Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Sunday, October 23
Voting Rights, in South Carolina and Elsewhere
On Friday, I attended a conference on the Voting Rights Act entitled The Promise of Voter Equality, graciously hosted by the University of South Carolina Law School. It was an excellent conference, featuring some lively exchanges on both the past and the future of the Voting Rights Act of 1965. Few would dispute that the VRA was enormously successful in dismantling barriers to participation, such as literacy tests that kept African Americans from voting throughout most of the South. Voter registration increased dramatically in South Carolina and other southern states within two years of the Act's passage. But the elimination of direct barriers to participation achieved only limited success in integrating state legislative bodies and Congress.
During the 1980's and 1990's, the U.S. Department of Justice exerted pressure on state legislatures to create majority-minority districts. This resulted in a substantial increase in the number of African Americans and Latinos elected to office. In 1992, for example, the State of North Carolina elected its first African Americans to Congress since the turn of the century, both from majority-black districts. These districts were almost immediately challenged by whites, who emphasized their "bizarre" shape and argued that their creation violated the "colorblindness" principle upon which the Supreme Court had relied in its cases striking down race-conscious affirmative action programs. In a series of cases starting with Shaw v. Reno (1993), the Court recognized a new type of claim, allowing white voters to challenge majority-minority districts if race was the "predominant factor" in their creation.
There are still those who believe that the "bizarre" shape of these majority-minority districts is more offensive than the fact that minorities were absent from state congressional delegations before those districts were drawn. Looking forward, it's far from clear that the gains that have been made in minority representation will continue, unless states are compelled to take race into consideration in drawing district lines. The racial polarization of the electorate remains an unfortunate fact of life -- many whites are still unwilling to vote for minority candidates. As long as that continues to be the case, the Voting Rights Act will continue to play a vital role in democratic politics.
The drawing of district boundaries is not the only area in which threats to political equality remain. Recent efforts to require government-issued photo ID also threaten to diminish minorities' political power, given that they are statistically less likely to possess drivers' licenses, the most common form of ID. This issue has recently come into the fore in Georgia and Indiana, which enacted ID laws despite the absence of evidence that they're needed to combat fraud. While ID proponents of course disavow any racist intent, race is a crucial part of the backdrop as I've described here and here. A district judge has preliminarily enjoined Georgia's law and, on Thursday, denied a stay, moving the battle to the Eleventh Circuit Court of Appeals. In my remarks at the South Carolina conference on Friday, I noted that the applicability of the Voting Rights Act to such election practices will be a crucial issue in months to come.
While in South Carolina, I made a point of visiting the state house, in front of which stands a monument to confederate soldiers who died in battle along with a confederate flag. This was the resolution of a long-running controversy which ended only a few years ago, over whether to remove the flag from the top of the statehouse. The display is a vivid reminder that, in South Carolina as throughout the country, race and politics remain intertwined.