The Agenda

Quick Note on the Voting Rights Act

Chad Flanders, an assistant professor of law at Saint Louis University, sheds light on Justice Antonin Scalia’s recent use of the phrase “racial entitlement” in the context of Section 5 of the Voting Rights Act, drawing on a 1995 concurring opinion:

In a concurring opinion about a decision examining a program that gave incentives to hire minority businesses, Justice Scalia wrote that “under our Constitution there can be no such thing as either a creditor or a debtor race” and that “[t]o pursue the concept of racial entitlement-even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.”

Is there a link between Scalia’s new invocation of “racial entitlement” in the voting-rights context and his previous attack on the “racial-entitlement” theory of affirmative action?  Maybe.  At the oral argument, Scalia seemed interesting in spinning out a theory that minority groups have a way of entrenching their interests, and making it very hard to vote against them.  The result is that they are seen as having an entitlement to certain legislation, rather than getting that legislation passed on the basis of need, or merit.

Artur Davis, meanwhile, explains why striking down Section 5 would be a “mixed triumph” for conservatives. Though it would end the practice of subjecting Virginia and South Carolina to greater scrutiny than Kansas and Indiana, it would also reinforce the common perception that Republicans aim to suppress minority voting rights. And so Davis recommends a different approach to reforming the VRA:

It’s entirely appropriate command that covered states refrain from passing election laws that discriminate against their minority citizens has been swollen into a requirement that minorities be aggregated into legislative and congressional districts that are overwhelmingly dominated by their race. Even a slight rollback of the percentages, say, from 65 percent to 58 percent is prohibited on the theory that such a contraction “dilutes” the minority vote.

The effect is that in the Deep South, black voters influence politics solely inside their centers of gerrymandered influence: the numbers that remain elsewhere are not substantial enough to create authentic swing districts where Republicans might have to seek black support to win. In the same vein, the nature of nearly seventy percent black districts is that their elected officials are just as un-tethered from the need to build coalitions with conservative white voters.

Not surprisingly, black Democrats and southern Republicans have not complained. The South that results is the single most racially polarized electorate in the country and its African American politicians are hemmed into a race-conscious liberalism that marginalizes them statewide. In addition, more conservative black Democrats and Black Republicans are rendered unelectable in minority districts that leave no room for a non-liberal brand of candidate.

Conservatives ought to recoil from an anti-discrimination principle shifting into a mini political apartheid. Rather than condone a de facto spoils system, they should be trying to undo an arrangement that is more bent on electing a certain kind of black politician than on empowering blacks to engage the democratic process.

This strategy might have short-term costs for the right — some Republican congressional districts would become somewhat more competitive — yet it would lead to a less racially polarized political climate that might actually benefit conservatives as the country grows more diverse. More competitive elections in the GOP’s southern base would lead to more reform-minded Republican lawmakers with more diverse constituencies. 


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