Author: Michael Kang


The New South and the Voting Rights Act, Post-NAMUDNO

ColoredDrinking1The current New Yorker features an essay by Malcolm Gladwell on To Kill a Mockingbird and the racial politics of the Jim Crow South. Gladwell criticizes Atticus Finch, an iconic figure among many liberals, for accommodating ingrained racism and passing off to himself what was often “homicidal hatred of black people” as excusable human frailty. Gladwell’s depiction of the Jim Crow South is familiar to anyone with a passing familiarity with the civil rights movement, and it contrasts sharply with sunnier contemporary accounts within election law circles of the New South (where I now live), now reformed by the Voting Rights Act. A common response to the Supreme Court’s recent Voting Rights Act decision in NAMUDNO v. Holder, for instance, was to note the triumph of racial progress and the outdatedness of the Voting Rights Act, once born as a forceful response to the Jim Crow South.

Of course, the presidential election of Barack Obama is the inspiration for much of the racial triumphalism. As Akhil Amar put it, “Obama’s very candidacy is a powerful embodiment of a Reconstruction vision in which blacks, under the Fifteenth Amendment, would be full political equals with a right to vote and to be voted for on the same terms as white.” For many, Obama’s election represented the historic moment signaling the irrelevance of race and race-specific remedies in voting rights. As Paul Krugman argued, “Racial polarization used to be a dominating force in our politics, but we’re now a different, and better, country.”

However, Obama’s election demonstrated not only American racial progress over the last fifty years, but also its surprising stagnation in some parts of the South. Particularly in the deeper South, racial polarization seemed not to have diminished nearly as much. The available data, summarized in an amicus brief written by Nate Persily, Charles Stewart, and Steve Ansolabehere for NAMUDNO, confirms that Obama actually received a lower percentage of the white vote in a number of southern states than John Kerry, who was clearly a weaker candidate in a much more difficult election year for Democrats in 2004. Such patterns of racial polarization need not always suggest race-based reasons for the divergence in voting patterns, but it is difficult not to draw race-based conclusions from Obama’s lack of success among white voters in these areas, particularly given Obama’s advantages in 2008 compared to Kerry in 2004.

In other words, when it comes to race in American politics, things have both changed a lot and stayed the same a bit. Things certainly have changed more than they have stayed the same in most of the country, and for the better, but it doesn’t mean that Section 5 of the Voting Rights Act isn’t still useful in the deep South, where it always has had its most meaningful bite. I have emphasized the continuing relevance of Section 5 even while acknowledging the racial progress we’ve seen since the Jim Crow era that Gladwell depicts in his New Yorker essay. Others, however, argue that Congress should refrain from trying to “save Section 5” of the Voting Rights Act and instead embrace a non-race based “right to vote” model for voting rights.

I actually agree about the desirability of national efforts at universal laws to protect the right to vote for all voters against the new vote denial, but I see an implicit choice between maintenance of the Voting Rights Act and new efforts to bolster a universal right to vote as a false one. There are pitfalls when historic legislation like the Voting Rights Act cast such a big shadow that it threatens to bind up newer, overlapping efforts in the same policy domain, but these pitfalls are not inevitable. We can have both, please. The Voting Rights Act may continue to do valuable work even as the voting rights community expands its attention to non-race based concerns about voter identification, restrictive registration requirements, and voting technology, among other things. The success of the past need not define the present, but it is not inconsistent with it either.

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The Institutional Turn in Budget Politics and Election Law

Thanks so much to Danielle, Dan, and their co-bloggers for inviting me to visit for the month of August. I start my guest stint at Concurring Opinions by writing a bit about an interesting proposal by Chris Elmendorf and Ethan Lieb for breaking state budget stalemates that appeared in the New York Times op-ed page last week. Elmendorf and Lieb point out that California’s embarrassing budget stalemate, during which the state of California was forced to issue IOUs, threatens to become a yearly ritual during the economic downturn. They propose “[i]f the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens – one from each legislative district – would be convened to resolve the stalemate.” This citizen’s assembly would be presented with proposed budgets from the governor and each party’s legislative caucus, hear arguments from interested experts and groups for two weeks about each proposal, and choose one of the proposed budgets, which then would become law.

The idea is not only creative and promising, but representative of a larger movement toward institutional solutions in election law that I discuss in a recent book review of Heather Gerken’s The Democracy Index. Increasingly, election law reform is turning to the creation of new political institutions that seek not to deny politics or remove politics from lawmaking, but to channel lawmaking in healthier directions by restructuring leadership incentives more closely with the public interest. The Democracy Index, the subject of Heather’s book, is one such institutional solution. It would aggregate data about election administration into an ordinal ranking of state performance that might make an otherwise arcane subject more accessible to voters. Another institutional solution is my own proposal for gerrymandering reform, which would place competing districting maps prepared by the parties on the ballot for public selection. The hope is that inducing electoral competition between the major political parties pushes both sides toward fairer proposals that appeal to the median voter in what would be a public and avowedly political process. Elmendorf and Lieb’s idea is in this same family of institutional solutions.

Heather and I are working on a new project that identifies, assesses, and ultimately advocates this “institutional turn” in election law with much greater elaboration than I could offer in my short book review (or this post). We think this institutional turn is characterized by at least three important qualities. First, institutional solutions by their nature do not look to courts as neutral regulators of politics who can impose fairness from outside the political process. Second, institutional solutions attempt to harness politics to fix politics. They try to restructure political processes to channel competition among leaders in the direction of the public good. Third, institutional solutions generally enlist popular participation in creative ways and engage the public with central questions of election law, to the extent feasible. Each of these qualities is clear in Elmendorf and Lieb’s proposal, which embodies, at least in my view, exactly the right normative instincts emerging in election law.