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“I was shortsighted, naïve and narrow-minded to endorse the concept of drawing Congressional districts to take racial demographics into account.”1
Cynthia Tucker, in her confessional editorial in the South’s premier newspaper, was too hard on herself. She had long supported race-conscious districting, but her erstwhile convictions had been those of the entire civil rights community and of elected officials across the political spectrum who saw such districting as one litmus test of a commitment to racial equality.2 As the only black editorial page editor of a major newspaper, Tucker could hardly have thought anything else.
In addition, it was in fact neither shortsighted nor naïve to have regarded the deliberate drawing of districts sure to elect minority candidates to legislative office as important in earlier times. As Tucker herself notes, “[T]he tactic worked. In 1980, there were only 18 blacks in the U.S. House of Representatives. Now, there are 44, many of them elected from districts drawn to meet the mandates of the Voting Rights Act.”3 They were drawn, that is, to conform to the demands of section 5, the preclearance provision of the statute—as it was interpreted in both Democratic and Republican administrations.4
The preclearance provision demands that districting maps in jurisdictions considered “covered” (which are mainly in the South) obtain approval from the Justice Department or the District Court of the District of Columbia before being implemented.5 The districts that sent many new black representatives to Congress would not have been precleared for use in upcoming elections unless the states had been able to prove their plans did not “have the purpose and [would] not have the effect of denying or abridging the right to vote on account of race or color.”6 Those that have been precleared have usually been drawn to guarantee safe seats for minority candidates.
How many black House members would have been elected had they not been protected from White competition in the safe majority-minority districts that the Voting Rights Act came to demand? Far fewer, it is safe to say. A number of critics of section 5 began arguing against race-driven electoral maps as early as the 1980s. The balance between costs and benefits was not a simple question when White southern voters would not vote for black candidates, whatever their credentials.7
“Shared political power was integral to respect and self-respect. And, in recent decades, black electoral success never dissipated that yearning for both—which was surely one reason African-American voters were so euphoric when Barack Obama won the 2008 presidential election.” -Abigail ThernstromThe importance of descriptive representation—blacks representing blacks—cannot be dismissed. The history of Whites-only legislatures in the South made the presence of blacks both symbolically and substantively important. Shared political power was integral to respect and self-respect. And, in recent decades, black electoral success never dissipated that yearning for both—which was surely one reason African-American voters were so euphoric when Barack Obama won the 2008 presidential election.8
Racially integrated legislative settings worked to change racial attitudes. Most southern Whites had little or no experience working with blacks as equals and undoubtedly saw dark skin as a sign of incompetence. When blacks became legislative colleagues, their presence inhibited the expression of racist sentiments, and conversations in the public arena changed.9
And yet not only Ms. Tucker but many spokesmen for black political interests are today beginning to question their prior commitment to what the ACLU once called “max-black” districting.10 The racial zeitgeist is changing as racism wanes. Civil rights advocates no longer predictably embrace a policy that once seemed clearly in the interest of African Americans. In 1995, Representative Melvin Watt, D-N.C., argued that without racially gerrymandered districts designed to ensure black office-holding “you’re not going to have minority representation in Congress. It’s just that simple.”11 Today, by contrast, Watt is arguing that the goal of the Voting Rights Act was “to level the playing field for African American candidates and voters. It was not designed to create racial ghettos.”12
Tucker and Watt are not the only black voices on the political left questioning the old civil rights orthodoxy with respect to race-based districting, although the grounds upon which they break with the old assumptions differ. Tucker’s focus was with the politicians elected from safe minority districts who “found that they could indulge in crude racial gamesmanship and left-wing histrionics,” while Rep. John Lewis ex-pressed concern that the drive for majority-black districts was reducing the political power of Democrats.13 Thus he argued in testimony in a 2002 case that lowering the black percentages in majority-minority districts would place more blacks in majority-white settings, helping White liberals get elected.14 If Democrats became the minority in the legislature, he explained, black representatives would lose important committee chairmanships. “I happen to believe that it is in the best interest of African American voters … to have a continued Democratic-controlled Legislature,” he said.15 Almost every African-American member of the state Senate, including the majority leader, shared his concern.16 Republican state legislators drew the post-2010 maps in North Carolina. “Opponents say Republicans have twisted those laws and court rulings to justify packing black voters into a few districts and preventing them from having broader influence on Election Day,” the Raleigh-based News Observer reported in September, 2011.17 “‘The Republican effort in this redistricting is offensive,’ said Sen. Dan Blue, a Raleigh Democrat. ‘It is race-based.’”18 Had Blue just woke up to the fact that Voting Rights Act enforcement had long involved race-based districting and Republicans benefited from the concentration of blacks, which bleached surrounding areas, giving Republicans additional seats?
As soon as the results of a decennial census are released, allowing states to study the demographic change that the data reveal, the process of drawing new districting lines begins. In the past, new districting maps and other changes in the method of election were normally submitted to the Justice Department.19 The use of the D.C. court was the rare exception. The administrative route is faster and cheaper. But for the first time in the life of the 1965 statute, a Democratic Justice Department—one that reportedly has hired numerous new attorneys drawn from the ACLU and other civil rights advocacy groups—is reviewing proposed new lines to determine their compliance with the nondiscriminatory standards of section 5.20 As a consequence, a number of states have chosen to submit their new districting maps to the seldom-used D.C. District Court; others have decided to forgo the administrative preclearance option or to hedge their bets by submitting the new maps to both the court and the Justice Department.21
The voices of Tucker and Representatives Watt and Lewis, breaking with civil rights orthodoxy on the benefits of race-conscious districting, are just one indicator of the extent of racial progress in the almost half century since the 1965 statute was passed. Disfranchisement, as it was then understood, has disappeared as a threat. American politics reserved for white voters and white politicians describes a bygone era. Today’s allegations of electoral exclusion involve voter identity, felon enfranchisement and other issues that are not remotely analogous to the physical and economic danger that blacks in the Deep South faced if they tried to register to vote in the years before the passage of the Voting Rights Act.
We now live in an America far removed from that of the Jim Crow South where in the summer of 1964 Andrew Goodman, Michael Schwerner, and James Chaney, three courageous young men who had volunteered to register black voters in Mississippi, were murdered by the Ku Klux Klan.22 Disfranchisement at the time was a morally simple issue, and the Voting Rights Act, passed the next year, was beautifully designed to achieve a simple goal: ballots for southern blacks.
The logical and elegant construction of the statute did not last long. The definition of disfranchisement also lost its moral clarity. Before the end of the decade the problem of disfranchisement had been redefined to include at-large voting, district lines disadvantageous to black voters, and other electoral procedures that “diluted” the power of black ballots.23 In 1976 in Beer v. United States, the Supreme Court, in its first redistricting case, laid out the standards by which to judge districting maps with a discriminatory impact.24
Whether the city could have devised a plan likely to result in more black councilmen was not the question, Justice Potter Stewart wrote for a majority of five. Courts should ask instead whether the “ability of minority groups to participate in the political process and to elect their choices to office [had been] augmented, diminished or not affected by the change in voting.”25 The purpose of section 5 was to bar changes that would result in a “retrogression in the position of racial minorities with respect to their ef-fective exercise of the electoral franchise.”26 Since new district lines had actually increased the likelihood of a victorious black candidate, they could hardly be termed discriminatory (“retrogressive”).
Beer is still good law, but today the Beer standard has largely been discarded.27 Texas has recently asked the D.C. District Court to preclear maps for the state’s house and congressional districts, and, in the wake of a surge in population (mostly Latino) the question is precisely that which Justice Stewart said was irrelevant: must a newly drawn map contain more districts giving minorities the opportunity to elect candidates of their choice than the previous map had contained?28
The difficulty of precisely calculating an answer that would satisfy the court was apparent, however, in a previous case involving Texas congressional districts.29 In the oral argument, the issue occasioned a near-comic exchange between Chief Justice John Roberts and Nina Perales, an attorney from the Mexican American Legal Defense and Educational Fund. The Chief Justice tried to plumb the Goldilocks formula of racial fairness. “What number of minority voters is just right to make a district qualify as ‘Hispanic-opportunity,’ rather than one masquerading as such,” he asked Ms. Perales seven times, in several different ways. “I’m just trying to get the number,” he said in evident frustration.30“That number would be the number that shows Latinos have the opportunity to elect their candidate of choice,” was the best answer she could give.31 Minority voters are entitled to a maximum number of “opportunity-to-elect” districts, which have, in fact, nothing to do with “opportunity” and everything to do with the proper racial, ethnic—and partisan—results.
There was actually no good answer to the Chief Justice’s seemingly basic question. The 1965 statute was not designed for the purpose to which it would come to be put—resolving through administrative (or judicial) channels basic matters of electoral equality. “Over time, the Voting Rights Act has evolved into one of the most ambitious legislative efforts in the world to define the appropriate balance between the political representation of majorities and minorities in the design of democratic institutions,” wrote Richard H. Pildes, professor of law at New York University.32
The quest for that definition has largely failed. Minority voting rights is perhaps the most important and the most difficult to resolve of all race-related issues. It is what Justice Felix Frankfurter once famously called a “political thicket,” although he wrote in the context of the equal population cases. What had actually been asked of the Court, he said, was nothing less than “to choose among competing bases of representation—ultimately, really, among competing theories of political philosophy.”33 That was certainly the case in the minority voting rights litigation.
“Minority voting rights is perhaps the most important and the most difficult to resolve of all race-related issues.” -Abigail ThernstromIn the pages that follow, this Article expands on this introduction, explaining in greater detail the preclearance provision and its history, amended by judicial decisions, the Justice Department in its enforcement capacity, and by Congress in 1970, 1975, and 2006—amendments that, in effect, rewrote the statute. In the four decades after the initial Act was passed, America experienced a remarkable revolution in racial attitudes and the status of blacks. That progress was not recognized by those who shaped and reshaped the Act, extending preclearance. “Substantial progress has been made over the last 40 years,” the House Judiciary Committee report admitted in 2006. But, “[d]espite these successes, the Committee finds that the temporary provisions of the VRA [the most important of which is sec-tion 5] are still needed. Discrimination today is more subtle than the visible methods used in 1965. However, the effects and results are the same.”34
As Pildes himself suggested, the Voting Rights Act has become a blueprint for an earlier time. In 1965, it was pure antidiscrimination legislation aimed at ending the egregious violation of Fifteenth Amendment rights in one region in the country. It protected the southern election process from racist contamination. But, as Pildes wrote, “[t]he Congresses that enacted and amended the VRA over the last forty years [made sure] . . . that Section five and its unique elements . . . [were] responsive to ever-changing circumstances.”35 By every measure, circumstances have changed. Blacks are no longer excluded from political participation, and the most important voting rights dispute in 2004 was in Ohio, not Mississippi. Today, most southern states have higher black registration rates than those outside the region, and over 900 blacks hold public office in Mississippi alone.36 Massive disfranchisement is ancient history—as unlikely to return as segregated water fountains.
The last third of this Article elaborates on the Pildes point above. The Judiciary Committee’s ludicrous statement betrayed an assumption central to much voting rights enforcement—namely, that the racial landscape in America has remained static. It is not in the case in any corner of the nation. Perhaps demographic change is most striking. The Supreme Court may find section 5 to be an unconstitutional intrusion on state legislative prerogatives, but, the impact of demographic change will be much more important in deciding the fate of section 5. By 2030, when section 5 will be nearing the end of its current extension, blacks are expected to make up only about a third of the total number of voters for whom ability to elect districts can be drawn. Majority-black districts are likely to become an endangered species.
Majority-minority constituency (“racially fair”) maps will become increasingly harder to create for other reasons. African Americans have moved to the suburbs in very large numbers, and most have settled in racially mixed neighborhoods (with a substantial number of recent immi-grants) even in much of the South. Piecing together the ability to elect districts in which one group is a decisive majority will be a mapmaking challenge.
Those who enforce the Voting Rights Act have long assumed that both blacks and Latinos are “communities,” whose members share a racial and political agenda. Yet Latinos come to America from a diversity of settings, and even the notion of a black “community” as the foundation of a black legislative district is rapidly becoming an anachronism. Black immigrants have little in common with the descendants of American slaves.
The enforcement of the Voting Rights Act too often ignores contemporary reality. In addition, the drive to maximize minority office holding may act as a brake on black political aspirations. Given America’s ugly racial history, the notion that blacks are fungible members of a subjugated group that stands apart in American life, requiring methods of election that recognize their racial distinctiveness, should be especially troubling. Districts in which only blacks are political players generally reward minority politicians who consolidate the minority vote by making the sort of overt racial appeals that are the staple of invidious identity politics. They’re on a road going nowhere politically, as a result.
Thus, race-based districts seem to have worked to keep most black legislators clustered together and on the sidelines of American political life—precisely the opposite of what the statute intended, and precisely the opposite of what is needed. Blacks running in majority-minority districts, not acquiring the skills to venture into the world of competitive politics in majority-white settings—that is not the picture of political integration, equality, and the vibrant political culture that the Voting Rights Act promised. When a group that has been historically marginalized as a consequence of deliberate exclusion subsequently chooses the political periphery, it risks perpetuating its outsider status, reinforcing the sense of racial difference and compromising the goal of the Voting Rights Act.
As the Voting Rights Act has been enforced, the right to vote has come to mean an entitlement to black and Hispanic office holding roughly in proportion to their population numbers. In 1965 no such entitlement was contemplated. Mississippi and other states were devising new electoral rules to make sure White votes smothered black political preferences. In the South, only in majority-black districts could blacks have any hope of winning elections.
Ordinarily, there are no group rights to representation in the American constitutional order. True political equality demands not group rights to representation, but a political system that recognizes citizens as individuals with fluid identities, free to emphasize their racial and ethnic heritage as they wish and to coalesce in any manner they might choose.
Nevertheless, a less radical approach could not have solved the deep-seeded problem of massive black disfranchisement in one region of the country. Draconian federal legislation was needed. The passage of the 1965 statute—the crown jewel of civil rights legislation—marked the death knell of the Jim Crow South. It was one of the great moments in the history of American democracy.
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