Posted by Abigail Thernstrom, guest-blogging: Race-Conscious Districting: Needed and Costly http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250556629
Over time, the Voting Rights Act morphed in an unanticipated direction -- a change that had both benefits and costs. The act�s original vision was one that all decent Americans shared: racial equality in the American polity. Blacks would be free to form political coalitions and choose candidates in the same manner as other citizens. But in the racist South, it soon became clear, that equality could not be achieved -- as originally hoped -- simply by giving blacks the vote. Merely providing access to the ballot was insufficient after centuries of slavery, another century of segregation, ongoing white racism, and persistent resistance to black political power. More aggressive measures were needed. In response, Congress, as well as courts and the Justice Department, in effect amended the law to ensure the political equality that the statute promised. Blacks came to be treated as politically different -- entitled to inequality in the form of a unique political privilege. Legislative districts carefully drawn to reserve seats for African Americans became a statutory mandate. Such districts would protect black candidates from white competition; whites would seldom even bother to run in them. The new power of federal authorities to force jurisdictions to adopt racially �fair� maps was deeply at odds with the commitment to federalism embedded in the Constitution, and the entitlement to legislative seats designed to elect members of designated racial groups was equally at odds with traditional American assumptions about representation in a democratic nation. In 1965, however, a century of Fifteenth Amendment violations demanded what might be called federal wartime powers, and, as on other occasions when wartime powers were invoked, the consequence was a serious distortion of our constitutional order. It was fully justified in 1965; it is not today. The history of whites-only legislatures in the South made the presence of blacks both symbolically and substantively important. Racially integrated legislative settings work to change racial attitudes. Most southern whites had little or no experience working with blacks as equals and undoubtedly saw skin color as signifying talent and competence. Their stereotypical views changed when blacks became colleagues. In addition, southern blacks came to politics after 1965 with almost no experience organizing as a conventional political force. Thus, race-based districts in the region of historic disfranchisement were arguably analogous to high tariffs that helped the infant American steel industry get started: They gave the black political �industry� an opportunity to get on its feet before facing the full force of equal competition. Most Americans do not like public policies that distribute benefits and burdens on the basis of race and ethnicity. But, while it is relatively easy to take an uncompromising stance against racial classifications in higher education, for instance, it is more difficult when the issue is districting lines drawn to increase black officeholding. Context matters. Racial preferences at, say, the University of Michigan were not dismantling a dual system. Moreover, the alternative to preferences in education has never been all-white schools, as William G. Bowen and Derek Bok, in their 1998 book, The Shape of the River, acknowledged. They calculated that approximately half the black students in the selective schools they studied needed no distinctive treatment to gain admission. Finally, there is strong evidence that racial preferences in higher education don�t even work as advertised. The rich empirical work by UCLA law professor Richard Sander, for instance, has shown that black students preferentially admitted to law schools have disproportionately low rates in passing the bar exam. It is possible, he finds, that racial preferences have reduced, rather than increased, the supply of black attorneys. The contrast with the realm of politics is marked. There are no objective qualifications for office -- the equivalent of a college or professional degree, a minimum score on the LSATs, a certain grade-point average, or relevant work experience. Race-based districts also work precisely as intended. They elect blacks and Hispanics to legislative seats. In the South such descriptive representation has had an importance far greater than increasing the number of black and Hispanic students at, say, Duke University. In suggesting that race-conscious maps were a temporary necessity, I do not defend what are often called bug-splat districts -- constitutionally problematic, racially gerrymandered constituencies. They were the product of an aggressive Justice Department that labeled districting maps as intentionally discriminatory if the ACLU and other civil rights groups had come up with what they regarded as a superior plan. Nor do I deny the serious costs that accompanied race-driven districting -- costs that have increased in importance as racism has waned. Such districting continues to reinforce old notions that blacks are fungible members of a subjugated group that stands apart in American life, requiring methods of election that recognize their racial distinctiveness. In 1993 Justice Sandra Day O�Connor described race-driven maps as �an effort to �segregate . . . voters� on the basis of race.� As such, she said, they threaten �to stigmatize individuals by reason of their membership in a racial group.� Racially gerrymandered districts flash the message �RACE, RACE, RACE,� voting rights scholars T. Alexander Aleinikoff and Samual Issarcharoff have written. Racial sorting creates advantaged and disadvantaged categories -- groups that are privileged and groups that are subordinate, they argued. The majority-minority districts upon which the DOJ insisted have become safe for black or Hispanic candidates, as intended, but they have also turned white voters into what these two scholars called �filler people.� Whites have become irrelevant to the outcome of the elections in districts designed to elect minorities, unless they serve as the swing vote in a black-on-black contest. America has experienced an amazing racial transformation in the decades since 1965, and race-conscious districts are no longer necessary. Today, their costs outweigh their benefits. Indeed, they have become a brake on the pursuit of political equality -- tending, as they do, to elect representatives who are generally too isolated from mainstream politics and on the sidelines of American political life. Black political progress might actually be greater today had race-conscious districting been viewed simply as a temporary remedy for unmistakably racist voting in the region that was only reluctantly accepting blacks as American citizens. This is a point I will address more fully in my fifth post -- at the end of the week.
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