Bench Memos

Voting Rights & Roberts

Edward Blum and Abby Thernstrom

VIA FACSIMILE (202) 224-9102

AND OVERNIGHT DELIVERY

The Honorable Arlen Specter, Chairman

The Honorable Patrick Leahy, Ranking Minority Member

United States Senate

Committee on the Judiciary

224 Dirksen Senate OB

Washington, DC 20510

August 30, 2005

Dear Senators Specter and Leahy:

We are writing to you as coauthors of a forthcoming book on the Voting Rights Act to be published by the American Enterprise Institute Press and as co-directors of the Project on Fair Representation.

One of us, Abigail Thernstrom, is a political scientists and Vice-Chair of the United States Commission on Civil Rights. In 1987 she published Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press) which won four prestigious awards, including the American Bar Association’s Certificate of Merit, one of the ABA’s two annual book prizes.

The other author, Edward Blum, is a Visiting Fellow at the American Enterprise Institute where he studies civil rights law and policy in the electoral process. Prior to this position, he served as Chairman of the Campaign for a Color-Blind America, Legal Defense and Education Foundation where he supervised the legal challenge to racially gerrymandered voting districts throughout the nation.

Our purpose in writing you is to draw your attention to a handful of op-eds and articles, written by us and enclosed, that examine the political and constitutional justification for sections 5 and 2 of the Voting Rights in the context of massive racial change over the last four decades. These issues will likely be discussed during the upcoming Judiciary Committee hearings on the nomination of Judge John Roberts to the Supreme Court.

As you will see in our Wall Street Journal op-ed of July 15, entitled “Do the Right Thing,” the emergency conditions that existed in the Deep South in 1965 to justify the imposition of the radical penalty of preclearance are long over. Federal approval of all election-related changes (from polling place relocations to new districting lines) was justified in an era of egregious violations of Fifteenth Amendment rights. But today, voter registration and election participation rates of blacks are nearly identical to those of whites. Furthermore, our preliminary state-by-state election analysis of those jurisdictions covered by section 5 suggests that white support of minority candidates is no different in Georgia or Alabama than it is in Massachusetts, Arkansas, and other jurisdictions that do not need permissions from remote federal authorities before using, say, new districting maps arrived at through democratic processes.

Preliminary analysis of election data in these section 5 jurisdictions also shows white crossover support for minority candidates is consistently high enough to elect minorities in statewide contests. Moreover, racial polarization rates are low enough to ensure minority success in both Democrat and Republican primaries. The fact that Georgia has elected an African American to the office of Attorney General and Texas has elected a Hispanic and an African American to statewide office speaks volumes to the changes in racial attitudes since the 1965 act was passed. There are over 9000 African American elected officials in the United Sates today. There would undoubtedly be an even larger number if black candidates were more willing to run in majority-white settings.

It is our belief that section 5 and the amended section 2 of the Voting Rights Act are grave constitutional infringements on basic federalism principles. Any concern Judge Roberts may have expressed about either of these provisions is justified in light of the Court’s recent jurisprudence. We are not alone in this opinion. In fact, during Senate floor debate on Feb. 27, 2004, Senator Kennedy spoke out against reauthorizing section 5 until a complete congressional inquiry has been completed, noting: “Critical analysis of issues surrounding preclearance of minority language provisions of the Voting Rights Act have not yet been fully examined and analyzed carefully to reflect the current status of laws, court decisions, enforcement actions, and society. The Supreme Court has made it clear in recent years that it will require Congress to establish a detailed record through hearings and legislative findings in order to ensure that provisions such as these survive constitutional scrutiny.”

We hope that you find our writings of value as you explore Judge Robert’s views on the constitutionality of certain provisions of the Voting Rights Act.

Sincerely yours,

Edward Blum Abigail Thernstrom

Visiting Fellow Co-Chair, U.S. Commission on Civil Rights

American Enterprise Institute Lexington, MA

Washington, DC (781) 861-7634

Articles enclosed: “Do the Right Thing.” Wall Street Journal. 07-15-05

“After 40 Years, It’s Time to Move On.” Richmond Times Dispatch. 08-01-05.

“Roberts, Misjudged.” Los Angles Times. 08-11-05.

Color Inside the Lines.” Legal Affairs. Nov. 2003.

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