Jeffrey Rosen has a column called “Race to the Top” in last month’s New Republic that covers two pending Supreme Court cases that are centered around race. His argument is that the Obama White House has the ability to synthesize what has been a polarized racial debate, with colorblind naivete on one side and racial paternalism on the other. Finding middle ground, Rosen says, would be fruitful for both conservatives and liberals.
The problem is that Rosen’s findings are based on faulty assumptions. In the case Northwest Austin Utility District v Holder, the Court must decide whether to uphold the portion of the Voting Rights Act that requires Congress to clear any changes in voting regulations for nine Southern states that were diagnosed as the most discriminatory when the Act was passed. Rosen believes these clearances should be waived.
As Richard Pildes of the New York University School of Law notes, it’s extraordinarily unusual these days for the Justice Department to refuse to pre-clear any proposed change in voting arrangements submitted by one of the nine covered jurisdictions. The Department objected in only 0.6 percent of the submissions between 1982 and 2005, and only 0.05 percent of the submissions between 1996 and 2002. Even in this tiny universe of cases, moreover, the vast majority of the Justice Department’s objections don’t involve obstacles that prevent minorities from casting votes. Instead, according to Pildes, most of them involve redistricting or annexation–that is, changes in the drawing of district lines that influence which candidates win. In those cases, the objection is to patterns of racially polarized block voting, which occur when black voters overwhelmingly favor black candidates and, in the same race, white voters overwhelmingly favor white candidates.
In the 1980s, the Supreme Court announced that racially polarized block voting can itself be considered an example of illegal discrimination under the Voting Rights Act. (The idea was that racial polarization suggested that whites were too racist to vote for black candidates.) The proper remedy, the Court held, was to require the creation of majority-black districts that would allow minorities to elect representatives of their choice. This may have made some sense 20 years ago: The South at that time was mostly Democratic, and racially polarized voting was viewed as a decent proxy for areas where African Americans had no realistic chance of being elected and where discriminatory voting structures endured. Today, however, polarized voting is a far less reliable measure of racism. In an age where race is strongly correlated with politicalparty preferences–most Southern whites are Republican, and most Southern blacks are Democratic–racially polarized voting may simply mean that black and white voters are voting their party’s ticket.
Liberals, always looking for evidence of unconscious racism, insist this isn’t the case. But they fail to engage fully with the best evidence of racist voting patterns–the “fall-off rate,” which measures whether a black Democratic candidate, such as Obama, does worse among white voters than a white Democratic candidate, such as John Kerry. It’s true, as liberals emphasize, that in three of the nine Southern states fully or partially covered by the Voting Rights Act (Alabama, Mississippi, and Louisiana), Obama did worse among whites than Kerry. But it’s also true, as liberals don’t emphasize, that in six other covered states (Georgia, South Carolina, North Carolina, Texas, Florida, and Virginia), Obama did the same as Kerry or better. This means that the blanket assumptions on which the Voting Rights Act rests may be simplistic and out of date.
Rosen doesn’t consider that the low rate of rejection by the Justice Department may in fact be an example of government [gasp!] working efficiently. Perhaps the review process forces these states into fairer regulations.
As for the fact that Southern blacks tend to be Democrats while Southern whites tend to be Republicans, racism can’t simply be subtracted from this equation. People will vote for the party that seems to best represent their interests, or else against the party that seems to most oppose their interests, and the Democratic party has won the battle for the black vote (perhaps because the Republican party has barely even tried).
Finally, Rosen resorts to the sleight of hand of replacing the interests of a large group with the success of a single candidate. Obama may well be a watershed in racial politics, but his election can’t prove anything yet. It could be that he simply best represented the will of voters in a particular electoral season, even though many of those same voters would otherwise never vote for a black candidate.
Rosen finishes with this thought.
Racial outcomes in voting and employment are sometimes, but not always, a proxy for racial discrimination, Obama could insist, but only in places where there is actual empirical evidence of discrimination itself. That would provoke a debate rooted in facts rather than stereotypes–one that liberal and conservative ideologues may fear, but that the country as a whole would welcome with gratitude and relief.
“Empirical evidence” is the sort of phrase that sounds fantastic – it’s nice and objective, very scientific – but, when coupled with an earlier critique of the Voting Rights Act’s “obsessive focus on discriminatory effects rather than direct evidence of racist intent,” we can see that it’s a red herring. The Voting Rights Act surely cared about interrupting “racist intent,” but, more importantly, it was meant to prevent racially discriminatory outcomes. Who cares what the intent is; the concern is what the ultimate effect will be.
And this is where we arrive at the argument Rosen should be making about the Austin v Holder case. Perhaps we should think of the review process as a probationary measure. At some point, we should take the training wheels off and see if these nine states can fairly regulate voting on their own. There should be a middle ground between the normal appeal process that protects voters in most states and the stricter governance that has regulated these nine states for the past several years. A semi-annual review of voting regulations seems like a good solution for keeping a close eye on the proceedings while also giving these states a greater degree of self-critique than they’ve recently enjoyed.
