Touro Law Review Volume 34 Number 3 Article 3 2018 Did the African-American Electorate Unintentionally Help Elect Donald Trump President? C. Daniel Chill Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Constitutional Law Commons, Election Law Commons, and the Fourteenth Amendment Commons Recommended Citation Chill, C. Daniel (2018) "Did the African-American Electorate Unintentionally Help Elect Donald Trump President?," Touro Law Review: Vol. 34 : No. 3 , Article 3. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol34/iss3/3 This Article is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Chill: African-American Electorate DID THE AFRICAN-AMERICAN ELECTORATE UNINTENTIONALLY HELP ELECT DONALD TRUMP PRESIDENT? C. Daniel Chill* INTRODUCTION Political scholars generally posit that income inequality is the primary cause for considering America to be electorally flawed.1 But, in fact, it is race, not wealth, that fundamentally impacts the electoral dynamic in the United States, at least during this past decade and more. Examples of racially driven electoral influences abound. Statistical analysis proves beyond peradventure that Barack Obama could not have been twice elected President if not for the massive vote he received from the African-American electorate, an electorate that clearly is not associated with wealth and can be counted among the poorest of American citizenry. In 2000, Republican dirty tricksters used push polling to spread a false rumor that Senator John McCain had fathered an illegitimate African-American child.2 That same year, Mr. McCain called the Confederate flag a “symbol of heritage,” saying it should be up to South Carolinians whether to display it on their statehouse grounds.3 He later apologized, admitting that he had compromised his principles in an effort to win the state’s primary.4 In 2008, after Barack Obama defeated Hillary Clinton in * Professor of Touro College & University System. The author would like to thank Elaine M. Reich, Esq. for her invaluable editorial assistance. 1 Ross Zucker, What Type of Political System is the US?, 9 J. OF POL. POWER 5, 8 (2016). 2 Ann Banks, Dirty Tricks, South Carolina and John McCain, THE NATION (Jan. 14, 2008), https://www.thenation.com/article/dirty-tricks-south-carolina-and-john-mccain/. 3 Steven A. Holmes, After Campaigning on Candor, McCain Admits He Lacked it on Confederate Flag Issue, N.Y. TIMES (Apr. 20, 2000), http://www.nytimes.com/2000/04/20/us/ after-campaigning-on-candor-mccain-admits-he-lacked-it-on-confederate-flag-issue.html. 4 Id. 713 Published by Digital Commons @ Touro Law Center, 2018 1 Touro Law Review, Vol. 34 [2018], No. 3, Art. 3 714 TOURO LAW REVIEW Vol. 34 South Carolina, Bill Clinton intimated that Obama only won because of race: “Jesse Jackson won South Carolina in ‘84 and ‘88.”5 Several weeks later, Geraldine Ferraro, who backed Mrs. Clinton’s candidacy, alluded to the same effect: “[i]f Obama was a white man, he would not be in this position[,]” she told a reporter.6 “He happens to be very lucky to be who he is. And the country is caught up in the concept.”7 In 2016, without a massive African-American vote in her favor, Hillary Clinton likely would have lost the Democratic primary to Bernie Sanders. Mrs. Clinton won large majorities over Sanders in every state with a large population of African-Americans. For example, on June 14, 2016, Mrs. Clinton won 79% of the vote in Washington, D.C., which has the largest African-American voter concentration in the United States.8 In the recent Alabama U.S. Senate contest, a 95% African-American vote for the Democratic candidate propelled him to a narrow victory. From the founding of our republic to the present, race has been at the center of our body politic, and what to do about it has been an American political and legal conundrum. Examples of the centrality of race in American politics can be found in many areas such as slave owner founding fathers (Washington, Jefferson, etc.), the Three-Fifths Compromise, the Civil War, Reconstruction, segregation, Jim Crow, Plessy v. Ferguson, and The Dred Scott decision, all of which played a central and dismal role in the drama of racial representation in the United States. Recent events in Charlottesville and Virginia, and President Trump’s remarks with respect to same, have set off a racial firestorm throughout the country. Sports (“Taking the Knee”), patriotism and the President have become a national race issue. 5 Melissa Clyne, Hillary Asks South Carolina Blacks for a Second Chance, NEWSMAX (May 28, 2015, 12:21 PM), www.newsmax.com/politics/hillary-clinton-south-carolina-blacks- vote/2015/05/28/id/647247/. 6 Katharine Q. Seelye & Julie Bosman, Ferraro’s Obama Remarks Become Talk of Campaign, N.Y. TIMES (Mar. 12, 2008), http://www.nytimes.com/2008/03/12/us/politics/ 12campaign.html. 7 Id. 8 Yamiche Alcindor & Patrick Healy, Hillary Clinton and Bernie Sanders Meet as Their Battle Ends, N.Y. TIMES (June 14, 2016), https://www.nytimes.com/2016/06/15/us/politics/ bernie-sanders-campaign.html. The New York Times article on July 13, 2016 reported that polls indicate that whites feel aggrieved by African-Americans and that race relations in the United States are bleak. See Giovanni Russonello, Race Relations Are at Lowest Point in Obama Presidency, Poll Finds, https://www.nytimes.com/2016/07/14/us/most-americans- hold-grim-view-of-race-relations-poll-finds.html. https://digitalcommons.tourolaw.edu/lawreview/vol34/iss3/3 2 Chill: African-American Electorate 2018 AFRICAN-AMERICAN ELECTORATE 715 The empowerment of African-Americans and other minorities in the American electoral arena traces directly to the Voting Rights Act of 1965 (hereinafter “VRA”).9 With the passage in 1965 of the VRA, race entered election fora with gladiatorial force. This article explores how starting in 1965, the VRA produced an apex of electoral success for African-Americans (and ultimately language minorities) only to recede a half century later with the unintended consequences of possibly helping to elect as President of the United States, Donald Trump, a man very much not a candidate of choice of the minority community. Part I reviews the various statutes making up the VRA, as well as the legislative history that informed its mission. Part II probes the negative political consequences of majority-minority VRA districts, namely lower voter turnout, how the VRA helped the Republican Party to take control of the House of Representatives, and specifically, its influence on the election of Donald Trump as President. Part III analyzes the various Supreme Court decisions involving the VRA and demonstrates the Supreme Court’s steady erosion of the constitutionality and/or the validity of the VRA. Part IV suggests remedies designed to correct collateral and undesired political fallout resulting from an overconcentration of minorities in majority-minority congressional districts. The conclusion will summarize the points articulated in this article and suggest future redistricting steps to be taken. I. THE VOTING RIGHTS ACT The original VRA was designed to address existing barriers to fulfillment of African-American participation in the electoral process. It contained two primary sections, § 2 and § 5. Section 2 of the Act10 follows the language of the Fifteenth Amendment11 forbidding discrimination in the voting franchise on 9 42 U.S.C. § 1973 (1965) (originally enacted as Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437) (current version, as amended, at 52 U.S.C. § 10301 (2016)). 10 Voting Rights Act of 1965 § 2 (stating “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”). 11 Section 1 of the Fifteenth Amendment states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition or servitude.” U.S. CONST. amend. XV, § 1. Published by Digital Commons @ Touro Law Center, 2018 3 Touro Law Review, Vol. 34 [2018], No. 3, Art. 3 716 TOURO LAW REVIEW Vol. 34 account of race or color. In City of Mobile v. Bolden,12 the Supreme Court held that to prevail in a § 2 action, the plaintiff must prove that the discrimination was purposeful and that the state authorities intended such discrimination.13 In response to the Mobile case, Congress in 1982 amended § 2 to explicitly proscribe any voting practice that had a discriminatory effect irrespective of whether the voting discrimination was purposefully intended.14 However, during congressional debates on the 1982 Amendments, a racial concern immediately manifested itself on account of the proposed results test.15 Many legislators, particularly those from the South, were deeply concerned that the effects test would result in a standard of proportional representation by race.16 In other words, they were worried that minorities would be entitled to be elected to the legislative body in proportion to their share of the relevant population, irrespective of whether the actual votes for minority candidates warranted such an outcome.17 In the view of these Southern legislators, under the results test, any voting law or procedure in the country that failed to result in mirroring minority population makeup in a particular community would be vulnerable to legal challenge under § 2.18 On April 24, 1982, Senator Robert Dole of Kansas proposed a compromise on both § 2 and § 5 that was designed to allay the concern of those troubled by the proportional representation issue.19 The new 12 446 U.S.