Voting Rights--and Wrongs: The Elusive Quest for Racially Fair Elections
By Abigail Thernstrom
AEI Press, June 2009

Click here to view this press release as an Adobe Acrobat PDF.

Buy a copy of this book.

Media inquiries: Véronique Rodman
202.862.4870 (vrodman@aei.org)
Orders: 800.462.6420 or www.aei.org/books

FOR IMMEDIATE RELEASE: JUNE 2009

The 1965 Voting Rights Act is the crown jewel of American civil rights legislation; its passage marked the death knell of the Jim Crow South. But that was the beginning, not the end, of an important debate on race and representation in American democracy. When is the distribution of political power racially fair? Who counts as a representative of black and Hispanic interests?

Abigail Thernstrom, vice-chair of the U.S. Commission on Civil Rights, explores these complex, unresolved questions in Voting Rights--and Wrongs: The Elusive Quest for Racially Fair Elections (AEI Press, June 2009), a legal and political analysis of the forty-year-history of the Voting Rights Act. With publication coming shortly after one important Supreme Court voting rights decision (Bartlett v. Strickland) and just before another (NAMUDNO v. Holder, decision expected in June), this timely book by one of America's leading voting rights scholars provides an invaluable historical perspective on critical voting rights issues today.

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

Majority-minority districts that reserved seats for blacks and Hispanics succeeded in integrating southern politics. These districts, though, have numerous drawbacks. By now, they may perversely limit the potential power of black officeholders. "Max-black" districts typically elect candidates to the left of most voters; those officeholders rarely even run in majority-white settings. Such race-conscious districting discourages the development of centrist, "post-racial" candidates like Barack Obama (who was defeated when he stood for Congress in one such district). These "safe"--and, in effect, segregated--seats stand in stark contrast to the integrationist vision that guided the civil rights movement in its heyday. As Juan Williams writes in the foreword of Voting Rights--and Wrongs: The Elusive Quest for Racially Fair Elections:

At no point in American history did black leaders endorse separatism that would have black politicians elected to Congress from a seat that was labeled "blacks only" and then consigned to some racially-exclusive caucus that remained on the edge of deal makings and deliberations at the heart of the government…. Abigail Thernstrom is at the cutting edge of the new possibilities of cross-racial unity with the arguments she presents in this book. Her goal, it seems to me, is protecting honest, nonracial competition of political ideas and leadership in service to America's democratic ideals.

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

In 1965, when the Voting Rights Act was first crafted, it was near-perfect legislation: It precisely targeted a great evil, and it applied powerful remedies. Today, two key provisions concern scholars such as Thernstrom.

Section 5 of the act requires "covered" jurisdictions--originally just the Deep South but today including far-flung counties in states such as California, New York, and New Hampshire--to submit all changes in their electoral systems, no matter how trivial, to "preclearance" by the Department of Justice. It effectively places the electoral systems of these states and localities in federal receivership. In 1965, a century of Fifteenth Amendment violations demanded such extreme measures--in effect, federal wartime powers. But the consequence was a serious distortion of our constitutional order that was clearly justified in 1965; is not today, however.

Repeated renewals of section 5 have extended its life to 2031. The emergency of black disfranchisement has come to be seen as near-permanent--even in an era when an African American can be elected president. Yet in 2006, Congress concluded that electoral discrimination is only "more subtle than the visible methods used in 1965." Such demagogic nonsense sends a discouraging and dangerous message to African-Americans today.

Section 2 of the act was revised by Congress in 1982 in ways that conflated equal electoral opportunity with equality of outcomes--and in interpreting this provision, the Supreme Court created a right to proportional racial representation for blacks and Hispanics. But the drive for proportionality ignores the complexity of a multi-ethnic society and, in any case, will become increasingly difficult to sustain in America's rapidly changing racial and ethnic landscape.

As Thernstrom notes in Voting Rights--and Wrongs: The Elusive Quest for Racially Fair Elections:

• Majority-black districts are likely to become difficult to draw. The Hispanic population has grown spectacularly in recent decades, and Latinos are dispersed across the land. Whites and minority groups are sharing urban space. Demographic change, which will only accelerate, will make the quest for proportional representation ever more elusive with each passing year.

• Racially gerrymandered "bug splat" districts--designed to maximize the concentration of minority voters--involve what Chief Justice John Roberts has called the "sordid business [of] divvying us up by race." In that same 2006 decision, Justice Anthony Kennedy objected to the assumption that all Hispanics are alike. Racial sorting and racial stereotyping is what the Voting Rights Act has come to be all about--a far cry from its integrationist origins.
  

• Voting rights advocates often argue that widespread white bloc voting still excludes blacks from elected office, but they rest the charge on a definition of bloc voting that ignores the difference between racist voting and black electoral defeat for reasons other than race. There is little evidence today of whites rejecting black candidates that cannot be explained by ordinary partisan preferences.

Minorities "are not immune from the obligation to pull, haul, and trade to find common political ground" with other voters, Justice David Souter wrote in 1994. By the 1990s, he implied, blacks and Hispanics had become normal political interest groups--no longer politically helpless and in need of vigilant federal protection. True political equality can only be built on recognition of citizens as individuals with fluid identities, free to emphasize their racial and ethnic identity as they wish and to coalesce in any manner they may choose.

Different assumptions about white racial attitudes, persistent exclusion in contemporary America, the nature of representation, the importance of race to individual identity, and the moral legitimacy of sorting Americans on the basis of race and ethnicity drive arguments over minority voting rights. To write about the Voting Rights Act is to write about race in America.

Abigail Thernstrom is an adjunct scholar at the American Enterprise Institute, vice-chair of the United States Commission on Civil Rights, and a member of the board of advisers of the U.S. Election Assistance Commission. 

Juan Williams, author of the foreword, is one of the nation's leading journalists. He is a senior correspondent for National Public Radio and a regular contributor to Fox News Sunday.

To schedule an interview with Abigail Thernstrom, please contact Marshall, Nappi & Schulz Publicity: Gwen Nappi, (703) 329-4836 or gwen@mnspublicity.com, or Stephanie Marshall, (202) 487-3393 or stephanie@mnspublicity.com.

###