Voting Rights—And Wrongs Voting Rights—And Wrongs The Elusive Quest for Racially Fair Elections Abigail Thernstrom The AEI Press Publisher for the American Enterprise Institute WASHINGTON, D.C. Cover Images Young Man Waving American Flag During Selma to Montgomery Civil Rights March, March 1965. © Steve Schapiro/Corbis Democratic presidential candidate US Senator Barack Obama during an election day speech at the Xcel Energy Center in St Paul, Minnesota, June 03, 2008. © EMMANUEL DUNAND/AFP/Getty Images President Lyndon B. Johnson (1908–1973) discusses the Voting Rights Act with civil rights campaigner Martin Luther King Jr. (1929–1968) in 1965. The act, part of President Johnson’s “Great Society” program, trebled the number of black voters in the south, who had previously been hindered by racially inspired laws. © Photo by Hulton Archive/Getty Images To Amy Thernstrom and Michael Callahan, two wonderful people who married into our family. With much love. Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, 1150 Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801. NATIONAL RESEARCH NRI INITIATIVE This publication is a project of the National Research Initiative, a program of the American Enterprise Institute that is designed to support, publish, and dissemi- nate research by university-based scholars and other independent researchers who are engaged in the exploration of important public policy issues. Library of Congress Cataloging-in-Publication Data Thernstrom, Abigail M., 1936- Voting rights—and wrongs : the elusive quest for racially fair elections/ Abigail Thernstrom. p.cm. Includes bibliographical references and index. ISBN-13: 978-0-8447-4269-4 (hardcover) ISBN-10: 0-8447-4269-4 (hardcover) ISBN-13: 978-0-8447-4272-4 (pbk.) ISBN-10: 0-8447-4272-4 (pbk.) 1. African Americans—Suffrage. 2. Elections—United States. 3. Voting— United States. 4. Election law—United States. I. Title. JK1924.T47 2009 324.6'208996073—dc22 2009016284 13 12 11 10 09 1 2 3 4 5 © 2009 by the American Enterprise Institute for Public Policy Research, Washington, D.C. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writing from the American Enterprise Institute except in the case of brief quotations embodied in news articles, critical articles, or reviews. The views expressed in the publications of the American Enterprise Institute are those of the authors and do not neces- sarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. Printed in the United States of America Contents ACKNOWLEDGMENTS xi FOREWORD, Juan Williams xiii INTRODUCTION 1 Unconquered Territory 4 The Constitutionally Daring Design 5 Racism Wanes while Federal Power Expands 7 A Disconnection from Reality 9 The Constitutional Order Distorted—By Necessity 11 The Importance of Black Legislators 13 A Partial Truth 15 Expected and Unexpected Results 17 A Medley of Normative Questions 21 1. THE FUNDAMENTALS 25 The Original Design 26 The Emergence of Section 5 31 The Amendments of 1970 34 Amended Again in 1975 36 An Imaginative Solution to a Problem 38 Section 2 Rewritten 41 Combating Southern Racism: The Forgotten Goal 44 2. INTERPRETING SECTION 5: THE MESS THE COURTS HAVE MADE 47 Allen v. State Board of Elections 49 Discrimination Redefined 53 The Annexation Cases 54 Beer v. United States 58 vii viii VOTING RIGHTS—AND WRONGS Bossier I 61 Bossier II 64 Ashcroft 66 Unresolved Issues 70 3. INTERPRETING SECTION 2: JUDGES LOST IN A POLITICAL THICKET 73 Assessing Racial Equality 74 Whitcomb v. Chavis 77 White and Zimmer 78 Bolden and the 1982 Amendments to Section 2 80 Thornburg v. Gingles: The Court Weighs In 84 O’Connor’s Concurrence 87 Three Preconditions 89 The Totality of Circumstances 97 LULAC v. Perry 100 A Statute in Search of a Theory 106 Divvying Up 109 4. SECTION 5 ENFORCEMENT: THE MISCHIEF THAT GOVERNMENT BUREAUCRATS CAN MAKE 111 The Roadblocks Ahead 112 A Law Office Working for Minority Plaintiffs 114 No Discernible Standards 117 The 1980s: Detours around Retrogression 120 The 1990s: A Lawless Civil Rights Division 124 John Dunne’s Section 5 127 Merging Sections 5 and 2 130 Detailed Data and Sophisticated Software 133 The Justice Department Memo 135 The Fog 139 5. THE FOURTEENTH AMENDMENT CASES: TRAFFICKING IN RACIAL STEREOTYPING 143 Shaw v. Reno 144 Miller 148 CONTENTS ix Post-Miller 151 Misguided Hyperbole 154 The View from the Academy 156 Race-Districts: A Defective Hybrid 159 Expressive Harms 162 A Rorschach Test 164 6. THE SERBONIAN BOG 167 Competing Principles 170 The 2006 Voting Rights Act 179 Dueling House and Senate Reports 178 Bartlett v. Strickland: Revisiting Section 2 182 Waiting for NAMUDNO: Section 5 in Jeopardy 187 How Much Has the South Changed? 191 Debate among Scholars 196 CONCLUSION: MOVING ON 199 A Period Piece 202 From a Biracial to a Multiracial Polity 203 Section 2: What Next? 206 Whither Section 5? 209 Racial Progress Stymied 214 In Conclusion 220 APPENDIX A 225 Jurisdictions Covered by Section 5 of the Voting Rights Act 225 APPENDIX B 229 The Voting Rights Act of 1965 229 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 239 NOTES 243 INDEX OF VOTING RIGHTS CASES 303 GENERAL INDEX 307 ABOUT THE AUTHORS 315 Acknowledgments This book would not have been possible without the support of the American Enterprise Institute for Public Policy Research (AEI), and I am grateful to its long-time president, Chris DeMuth, and his recent successor, Arthur Brooks, for their confidence in my work. Kim Dennis, former direc- tor of the National Research Initiative (NRI) at AEI, provided the financial support and encouragement essential to the book’s inception. Her succes- sor as head of the NRI, Henry Olsen, drew on his deep knowledge of American politics to make perceptive suggestions that helped shape the book in important ways. Samuel Thernstrom, director of the AEI Press, not only provided incomparable editing, but also talked through almost every substantive point, enriching my own understanding of the subject in the process. Whatever strengths this book possesses are due in great part to his indis- pensable help. I am indebted as well to his assistant, Laura Harbold, who provided inestimable assistance with production of the book, to Lisa Ferrarro Parmelee for her meticulous editing, and to Susan Burnell for her careful review of my legal citations. Several people generously read the manuscript in whole or in part. In their swift but painstaking reviews, J. Christian Adams, Michael Carvin, Roger Clegg, Daniel Lowenstein, and Hans von Spakovsky caught errors and made valuable suggestions, for which I thank them. I learned a great deal from the many excellent scholars whose work is discussed throughout the book. When I wrote Whose Votes Count? more than twenty years ago, there was very little academic writing on minority voting rights; today a rich and varied literature exists, from which I drew extensively. Richard Hasen’s immensely useful ElectionLaw listserve has been a great source of information and insight, and I am indebted to xi xii VOTING RIGHTS—AND WRONGS Rick for his indefatigable energy in posting the latest election law news every day. As always, Stephan Thernstrom read every word and then read them again . and again. He is my wonderful colleague, and a husband with- out whom life would be unimaginable. Foreword Juan Williams It is a simple but revealing joke: Even paranoids have enemies! That one-liner is pretty accurate in revealing a common mindset among black Americans. Yes, we now know a black man can be elected president in this white-majority country. Yes, even the head of the overwhelmingly white Republican Party is currently a black man. And, yes, a vigilant Congress, on the watch for any sly tactic to diminish black voting rights, has repeatedly extended an emergency provision of the 1965 Voting Rights Act, long after it was intended to expire. But . even paranoids have enemies. So, when the last extension of that provision—section 5—of the Voting Rights Act was about to expire in 2006, it sparked a frenzy of fear on black talk radio, in black newspapers, and, particularly, on the Internet. The basic message—just two years before a black man won the White House—was that black people faced the possibility of losing their right to vote. Section 5 was originally intended as short-term insurance against any sleight-of-hand changes by racist election officials looking to subvert newly established protections for minority voters. In a nation where blacks had been kept from voting with bogus literacy tests and interpretive questions from registrars that had no real answers—such as the infamous, “How many bubbles in a bar of soap?”—section 5 gave the government a way to deal with new forms of such blatant attempts to deny black people their voting rights. It was targeted at the nine states of the Old Confederacy with their history of voter intimidation and poll taxes. Now, more than forty years later, in response to a simple debate about the need for yet a fourth exten- sion of section 5, dire voices claimed that any thought of doing away with it xiii xiv VOTING RIGHTS—AND WRONGS or trimming it back amounted to the end of the whole Voting Rights Act. Some announced that black people would be kept from voting. Please keep in mind that the most important protections of the Voting Rights Act do not require reauthorization.