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 ăinspectors 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,ä 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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