisiana case is basically the standing case. 

But in the Texas case, Justice Thomas says, “Look, we’ve created a crazy situation here because we mandate, as a result of our own jurisprudence, we’ve mandated the creation of these racial districts as a necessary precondition for compliance with the Voting Rights Act.”  That’s how you comply with the Voting Rights Act; you have to carve up what are called majority-minority districts, districts in which Hispanics or Black voters make up roughly 65 percent of the population.  And now we’re saying, as a result of our constitutional jurisprudence, “No, you can’t classify people on the basis of race.”

So how the heck a state is supposed to comply with the Voting Rights Act?  We’ve created this impossible situation.  So what does the Court do?  Sandra Day O’Connor switches sides in 2001.  In the last installment of the North Carolina redistricting litigation that has went on now for some eight or nine years.  In 2001, in the Easley v. Cromartie case, Sandra Day O’Connor votes with the former liberal members of the Court rather than more conservative members of the Court that she had voted with before that. 

And what the Court did is, they said, “Well, what’s involved here in North Carolina, because the same Congressional District 12, which now snaked through six counties instead of ten different counties, is in fact a political gerrymandering, not a racial gerrymandering.”  Because what you’ve got here is the consummate political battle between the Republicans in the Department of Justice and the Democrats who are in charge of the State of North Carolina. 

And the Republicans are saying, “You have to pack these minority, which is to say Democratic, voters into this majority-minority districts,” and the Republicans love this because they look like they’re pro-affirmative action, pro-minority rights.  But what they end up doing, as a result of that, is that they bleach, which is the technical term the scholars use, all the surrounding districts for Republican capture.  And there’s a lot of social science literature that suggests that the Republican recapture of the Congress in 1994, was perhaps principally the result of the Voting Rights Act, and there is pretty compelling evidence with respect to that.

So the Republicans love this and they’re forcing this on the State of North Carolina.  And the North Carolina Democrats hate it because they might get more Blacks -- Black representatives elected to the state legislation and into Congress but they’re going to lose power to the Republicans.  So what they do is -- the Court explains all this gerrymandering as a result of politics, not race in 2001.  So in the Easley decision, this is the 2001 decision, it doesn’t overturn the Shah and Miller holdings from the mid-1990s and said, “If you use race as the predominant factor in carving out all these electoral districts, they’re unconstitutional,” but it effectively got set because it raises the evidentiary threshold so high that it’s virtually impossible to meet these types of cases.

Anyway, let me just conclude with a couple of remarks about -- that what’s happened in 2001.  And then the most recent case which takes this, sort of, multiculturalist rationalism even further.  So we’ve got these mandates for proportional racial representation.  Texas goes -- the Texas Republicans attempt to redistrict, and well, succeed in redistricting in 2003 and as you might imagine, they get sued for their redistricting plan.  That case makes it to the Supreme Court in 2006, and what the Court there says is, “It’s okay to engage in partisan gerrymandering.” 

Now if you can gerrymander electoral districts for the benefit of specific political parties, here the Republicans.  The Democrats had done it in the 1990s.  Republicans were doing it in post-2000.  And you can do that, that’s fine.  But you cannot deny minorities, Blacks or Hispanics, their entitled districts under the Voting Rights Act.  If you do that, “That will be called intentional discrimination under the Constitution or under the Voting Rights Act.”  And so they say that you can -- partisan gerrymandering, political gerrymandering is constitutional unless you deprive minorities of their guaranteed districts under the Voting Rights Act. 

But the most important part of the holding -- and people who come to me -- I teach Constitution a lot in Utah State, and people who come to say, “Well, Sam Alito and John Roberts are conservative justices.”  I say, “Hang on, you should read the Perry decision.  You might not be as convinced.” Because both justices -- Chief Justice Roberts and Justice Alito signed on to an opinion by Anthony Kennedy which says in effect that people like Martin Frost, who is a white Democrat, may be protected by the Voting Rights Act if they can establish that minorities control the primaries in their elections.  And three other justices on the Court, Justices Ginsburg, Souter, and Stevens agree with that. 

But the only difference is that Kennedy, Alito, and Roberts didn’t think that evidentiary threshold had been met by Martin Frost, and that’s why he loses, and he gets the boot and he actually gets defeated.  But the three other justices, Ginsburg and Souter in particular, would have remanded the case for further proceedings, consistent with the idea that, in fact, Frost had established that Black voters, who made up of about 25 percent of his district, actually did control the primary, and that he was “minority” representative of choice; that’s the key legal jargon that you have to comply with.

So what’s scary about the Perry decision is that you’ve got six justices on the Court that are prepared to recognize White Democrats as minorities’ representative of choice under the Voting Rights Act, and the Voting Rights Act is basically just an incumbency protection act.  Once you get covered by the Voting Rights Act, you’re basically protected in perpetuity.  And there are all sorts of consequences of that that I talked about in the book that I won’t raise here because I’m out of time. 

But imagine what would happen if that becomes the law, and it becomes clear legal principle, which looks like it may.  Well, the Democrats would win once, they’d carve up all these Voting Rights Protected Districts and then the Republicans, in order to win, would have to facilitate uniform white hostility to the minorities’ preferred candidates or in the alternative, spend all of their time trying to solicit the minority vote.  Either way, this, sort of, race factionalism, that the Court was so concerned about through the 1990s, which will seem tame relative to what we face in the future.

So I conclude the book by saying that the Voting Rights Act undermines the Founders’ idea of a uniform concept of American citizenship and it has really transformed the citizens’ Constitution that the Founders created, into a Victims Constitution.  So I’ll leave it at that.  Steve.  And I think I’ve actually gone over my time, sorry.

Steven Hayward:  Mike Carvin, press your white button.

Michael Carvin:  I certainly agree, and like what we may hear in a few minutes, agree with all that.  I approach it probably more from a lawyer’s perspective.  But I thought I would walk you through, precisely, what is going on with Voting Rights Act and really pick up, I think, where we just left off in terms of this very new, dramatic, potential development in terms of expanding it.

And again, I’ll just echo the basic point which is, the Voting Rights Act was intended to be a provision that provided an equal opportunity for minority voters and it certainly morphed into to a guarantee of proportional representation for groups as a whole, one from an individual right to a group-based right.  Instead of eliminating racial barriers to vote, you’re guaranteeing equality of results for a political coalition, of which minorities are part.

And as the book makes quite clear, that’s certainly contrary to the Founders’ view of proper Republicanism and a -- because what you’ve done does not only create political factions where the representative is viewed as a mouthpiece for a particular faction, you’re guaranteeing them a certain slice of proportionality.  In my view, worst of all, you’ve defined the political faction by race or ethnicity, so it’s not even ideological warfare that’s going on.  That bothers me for two reasons, one of which is, it’s contrary to the language of the Constitution; it’s contrary to the language of the Voting Rights Act. 

But more -- generally, as Justice Thomas has made quite clear in the case that we’re referring to, the Holder case, it requires the Court, when it’s deciding on what a fair political system is, to engage in highly controversial political science judgments, which of course, they’re incapable of making and institutionally precluded from making, to define what is the fairest political system.  So in addition to the book’s point, that their view of what a fair political system is at war with Madison’s, my point would be that, institutionally, the Court shouldn’t be in the business of defining political fairness in the first place.

Indeed, outside the racial context, the Court has acknowledged this.  And the political gerrymandering case is when Democrats and Republicans are fighting, the Veith case out of Pennsylvania and others.  Of course, look, we don’t have a judicially manageable standard for determining what’s fair for Republicans or Democrats but that very salutary reticence in the political sphere is not at all translated when the issue is minority voters; where they don’t hesitate at all on issuing Papal Bulls on what the fairest system is and how you’re supposed to get there.  That at-large systems where the representative is deemed to represent all the voters should be carved into single-member districts where again, the representative is supposed to speak for a particular group.

And as I said I wanted to pick up on the final point, which is, that there was some disturbing language in the Perry opinion, the Texas case.  I’m not nearly, hopefully, as pessimistic about Alito and Roberts, the fact that they joined this Kennedy opinion.  But the issue is squarely presented again in a case that’ll be decided next term, out of North Carolina, this Bartlett case.  And the issue essentially is -- let’s assumes Blacks or Latinos constitute, oh, say 25-40 percent of a normal demographic area of a state or congressional redistricting plan. 

The Democrats and minority groups have argued that the Voting Rights Act requires you to create a district where you -- that group is put together in one district and where they can elect the candidate of their choice.  So, not only have we gone from a situation where we’ve forgotten about rights of individual voters to proportionality for groups, now what we’re arguing is the Voting Rights Act guarantees preferential treatment of a particular political coalition solely because that political coalition is supported by a so-called protected minority group.  And of course, outside of Dade County in Florida, the party that minorities support overwhelmingly is the Democratic Party. 

So what they are quite seriously asking federal courts to do is to engage in a conscious gerrymander in favor of Democrats in putting together whatever diverse coalitions can be done so that minorities can “elect the candidates of their choice.”  And this entire theory, it seems to me, overlooks the fundamental question of where did this minority, I mean political minority, ever get a right to elect the candidate of choice.  If you’re 25-40 percent of the district, the notion that you should be able to elect your candidate and that district should be designed to insure that you, your preferred candidate, is elected strikes me as bizarre. 

I mean, I live in the District of Columbia and I’m -- I suppose that 30 percent of the voters in Massachusetts are Republicans and maybe 25 percent of the voters in the District are Republicans but we never really thought that we had a right to elect the candidates of our choice.  We understood that we were discreet and minority, where the majority was going to rule.  If we didn’t like it, we’d go to Virginia or somewhere else where we actually did have a chance to elect.  But we never thought -- we never had the hubris to suggest that we were a minority and therefore we had a right to elect our candidate of choice.  And that is precisely what’s being argued. 

I mean, to give you the legal background so that you can understand this, Justice Brennan rewrote the Voting Rights Act in the case called Gingles where he said, essentially, “Look, you have to draw these majority-minority districts if you can show three things:  That their right -- the majority group is a compact majority in the area and they lose under the proposed plan and they would win under the -- they’d lose under the existing plan and they would win under the proposed plan.  And really what the argument is in the Court next term, is going to be -- is well, strike that whole notion of us being a majority.  We want the only question to be, “Do we lose now, and can we win under our plan?”  And if we can win under our plan, then the federal courts are going to impose it on state legislators as required by federal law.

The point I want to make is that even Justice Brennan recognized that there had to be some limits to the maximization requirements of the Voting Rights Act.  In other words, you could come up with the theory for what is called the Gingles preconditions in the law, which is -- look, if you’re a natural relatively compact group of, let’s say African-American voters, it’s fair to presume that other groups similarly situated to you have that concentrated group preserved and they tend to be able to control the electoral outcomes in that area.  And if so, if a redistricting plan departs from that and fractures or cracks your majority status, then we can roughly infer that the redistricting plan is unfair.  And of course, it was an inherent caveat effect on the maximization requirements because it would depend upon demographics saying that there was this compact 50 percent group. 

So, you had some rough notion of equality there and you had some inherently limiting principle to the notion that districts will always be drawn in a way that the minority’s political coalition wins.  And now, the effort in the Supreme Court in this new case is throw out even that modest limiting effect that even Justice Brennan recognized as essential to make any of this coherent and just make it a straight, minority always wins -- minority candidates always win system.  You know, probably, you may have detected that I don’t think that that’s a proper reading of the way that federal statutes should be interpreted.

I’ll make the following other two, sort of, non-legal points which is -- that I think do relate to Mr. Peacock’s book, which is extraordinarily ironic that they’re pushing for this judicially imposed solution, overriding the political process in areas which are again, say 25-40 percent minority.  What you’re positing is that a minority candidate could be elected in a situation where minorities only constitute 25-40 percent, right?  Because if they’re aligned with Democratic voters or people of like political persuasions, which means these communities, on their own, have achieved the ideal of the Voting Rights Act.  There are no white bigotry barriers to a minority candidate getting elected.  We’re assuming that a minority can get elected in the 25 percent minority district.  That’s sort of what you’re hoping for, is that really the kind of racial Block voting has been eliminated. 

So what you’re doing is saying if you’ve achieved the kind of colorblind voting with -- that the Voting Rights Act wants, we’re going to penalize you by licensing federal courts to redraw your districting plans.  Whereas, if you could come in and say, “Look, it’s utterly hopeless,” in a 25 percent district that a minority could ever get elected because no white would ever vote for him, then you’re immune from having your district changed because you could say no matter how you put these coalitions together they’re never going to win.

And the other point is, of course, this is all happening in the wake of a, relatively historic, presidential campaign by Obama who, as was indicated earlier, has achieved, again, the ideal of the Voting Rights Act.  Where he is -- at least professes to transcend his racial identity, not be a mouthpiece for a particular group.

I’ve always thought -- unlike the people who are elected from these racially identified districts, I’ve always thought the best thing that ever happened to Obama was he ran for a heavily minority black congressional district in Chicago and lost.  And if he had won, he would have just become another mouthpiece for a group that is ghettoized in Congress and perceived as representing certain interest groups in the legislature, whereas he’s been able to, by being a Senator from the State, be transcended. 

And during all of these elections, he has gotten extraordinary amount of white, what we call white crossover, votes that totally refute the notion that there’s some kind of racial block voting going on.  And yet at this very time, we’re now going to have the federal judiciary come in, when all of these racial and attitudinal barriers are withering away in 2007 and impose -- or 2009 if it happens, impose a federal role in organizing electoral structures that we didn’t see in Mississippi in 1965.  And we just had Congress in 2007 extend Section 5 of the Voting Rights Act for another 25 years on the notion that -- and make its requirements even more difficult than they currently are on the theory that the situation is, again, somehow worse today than it was in Mississippi in 1965.

So in addition to the fact that the Court is really not the institution to set political theory, in addition of the fact that a political theory based on the notion that racial identifiability is the determinant of a good legislature, and the race -- and a political theory based on the notion that we are all indistinguishable components of our racial group and should be grouped accordingly is unconstitutional.  You’ve also got the practical reality that it often happens. 

The judiciary is clueless as to what’s really happening in American society and looking at a bunch of decisions from 1969 and expanding them even further when the American public and American race relations have made all of these sorts of judicial fiats largely irrelevant if not counterproductive.  So what you have is multiculturalism from the federal bench being imposed on the people who have gone -- who are struggling mightily and in many ways have gotten beyond the notion that various representatives should be reduced to their racial identifications.  So, if anything, it will have a tremendously counterproductive effect.

So, obviously, I echo thoroughly what I think is a very insightful book in terms of the perversion of not only American politics in the concept of republicanism but the perversion of the entity in our government that should be making these kinds of political compromises, the legislature, and transfer it to a non-elected federal judiciary.  And again, I make the final point, all this massive transfer of power and perversion of the Voting Rights Act at this period of time when there’s never been less of a need for, historically, to have this, kind of Washington-based, command and control of all kinds of local communities.

 Daniel Lowenstein:  Thank you, Steve.  Before you start the clock, I’m tempted to ask for time to rebut your introduction, in which you accused me, first, of being a political philosopher and then even worse of having anything in common with other law school professors who write about politics.  But I don’t want to take the time, so I vehemently deny the charges and enter my plea of not guilty and we can have a trial before a jury at some later time.

Steven Hayward:  I thought I was paying you a compliment, I assumed --

Daniel Lowenstein:  But now you can start the clock and give me a warning two or three minutes before you’d like me to shut up.

A long time ago, at least 15 years ago, probably more, a former student of mine was applying for some kind of teaching job at the Air Force Academy and he asked me to write a letter of recommendation for him.  So he sent me a lot of material and in that was a sheet that he had been given by the Air Force Academy that said in one paragraph, you know, the standard thing, “The Air Force Academy is a non-discriminatory employer.  We make a -- we do not discriminate on the basis of race, religion, national origin, et cetera, et cetera.”  And then the next paragraph said, “In order to assist us in complying with this policy, please provide us with information about your race, ethnicity, and so on.”

Now, I think in this book, Anthony Peacock contends that voting rights policy in America, especially since 1969, has been essentially the same as what was embodied in that letter.  And I think that to a large extent he’s right, and I think to a large extent, he makes the case in this book.  But as I look to the three distinguished gentlemen to my right, physically and otherwise, I conclude that I am here to be the token liberal on this panel. 

Now, if you were to talk to my Liberal friends who have been following my own ideological meanderings, they will tell you unanimously that I am distinctly unqualified to play that role, but I will do my best.  And also if you know Tony, you’ll understand my saying that I’m perfectly happy to say nice things about Tony but not in his presence.  So for both of those reasons, I will set aside the advice of one of the great American writers, Johnny Mercer, and I will accentuate the negative.

The -- let me start -- and I’m going to meander around, touch on a lot of points, as many as I’ve time for, somewhat randomly.  He starts out -- Tony starts out with setting a theoretical framework, and I think that this -- if you’re ever going to do add-on writing Tony, I think this is a part that really you should work on because I found it probably the weakest part of the book.  You’re just putting too many concepts in together, too quickly, and the relationship between them was not at all clear to me.  I think you really have to work that out better, you know, progressivism and multiculturalism and so on. 

And I’ll just give you one example.  On page 27, you say, “Early 20th century progressivism gave rise to post modernism and the deconstruction,” that just seems to me to be wrong.  The -- I think it would be more accurate to say, “Early 20th century progressivism or its later counterpart got blown away by post modernism and this deconstruction,” and -- maybe you have an explanation for that.  I just think that whole section needs to be worked out more carefully.

Now, I think -- let me move then to his other, sort of, introductory framework point, which has to do with the framers constitution what he calls the “commercial republic” and how it relates to current voting rights policy.  And here, I think, you worked that out better and there’s something to that, but I do have some problems to that, two in particular.  One is fairly specific but I think it’s worth mentioning.  On page 14, you say a theme of the constitution’s Republican theory is “the irrelevance of race and religion,” to politics and government. 

And in page 147, you say, “The Founders’ commercial republic would raise citizenship above region, race, creed, and class divisions,” and I think that if you are really thinking seriously about what you’re saying, it’s just staggering that you would say that the Founders thought that race was something that would be transcended and that therefore all people would participate in politics independently of race. 

I think that what you’re doing is taking the Founders’ ideas about religion particularly, some of the other things too, but mainly religion, which looking back from their period from the 17th century and part of the 18th century had been the hot button device of killing issue.  And you’re saying, the counterpart in our time, in many ways, is race and therefore you’re, sort of, analogizing a view of how we should think about this today to the way thought about religion but I think it’s just transparently and self evidently absurd to suggest that the Founders had that conception of race, I mean blacks were slaves, in overwhelming majority of cases and American Indians were certainly not thought of as people who were just part of the political community, no different from anybody else. 

And then the second broader point about this account, and I think it’s the big haul-in is you talk about the commercial republic of the Founders Hamilton and Madison and so on, and you say now, “Let’s apply that to today,” but you leave out the Civil War amendments, which are also part if the Constitution and I don’t know what, exactly, your story should be taking into account the Civil War amendments but I think you just can’t leave it with zapping forward from the commercial republic of Hamilton to, when your subject is race, to the present day. 

Okay, let me move on to the more legal and specific issues. I’ll just say briefly, I think you’re wrong to bring Reynolds into this, or Baker and Reynolds; it’s true that what you say about those cases are pretty much the same as what almost everybody says but almost everybody is wrong and I am right, I’ve laid this out -- by the way I would say, except for the things I’ve just talked about, most of what I see is, the deficiencies of this book have one common cause, and that is Tony’s failure to read and take adequate account of the readings –- writings of Lowenstein. 

So if you look at my chapter on Bandamer in a 1991 volume edited by Bernard Grofman, you will get a straight skinny on Reynolds and you will see that Reynolds was not a group right’s case.  It is clearly and explicitly and intentionally an individual rights case.  It does not say, despite how many scholars and Supreme Court justices and journalists have said and congressman, it does not say that there is a constitutional right to fair and effective representation. 

It says that fair and effective representation is the purpose of re-districting, which I suppose in some general, vague way, if you had no idea how re-districting actually works, you might say is true enough.  But that doesn’t mean it’s a constitutional right and there is nothing in Reynolds that says that’s a constitutional right.  I think you are right about -- Allen, or partially right at least, Allen does bring these concepts in.  I think it’s a great divide; I think there’s a huge difference between the individual right to vote in Reynolds which is formal and requires no political analysis whatsoever, and Allen --

[End of file - AEI 5-5-08 Tape 1 Side A.mp3]

 
[Start of Tape 1 Side B]

[Note: Due to cross-talking or distance from the audio recorder, some words and phrases are indiscernible]

Daniel Lowenstein:  As we’re trying to get the Court into the business of regulating partisan gerrymandering, all those things do require the Court to become super political analysts.  And I think it’s a bad business and that’s what Allen brought into it.  Now, I disagree with you when you say the reason for Allen and what followed from Allen is the multiculturalist ideology.  The reason for Allen is precisely what you said.  The facts in Allen stunk. 

This was from Mississippi, these were in the days when you didn’t have to know anything more; if it wasn’t from Mississippi it was bad.  And this was really bad and the Court didn’t like it, so they stopped it.  It was always –- it was an ideal case of hard cases make bad law.  It had nothing to do with multiculturalist ideology.  And I think that you exaggerate the extent to which the Voting Rights Act itself is based on multiculturalist ideology. 

Now, I said you exaggerated, I’m not saying that there isn’t truth in it.  And I think that where I really agree with you is on what you say about the language minorities and bringing those in.  I think that is -- I mean all the points you make about that, it is very different, it does not have the same clear foundation in our history and in the existing situation, as the protection of Blacks -- and it does have that ideology and, in fact, I think it began with a case involving Chinese-Americans in San Francisco.  And if you look at the lawyers of that case and just the whole ambience of that case, that was 60s and 70s radicalism.  But that’s not the whole story of the Voting Rights Act.  It’s a part of the story and I don’t think it’s even the most important part although it is a significant part. 

Okay.  A lot of your criticism of the Voting Rights Act, I think, is on the mark.  And -– but I also want to say that -- and I do think that the Court made it up in Allen, it wasn’t in the Act, although it was put in the Act in ’82.  So that’s why I think Thomas was –- I mean, I think, Thomas makes good points in Holder v. Hall but as a matter of law, he’s wrong because Congress had put it into the Act in Section 2 in 1982. 

But I also want to say this, although I agree with many of your conceptual points, I think it was a darn good thing to have blacks elected, especially in the 80s and maybe in the 90s, in large numbers for the first time to give them a jumpstart in electoral politics.  I really do think that was good.  I think our society is better for it.  So, and you know, you talk about, well, there was an increase in black elected officials before that, in the 70s and it’s true and in percentage terms, as you point out, the increase was large but in absolute numbers it was still very small and the real growth was in the 80s and the 90s.  And I think we are better off for that, much better off for that. 

So I see this as a much more mixed picture than you do.  Now, where I think we converge is, you have to say how much, you know -- a jumpstart is one thing but, you know, the guy who comes and charges up your car when the battery’s dead, you know, he doesn’t stay there trailing behind you with the cable stuck as you drive down the freeway.  He lets it go.  And I’m not convinced that we need this.  You know, the jumpstart worked and I don’t see any evidence at all that blacks, at least, and probably other minorities too, are in any way incapable of acting politically and protecting their turf and acting politically at least as competently as anybody else. 

I’m influenced, I suppose, by the fact that I come from California and the person who was the speaker at the assembly longer than anybody else in California was Willy Brown.  You know, if you’ve lived with Willy Brown for a couple of decades, you have a hard time believing somebody who says, “Oh, well, blacks can’t do politics.  They really need help from the Federal government.” 

So –- and then another point that I think you don’t make and you should, or at least, I think it’s a -– you know, it has to be offset against your position, is that -- especially with Section 2.  You make this point the Conservatives make -- and I think it’s basically baloney –- that well, we’re just assuming that blacks are, you know, have one view just because they’re black.  Well, I don’t know whether it’s just because we’re black –- they’re black, but we are not just assuming that they act politically cohesively.  They do.  It’s a fact.  Not always, but most of the time. 

And the second point is that, at least if you’re talking about Section 2, the genius of Section 2, in a way, is that when that stops being the case, Section 2 stops being operative because you don’t have a case under Section 2 unless you can prove polarized voting.  And that’s a point that Bernie Grofman has made very effectively in his work and I think you really need to take account of that.  I think you have a much stronger case on Section 5 entrenching what you call multiculturalism than you have on Section 2.  But you don’t really distinguish between those.  Just a word on –- well, I’ll –-

Male Speaker:  Slow down. 

Daniel Lowenstein:  I’ll skip over that.  I have to say something about racial gerrymandering.  Well, I wrote an article in the Stanford Law Review in 1998.  Anybody who’s interested can read it.  The title will tell you its tenor.  And the title is “You Don’t Have to Be Liberal to Hate the Racial Gerrymandering Cases”.  In my opinion, most Conservatives reacted to the racial gerrymandering cases as if they were great things.  They were terrible cases, they were obviously terrible cases for Liberals but for Conservatives who knew what they were –- who knew how to think straight, they would realize that these were terrible cases for Conservatives also. 

They -– If you believe in Federalism, and by the way, I spent eight years in California State government, I believe in States.  Most of you people presumably live either inside the Beltway or very close to it and for that reason I look at each and every one of you with suspicion, except for Jack who worked in the Alabama Attorney General’s Office.  And what the racial gerrymandering cases do is blame the victims, which are the States.  We have the Federal government going in there and telling them, “If you want a redistricting plan, you’ve got to do it this way and Max Black was what they said.” 

So the States, with this gun to their heads, said, “All right, we’ll do it.”  And then the Supreme Court comes along and says, “You can’t have your plan because it’s unconstitutional.”  And let me read to you an excerpt, from an opinion by Justice Scalia, of which Tony is very critical.  That makes this point, he says, “We have in the past–“ this is from the 2006 Texas case, “We have in the past left undecided whether compliance with Federal anti-discrimination laws can be a compelling state interest, I would hold that compliance with Section 5 of the Voting Rights Act can be such an interest.  We long ago upheld the constitutionality of Section 5 as a proper exercise of Congress’ Authority under Section 2 of the 15th Amendment to enforce the Amendment’s prohibition on the denial or abridgment of the right to vote.”  See South Carolina v. Katzenbach. 

If compliance with Section 5 were not a compelling state interest, then a state could be placed in the impossible position of having to choose between compliance with Section 5 and compliance with the Equal Protection clause.  Now Tony takes him for -- to task for that because he says, “Well, why is Scalia saying that Section 5 is constitutional?”  Well, he isn’t saying it’s constitutional.  He says, “We have held that it is constitutional and as long as we have held it, the states have to follow it.”  And he’s saying, “We can’t have” instead of saying, “You have to follow Section 5.”  But if you do you’re violating the Equal Protection clause. 

Now that seems to me to be pretty simple.  And why did it take Justice Scalia this long to figure it out?  Why didn’t he figure it out when he was doing the racial gerrymandering cases, which are absolutely inconsistent with this?  And very few other Conservatives have figured this out, even Abby Thernstrom wrote something casual and brief, that was along the same lines, approving the racial gerrymandering cases.  But I have reason to believe that Abby has seen the light and she has repented and it’s been Sachs and Ashcroft and she has come out born again.  And I’m just waiting for Tony but when I see how Conservatives react to this case, it reminds me of a person who is not one of my favorite writers but still who had a real point when he said, “The Conservative Party is the stupid party.” 

But I do want to end on a positive note.  And Tony, late in the book, makes a point that I think is very good and very important.  It’s a point that I’ve been concerned about and I think he develops more than my thinking had proceeded and that is in the context of Ashcroft -- And also and I really hadn’t thought about this that much in the context of Perry, the 2006 Texas case.  What’s happening, because of the way the courts -- and it’s not illogical. 

It’s not as if the Court is doing something stupid, it follows from a lot of what they had said and a lot of the way this whole thing has gone but we begin to get to the point where the –- where what the State does can be defended because it promotes the interest of the Democratic Party.  And obviously, promoting the interest of the Democratic Party promotes, at least, what blacks perceive to be their interest, whether or not it is their true interest, most blacks.  And so there’s a logic in that.  But that really does get troubling when you say something can be legal, under a statute, or constitutional because it benefits the Democrats and something similar would not be constitutional or not be legal because it benefits the Republicans and I think Tony’s discussion of that point is quite interesting. 

So with that note, I think it’s a book that has much in it that I can agree with and much in it that I can disagree with and I’m glad to have this opportunity to discuss with you.

Steven Hayward:  Thank you, Dan.  I will open up shortly to questions and comments from the audience but before I do that, Tony, do you have any rejoinders you want to make to Mike or, more likely, Dan, briefly? 

Anthony Peacock:  I’ll just be quick.  Just about a couple of points.  I would disagree with your interpretation of the Founders and the question of race.  Let me just say that without going into a lot of details.  I think people like Tom West have addressed a lot of the issues that -- in his book Vindicating the Founders.  And others have addressed some of the issues that you raised.  I don’t also -– I don’t think the Civil War Amendments affect the concept of Commercial Republicanism that I’ve developed in the book. 

In fact, I think they reaffirm, well, the 14th and 15th Amendments in any event, reaffirm the concept of a Uniform National Citizenship and are consistent with the Founders’ Commercial Republicanism.  I don’t look at Reynolds as creating a collective right, Reynolds is important because of the rationalism pieces in the book.  The collective right gets institutionalized under the Voting Rights Act.  You cannot have racial rights to representation without that being a collective right. 

And the last thing I’ll say very quickly, Steve, here.  It’s just -- about the Allen decision –- I agree that the facts in Allen were egregious and the Court had to act.  But as I pointed out in the book -- and the multiculturalism doesn’t come until, really -- they create the rule in Allen, from which the multiculturalism will develop afterwards.  But what the Court didn’t do in Allen is, they didn’t cabin [sounds like] or constrain the legal rule that they created, the case involving invidious or intentional discrimination.  What they did is they created a legal entitlement to racial representation.  That was the problem with the case.  Let me leave it at that. 

Michael Carvin:  Just this last point.  And I do want to respond to the Scalia passage.  Scalia says that, “If you’re complying with Section 5, it creates a compelling government interest to violate the Constitution,” which are undoubtedly the most idiotic words to ever come out of Scalia’s mouth and in Dan’s defense, while creative, is almost as absurd. 

If Congress passes a law that says all state legislatures will be 1/3 African-American and the Constitution says you really can’t impose racial quotas, I don’t hear that as an insoluble dilemma for State legislatures.  I think there’s a very easy solution to that dilemma, which is you strike down the statute that is abhorrent to superior law.  Now Dan and Scalia are apparently saying, “Oh, well, we can’t do that because we upheld the Constitution [indiscernible] Section 5 in Katzenbach. 

Well, there was no issue in Katzenbach about whether an interpretation of Section 5, requiring the creation of majority-minority districts, was at all constitutional under the 14th amendment.  It wasn’t even an issue presented.  The question was whether or not these Federalism burdens could survive in 1967.  So, no, it’s quite simple to say, any interpretation of Section 5 as rammed down the States’ throats by a bunch of GS12s at the Justice Department, of Max Blacks, is not something that we are going to find as a waiver of the 14th Amendment.  What we’re going to do is tell the GS12S not to do it anymore and then the dilemma for State legislatures will be solved.  So the notion that whatever pops into the Justice Department’s Head becomes a compelling government interest because it creates an insoluble dilemma is –- I’m repeating myself -– idiotic and absurd.  But you may have a different view. 

Daniel Lowenstein:  Oddly enough, I do.  First of all, I’m agreeable to a part of what you said.  Yes, what the Court should have done, if it was concerned about this, was to say the Voting Rights Act -- it doesn’t mean what the Attorney General acted as if it meant -- which they have done or that, and they have not done this, it’s unconstitutional.  But what they did in these cases was not due to either of those.  They just said, “Because the States complied with what the Attorney General required, we’re going to strike down their plans.” 

Now, if it were just an ordinary statute, if Congress passed a statute like you said, the State has to make sure that a third of their members, their representatives are black, the Court could just declare that -- and if the State acted on that, the Court could declare that unconstitutional.  But Section 5 is unique in the sense that the State doesn’t have the opportunity to judge for itself that the –- what is being required is unconstitutional.  The State cannot implement its redistricting plan at all without pre-clearance. 

So, I think that in that context and we have the question which Tony raised in the book and I didn’t have time to discuss, whether in 2008, that is constitutional.  But if it is constitutional or even if it’s unconstitutional, I think this is basically his point, as long as it is in effect it’s just not fair to dismantle what the States did on the grounds; it’s unconstitutional when they literally had no choice, they didn’t even have the choice of civil disobedience. 

Michael Carvin:  This will be the last.  Why is it unfair if a Federal court, if they had gone to the three judge court, the District of Columbia courts said you’ve got to do your redistricting plan there?  It’s not the State’s fault.  The Court has imposed it on them just like the Justice Department imposed it on them.  Who is it unfair to, do you say?  The State, by virtue of a direction from a Federal entity is violating the constitutional rights of citizens. 

Well, we are going to overturn the violation of the rights of Constitutional citizens, regardless of whether the State came to that decision on its own or because some other Federal actor told them to do it.  In all events, it’s all inferior to the Constitution, there’s no unfairness.  Once you’ve struck down the unconstitutional act, then everybody is able to go and draw -- The State legislatures are then enabled to draw its own plan.  So it’s not unfair to the States, it’s liberating to the States. 

Daniel Lowenstein:  Well, this is the difference between somebody who lives his life in the Beltway and -- if the State legislatures adopt the plan and they get struck down for no fault -- Big deal, who cares?  I take the State legislatures more seriously. 

Michael Carvin:  Right.  And I -- what I -- don’t use State legislatures as agents of GS12s in Washington.  Now, you can view that in many ways but as an anti-Federalist view, it certainly is not that.  I am the one who’s advocating Federalism principles because I think State legislatures should be able to make these decisions for themselves, free of -– so long as they don’t violate the Constitution. 

Steven Hayward:  Do you want to get in the crossfire here?

Anthony Peacock:  Yes, if I can pile on here.  Just -– sorry.  Just to clarify just so people know what the heck we’re talking about here.  I’m critical of this opinion of Justice Scalia’s, in the Perry case, that 2006 Texas redistricting case.  Because he and Justice Thomas were emphatic, in the 1990s, that you could not simply allow these race classifications under the Voting Rights Act, you get a Constitutional pass. 

That is, you couldn’t –- the Constitutional test is –- if you classify citizens by race, you’ve got to do two things; show a compelling State or Government interest in doing so and two, show that your classifications are narrowly tailored to meet that interest.  In the 1990s, Scalia and Thomas said, “All race classifications including those under the Voting Rights Act are constitutionally suspect.”  You have to show one account of state interest that is narrowly tailored.  In this passage that Dan cites from 2006, Scalia is now saying, “On the basis of an authority that gave constitutional justification to Section 5 from 1966, the Katzenbach decision that Mike referred to, that involves South Carolina, Jim Crow South Carolina, in the mid-1960s on the basis that that decision will still uphold the constitutionality of Section 5 in 2006.” 

I’m saying in the book that it’s absurd to do that one.  They’ve abandoned their more principled position, he and Thomas -- because Thomas signed on to the same opinion, he and Thomas have abandoned their more constitutionally principled decision in the 1990s.  And secondly, I think it’s absurd to uphold Section 5 in 2006 on the basis of a decision from 1966 from South Carolina.  That’s the basic point I want to make in the book.            

Steven Hayward:  Okay.  Let’s go to questions.  Gentleman here.  And then I’ll –-

Male Speaker:  I had a chance to look at some of the internal Justice Department legislative history of the Voting Rights Act when it was relatively young.  And I knew that’s not all available currently but I think there are a number of ironies that, in this discussion, that everyone assumes that the Voting Rights Act empowers the Judiciary.  But the original purpose was to eliminate judicial discretion because a particular group of judges in one region of the country could not be trusted. 

And the idea was to create some formulas which were relatively simple to implement, they were expected to be simple to implement, because everything was quite literally black and white and there was no middle class and there were no language minorities and the assumption made by the people who wrote the law, which was principally Harold Green and a bunch of equally smart people in the Justice Department, who were, I think very principled, was that the pre-clearance process would be a relatively clear exercise that couldn’t be manipulated and that would effectively provide the right answers.  So this was a way to implement the will of Congress and to take power away from the Judiciary. 

Now, of course, everything’s changed but another assumption, I could be wrong here, because of course Reynolds v. Sims was decided in 1964 so people knew about it.  But because in the affected jurisdictions, there were very few black voters.  So I don’t think reapportionment was really on the mind of most of the people drafting and voting for that Act.  I mean reinforcement wasn’t going to happen until the early 70s and again, I just think that the original purpose of the Act was almost the opposite of what some of the later consequences have been. 

It was -- and also I would emphasize, because I think this is something completely lost on people that come into this today.  The writing of that Act and Civil Rights Act in 1964, there was an enormous respect for Federalism.  I mean this was viewed agonizingly by Archibald, Cox, by Katzenbach, but all these wonderful legal minds were really perplexed by, “How do you deal with the situation?”  And the decision was, kind of, made in the ’64 Act but the idea that we would have Federalized, you know, make the Federal time to [indiscernible] gone to school. 

[Indiscernible] it was a very consistent rationale that because of the extreme situation in the South, that the local authorities could not be trusted and that this had to be Federalized so it was a very deliberate decision, once it was made in the ’64 Act.  Of course, the ’65 Act and the Right to Vote was seen as facilitated, then the final thought I would have is, I don’t think that the authors of that Act anticipated that there would be large numbers of blacks elected in the South or anyplace else, really, ever.  And this was about making people voters and the idea was that by voting, you would have influence on your elected officials, white or black. 

I mean that was the mindset that I think they had, you know, 40 years ago.  And so it’s very different than where it’s –- how we look at it today.  And I’m personally very excited about -- I’ve learned that I guess Ron Lansberg got a defense appeal but Harold Green’s papers are at the Library of Congress and I had an opportunity to talk to the archivist, and yes, we’re getting to it, but you know, not that many people are interested in, you know, the 18 T [sounds like] case anymore.  Yes, but, you know, he wrote the Voting Rights Act and the archivist I guess hadn’t gotten far enough to realize that.  But hopefully, some time in the near future or it’ll probably enlighten a lot of us.

Steven Hayward:  Comments, anyone? 

Michael Carvin:  Yes, I mean actually I think it’s very insightful.  [Indiscernible] Dan said earlier that hard cases make bad law and the truth is that you can point to virtually every judicial access, it was to solve the insoluble problem of racism in the South.  That was when the Judiciary started exceeding its role in a very serious way in terms of running other institutions, sort of twisting laws to say ‘X’ when they really said ‘Y’. 

And why you had for example the effects test in the Voting Rights Act and the Judiciary created an effects test in these employment -- the 1964 Act was precisely what you were saying.  They just didn’t trust Southern judges to find discriminatory intent no matter how overwhelming it was and the rationalization for this mini-usurpation of the democratic process and adherence to legislative language was always that -- again, like what Dan said a little earlier, we’re just jumpstarting the process. 

This is all going to be temporary.  That Section 5 was just going to be in place for five years.  We’ll solve this knotty problem in the South and then we’ll go back to normal and we’ve seen how untrue, unfortunately, that -- you know, it’s just classic sort of once something is out there, trying to put the genie back in the bottle is impossible, and now you’re extending the degree of Federal judicial control even though the circumstances justifying it had decreased markedly and I think that’s all reflected in the kind of papers you were talking about. 

Daniel Lowenstein:  Yes, I think that what you talked about is something that -- there is, just about, no disagreement between any of us on.  I think that what you said is absolutely right.  And particularly about the point that they weren’t thinking about redistricting or annexations or other things -- multi-member districts or anything like that.  And that’s why the Allen case is so important and we all agree that it is because that was what took it out -- The original purpose of the Act was to assure to -- black people of the South access to the right to cast a ballot and have it counted the same as everybody else’s ballot.  That was the purpose. 

I think probably everybody was surprised at how successful it was and how rapidly successful it was.  And then Allen came along and that really changed everything.  And I’m not myself a student of the legislative history of the ’64 Act but if you read Allen, you’ll see that Justice Warren and Justice Harlan have a battle on the legislative history and I think anybody who reads that is going to say Harlan cleaned the floor with Warren on that.  It’s not even close. 

Michael Carvin:  It never entered their mind for precisely the reason you said; it wasn’t even around during the next round of redistricting.  Abby, you’re next and let’s see. 

Abby Thernstrom:  [indiscernible] -- whether this qualifies as the born again they’ve described me but I am in agreement with Dan on a crucial point and it’s a departure from my book of 20 years ago [indiscernible].  And by the way, I’m doing an update [indiscernible].  But Tony, you said -- you asked what drove Allen’s creation, the creation of the Allen decision, in effect the system of reserved seats for blacks and Hispanics and you go right to multiculturalism. 

And I am in agreement with Dan when he said, “Wait a minute.  What [indiscernible] is very simple.”  The absence of black faces in political office, the absence of a black political class.  And after all, the larger hope of the Voting Rights Act was the integration of American politics, which had to be, not simply blacks casting their ballots, but blacks having a real political power.  And it does -- it seems to me that in 1969, that was [audio glitch 27:00-29:55]

Michael Carvin:  Well, we know they have four votes for the Martin Frost, so the only thing standing between us and Armageddon is Tony Kennedy and I’m never really happy when he’s the –-

Male Speaker:  [cross-talking] Talk about a bad situation. 

Michael Carvin:  Say.  So, you’re a whole lot more -- saying what -- about this situation than I am.  But, well, there’s two points that need to be emphasized.  They may not say, “Well, these are districts where you could elect white Democrats,” but it’s not nearly as much a stretch to say if a black Democrat can get elected in the 35 percent district, why are we insisting on a 50 percent district?  And my point is that there’s a lot of data, particularly -- go through the Obama primary results, there’s no 35 percent district in any state he has run in where he can’t get elected. 

So it’s simply untrue and I could see them together, cobbling together some compromise, well if they’re the majority in the primary as opposed to this.  Look, I hold out the hope that Kennedy won’t go South on this.  He’s been particularly good on the Voting Rights Act among these other things.  But, you know, among other things, the guy arguing the case from North Carolina is a very skilled zoning lawyer who’s never come in contact with Section 2 and they got 16,000 amicus on the other side, which -- so some of these points may not be made. 

And then finally on your point on racial polarization, that’s entirely true.  I mean, I can’t agree more with Bernie Graffman that the -- Section 2 goes away when racial polarization goes away and that’ll be when hell freezes over because the way it’s described is, whites and blacks vote the same, including in general elections.  Well, there’s no group of whites that I’m aware of that votes 95 percent Democratic. 

So until –- at which point of course, I’ll be in Canada if whites start voting 95 percent Democratic.  So it certainly won’t in my lifetime as an American citizen.  So until this massive cohesion for the Democrats occurs in whites, there will always be statistically significant differences between the way whites and blacks vote and therefore under the most accepted, albeit entirely erroneous, definition of racial polarization it will persist. 

Abby Thernstrom:  So you do not take as -- regardless of important effect that Congress in 2006 -- is that influence districts don’t count. 

Michael Carvin:  No.  I, you know, I -- well, now, we’re getting into a whole different discussion.  That actually is a strong argument on the proponent side, which is -- the language of that Ashcroft override says, “Any diminution in the ability to elect a minority preferred candidate is prohibited by Section 5.”  Now, we are the stupid party because Senson [phonetic], Brenner, et cetera thought that actually was anti-influence districts while I think most people familiar with the English language would say that’s enshrining influence districts.  Yes, yes. 

Abby Thernstrom:  [indiscernible]

Steven Hayward:  Dan, comment?

Daniel Lowenstein:  Well, one point that Mike made -- I think I understand what he was getting at but I –- it made me think that he doesn’t know much about Canada.  You might think of Singapore. 

Michael Carvin:  That’s true.  Maybe I –-

Daniel Lowenstein:  And one other preliminary point.  Abby, in my Stanford article, I wasn’t trying to get you off of Whose Votes Count.  I thought that that little thing you wrote in reaction to the racial gerrymandering cases was inconsistent with Whose Votes Count.  I was trying to encourage you to go back to it, to Whose Votes Count. 

Abby Thernstrom:  [Indiscernible]

Daniel Lowenstein:  You wrote some little thing, I forget where it was, commending the racial gerrymandering stuff and I took you to task for that.  And I think I said that your position was not consistent with what you had said on Whose Votes Count. 

Abby Thernstrom:  And I think what I just said about Allen, it’s not consistent.  I know it’s not consistent with Whose Votes Count or it’s not consistent with the way Whose Votes Count has been read, which I always felt [indiscernible]. 

Daniel Lowenstein:  Yes.  Okay.  Yes, the way it’s been read -- I mean I don’t know of a single book that has been trashed with less justification than Abby’s book.  But that’s another subject. 

In response to your question and it is a very tough one.  The question is this, the legal question is when you’re looking at polarized voting and you find that blacks vote, in a particular area, vote very differently from whites.  And you’re trying to decide, is this polarized voting for -– and that’s not a phrase from the Voting Rights Act but it’s used –- is that polarized voting for purposes of the Voting Rights Act?  And one view, which was Brennan, well, the other view is that’s not enough because you have to look at why blacks are voting differently. 

Is it because being black itself is a causal factor of voting in a particular way or perhaps when you do what social scientists call this multiple regressions, you find that -– or multi-variant regressions –- you find that, well, no, it’s really because let’s say people with a certain amount of education vote this way or people within a certain income.  And when you play it out, you find that once you’d allowed for education or income or whatever factor it might be, blacks are no different from whites.  That’s one view. 

That’s not the view that Brennan took in Thornburg v. Gingles.  Brennan’s view was “No, it doesn’t matter.”  And maybe it’s true that people with a certain amount of education or a certain amount of income vote one way and people with different education and income vote the other way.  And after you do that, you find out that blacks are the same as whites.  But nevertheless, if in that area blacks are overwhelmingly in one education/income category and whites are in the other, and therefore they vote differently, that’s all you need.  That’s the issue. 

Now, I think that, as a matter of statutory interpretation, I think Brennan is fairly clearly correct.  I think he’s got a very strong case on the language of the statute, just on the –- on what the language of the statute is.  But as to what is the best policy, I find it very difficult.  But when you say -- and Mike says given the Brennan view, right or wrong, the significance over the consequence of it is that we have polarized voting until kingdom come.  I have a few responses. 

First of all, that -- the fact that blacks are so overwhelmingly Democratic doesn’t mean that this would be true in local non-partisan elections.  And, you know, I don’t live in the South and I don’t have a real feel for this but, you know, if we started to see polarized voting disappearing in non-partisan elections, it seems to me that that would be a good sign that something different was going on, things were changing. 

And, you know, I like to take, you know I’m an academic; I feel I should take the long view.  And early in my lifetime, I think through until 1964, blacks were not such a block voting group.  They were certainly predominantly Democratic from the 30s on.  But much more in the way that, say, Jews and certain other groups are mainly Democratic or other groups are mainly Republican and so I don’t see that it’s written into the laws of physics that blacks have to be 90 percent-95 percent Democratic forever and ever. 

But I think that as long as they are and it maybe that this is going to be true for the next 50 -- you know, I expect it to be true for the rest of my lifetime, which isn’t saying very much.  But while it is true, that in itself is a problem for our society.  I mean, it’s not that it’s anybody’s fault or, you know, but it’s just a phenomenon that we would be better off if it didn’t exist.  And so it’s going to create a lot of problems.  And one of the problems it creates is in this particular corner of the law.  So I think you might be right that it will be true, at least in partisan elections until, well, I don’t think until hell freezes over but for a very long time until we get some seismic shifts in our configurations.  And I guess I would say, well, maybe so but that’s something we have to live with because we have this basic underlying problem. 

Steven Hayward:  But, Abby, I’d be –- I want it -– we’re almost out of time and since Mike bills by the hour, unlike us academics, I want to get a couple of other questioners in.  David’s been waiting patiently. 

David:  [indiscernible] time to come.  And [indiscernible] the issue that I could see is that, okay, without these, sort of, protected class, what do you do when you’ve got a situation where -- let’s say the district is, say 30 percent black, 30 percent Hispanic, maybe the Hispanics in this the district are going to be more Republican, how are you going to balance those interests?  [indiscernible] as soon as I saw this stuff this -- this is weird district, this -- only in America but what kind of response do you expect to see because this going to happen in places in Texas and California [indiscernible]. 

Michael Carvin:  I’d like Tony to hold the floor because it is his book.  Look, there are two ironic things -- Oh, sorry.

Anthony Peacock:  No, go ahead, Mike. 

Michael Carvin:  That is -- the ironic part is that anybody who litigates voting rights cases has known for an awful long time that they would try and create this majority –- solve this majority-minority problem by just lumping together blacks and Latinos and treat them as indistinguishable, which in my mind is vaguely racist, you know, anybody with slightly darker skin color. 

But again, the interesting phenomenon, the Obama race, is that it’s put lie to the notion, I think, that there’s this -- some kind unity of interest between Hispanics and blacks.  If you look at the results, in fact, he’s probably attracting less Latino votes, all else being equal, than he is among those, for example, white males.  So that’s how they tried to solve the problems -- was paper it over then stick them together.  And then if it was a Latino majority versus black majority, there’s no law and it’s flip a coin.  But –-

Anthony Peacock:  Well, you know, this problem actually goes back to 1977.  This -- maybe I can respond to your point, David and Abby’s point, at the same time.  You know, what happened in that case, they lumped Puerto Ricans and black voters in New York City together and the Puerto Ricans didn’t like this.  And they were very explicit in their briefs.  You know, we don’t want to be lumped in here because we’re different and we deserve our own district. 

And, you know, that problem happens on a regular basis and I agree, Mike, you know, this is –- this sort of smacks of racism, that you’re making these presumptions.  But that would be my explanation with respect to the multiculturalism, going back to the 70s, that it’s very hard defining the language of the Voting Rights Act and anything requiring this sort of thing and the UJO case, United Jews Organizations case that was decided by the Supreme Court in 1977 but it started way back in the early 1970s. 

By 1973, the State of New York was saying, “Well, you know, why do we have to put all these voters, these Puerto Ricans and these black voters, in these districts again?”  And the explanations they were given by the Justice Department had nothing to do with Southern politics.  And it’s the NAACP that creates the requirement for 65 percent voting majority, basically 65 -– this is the original source of the concept of the majority-minority districts -- presumably comes from the NAACP, this is what Judge Frankel and his dissenting opinion in the United Jews Organizations case says before the case gets to Supreme Court, he says, “Look,” -- you know, I asked these guys and he quotes testimony from the trial. 

You know, why -– where did this quota come from?  Well, it apparently came from the NAACP that had asked for this.  Well, was it required?  Well, the Department of Justice kind of hemmed and hawed and they hemmed and hawed and I got the distinct impression that that was required.  So, I think that this, sort of, thing has been going on for a long time.  It’s going to continue to go on and I don’t think you can tie that to Southern folks.  I agree. 

You know, this is obviously a key concern but if you look at the most important Supreme Court decision of the 1970s and I think the UJO case is the most important constitutional case because it gives constitutional legitimacy to this.  It doesn’t really have anything to do with that and that’s why I think you can trace the lineage.  It’s not all there at the outset but it’s clearly there in very distinctive form in this most distinctive of cases from a state that obviously is not intended, originally, to be covered by the Voting Rights Act. 

Abby Thernstrom:  Well, the 65 percent mark comes out [indiscernible].

Steven Hayward:  Henry?

Henry:  Since the Voting Rights Act, [indiscernible] has resulted in a certain [indiscernible], very likely be the first [indiscernible] with the other party [indiscernible] otherwise now suggest that it be a Democratic victory.

Michael Carvin:  You know, again I’ll be in Canada so --

Daniel Lowenstein:  I thought we agreed on [cross-talking]. 

Henry:  Don’t forget that for everybody [indiscernible] you predict will be done differently if a very Democratic controlled Department of Justice, with respect to the interpretation of the Voting Rights Act [indiscernible]. 

Daniel Lowenstein:  Well, I don’t know.  Actually, if you look at Barack Obama’s website, I think it’s www.obama.com or www.barackobama.com, he’s got a short section in there that he says he will aggressively -- he will stop the politicization of the Justice Department, the Civil Rights division of the Justice Department, and start enforcing the Voting Rights Act the way it should be enforced, something to that effect, which I assume means that we may well see the push, you know, to go down this road that we see in the Perry decision and that we’ll see briefs filed on behalf of the Administration in support of that and you’re going to have a lot of amicus briefs filed in support of that from various groups that would have an interest in it.  And it may become a serious proposition especially I mean [indiscernible] is –-

Henry:  What you’re saying is that they would uphold Section 5 pre-clearance to only approve plans that [indiscernible].

Anthony Peacock:  That’s right, something to that effect.  I think you could see that and if you could -- the other thing to factor into this is that what if, you know, what if he appoints one or two more justices to the Court?  Say he’s in there for a term or two, when you combine these things and, you know, if he gets a filibuster-proof Senate after the next election, you know, that’s not unlikely.  As Mike pointed out, they’re essentially -- that there’s already a majority.  I don’t think Alito and Roberts are going to go there.  I don’t trust Kennedy but all you need is basically one more vote and they will go there.  And think that, you know that that’s a distinct possibility. 

Michael Carvin:  I was actually there I mean, you know, it was all part of this Republican, totally cynical effort, to create these majority-minority districts for political gain and I was there in the 80s.  My view is frankly that the notion that the Civil Rights Division was pursuing some partisan agenda in the 90s because Bush was President is a fallacy.  The people who ran that division, particularly since you had a political appointee who was completely spineless, were the staff people.  And their dominant view was blacks trump Democrats, Democrats trump Republicans. 

And so if the blacks wanted -- which they did, pretty uniformly, these majority districts, blacks and Latinos, they were going to give it to them, notwithstanding the fact that the white Democrats were squealing.  But now, particularly given this change in the language of Section 5 and if you had an Obama presidency, they could be equally aggressive about pushing districts that benefit Democrats politically.  So what you’ll see is, in -- when a Republican legislature draws the plans, they’ll push majority districts and influence districts and they’ll take whatever influence districts the Democratic legislature set up for them. 

Daniel Lowenstein:  If the Bush senior administration had cared about this, they could’ve controlled the career people in the Voting Rights Division.  The only thing worse than a Republican controlled Voting Rights Division that I can think of is a Democratic-controlled Voting Rights.

Male Speaker:  Last question.  Yes? 

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