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Excerpted From: Travis Crum, Reconstructing Racially Polarized Voting, 70 Duke Law Journal 261 (November, 2020) (421 Footnotes) (Full Document)


TravisCrum copyRacially polarized voting stalks our democracy. A half century after the civil rights movement, race remains a central fault line in elections across the country. In fact, polarization between Black and White voters has increased nationwide since the mid-1990s and is particularly high in the South. Racially polarized voting “increases the vulnerability of racial minorities to discriminatory changes in voting law.” That is because a law designed to diminish minority voting strength will not have its intended discriminatory effect unless racial groups vote as a bloc. In other words, gerrymanderers can exploit racially polarized voting when drawing maps to reduce or effectively eliminate minority political power. Racially polarized voting thus implicates nearly every voting rights doctrine.

Perhaps most prominently, Section 2 of the Voting Rights Act (“VRA”) ensures that minority voters are not “packed” or “cracked” in a redistricting plan, thereby diluting their voting strength. Under Thornburg v. Gingles, racially polarized voting is a necessary--but not a sufficient--condition for a statutory vote dilution claim. The so- called Gingles factors thus require plaintiffs to establish that racial minorities are “politically cohesive” and that the “majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate.”

Notwithstanding its centrality under Gingles, the role of racial bloc voting under current doctrine is hotly contested--a debate that reflects the colorblind concerns now animating equal protection doctrine. This view was perhaps best captured in Justice Thomas's concurring opinion in Holder v. Hall, where he declared that “[t]he assumptions upon which our vote dilution decisions have been based should be repugnant to any nation that strives for the ideal of a color-blind Constitution.” In addition, a plurality of the Court cast doubt on Section 2's constitutionality when it cautioned against an interpretation that “unnecessarily infuse[d] race into virtually every redistricting” plan. Justices have also questioned whether Congress can exercise its Reconstruction Amendment enforcement authority to remedy racial bloc voting, which they have characterized as private action by voters. The Court thus views Section 2's race-conscious predicate for liability with suspicion.

These colorblind sentiments have surfaced outside the four corners of vote dilution doctrine. In Shaw v. Reno, the Court created an “analytically distinct” racial gerrymandering cause of action under the Fourteenth Amendment's Equal Protection Clause to challenge majority-minority districts. Under Shaw, if “race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district,” then the legislature must establish that the “district ... withstand[s] strict scrutiny.” In justifying this new cause of action, the Court harshly criticized the purposeful creation of majority-minority districts. According to the Court, “the perception that members of the same racial group ... think alike, share the same political interests, and will prefer the same candidates at the polls” is an “impermissible racial stereotype[].” Because Section 2 ties liability to the presence of racial bloc voting and mandates the creation of majority-minority districts under certain circumstances, Shaw has long been viewed as being on a collision course with the VRA.

At the core of the Court's anxiety about race and voting is a belief that race-based redistricting “balkanize[s] us into competing racial factions” and “threatens to carry us further from the goal of a political system in which race no longer matters--a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.” Despite its invocation of the Reconstruction Amendments, the Court implicitly treats racially polarized voting as a recent development, one that emerged after the passage of the VRA and the widespread reenfranchisement of Black voters in the South. Compounding this error, the Court assumes that the Constitution uniquely empowers the judiciary to push our nation toward a post-racial politics. Put simply, the Court presumes that the Reconstruction Amendments envision a society where racially polarized voting no longer exists. But the Court has reached this conclusion only by ignoring the historical context of the Reconstruction Amendments and by transplanting its colorblind jurisprudence from the Equal Protection Clause to the political realm.

My central claim is that the Reconstruction Framers recognized the realities of racially polarized voting and that, given the prominent role of originalism on the Court today, this fact complicates the application of colorblind principles to vote dilution claims. At the outset, it is important to dispel the myth that the Constitution is oblivious of political parties. Whereas the Founders failed to foresee the rise of party politics, the Reconstruction Framers were intimately familiar with partisanship. Indeed, the Reconstruction Amendments were passed and ratified along nearly uniform party-line votes.

Prior to the Fifteenth Amendment, Republicans received overwhelming support from newly enfranchised Black voters in the former Confederate States and expected that support to continue. Racially polarized voting was a feature--not a bug--in the passage and ratification of the Fifteenth Amendment. Accordingly, the Court's apprehension about acknowledging the existence of racially polarized voting is misplaced.

Recognizing the role of racially polarized voting in the ratification of the Fifteenth Amendment has significant doctrinal and normative implications. This historical insight moves vote dilution claims--and their predicate finding of racial bloc voting--far closer to the heart of the Reconstruction Amendments. At a minimum, it is powerful evidence that Congress is well within its Reconstruction Amendment enforcement authority to remedy and deter dilutive measures that exploit racially polarized voting.

In addition, viewing racially polarized voting from the perspective of Reconstruction challenges the Court's hostility toward race-based redistricting. After all, if the Fifteenth Amendment was ratified on the premise that racially polarized voting exists, then the Court's treatment of racially polarized voting as constitutionally taboo is historically unfounded. And it is especially difficult to square the Court's self-proclaimed power to push our nation toward a post-racial politics with the Reconstruction Framers' understanding about both the judiciary's proper role and the persistence of racial bloc voting.

Perhaps most ambitiously, reconstructing racially polarized voting reorients voting rights doctrine away from the tired debates surrounding the Equal Protection Clause. The Reconstruction Framers demonstrated a sophisticated understanding of the intersection of race and politics. The Court's refusal to even acknowledge these insights has contributed to the tension within current doctrine between vote dilution and racial gerrymandering claims. Rather than embodying a colorblind worldview, the central premise of the Fifteenth Amendment was to empower racial minorities through the ballot. And although other scholars correctly point out that voting rights are distinct from civil rights and thus deserve a different doctrinal framework, these accounts are derived from political theory and statutory interpretation, rather than a historical and contextual understanding of the Reconstruction Amendments. To be clear, I am not arguing that racially polarized voting is a desirable or inevitable characteristic of our democracy. Rather, my claim is that contemporary doctrine should account for the fact that the Reconstruction Framers were aware of racially polarized voting and developed their political and constitutional strategies in its shadow.

Finally, this Article's revitalization of the Fifteenth Amendment is especially timely given that 2020 marks the Amendment's 150th anniversary. The Fifteenth Amendment has been largely overshadowed by the Fourteenth Amendment and the VRA, but it played a vital role in establishing and then restoring our nation's multiracial democracy. Moreover, this summer's Black Lives Matter protests have forced a reckoning with our nation's racist past and present on a scale not witnessed since the civil rights movement. And the recent passing of civil rights icon John Lewis has reignited calls to revise and expand the VRA.

This Article proceeds as follows.

Part I surveys the existence of racially polarized voting today and then explains how racially polarized voting is treated as part of a racial vote dilution claim under the Constitution and the VRA.

Part II outlines the most frequent criticisms of considering racially polarized voting as part of a vote dilution claim.

Part III examines racially polarized voting during Reconstruction and its central role in the Fifteenth Amendment's passage and ratification.

Part IV argues that recognizing the role of racial bloc voting during Reconstruction not only strengthens the Gingles factors but also helps reconceptualize vote dilution claims under the Fifteenth Amendment.

[. . .]

The Supreme Court's aversion to acknowledging the reality of racially polarized voting and its hostility to race-based redistricting have shaped voting rights doctrine for over twenty-five years. The Court's approach, however, ignores the historical context of Reconstruction and the important differences between the Fourteenth and Fifteenth Amendments.

Racial bloc voting was not a taboo that went unmentioned by the Reconstruction Framers. Rather, it was a key reason motivating the Fifteenth Amendment's passage and ratification. And because racially polarized voting is a prerequisite to a vote dilution claim, reconstructing racially polarized voting moves those claims far closer to the heart of the Reconstruction Amendments and bolsters the constitutionality of the Gingles factors and Section 2. This historical intervention also reorients voting rights doctrine toward the Fifteenth Amendment and away from the colorblind concerns that have animated equal-protection and voting-rights jurisprudence for the past few decades.

Associate Professor of Law, Washington University in St. Louis.

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