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Regional Differences in Racial Polarization in the 2012 Presidential Election.pdf

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Department
Political Science
Course
POL3140
Professor
Emily Regan Wills
Semester
Fall

Description
Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act STEPHEN ANSOLABEHERE, NATHANIEL PERSILY & CHARLES STEWART III I. NTRODUCTION Three years ago, when the Supreme Court last considered the constitutionality of the coverage formula of section 5 of the Voting Rights Act of 1965 (VRA), we submitted an amicus brief on behalf of neither party analyzing the relevance to the case of voting patterns in the 2008 eleInion. particular, the brief, and a subsequent Harvard Law Review article that expanded upon it, highlighted relative rates of racially polarized voting in the covered and noncovered jurisdictions to demonstrate where racial polarization had increased over time. Although some states had seen increases and others had seen decreases in the gap in candid ate preferences between racial groups, the brief and article concluded that, contrary to much conventional wisdom, racial polarization had actually increased in the 2008 election, especially in the areas covered by section 5 of the VRA. We find ourselves in much the same position now as we did three years ago. We also find ourselves coming to the same conclusions, which have become, if anything, more strongly supported by recent data. Voting in the covered jurisdictions has become even more polarized over the last four years, as the gap between whites and racial minorities has continued to grow. This is due both to a decline among whites and an increase among minorities in supporting President Obama’s reelection. This gap is not the result of mere partisan ship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered jurisdictions. Even more now than four years ago, both sides in the VRA debate look to the most recent el ection to support their case. Critics of the VRA point to the reelection of the nation’s first African American president, amidst record rates o4 minority voter turnout, as evidence of how “times have changed” since 1965. The “strong medicine” of the VRA is no longer needed in the South, they argue, because the historic barriers to minority participation and office holding have largely vanished. For supporters of the VRA, the history since 1965 and the 1982 reauthorization demonstrate the continuing danger to minority voting rights in the covered jurisdictions. They point also to this past election as confirming Congress’s suspicions in the reauthorization process a s new obstacles to voting, such as photo identification laws and restrictions on early voting, were more prevalent in the covered states. In the run up to the 2012 election, section 5 proved it had bite, as photo ID and other laws were prevented from going into effect by the Department of Justice (DOJ) or the district court in Texas, South Carolina, and Florida, and Texas’s congressional redistricting plan was found to be intentionally discriminatory. These contrasting views of the relevance of the 2012 e lection may very well provide the5media frame for the debate over section 5 in the current challenge to the VRA in Shelby County v. Holder. Of course, the contending narratives of “look how far we’ve come” versus “see how much voting discrimination persists” are usually not the stuff of constitutional arguments. Moreover, the results of a highly salient and well-funded presidential election may seem beside the poin t for the constitutionality of a law that has its greatest effect in the context of local, below -the-radar election law changes. All involved in the debate over the VRA must admit, however, that we do not know exactly what the world will look like if sec tion 5 is struck down. Of course, the South would not revert back to Jim Crow days: politics has evolved beyond the days of threatened lynchings for the exercise of the franchise. But the many examples in the legislative record of voting rights violations prevented by the VRA hint at what might happen if the covered jurisdictions were otherwise unconstrained. Even if Jim Crow will not return, the familiar regional pattern of discrimination might, as new stratagems replace old ones with minority voters becom ing collateral damage in increasingly vicious partisan fights. The litigants in Shelby County disagree over the applicable constitutional test and the necessary evidentiary showing for upholding the VRA. In particular, the challengers assert that Congres s needed to distinguish the covered from the noncovered jurisdictions, in order to demonstrate that the coverage formula captures the areas of the country (and only those areas) that pose the greatest threat to minority voting rights. From their perspectiv e, the coverage formula can only be congruent 6 and proportional (and therefore constitutional) if it is precisely tailored to capture only “guilty” jurisdictions and no “innocent” ones. Although defenders of the VRA point to higher rates of successful section 2 VRA cases as one example of where the covered states hav e distinguished themselves as voting rights violators, they also maintain that Congress need only justify continued coverage by finding persistent dangers to voting rights in covered areas alone. The coverage formula, from its inception, has always been ov er and underinclusive of the jurisdictions of concern. Overinclusivity is addressed by the bailout provision, which allows “good” jurisdictions to escape coverage when they can demonstrate a clean voting rights record. So long as the coverage-formula-plus-bailout regime represents a rational attempt to address the problem of minority voting rights violations, defenders argue, the law is constitutional. The challengers’ argument against the coverage formula would put Congress in an awkward position whenever justifying a geographically specific civil rights law. If the covered jurisdictions remain completely unchanged in their disrespect for minority voting rights, then the VRA is not working as promised. On the other hand, successful deterrence of voting ri ghts violations in the covered states becomes evidence of the statute’s unconstitutionality if those jurisdictions become less distinct. In the oral argument in Northwest Austin Municipal Utility District No. One v. Holder 7(NAMUDNO), Chief Justice John Roberts described this problem as “the Elephant Whistle problem.” To summarize the allegory: A guy with a whistle around his neck walks into a bar. Another guy asks him, “Why are you wearing a whistle around your neck?” “It’s to keep away elephants,” the first responds. “How do you know it’s working?” the second asks. “Do you see any elephants around here?” 8 If the Court takes the elephant whistle problem seriously, the challenge for defenders of the VRA is to find a metric that can hint at the danger of the VRA’s removal while simultaneously not suggesting it either has been ineffective or has outlived its usefulness. To some extent, the number of preclearance denials and DOJ requests for more information provide such metrics by pointing at the types of laws that would have gone into effect but for the existence of the VRA. B ut even those data are incomplete because they cannot pick up the VRA’s deterrent effect — that is, the laws that were never proposed or passed because politicians knew they would not be allowed to go into effect. One should expect the number of laws denied preclearance to be small as compared to the number of laws that are never passed because of the VRA’s deterrent effect. II. RACIALP OLARIZATION AS AN INDICATOR OF AREAS OF M INORITY VOTING R IGHTS CONCERN The degree of racial polarization in an elector ate can be the kind of exogenous indicator of potential threats to minority voting rights that is not directly affected by the presence of VRA coverage. Although one might expect the VRA to have some indirect effect over time on metrics of racial harmony — and indeed, the covered areas are very different along those metrics than they were in 1965 — the existence of adverse political preferences between minorities and whites exists by itself as a kind of danger sign as to what might happen if the VRA were t o vanish. In particular, in states with high concentrations of minorities and a white majority unwilling to cross over to vote for minority -preferred candidates, we might expect several dangers to be present from a minority voting rights perspective. The first and most obvious is that by definition, areas of high racial polarization are ones where minorities will have less of a chance of electing politicians they prefer and that will be responsive to the minority community. Indeed, this is the theory unde rgirding the redistricting jurisprudence for section 2 of the VRA: although minorities will lose in a majority - rule system, there is something inherently wrong with a system in which a large racial group is systematically outvoted and unrepresented by redi stricting schemes that disadvantage them. Second, when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circumstances of severe racial polarization, efforts to gain political advantage translate into race -specific disadvantages. For example, a ruling party or coalition that seeks to hobble the competitive position of its adversary by making it more difficult for their constituencies to vot e or campaign will inevitably discriminate against a racial group. In those circumstances, race -based discrimination becomes an efficient tool for incumbent protection or partisan advantage. There are several responses to the claim that geographic patter ns of racial polarization can be important evidence in support of the coverage formula. The first, articulated by Justice Thomas in his separate opinion in NAMUDNO, is that “racially polarized voting is not evidence of unconstitutional discrimination [and] is not state action.” Regardless of the fact that elections choose state actors and such private choices occur in a state -structured environment, individual vo ting, on this score, is private action, just like individual speech. Even if such private choices arise from racial animus, geographic patterns in how those choices are made are viewed as outside the realm of permissible evidence for justifying Congress’s power to enforce voting rights by way of the VRA. According to this approach, only the existence of unconstitutional laws or regulations — or more properly, the relative predominance of such laws in covered areas — can justify geographically targeted votin g rights laws. Defenders of the VRA might also agree that state violations of voting rights are better evidence to support congressional efforts in this area. After all, a state that disenfranchises racial minorities, but in which there is high white crossover voting, would still be one deserving of special federal attention. If, from the beginning, one had to choose among possible metrics for determining coverage, unconstitutional laws, as opposed to voting behavior, would be the most appropriate basis f or distinguishing between institutions. Of course, the original VRA combined the two, designating for coverage jurisdictions that both used a test or device and had low voter turnout. Neither individually nor in combination were those factors unconstitutio nal, however. Rather, they were seen as indicators of likely unconstitutional action, and the record showed that they captured most of the jurisdictions of concern. Indeed, the coverage formula was reverse engineered to do so. The evidence required to ju stify the constitutionality of the coverage formula today cannot be the same that justified the law when it was enacted. Otherwise, the law would have been unconstitutional soon after it was enacted, as minority political participation and office holding i ncreased considerably and literacy tests vanished. Moreover, the statute cannot be constitutionally disadvantaged for its unique sunset period (which had previously been considered one of its saving graces). Most civil rights laws probably accomplish their goals or improve circumstances compared to their date of passage. They do not become immediately unconstitutional as a result. Congress’s decision to require reauthorization should not then trigger a constitutional test for a reauthorized law that would b e different than one originally passed without a sunset period. Nevertheless, as it is the reauthorized version of the statute that is under review, evidence of the dangers of its removal could be valuable in assessing its continued constitutionality. Th ere are strong and weak forms of the argument that racial polarization patterns in recent presidential elections support the constitutionality of section 5. The weak form merely dispels the notion that the election and reelection of an African American Pre sident should put section 5 to rest. The persistence of racial polarization in the covered areas — and in some cases, increased racial polarization — points to the complicated trends in voter behavior masked by President Obama’s reelection. The strong version of the argument is that the differential patterns of racial polarization demonstrate the constitutionality of section 5. As with any other piece of evidence concerning this reauthorization, previous reauthorizations, or even the original VRA, the pat terns of relevant conduct (in this case, racially polarized voting) do not map perfectly onto the coverage designations. There are some noncovered areas with higher rates of racial polarization than some covered areas, and vice versa. We can, however, de monstrate that racial polarization is higher, on average, in the covered areas than the noncovered areas. We can also demonstrate that the extent of racial polarization in presidential elections increased over the past decade. Even when we account for part isan identification, the differences in rates of racial polarization between the covered and noncovered areas remain statistically significant. III. ACIAL POLARIZATION IN PRESIDENTIAL ELECTIONS , 1984–2012 A. Racial Polarization, 1984
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