Reviewed by George R. La Noue, Professor of Political Science and Public Policy, University of Maryland Baltimore County. Email: Glanoue [at] umbc.org.
In this book, Anthony Peacock, who teaches political science at Utah State University, explores political and legal interpretations of the Voting Rights Acts (VRA) which encourage a kind of multiculturalism or identity politics that he considers destructive to the Founders’ constitutional vision. Thus, the book functions at two levels. First, it is a very useful overview of the implementation of the VRA which was extended by Congress in 2006 for another 25 years. Second, it is a provocative argument about the kind of voting arrangements Peacock believes are consistent with Madisonian Republicanism and the role of the VRA in undermining them. He concludes: “The Founders hoped that the various institutional processes of the national government would involve reasoning on the merits of legislative proposals with a view to protecting individual rights and promoting the general welfare. . . The current VRA – the VRA of second-generation voting rights – requires legislators, judges, and administrators to think in racial terms, to count in racial terms, and to allocate political power in racial terms” (p.152-153).
The 1965 VRA was created as part of the great 1960s civil rights movement. By then, it had become apparent that attempting to enforce the 15th Amendment’s prohibition against denying or abridging the right to vote on the basis of race or color through district by district litigation was not working. The Amendment gives Congress the specific right to enforce this prohibition, but even at the outset there was substantial controversy over the mechanisms embodied in the VRA.
The VRA was distinctive legislation in two respects. The most stringent requirements applied only to those states or counties that employed specific discriminatory devices in 1964 and had fewer than 40 percent of their voters registered or voting in the 1964 presidential and general elections. In the “covered” states or counties, local changes in any voting procedure had to be approved by the United States Attorney General’s Office or the United States District Court for the District of Columbia. There were sound historical reasons for this alteration of traditional federalism, but the issue of what standards should be applied to local voting procedures became highly controversial and ultimately changed the partisan make up in much of the South.
After a time, there was little public debate about the goal of prohibiting any overt denial of the right to vote, but the concept of abridgement was more complicated. The American political [*1013] process is full of devices which abridge or decrease the weight of some citizen’s vote at least sometimes in some places (e.g., the electoral college, Senate representation, partisan and other forms of gerrymandering, winner take all elections, to name a few examples.) When does a particular form of abridgement as it affects a racial or ethnic group violate the VRA?
Peacock’s concern is mostly with equal protection issues. Properly, he focuses attention on UNITED JEWISH ORGANIZATIONS (UJO) OF WILLIAMSBURG, INC. v. CAREY (1977). In 1973, in WHITE v. REGESTER, the Supreme Court held that the fact, “that the racial group allegedly discriminated against [had] not had the legislative seats in proportion to its voting potential” was not enough to prevail in a constitutional claim. But gradually VRA cases found that some minorities were statutorily entitled to proportional representation. In UJO, upon the urging of the NAACP, the Department of Justice required New York State to reapportion some City districts to create 65% nonwhite state legislative districts, thus virtually guaranteeing either black or Puerto Rican representatives. In Brooklyn, that had the effect of splitting the Hasidic Jewish community that previously controlled one assembly and senate seat. The Supreme Court rejected UJO’s claim because New York State was seeking “a fair allocation of power between white and non-white voters” in Brooklyn. From that perspective, Hasidic Jews were just a part of the larger white majority. Chief Justice Burger dissented, pointing out that in Brooklyn, “The ‘white’ category consists of a veritable galaxy of national origins, ethnic backgrounds, and religious denominations” and that blacks and Puerto Ricans did not share the same views on many issues.
Twenty years later, in SHAW v. RENO (1993) and MILLER v. JOHNSON (1995), the Court confronted the implementation of the proportional representation theory in Congressional districting. Democratic Departments of Justice seeking to maximize black representation and their Republican counterparts seeking safe white seats had forced states to engage in overt racial gerrymandering. The result was a move in the South to a pattern of conservative white Republican representatives that began to reshape that party and an increased black caucus whose members were rarely competitive in other than virtually all black districts. SHAW and MILLER in 5/4 decisions appeared to halt the most egregious gerrymandering, by holding as constitutionally suspect districts in which race was the predominant factor in drawing boundaries. But Section 5 of the 2006 VRA now requires, inconsistently with those decisions’ philosophy, that covered districts not diminish the opportunity of minorities “to elect their preferred candidates of choice” for the next twenty five years. The complexity of judicial intervention was illustrated in LEAGUE OF UNITED LATIN AMERICAN CITIZENS v. PERRY (2006) when the Court invalidated a district drawn to protect Hispanic Republican Henry Bonilla because most local Hispanics preferred a Democratic Hispanic.
Peacock argues that not only is race-based apportionment dysfunctional for practical reasons, but that it is [*1014] inconsistent with basic Madisonian constitutional principles. He criticizes current interpretations and implementation of the VRA’s abridgment provisions in six ways: (1) the VRA encourages representatives to act on behalf of specific racial interests; (2) the VRA prefers corporate or group rights over private or individual rights; (3) the VRA undermines separation of powers: (4) the VRA undermines federalism; (5) the VRA promotes race-related pork barreling; and (6) the VRA incites not merely faction, but racial factions.
All theses charges can be summarized as the promotion of identity politics. Such politics or voting on the basis of shared characteristics, rather than similar issue orientations, with a candidate is not a new phenomena, but may be more open and aggressive than previously. From the early days of the Republic, when all Presidential candidates were white Protestant males, regional identifications were highly significant. In the post Civil-War era, white southerners entrenched their political control using multiple devices to disenfranchise black voters until the Supreme Court ended those practices in a series of decisions from 1924 to 1965. In 1928 (Al Smith) and 1960 (Jack Kennedy) when Catholics first ran for President, those elections produced identity voting for and against that religion. But it was not until the 2008 presidential contest, that the effects of identity voting seemed so visible. There were not many substantive differences between Barack Obama and Hilary Clinton. But she thought she had a claim on the allegiance of black voters who later deserted her candidacy in droves, while he found older white woman infertile ground for his appeals. The surprise nomination of Sarah Palin for Vice President awakened interest among Republican women as well as among evangelicals. The VRA probably had little influence on any of these emotional tides, except in preparing the ground for campaigns where candidates or their surrogates had few inhibitions in appealing for identity based votes.
The racial and ethnic identifications of candidates, however, are often significant factors in elections that depend on districting, and here the VRA may reinforce, even require these outcomes. The VRA’s central purpose of access to voting, except in rare instances, is no longer a critical problem, so the legislation’s principal impact is instead where and how those votes are counted. The 2006 extension of the VRA and some judicial decisions require that covered jurisdictions take no actions that would diminish the opportunity of racial and ethnic minorities included in the standard affirmative action categories “to elect their preferred candidates of choice.” There are no similar guarantees for religious, cultural, economic, or non-affirmative action minority groups. The guarantees given to some groups, but not others, of course, raises equal protection issues and create some unintended political consequences.
Whatever one thinks of the legal developments that provide special representation protections to some designated racial and ethnic groups, Peacock’s succinct treatise is a valuable introduction and analysis of these trends. [*1015]
LEAGUE OF UNITED LATIN AMERICAN CITIZENS v. PERRY, 548 U. S. 399 (2006).
MILLER v. JOHNSON, 515 U.S. 900 (1995).
SHAW v. RENO, 509 U.S. 630 (1993).
UNITED JEWISH ORGANIZATIONS (UJO) OF WILLIAMSBURG, INC. v. CAREY, 430. U.S. 144 (1977).
WHITE v. REGISTER, 422 U.S. 935 (1975).
© Copyright 2008 by the author, George R. La Noue.
Deconstructing the Republic: Voting Rights, the Supreme Court, and the Founders' Republicanism Reconsidered