The New South and the Voting Rights Act, Post-NAMUDNO
posted by Michael Kang
The 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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August 7, 2009 at 6:48 am
Posted in: Civil Rights, Constitutional Law, Current Events, Politics
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Responses (4)
A.W. - August 8, 2009 at 7:06 am
> Gladwell criticizes Atticus Finch
When I listened to that one as a book on CD not too long ago, what struck me was that the way he defended his client against rape was despicable. It was only justifiable on the theory that his client was probably falsely accused. But while doing the right thing is the most important thing, doing it the right way is a close second.
> 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.”
While Amar’s commitment to actual equality of opportunity is questionable, what he has said here is true mostly. But I should point out that while the framers hoped for everyone to be judged by their merit, they never mandated that. So if a person voted for or against obama because he is black, the framers never intended the law to do a thing about it.
> 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.
Really, clearly weaker how?
Certainly Obama was better spoken, but let’s break this down.
Kerry: war hero, experienced senator, has administrative experience in the military
Obama: former cocaine user, no war record, little experience in even the senate, no administrative experience, has the middle name “Hussien” and a last name that sounds like the first name of america’s greatest terrorist enemy, much more liberal than kerry, associated with terrorists and a racist preacher…
Indeed, just talking about resumes obama is the least qualified president since… well, Lincoln. Now given that Lincoln was even less qualified on paper to be president than obama, one might take comfort. I don’t. I think we weren’t smart to elect Lincoln: we were lucky. We made the best choice, obviously, but only by accident, not by design. And to be fair, none of the other candidates had the right policies. But it was luck that Lincoln turned out to be our greatest president; we had no evidence of it in 1859.
Lightning stuck with Lincoln. But it is foolish to vote hoping for it to strike twice.
I think it is less than clear that Kerry was the weaker candidate.
> but it is difficult not to draw race-based conclusions from Obama’s lack of success among white voters in these areas
Or could it be that race explains his success among voters? I mean, my God, Colin Powell, a republican, endorsed him. You want to tell me it never occurred to you that Powell might have done so due to pigmentation? Certainly the fact that powell has backed off and said he was displeased with the president’s performance suggested that powell was blinded by something.
And I might add that more than a few people didn’t like how often people equated criticism of obama with racism. And what do you know, we have this post here that equates refusing to vote for obama with racism, and another post suggesting the joker posters are racist, too, for some reason. Maybe a few of us saw this coming and didn’t like the prospect.
As for the voting rights act, it was written at a time when people were scheming to find ways to keep black people from voting. It has outlived its usefulness. If there is a danger of that, it is not out of racial animus but the recognition that a full 90% of black people vote democrat all the time. But where isn’t that a problem? The day where the south is singled out as a uniquely bad actor should end.
JR - August 8, 2009 at 11:31 am
Pretty weak. Among many other things you don’t mention is that the Democrats didn’t have a southerner on their ticker for the first time almost forever.
Michael Kang - August 8, 2009 at 6:28 pm
Thanks for the comments. I agree that the 2008 presidential election by itself doesn’t establish a continuing pattern of racially polarized voting. But that’s not why I refer to the Persily brief from NAMUDNO. Instead, I don’t agree with those who think that Obama’s election (while historic in its own right) establishes that there is not a continuing pattern of racially polarized voting in the South, which is a very different point backed up by the brief. Of course, there are lots of reasons that voters choose one candidate over another besides race, but there’s also a substantial literature that finds racially polarized voting still to be robust in parts of the country based on far more evidence than this single election. I don’t discuss it in the post, but it’s there for you to check out if you’d like.
Danielle Citron - August 11, 2009 at 6:24 am
Terrific post, Michael. Policies are often framed as either/or choices and you have helped illuminate why here such an overly simplistic notion is false. Thanks. Danielle
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