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Excerpted From: Joshua S. Sellers, Race, Reckoning, Reform, and the Limits of the Law of Democracy, 169 University of Pennsylvania Law Review Online 167 (2021) (99 Footnotes) (Full Document)

JoshuaSellersIt is a moment of racial reckoning. It is not the first, it will not be the last, and it assures no restitution. But it is, nonetheless, a moment. As befits such moments, assorted conversations are occurring about the significance of race in American life and how to meaningfully improve Black lives. These conversations--debates might be the more accurate noun--have inspired calls for recompense and broad structural reforms. The Black Lives Matter movement, for example, advocates for reparations, police defunding, education reform, and a restructured political economy.

Scholars from varied disciplines, though united in their commitment to racial equity, likewise contribute to policy debates over reform objectives. These debates frequently echo longstanding disagreements over the fundamental causes of contemporary (i.e., post-Jim Crow) Black disadvantage. According to many, race is the principal driver of political, economic, and social outcomes. Others rebut this claim by emphasizing the considerable importance of economic status or class in shaping individuals' lives. As evidence against both views, others underscore how race and class are inextricably related. These debates, while worn, remain generative. They often clarify how racial discrimination persists and which reform strategies are most promising. Legal scholarship, though, rarely contends with the insights generated from these debates. These deficiencies impede our ability in the legal academy to fully ascertain how law shapes and preserves Black disadvantage.

This is apparent even in the context of “law of democracy” scholarship. The law of democracy refers to the system of laws, institutions, and norms that define the rules of our democratic practice. As an academic field, and particularly as compared against other public law fields, the law of democracy is conspicuously race-conscious. More precisely, questions and concerns about the impact of various election-related policies on racial groups are prevalent in law of democracy scholarship (and in election litigation). One might think, then, that law of democracy scholarship would be a deep repository of books and articles explicating the connections between electoral structures and contemporary Black hardship.

Yet, because the vision of equality animating the field is narrow, these connections are obscured. Commonly suggested remedies for Black disadvantage-- new, revised, or more consistently enforced federal legislation, evidentiary burden-shifting, minor doctrinal tweaks--rest on the presumption that political participation is inherently fateful. Simply put, there is discordance between what impactful reform looks and sounds like to those outside the law, and reform as commonly conceived of in law of democracy scholarship. Given this disconnect, this Essay argues for a reorientation of law of democracy scholarship toward broader considerations of how electoral structures, policies, and practices impede Black equity.

Black equity, as I conceive it, encompasses political, economic, and social initiatives that afford Black citizens not just the right to vote in periodic elections on roughly equitable terms with others, but the power to combat the maldistribution of resources and opportunities that hinders Black progress. An emphasis on Black equity demands historical analysis of the ways in which the law of democracy has contributed to the entrenchment of Black disadvantage (reckoning) and invites incorporation of public and non-legal scholarly insights about how to meaningfully improve Black lives (reform).

Part I of this Essay outlines the range of perspectives informing the public and non-legal academic conversations about race and reform; conversations that are unobservable in law of democracy scholarship. Part II makes the affirmative case for law of democracy scholarship that explicitly contends with how to achieve Black equity.

[. . .]

In a recent New York Times opinion column, Professor Richard Pildes asserted that “[e]very [political] reform proposal must be judged through this lens: Is it likely to fuel or to weaken the power of extremist politics and candidates?” Use of that metric, he argued, is necessary given the rise of “extremist forces that have rapidly gained ground in our politics.” This Essay suggests that scholars and reformers consider another metric: Is a reform proposal likely to further Black equity? Expanding our conception of how the law of democracy impacts Black equity is the first step in the development of complementary legal theories that challenge the persistence of both racial and economic disadvantage. Serious, committed work awaits.

Associate Professor of Law, Arizona State University, Sandra Day O'Connor College of Law.

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