Posted: April 12, 2010
ew scholars in the United States have transformed the debate in an area of law and policy the way Abigail Thernstrom has. Her 1987 book, Whose Votes Count? Affirmative Action and Minority Voting Rights, shattered many of the reigning orthodoxies that had surrounded the Voting Rights Act (VRA). Although the original law passed in 1965 had been extremely successful in ensuring Southern blacks the freedom to vote, by the 1970s the VRA had taken an illiberal turn toward the blatant promotion of racial representation. For daring to reveal the extent to which it had been surreptitiously transformed into a tool for race-preference affirmative action, Thernstrom was pilloried by the academic community, so much so that in 1992 the respected civil rights historian Hugh Davis Graham described her book's "unusually hostile reception" as indicative of just how much the debate over voting rights policy "crackled with acrimony."
Now an adjunct scholar at the American Enterprise Institute and vice-chair of the United States Commission on Civil Rights, Thernstrom shows in her new book, Voting Rights—and Wrongs, how the Department of Justice, beginning in the 1990s, acted as a law office for minorities and their advocacy groups, frequently misinterpreting the legislation to drive it further and further toward a mandate of proportional representation based on race. Ignoring Supreme Court precedent, the Department of Justice brazenly demanded from states what the Court in 1995 described as "max-black" redistricting plans—plans which forced jurisdictions to maximize the number of congressional districts in which minority voters could elect minority representatives. In some cases, the congressional districts were so bizarrely drawn they resembled bug splats and Rorschach ink blots.
The Court, which initially chastised the Justice Department for these racially configured districts, abandoned its 14th Amendment concerns in 2001. As Thernstrom writes,
The Voting Rights Act, as it had come to be interpreted, mandated districting plans that ensured racially "fair" results. The Court never questioned the constitutionality of that mandate; its quarrel was solely with its implementation—theexcessive emphasis placed on the racial identity of voters in the drawing of racially determined district lines. [Emphasis in the original.]
Except for Justices Clarence Thomas and Antonin Scalia, the Supreme Court continues to accept that the VRA covers vote "dilution" issues, and must strive for racial "fairness" in elections. But as Thernstrom's subtitle indicates, this is an elusive, indeed impossible, goal to achieve. As one federal judge has remarked, the Voting Rights Act has become a "Serbonian bog."
The incoherence of the now vast VRA jurisprudence is legendary, and Thernstrom does a fine job detailing example after example of the absurd lengths to which courts, Congress, the Justice Department, civil rights groups, politicians, and academics have gone in their attempts to rationalize today's egregious racial politics, in which plainly partisan disputes are transformed into inflammatory racial conflicts. Things have gotten so absurd that in recent cases Leftist groups have tried to argue that virtually any Democrat—whether a minority or not—elected with black or Hispanic support should be protected by the VRA. In 2006, advocacy groups tried to argue that Martin Frost, a prominent white Democrat from Texas, should be protected as a minority candidate of choice under the Act. Although Democrats lost that one, Republican legislators rewarded them by voting in droves for the 2006 Voting Rights Act—once again demonstrating their stupidity and pusillanimity on race issues—which will likely give the Democrats exactly the outcome they sought in the Frost case. Thernstrom calls the new legislation "a Democratic Party dream" because if minorities do reliably vote Democratic, "all districts in which they played a role in electing Democrats (white or black) would likely be considered sacrosanct." The key provisions of the new VRA will not expire until 2031.
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Thernstrom concedes that minority representation in the sense of blacks representing blacks may have had an important place in American politics:
Race-conscious districting to end a long history of black political exclusion in the South had much in common with race-conscious school assignments to create unified school systems. But other policies that involve racial sorting can be sharply distinguished. Context matters.
Here I would respectfully disagree. Thernstrom is on a very slippery slope because liberals have always defended racial preferences in law by arguing that racial classifications must be "contextualized." However defensible the claim that mandates for minority-controlled electoral districts were necessary to break white political hegemony in the Jim Crow South, there was no warrant for these mandates in the Voting Rights Act. That said, Thernstrom acknowledges that whatever justification there was in the past for racially configured districts as an entrée to "a sector of American society basically reserved for whites," that time "has finally faded." Blacks are now equal political players in American politics, no longer requiring special treatment in electoral law.
Voting Rights—and Wrongs is a superb account of the VRA over the last 45 years. Abigail Thernstrom compellingly argues that today's law is little more than a "Democratic Protection Act." It is, in short, more wrong than right, an impediment to genuine racial progress and to federalism, stamping the South with an indelible badge of inferiority by promising to hold it in federal administrative receivership for the next two decades.