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. 

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

Most Popular

Culture

Our Cultural Crisis: A Kirkian Response

Editors’ note: The following article is adapted from a speech the author delivered at the Heritage Foundation on March 14, 2018. Few would dispute that we are in the middle of a grave cultural crisis. A despairing conservative critic wrote: “We are on the road to cultural disaster.” He placed the ... Read More
U.S.

Confirm Pompeo

What on earth are the Democrats doing? President Trump has nominated CIA director Mike Pompeo, eminently qualified by any reasonable standard, to be America’s 70th secretary of state. And yet the Senate Democrats, led by Chuck Schumer, have perverted the advice and consent clause of the Constitution into a ... Read More
Culture

The Mournful, Magnificent Sally Mann

‘Does the earth remember?" The infinitely gifted photographer Sally Mann asks this question in the catalogue of her great retrospective at the National Gallery in Washington. On view there is her series of Civil War battlefield landscapes, among the most ravishing works of art from the early 2000s. Once sites ... Read More
PC Culture

The Dark Side of the Starbucks Stand-Down

By now the story is all over America. Earlier this month, two black men entered a Starbucks store in Philadelphia. They were apparently waiting for a friend before ordering — the kind of thing people do every day — and one of the men asked to use the restroom. A Starbucks employee refused, saying the restroom ... Read More
World

Save the Eighth

There are many things to admire in Ireland’s written constitution. Most especially, the text includes, since a popular referendum in 1983, the Eighth Amendment: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to ... Read More
White House

The Comey & Mueller Show

It has been a good week for President Trump. Justice Department inspector general Michael Horowitz provided indisputable evidence that former FBI deputy director Andrew McCabe lied at least four key times and was fired by the attorney general for cause -- and that Mr. Trump had nothing to do with it. McCabe and ... Read More