I completely agree with Jim Blacksher. But I think it's important to
note that his points don't actually show that Section 5 is the right
tool, at this point in our history, for attacking the legacy of slavery,
segregation, and other forms of white supremacy. Morgan Kousser says
that but for Section 5, the Texas re-redistricting would have been even
worse, from the perspective of minority voters and Democrats. Maybe
(though I don't -- as a positive or normative matter -- expect the
Republican majority in Congress to be moved by the partisan argument).
But we need to make the case about why Section 5 is better than, say,
Section 2 for these purposes. If the answer is that the substantive
standard applied under Section 5 is more generous to voting rights
advocates than is the substantive standard applied under Section 2 --
which is what Morgan Kousser implies -- two responses suggest
themselves: One, why not amend Section 2 again to incorporate that
substantive standard? Two, why do we expect that if the courts have
gutted Section 2's substantive standard they won't also do the same
thing to Section 5's substantive standard? In fact, the courts have
been doing a pretty good job of gutting Section 5's substantive
standard.
A defense of the extension of Section 5 has to rest on a defense of the
procedure of preclearance. Why is preclearance the best tool to solve
today's very real voting rights problems? The fact that there's
continuing discrimination in covered jurisdictions (and also, by the
way, in noncovered jurisdictions) may help to support the
constitutionality of an extension of Section 5, but it doesn't make the
case that such an extension would be good policy.
====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO 63130
314-935-9097
Personal Web Page:
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog: http://disabilitylaw.blogspot.com/
"James Blacksher" <jblacksher@ns.sympatico.ca> 3/15/2005 7:34:16 AM
Rick,
Overton, Gass and Hauser are right on point. The crucial point
being that the Voting Rights Act is strictly an artifact of American
history, Congress' response in the 1960s and 1980s to the legacy of
slavery, segregation and other forms of white supremacy in the politics
of this country. There has never been a time in our history when race
wasn't the trump card of partisan politics. First Federalists, then
Republicans, now Democrats have been labeled the party of blacks. As
for the present, no fair observer could conclude that racial politics
has been repudiated by partisans today. See, e.g., the attached news
article quoting the Republican Chairman in Alabama. Or read Montiel v.
Davis, 215 F.Supp.2d 1279, 1283 (S.D. Ala. 2002):
plaintiffs do not refute the sworn testimony of Mr. Sam Pierce, the
expert designated by plaintiff Montiel in both the Congressional action
which was transferred to the Middle District of Alabama and in the
instant case, that black census populations are so strongly correlated
with Democratic voting behavior throughout Alabama that, when he drew
the Congressional plan adopted by this Court in Wesch v. Hunt, 785
F.Supp. 1491, 1500 (S.D.Ala.1992)(three- judge court), and the plan
proposed by Mr. Montiel in the current Congressional redistricting
litigation, he referred only to census data and attempted to minimize
the number of black persons residing in districts he was designing to
favor Republican candidates.
Judge Higginbotham's conclusion in Session v. Perry that partisan
motives neutralize the Voting Rights Act threatens the viability of the
Act and the Fifteenth Amendment. But, then, the project of redemption
is our heritage.
Jim Blacksher
James U. Blacksher, Attorney
710 Title Bldg.
300 N. Richard Arrington, Jr., Blvd.
Birmingham, AL 35203-3352
205-322-1100 or 205-591-7238
Fax: 866-845-4395
----- Original Message -----
From: "Spencer Overton" <soverton@law.gwu.edu>
To: "J. Morgan Kousser" <kousser@HSS.CALTECH.EDU>; "Rick Hasen"
<Rick.Hasen@lls.edu>
Cc: <election-law@majordomo.lls.edu>
Sent: Tuesday, March 15, 2005 4:49 AM
Subject: Re: Without Section 5
Rick Hasen wrote:
"In other words, if in fact it is partisan motive, rather than racial
motive, that animates packing reliably Democratic minority voters into
districts, is an anti-race discrimination statute justified as a means
for correction?"
Rick:
I am skeptical of bright lines between race and political
affiliation. Requirements of "racial animus" often mask the origins of
the genuine ideological divide between whites and people of color. A
number of studies have established that our racial history shapes the
political identity of many people of color, either directly or
indirectly. For example, a variety of factors that explain
contemporary political differences-such as the poverty, unemployment,
and inferior schools that challenge particular communities-often can be
traced back to racial history. Should we ignore the origins of these
differences simply because they might be couched as partisan, rather
than racial, positions? Equating political differences among racial
groups with partisan politics masks the racial inequality that gave rise
to the differences. It also gives license to political operatives to
exclude minority voters of color to win elections and inadvertently
perpetuate racial inequality.
Further, earlier generations of politicians used partisan advantage
rather than racial animus to justify suppression of voters of color, but
the political exclusion resulted in racial subordination. In the early
1800s, for example, blacks in New York state voted solidly against
Democrats and for Federalists, and as a result Democrats consistently
worked to suppress the black vote. Partisan "inspectors at the polls .
. . presumed as slaves all black men who could not prove their freedom
by sufficient evidence [and] [t]he Federalists denounced this practice,"
wrote Columbia University Professor Dixon Ryan Fox.
State Assemblyman Erastus Root's partisan affiliation with what
became the Democratic Party trumped his abolitionist leanings, and thus
he supported black disenfranchisement. Commenting on a particularly
close election Root noted that, "the votes of three hundred Negroes in
the city of New York, in 1813, decided the election in favor of the
Federal party, and also decided the political character of the
legislature of this state."
None of this is to say that once we recognize the unique dangers that
racial suppression poses we should not put limits on the use of race.
For example, we might not want to say that as the party of "blacks,"
Democrats are entitled to a particular quota of seats in a state
legislature or that party leaders have a free pass to manipulate black
populations within districts while Republicans are barred from similar
activity.
But even though there must be limits to race, it is illogical to
ignore the correlation between race and politics and profess that they
exist in two artificial and distinct boxes-racial animus and dirty but
tolerable politics. These approaches do not accurately describe the
bulk of challenges we face today that do not fit neatly into either
category. Our current discussion of race and politics is
counterproductive in that it encourages civil rights advocates to
attempt to prove that political strategists are "racists" to justify the
continued existence of voting rights protections.
Spencer Overton
Professor Spencer Overton
The George Washington University Law School
2000 H Street, NW, Washington, DC 20052
(202)994-9794
soverton@law.gwu.edu
http://www.law.gwu.edu/facweb/soverton/
THE DONOR CLASS (arguing that campaign reforms should encourage
candidates to raise the bulk of their funds from smaller contributors)
available at . . .
http://ssrn.com/abstract=569021
---------- Original Message ----------------------------------
From: Rick Hasen <Rick.Hasen@lls.edu>
Date: Mon, 14 Mar 2005 18:45:14 -0800
And would the Republicans in Texas be doing so out of racial animus,
or
out of animus against "black and Latino, as well as Anglo Democrats,
nationally as well as in Texas"? If the latter, is Section 5 the
proper
remedy? In other words, if in fact it is partisan motive, rather
than
racial motive, that animates packing reliably Democratic minority
voters
into districts, is an anti-race discrimination statute justified as
a
means for correction?
I ask these questions genuinely, not rhetorically.
Rick
J. Morgan Kousser wrote:
An interesting statement by Rep. Phil King, head of the TX House
Redistricting Committee in 2003, gives some sense of what the
world
might be like without Section 5 of the VRA. In a deposition in
Session v. Perry, the TX re-redistricting case, he said that but
for
Section 5, he'd have tried to draw a redistricting plan that would
have given the Republicans every one of Texas's congressional
seats.
I doubt that that's possible, but he certainly could have reduced
Democratic seats by cramming more minorities into a smaller number
of
districts if he hadn't had to satisfy Beer, Bossier I and II,
etc.
This of course would hurt black and Latino, as well as Anglo
Democrats, nationally as well as in Texas.
Since a post-Stevens Court will take any remaining air out of
Vieth,
and since Republicans can always apparently legally cover a racial
with a partisan motive under Section 2 and the 14th and 15th
Amendments -- see the evidence and opinions on the racial
discrimination issues in former congressional districts 23 and 24
in
Session v. Perry -- a failure to renew Section 5 will have quite
predictable consequences for African-American and Latino
representation: It will reduce it by encouraging Republicans to
pack
minorities into as few districts as possible, which they can
legalize
by claiming a partisan motive.
Vieth and the VRA really are connected.
Morgan
Prof. of History and Social Science, Caltech
snail mail: 228-77 Caltech, Pasadena, CA 91125
phone 626-395-4080
fax 626-405-9841
home page: <http://www.hss.caltech.edu/~kousser/Kousser.html>
(Newly
Revised!)
to order Colorblind Injustice:
http://uncpress.unc.edu/books/T-388.html
"Peace if possible, Justice at any rate" -- Wendell
Phillips
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
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