We’re winning the white vote. We’re not doing so hot with the rest of a diverse nation. (Lightman, 2013, 18A). Republican U.S. Senator Rand Paul, May 10, 2013
- 1 As of this writing, the Shelby County decision had yet to appear in a bound volume of the United St (...)
- 2 Minority groups protected are African Americans, Latinos, Asian Americans, Native Americans, and Al (...)
- 3 The formula took into account the past use of discriminatory devices and low voter registration and (...)
- 4 Section 3(c) authorizes federal courts to require federal preclearance for specified voting changes (...)
1The United States Supreme Court decided two cases recently in which the constitutionality of the preclearance provision in Section 5 of the Voting Rights Act (hereinafter VRA) was challenged, Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193, 2009 (hereinafter NAMUDNO) and Shelby County, Alabama v. Holder, ___ U.S. ___ , June 25, 2013 (hereinafter Shelby County).1 Until the Shelby County decision, this provision had required selected state and local governments, primarily southern, to persuade either the United States Attorney General or the United States District Court for the District of Columbia that changes they adopted in their election procedures did not have a discriminatory purpose toward or retrogressive effect on protected minorities.2 Changes that could not satisfy that standard could not be implemented. In Shelby County, the Court left Section 5 itself intact but found the coverage formula in Section 4(b), through which the state and local governments required to submit their changes to the Department of Justice or the federal district court were determined, was unconstitutional.3 In short, the Shelby County decision, in which Chief Justice John G. Roberts, Jr. wrote the decisive opinion, emasculated the preclearance requirement by leaving no jurisdiction subject to it unless it had been “bailed-in” under Section 3(c) of the Act by a federal court, which applied to only two local governments at the time of the decision.4
2In the preceding case, NAMUDNO, the Court, in an opinion also authored by Chief Justice Roberts, made a narrow statutory ruling that also dealt with a coverage issue while avoiding ruling on Section 5 per se. It found that the jurisdiction at issue, a special purpose local government in Texas seeking to be removed from preclearance coverage, was eligible to be removed under a part of the statute, Section 4(a), never previously used for that purpose. This interpretation of the statute granted the plaintiffs what they desired so it was not necessary for the Court to reach the constitutional issue they raised (Engstrom, 2009, 351-360).
3The preclearance requirement is a time-limited provision of the VRA. In 2006 Congress reauthorized it for another 25 years. In so doing it developed an extensive record totaling over 15,000 pages. A total of 21 committee hearings concerning it were held in the House of Representatives and Senate. The evidence gathered through these hearings contained a large volume of information concerning contemporary politics in the covered jurisdictions, along with comparisons to non-covered jurisdictions. This evidence persuaded Congress that there was still a need for the preclearance requirement and the coverage formula for it. The measure passed the House by a vote of 390-33 and the Senate by a vote of 98-0, and was signed by President George W. Bush (Tucker, 2007, 205-267).
4During the oral argument before the Supreme Court in the NAMUDNO case Chief Justice Roberts referenced the low percentage of submissions for preclearance of election changes that had been denied from 1998 through 2002, just 0.05 (Transcript, 27). The Deputy Solicitor General, arguing the case for the United States government, stated in response that the figure reflected the widely touted deterrent effect of the preclearance requirement, that its presence was stopping jurisdictions from making changes adverse to protected minorities (Ibid., 28). He informed Roberts that Congress had found that “section 5 was deterring the problem” (Ibid.). Robert’s in turn stated:
Well, that’s like the old – you know, it’s the elephant whistle problem. You know, I have this whistle to keep away the elephants. You know, well, that’s silly. Well, there are no elephants, so it must work (Ibid.).
5In both of the opinions authored by Roberts there appears to be another elephant-related problem, that being the “Elephant in the Room.” This expression refers to “an obvious major problem or issue that people avoid discussing or acknowledging.”5 The “elephant” that Roberts avoids acknowledging in these opinions is racially polarized voting (hereinafter RPV), a prevalent feature of elections in the United States, especially in the South. It concerns the well documented preference for minority voters to prefer to be represented by people from within their own group, while other voters prefer other candidates.6 This is a feature of elections that makes a minority group’s ability to elect representatives of their choice, especially representatives from within their own group, highly dependent on how electoral competition is structured. RPV, in short, makes protected minority groups vulnerable to “second generation” discrimination in elections.
- 7 The Supreme Court made it clear that dilutive changes were to be denied preclearance in Allen v. St (...)
- 8 See. e.g., the references to the presence of RPV in Department of Justice objection letters denying (...)
6First generation discrimination concerns minority disfranchisement; the outright denial of the vote to minority group members. Second generation refers to impeding, if not eliminating, the effectiveness of that vote. RPV makes protected minorities vulnerable to this second type of discrimination. Dilutive elective structures include, among others, at-large (jurisdiction-wide) elections in majority-white jurisdictions, election districts gerrymandered to preclude the election of minority candidates, and annexations that increase the white percentage in municipal electorates. Section 5 protects covered minority groups from changes that result in either vote denial or vote dilution, although the later type of changes had been the focus of attention for many years.7 RPV is a central feature of many preclearance decisions under Section 5,8 and in court decisions under Section 2 of the VRA, which is a nationwide prohibition against minority vote dilution (Thornburg v. Gingles, 478 U.S. 30, 89-90 (1986)). Congress identified second generation discrimination as a major reason the preclearance protection needed to be continued (Pub. L. No. 109-246, section 2(b)(2), 120 Stat. 577).
7 Given the narrow statutory holding in NAMUDNO one can easily argue that there was no legal need for Robert’s opinion to reference racially polarized voting. But neither, given the holding, was there any legal need for him to include the following in that opinion: “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels” (NAMUDNO, 202). This is clearly dicta that Roberts chose to include in the opinion. And while the statement is correct, as far as it goes, it is incredibly selective in what it references about politics in the South.
- 9 Only Justice Clarence Thomas wrote a separate opinion in NAMUDNO, both concurring with and dissenti (...)
8 This selective picture continues in his Shelby County opinion, in which Roberts quotes the statement in NAMUDNO about how things have changed in the South (Shelby County, sl. op. 6-7). And again, there is no mention of RPV anywhere in his opinion.9 Presumably this is because the opinion only affects the coverage formula for Section 5, and the majority did not review the claims, made by Congress and the lower courts, that the formula effectively captured the states in which second generation discrimination problems had been most acute. This decision, in short, allowed the Court to state that “we are not ignoring the record,” which contained considerable RPV evidence and findings, “we are simply recognizing that it played no role in shaping the statutory formula before us today” (Shelby County, sl. op., 21).
- 10 As a consultant on voting rights matters to covered jurisdictions in the South I have personally wi (...)
9The unprecedented number of minority elected officials in the South is a result of legal barriers against minority vote dilution in the Voting Rights Act. These gains are largely a function of the increased use of majority-minority election units in the region, including geographic districts for multi-member elected bodies, and the increase rate at which minority candidates win in those districts (Davidson and Grofman, 1994; Lublin et al., 2009, 525-553). These districts resulted from the application of the preclearance requirement, or the threat thereof, as well as judicial applications, or threat thereof, of Section 2 of the Act.10 They reduced the effectiveness of racially polarized voting to block the election of minority candidates. Without them, the increased registration and turnout of minority voters would not have resulted in nearly as many minority elected officials. Indeed, evidence in the record, cited by the District Court in the Shelby County case, revealed that at that time only one of the 35 African Americans serving in the state legislature in Alabama, in which Shelby County is located, was elected in a majority-white district (Shelby County v. Holder, 811 F. Supp. 2d 424, 488 (D.D.C., 2011)).
- 11 Pub. L. No. 109-246, section 2(b)(3), 120 Stat. 577, and H.R. Rep. 109-478 (2006), at 34 – 35.
10While Justice Roberts found no need to mention RPV in his opinion, Congress did not ignore it. It found and reported, based on the massive amount of testimony before it, that RPV was still pervasive in the covered jurisdictions, especially those in the South, and was increasing in magnitude, not decreasing, and that it was still more prevalent there than in the non-covered areas of the country.11 Indeed, featured among the findings in the Act itself was:
- 12 Pub. L. No. 109-246, section 2(b)(3), 120 Stat. 577.
The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act … demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the … Act.12
- 13 H.R. Rep. No. 109-478 (2006), at 34 (emphasis added).
11The House Committee Report unambiguously identified the importance of the RPV evidence, stating that it was the “clearest and strongest evidence the Committee has before it of the continued resistance within covered jurisdictions to fully accept minority citizens and their preferred candidates into the electoral process.”13 The omission of any reference to this pronounced feature of southern politics in Roberts’ opinions resulted in not just a very incomplete picture of the racial politics in the region, but also of the evidence that Congress found critically important to its decision to reauthorize the preclearance regime created in the VRA.
- 14 The Circuit Court in its opinion in Shelby County complimented the District Court for its “thorough (...)
- 15 DISCLOSURE The study was conducted by the author of this article. See Prepared Statement of Richard (...)
- 16 The case, Louisiana House of Representatives v Ashcroft, (D.D.C. CA No. 1:02cv00062), was settled i (...)
- 17 The only such elections excluded from the analysis were those in which either all of the African Am (...)
12These RPV findings, based primarily on voting in state and local elections, were supported by “strong evidence” from a variety of sources, including “judicial findings, scholarly studies, expert analyses, exit polls, and personal testimonies” (Clarke, 2009, 85). While the District Court in NAMUDNO recited only Congress’ summary of findings, that court in Shelby County also referenced some of the specific RPV findings in the record.14 One study that received attention concerned elections in Louisiana (Shelby County v. Holder, 811 F. Supp. 2d 424, 488 (2011)).15 It had examined 90 elections to a variety of elected offices held from 1991 through 2002 in areas across the state at issue in a Section 5 preclearance case involving the state’s House of Representatives districts.16 All of the elections presented voters with a choice between or among African American and non-African American candidates.17
- 18 All of the elections were held under Louisiana’s unusual election system in which all candidates co (...)
- 19 Estimates derived through ecological regression and homogeneous precinct analyses were relied upon (...)
- 20 This candidate could be a non-African American candidate.
13The results of the analyses of those elections are attached as Appendix A.18 They were based on comparisons of the number of African Americans and number of non-African Americans receiving ballots in the voting precincts in the respective elections, and the numbers of votes cast in those precincts for the various candidates. Three methodologies were employed to derive estimates of the support levels for African American candidates among the African American voters and non-African American voters. These were Gary King’s ecological inference procedure, known as EI, and ecological regression and homogeneous precinct analysis (King, 1997).19 When more than one African American candidate ran, the support levels for the African American candidates as a group were reported, followed by that for the candidate estimated to have received a majority, or at least a plurality, of their votes.20 The results of the analyses were summarized as follows:
An examination of these tables reveals that voting in these dispersed areas of Louisiana is unquestionably characterized as racially polarized. Indeed, the phenomenon is pronounced. In 78 of the 90 elections analyzed, 86.7 percent, all available estimates show that African Americans cast a majority of their votes, usually extraordinary majorities of them, in support of an African American candidate, while a majority, also usually an extraordinary majority, of the non-African Americans voted for a non-African American candidate (Engstrom Report, 58).
14On the basis of this, the author concluded that “Racially polarized voting remains pronounced and pervasive in Louisiana” (Ibid.). It was also pointed out that RPV affected elections not only across the state, but for all types of offices as well, whether executive, legislative, judicial, or special purpose:
It doesn’t matter whether the office at issue is state Representative, state Senator, Governor, Mayor, District Attorney, or Public Service Commissioner. It could be for a position as Recorder of Mortgages or Register of Conveyances. Or it could be a variety of judicial offices – such as seats on the State Court of Appeals, state District Court, City Court, or on a specialized court like Juvenile Court or Traffic Court (Ibid.).
15Also noted in the report presented to the House subcommittee was the fact that these results for Louisiana were not unique among the southern states (Ibid., 59-60).
- 21 See also Georgia v. Ashcroft, 204 F. Supp. 2d. 4, 10, 12 (D. DC 2002). The Supreme Court decision i (...)
16Similar results had been reported in court decisions involving state legislative and congressional redistricting in those states following the 2000 census. In a case reviewing both congressional and legislative redistricting in South Carolina, a federal court found the evidence showed that “Voting in South Carolina continues to be racially polarized to a very high degree, in all regions of the state and in both primary and general elections” (Colleton County Council v. McConnell, 201 F. Supp. 2d 618, 641, (DC SC 2002)). In Texas a federal court reviewing the state’s new congressional districts also found, based on evidence from Democratic primaries and general elections, “the presence of racially polarized voting throughout the state” between Latino and non-Latino voters (Sessions v. Perry, 258 F. Supp. 2d 451, 493 (E.D. TX 2004)). In Florida a federal court reviewing both sets of districts found, based on nonpartisan, party primary, and general elections, that “There is a substantial degree of racially polarized voting in south Florida and northeast Florida -- the areas of the state involved in plaintiffs’ claim of racial vote dilution” (Martinez v. Bush, 234 F. Supp. 2d 1275, 1298-1299 (S.D. FL 2002)). These findings by the court in Florida applied to divisions between African Americans and non-African Americans and between Latinos and non-Latinos. And in a preclearance case involving state senate districts in Georgia, a federal court found, again based on nonpartisan, party primary, and general elections, “highly racially polarized voting in the proposed districts” at issue in the case (Georgia v. Ashcroft, 195 F. Supp. 2d. 25, 88 (D DC 2002)).21
17The Louisiana study and these court findings reinforce what leading scholars had been saying about southern politics at the time, that race remained “the central political cleavage” in the region (Black and Black, 2004, 4) and that it pervaded partisan politics there (Ibid., 244; Lublin, 2004, 134-171; McKee and Shaw, 2005, 285,287, 300).
18Racial voting patterns were not ignored in the briefs submitted to the Supreme Court in the NAMUDNO and Shelby County cases. NAMUDNO, the utility district, filed its brief on February 2, about three months after the 2008 presidential election in which an African American, Barak Obama, won the presidency. The brief referenced just one aspect of voting behavior in that election – the white vote, nationwide, for Obama. The District opened its brief by informing the Court that, as a result of that election, “The country has its first African-American president, who received a larger percentage of the white vote than each of the previous two Democratic presidential nominees” (Appellant’s Brief, 1). There was no source provided for this statement, which was supposedly an illustration of how Section 5 was no longer needed (Ibid.). There were no subsequent references to that election in the brief.
19This was certainly a curious way to begin a brief in a case challenging the preclearance requirement and the coverage formula for it. It contained no corresponding statement about the African American support for Mr. Obama, nor any information about how different it was from that of whites. Nor was there anything about the support for Obama in the jurisdictions covered by the preclearance requirement, nor a comparison with his support in jurisdictions that were not. This information was provided, however, in an Amici Curiae brief for Nathaniel Persily, Stephen Ansolabehere, and Charles Stewart III, describing and analyzing the exit poll results from the nationwide exit polls conducted during that election for a consortium of news organizations.
20How much had voting patterns in the country changed? According to the amici, two accomplished political scientists and a notable voting rights attorney, no “profound disruption” took place (Brief for Nathaniel Persily, Stephen Ansolabehere, and Charles Stewart III as Amici Curiae on Behalf of Neither Party, Shelby County 3). The findings of their analysis were summarized as follows: “The gap in candidate preferences between white and minority voters grew in 2008, as did the gap between jurisdictions covered and not covered by Section 5 of the VRA” (Ibid.).
21The estimate of the African American support for Obama in the 28 states and the District of Columbia, for which the exit poll had enough African American respondents to provide reliable estimates, ranged from 90 percent to 100 percent. There was much greater variation in the estimates of the white vote for him among all 51 units. While Obama has been identified as “a uniquely gifted political entrepreneur with the skills to reach across racial lines” (Thernstrom, 2009, 20), those skills served him better in some places than others. The estimates of his white support ranged from 10 percent to 86 percent (the latter being the District of Columbia).
22Obama’s skills obviously failed to impress white voters in the covered jurisdictions in the South. The lowest estimates of the Obama vote among whites were in six of the nine states fully covered by the preclearance requirement. These were the southern states of Alabama at 10 percent, Mississippi at 11, Louisiana at 14, Georgia at 23, South Carolina at 26, and Texas at 26. The other three fully covered states were below the national average of 43 percent (which includes the six states listed above), with Alaska at 33 percent, Virginia at 39, and Arizona at 40. The South, for which Justice Roberts had noted gains in registration, turnout, and minority elected officials, stuck out as the most polarized region of the country in the presidential vote (Id, Table 2, 11-12).
- 22 Amici’s findings reported above are substantiated by those of Clarke (2009, 68-73).
23The analysis reported by the amici further revealed that the polarization in the presidential election in the covered states, based on the national exit polls for 2004 and 2008, increased rather than decreased. In the 2004 presidential election, the difference in the African American and white votes for John Kerry in those states was 60 percentage points; this increased to 71 percentage points in 2008, a statistically significant change (Id, Table 1, at 8). The vote in 2008, the amici believed, “revealed the intransigence of racial differences in voting patterns” (Id, at 3).22 These findings were consistent with Congress’s more general findings that RPV was not only more prevalent but also of greater magnitude in covered jurisdictions than non-covered.
- 23 The only Justice to express agreement with this position was Clarence Thomas.
24In both the NAMUDNO and Shelby County cases the Unites States, and Intervenors and Amici Curiae in support of it, not surprisingly, made frequent references to the congressional findings on racially polarized voting. Neither the utility district seeking to be removed from Section 5 coverage, nor the Intervenors and Amici in support of it, contested these findings. Their response to them was simply to dismiss them as irrelevant, because racially polarized voting was private rather than state action.23
25Only one brief supporting NAMUDNO attempted to cleanse the racial divisions documented by Congress of any racial content. This was an Amicus brief submitted by the Southeastern Legal Foundation, which maintained that “the evidence shows that it is partisanship and incumbency – not race – that plays the decisive role in the way that votes are cast on election day” (Amicus Curiae Brief for Southeastern Legal Foundation in Support of Petitioner, NAMUDNO, 24). In support of this statement the brief cited seven papers, all by Charles S. Bullock III and Ronald Keith Gaddie, each of which focused on one of the southern states fully covered by the VRA. All of the papers were sponsored by the Project on Fair Representation and the American Enterprise Institute (AEI). While not identifying any specific findings from these studies, pages from them are referenced that allegedly support the statement above.24 But neither these papers, nor the book into which they were subsequently combined, provide evidence that the well documented connection between race and party in southern politics can be disentangled (Bullock and Gaddie, 2009; Engstrom, 2011, at 56-59; Engstrom, 2010, 207-209).
26The Bullock and Gaddie studies rely almost exclusively on general elections. In such elections, as Bruce Cain has noted, “racial polarization and party polarization are two sides of the same coin.” (Cain, 2013, 339). Empirical studies reveal, not surprisingly, that the white flight to the Republican Party in the South has been driven, and sustained, by racial issues (Engstrom, 2011). The Republican National Committee (RNC), in a 2013 study, acknowledged that the Republicans continue to have a problem with minority voters. In a sometimes remarkably candid document resulting from the study, Growth and Opportunity Project, it is noted that many minority voters “think that Republicans do not like them” (Republican National Committee, 2013, 4). Former Republican House Majority Leader Dick Armey is quoted as saying, in regard to Latinos, “You can’t call someone ugly and expect them to go to the prom with you” (Ibid., 8). Recommendations in the document call for more sincere and more frequent efforts at outreach to minorities, including a change in party “tone” to one that “welcomes in,” and in messaging, to “a welcoming, inclusive message” (Ibid., 15, 16, 18). It further states that “The pervasive mentality of writing off blocks of states and demographic votes for the Republican Party must be completely forgotten” (Ibid., 12). Indeed, there is even a call for “a more welcoming conservatism” (Ibid., 5).
- 25 Gingrich interview with Greta Van Susteren (see “Gingrich Destroys Obama: ‘Barack Obama Wakes Up Ev (...)
27The statement by Sen. Rand Paul in the epigraph to this article was made not long after the Republican Party study was published. His statement, perhaps indicating that he had read the document, continued “We have to adapt or die” (Lightman, 2013). His behavior, however, raises questions about his sincerity about outreach. About two months later it was revealed that Paul had hired, in 2012, a person known as the “Southern Avenger” to serve as social media director on his senatorial staff. This person had been in a leadership position in a southern secessionist organization, the League of the South, toasted John Wilkes Booth, Abraham Lincoln’s assassin, on Booth’s birthday, and made public appearances wearing a mask sporting the Confederate Battle Flag (Mandell, 2013; Goodman Follow, 2013; Healey, 2013). He resigned after his past was exposed. Add to this the important role of the Tea Party in the Republican Party and it should be no surprise there is a strong empirical association between party and racial polarization in general elections. A former Republican Speaker of the House, Newt Gingrich, while acting as a Mitt Romney surrogate during the Romney presidential campaign in 2012, even employed racial stereotypes when commenting, on television, on President Obama. In an interview on Fox News he asserted that the President had “rhythm” that “the rest of us don’t understand,” and questioned whether “he needs to go play basketball for a while.” And as if these racial “dog whistles” weren’t enough to remind his audience that the President was an African American, he further tapped a long time source of southern white anger toward African Americans by referencing what Gingrich found to be “the depth of his arrogance.”25
28But RPV is not present in only general elections. Judicial findings of RPV in southern states during the post-2000 round of redistricting, as noted above, typically rely on evidence from party primaries and nonpartisan elections as well. Primaries are within party contests while the nonpartisan elections contain no party identifications of candidates (Engstrom, 2011, at 59; Engstrom, 2010, 208). The few Democratic primaries included in the Bullock and Gaddie studies also reveal that when primaries involved both African American and non-African American candidates, or Latino and non-Latino candidates, there were usually acute group divisions among voters, with voters demonstrating clear preferences for those candidates from within their own group (Engstrom, 2011).
29A similar effort to cleanse race from RPV was made in two briefs in the Shelby County case, but both efforts were limited to undocumented assertions. One, an Amicus brief in support of Shelby County by the Mountain States Legal Foundation, simply stated that “there are many reasons besides race that might lead to ‘racially polarized voting’” (Amicus Curiae Brief of Mountain Legal Foundation in Support of Petitioner, Shelby County, 26). But there were no suggestions as to what those reasons were, nor how they were not themselves related to race. The other was another Amicus brief in support of the county produced by the Landmark Legal Foundation. It contended that RPV “is the result of differences in political opinion rather than race.” (Brief of Amicus Curiae Landmark Legal Foundation in Support of Petitioner, Shelby County 12 (emphasis added)). It likewise did not identify what those opinions concerned, nor how they themselves were not related to race. This brief did provide a citation for its statement, however, which was to an article by Roger Clegg and Linda Chavez (Clegg and Chavez, 2007). The citation refers to a page on which the authors acknowledge the finding about RPV in both the House reauthorization bill and the Senate version of it, but then state that it is “certainly not evidence if the reason for the polarization is simply legitimate differences of political opinion rather than race (Ibid., 569 (emphasis added)).” This is simply another assertion without evidence.
30None of the briefs attempting to cleanse RPV of any racial content, nor any of the material they referenced, received any attention in any of the opinions of the Justices in NAMUDNO and Shelby County.
31Racially polarized voting received very little attention in the oral argument before the Supreme Court. The lawyer arguing for NAMUDNO repeated the District’s position that “racial bloc voting,” by itself, “is not discrimination, and is not unconstitutional” (Transcript, 63). The lawyer for the NAACP Legal Defense and Educational Fund put such voting in context, however, noting that in Louisiana, “where racially polarization is as extreme as it is,” minority voters are vulnerable to vote dilution schemes (Ibid., 55). And at one point Justice Anthony M. Kennedy noted that the Persily, Ansolabehere, and Stewart Amici brief made “an important point about ‘crossovers,’” white votes for Obama, being different in covered and non-covered jurisdictions (Ibid., 56). The only reference to RPV in the Shelby County hearing was when the Solicitor General for the United States identified “the persistence of polarized voting” as part of the evidence that convinced Congress of the continuing need for Section 5 (Ibid., 42).
32As noted above, there was no reference to RPV in the majority decision in NAMUDNO, but it was addressed, very briefly, by Justice Thomas in his separate opinion, in which he stated that Section 5 of the Act was unconstitutional. He dismissed the relevance of RPV evidence to the case, stating that it was neither unconstitutional discrimination, state action, nor “a problem unique to the South” (NAMUDNO, 228, Thomas, J., concurring in part and dissenting in part) (emphasis added)). He did not engage the congressional findings that RPV was still pervasive in the covered jurisdictions, especially those in the South, and was increasing in magnitude, not decreasing, and that it was still more prevalent there than in the non-covered areas of the country. Nor did he engage the Persily, Ansolabehere, and Stewart Amici brief showing the South to be the most polarized region of the country when it came to voting for Obama in 2008.
33There also was no reference to RPV in the opinion of the Court in Shelby County, which Roberts wrote, and four other conservative Justices joined, including Thomas who also wrote a separate concurring opinion that contained no mention of RPV. For the first time in these cases, the RPV evidence cited by Congress as part of the justification for reauthorizing Section 5 was addressed in an opinion. Justice Ginsburg referenced it extensively in her dissenting opinion, which was joined by the three other liberal Justices.26
34She referenced the major RPV findings in the legislative record; that RPV was still pervasive in the jurisdictions subject to Section 5, leaving protected minorities in those jurisdictions vulnerable to dilutive changes in their election systems, that it had increased in magnitude in those areas, and that it was more prevalent and greater in magnitude in those jurisdictions than in non-covered jurisdictions (Shelby County, J. Ginsburg, dissenting, sl. op., at 8, 20, 21, 35). She also referenced another study by Ansolabehere, Persily, and Stewart, which covered the 2012 presidential election. There was no nationwide exit poll that provided state specific estimates of voting by racial groups across most states that year, so the authors relied on a nationwide aggregate level regression analysis using counties as the unit of analysis. The results of this analysis revealed that RPV was even greater in magnitude than it had been in 2008, with white support for Obama declining and his minority support increasing. But Ginsburg did not cite the study for the RPV results per se (see below), but rather to repeat what the authors had to say about RPV creating partisan incentives to dilute minority votes:
… when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circumstances of severe racial polarization, efforts to gain political advantage translate into race-specific disadvantages (Shelby County, J. Ginsburg, dissenting, sl. op., at 21, quoting Ansolabehere, Persily and Stewart, 2013, 209).
- 27 Ginsburg further references Chandler Davidson’s chapter, “The Recent Evolution of Voting Rights Law (...)
35In short, partisan incentives, unless not adequately policed, “will inevitably discriminate against a racial group” (Ibid.).27 The majority did not deal with the evidence of, and findings concerning, RPV that she referenced, because “it played no role in shaping the statutory formula before us today” (Shelby County, sl. op., 21).
36 The study of the 2012 presidential election by Ansolabehere, Persily, and Stewart, as noted above, relied on aggregate level analyses in which the vote for Obama is regressed onto the racial composition of counties. They report the following concerning the relationships between these variables:
Voting in the covered jurisdictions has become even more polarized over the last four years, as the gap between whites and racial minorities has continued to grow. This is due both to a decline among whites and an increase among minorities in supporting President Obama’s reelection (Ansolabehere, Persily, and Stewart, 2013, 206).
37They further note that “This gap is not the result of mere partisanship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered jurisdictions” (Ibid. (emphasis added)).
38 Their estimate of the support for Obama among non-Hispanic whites is 19.8 percent in the covered counties, much lower than that for the non-covered counties, 40.9. These estimates stood at 22.8 percent and 44.9 percent respectively in the 2008 election (Ibid., 217). It would be rational to hypothesize that this drop in support in the covered jurisdictions could be, at least in part, due to the Tea Party’s influence on southern whites. In their recent book, Change They Can’t Believe In: The Tea Party and Reactionary Politics in America, Christopher S. Parker and Matt A. Barreto conclude that the intense hostility this predominantly white movement displayed toward President Obama soon after his election to the presidency, was certainly driven in part by racism, but also in part by a reactionary rather than traditional conservatism that is difficult to distinguish from racism. In an extensive study of surveys administered in 13 states and of Tea Party group websites, they find that for Tea Party supporters the elevation of Obama to the presidency, in which he serves as both Chief of State and Head of Government, made him “the face of their country,” and represented to them a loss in their social prestige and white privileges, which no doubt led to strong opposition to him in the voting booth (Parker and Barreto, 2013, 36-37 (emphasis in the original), 79-80, 248-249).
- 28 There were no Republican Party primaries for state and local offices in South Carolina in the areas (...)
- 29 DISCLOSURE The study was conducted by the author of this article. See Exhibit 14 to the application (...)
39 Additional evidence of the continuing prevalence of RPV in South Carolina and Mississippi is available from the preclearance requests for new state legislative districts adopted in those states following the 2010 Census. South Carolina included an extensive study of RPV in that state in their successful request for preclearance of its new state Senate redistricting plan following the 2010 Census. The study examined elections that were contested by African American candidates and non-African American candidates from 2002 through 2010, including Democratic primaries and general elections.28 The analyses compared turnout counts provided by the state for non-white and white voters in the precincts and the votes for candidates within them, and relied on King’s EI procedure for the estimates of group support. The results, reported in Appendix B, show that RPV continues to be present across offices, in primary as well as general elections, in that state.29
40 The study focused on 12 Senate districts in the previous plan, known as “benchmark” districts, which were central to the analysis of whether the state’s new plan had a retrogressive effect on the ability of African Americans to elect representatives of their choice. Reported in Table 3 in Appendix B are the results of the analysis of the five such state senate elections. The non-white vote is estimated to be well above 90 percent in all three of the general elections, while the estimates of the white vote ranged from 24.5 to 31.5 percent. In the two Democratic primaries, African American candidates are estimated to have received a majority of the non-white votes, while the estimates for the white voters, in contrast, are well below 10 percent.
- 30 Ms. Johnson was unopposed for the Democratic nomination for Secretary of State in 2010.
41 Numerous elections to other offices were also analyzed. These were done for the 28 counties that included, even partially, one of the benchmark districts. Two recent statewide elections were analyzed in which African American candidates were on the general election ballot. These were the 2008 presidential election and the 2010 election for Secretary of State in South Carolina. The results of the analyses of these elections are reported in Table 4 in Appendix B. The estimates of non-white support for Mr. Obama in these counties ranged from 86.3 percent to 99.3. The corresponding estimates for white support ranged from 6.4 percent to 30.7. The African American candidate in the Secretary of State election, Marjorie L. Johnson, received an estimated 88.2 percent to 99.6 of the non-white vote, but only 6.6 percent to 23.3 among the white voters. In addition, in the 2008 statewide Democratic Presidential Preference Primary in South Carolina, in which data for 26 of the counties were available for analysis, the vote for Obama is estimated to have been from 74.5 percent to 91.2 percent among the non-white voters, compared to 0.6 percent to 40.1 of the white voters. His vote among whites is estimated to have been less than 20 percent in 21 of the 26 counties (see Table 5 in Appendix B).30
42 The votes were also analyzed for 59 elections for countywide offices contested by African American and non-African American candidates in the 28 counties. These included Democratic Party primaries and general elections for County Auditor, Clerk, Coroner, Probate Judge, Sheriff, and Treasurer. The results of these analyses are contained in Table 6 in Appendix B. Non-white and white voters again were found to differ in their support for candidates along racial lines. Results for these countywide elections were summarized as follows:
In 52 of these elections non-white voters cast an estimated majority of their votes for an African American candidate, while white voters cast an estimated majority for a white candidate. These racial divisions appear regardless of the office at issue or the year of the election. The estimate of non-white support for African American candidates exceeded 70 percent in 45 of these elections, while the estimate of white support for these candidates is below 30 % in 47 of them (Engstrom Report, 2011, 6).
- 31 The only African American to be the nominee of the Republican Party in the general elections was Al (...)
43Acute racial divisions were frequently found in both Democratic primaries and general elections.31
44 The RPV in South Carolina from 2002 through 2010 found in this study is consistent with that found by the federal district court there in 2002 in the state redistricting case, “Voting in South Carolina continues to be racially polarized to a very high degree, in all regions of the state and in both primary and general elections” (Colleton County Council v. McConnell, 201 F. Supp. 2d 618, 641 (DC SC 2002)).
45 Another state, Mississippi, included RPV results in successful preclearance submissions for its state House of Representatives and Senate districts adopted after the 2010 Census. This analysis was performed to estimate the African American support and non-African American support for two African American candidates who had run against white candidates in recent statewide elections. One was Mr. Obama in the 2008 general election for President, the other Johnny DuPree, the Democratic candidate for Governor in the 2011 general election. These analyses compared the African American and non-African American voting age populations in the precincts across the state with the votes for the candidates in those precincts. King’s EI procedure also was used to derive these estimates.
- 32 The values of the 95 percent confidence interval around the African American estimate are 99.3 perc (...)
- 33 The values of the 95 percent confidence interval around the African American estimate are 97.2 perc (...)
- 34 DISCLOSURE: This analysis was also done by the author of this article, and the results reported in (...)
46The results not only reveal that Obama was the choice of the African American voters, but that Mr. DuPree was as well. The estimates concern percentages of the two-party vote received in these elections by each of them. The estimates were 99.7 percent of the votes cast by African Americans went to Obama, but only 8.3 percent of those cast by non-African Americans.32 The estimates for the gubernatorial election three years later were 98.3 percent for DuPree among African Americans and only 9.4 percent among non-African Americans.33 The overall votes for these candidates in the benchmark districts and the new districts were then used in the assessment of whether the new districts created a retrogression in African American opportunities to elect representatives of their choice.34
47Suggestions that southern politics have somehow entered a “post-racial” phase with the election of Barak Obama cannot be sustained, given the central role that RPV plays in that region as documented above.
48 Congress decided, in 2006, that the major forms of racial discrimination in the American electoral process were the second generation barriers to an equal franchise, not the first generation barriers that the Voting Rights Act had been so successful at minimizing, if not eliminating. Congress also found that the coverage formula for Section 5 was an effective formula for targeting the worst offenders when it came to second generation discrimination. And it further found that RPV was the behavioral anchor on which vote dilutive mechanisms thrive.
49The Supreme Court majority in the Shelby County decision, however, declined to entertain these conclusions. Embracing the fact that the South had changed when it came to the first generation problems of vote denial, the majority treated the increases in minority elected officials in the region as if they were simply a result of that, ignoring another fact, that the VRA, including the preclearance provision in it, was the front line of defense against diluting that expanded minority vote. Its refusal to confront this critical factor allowed the Court to ignore the central role that RPV plays in southern politics.
- 35 See Berman, 2013, and Seidenberg, 2014.
- 36 The states of Texas and North Carolina, along with a county and a school district in Texas and a sc (...)
- 37 On the role of RPV in vote dilution litigation generally, see Crayton, 2012, 985-989.
50The Court’s majority might be forced to acknowledge and deal with RPV more constructively in the future. As Justice Roberts stated in his Shelby County decision, “voting discrimination still exists; no one doubts that” (Shelby County, sl. op., at 2). Nor can anyone doubt that the Shelby County decision itself has stimulated renewed efforts at racial discrimination through the adoption of minority vote suppression and other dilution measures in previously covered states and local governments.35 Both of these facts will stimulate efforts to create a new coverage regime to combat this continuing, and now worsening, problem. Not surprisingly, evidence of RPV plays a central role in proposals for new preclearance coverage formulas (see, e.g., Daniels, 2013, 1935, 1954, 1959, and 1962). Both facts will also stimulate Section 3(c)-based requests to federal courts to “bail-in” jurisdictions to Section 5 preclearance, including jurisdictions outside the South. Requests for court-ordered bail-in are now becoming an important part of vote suppression and dilution lawsuits.36 RPV is also likely to be a central evidentiary consideration as federal courts decide whether to do so. And of course RPV will remain a central evidentiary consideration in Section 2 litigation.37
51RPV is too big a problem to ignore. Its pervasive and persistent presence in so much of the United States must be recognized as evidence that “current needs” exist for a strong and effective VRA (Shelby County, sl. op., at 2).