Saturday, March 28, 2009
With Northwest Austin Municipal Utility District v. Holder (considering the application and reauthorization of Section 5 of the Voting Rights Act) scheduled for oral argument before the Court the last day in the term, and most recently blogged here, legal scholarship on voting and race could not be more timely. Luckily, there are two superb recently published articles that illuminate the subject of voting rights and African-Americans, especially pertinent for ConLawProfs.
The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev. 65 (2008) by Gabriel J. Chin and Randy Wagner opens with this provocative statement:
thinking of African Americans as a minority.
Gabriel (Jack) Chin and Randy Wagner argue that although African-Americans may have been a "minority nationally," they were
concentrated. In 1880, for example, African Americans were an absolute
majority in Louisiana, Mississippi, and South Carolina; and were over 40%
of the population in Alabama, Florida, Georgia, and Virginia, making Afri-
can Americans the largest single voting bloc in those states.
Further, "allied with Republican whites, African Americans outnumbered conservatives and
earned majority control of the electoral system in many states." This history of majority political power, they contend, "creates an imperative to rethink segregation and the present condition of African Americans," moving disenfranchisement from one of a "laundry list of indignities," to a central feature of analysis. The authors offer the tyranny model in which African-Americans
lost their majority power through unconstitutional means.
Thus, the disadvantages they experienced were the result not
of majoritarian indifference or discrimination, but of minority tyranny.
The authors' historical sections (complete with charts) of the Reconstruction and Jim Crow eras is compelling, demonstrating racial discrimination at the local, state, and federal levels as related to disenfranchisement. The theoretical implications of their argument for judicial review strike at understandings of the so-called "counter-majoritarian difficulty":
The idea at the core of the counter-majoritarian difficulty, that judicial
review should be restrained lest courts interfere with decisions of majorities,
counseled judicial vigor when those seeking help from the courts were in
fact majorities. If African Americans were a majority or controlling plurality
at the turn of the twentieth century, then judicial decisions failing to defend
their interests could not be the result of an effort, correct or not, to balance
majority rule and minority rights. Instead, anti-African American decisions
sacrificed both the principle of democracy and the letter of the Constitution
in favor of some other principle. The Court knew what it was doing when it
upheld discrimination and disenfranchisement; it consciously upheld laws
passed by minorities, against the will of majorities, who because of their
race had been denied the right to vote provided by the Constitution.
[in 1879] the Court recognized that there were "[s]tates where the colored
people constitute a majority of the entire population.''
Such a recognition, as Chin and Wagner argue, casts Plessy v. Ferguson, as well as other cases, in a very different light.
In her brilliant response, Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner, 43 Harv. C.R.-C.L. L. Rev. 127 (2008), Professor Taunya Lovell Banks essentially agrees with Chin and Wagner, concluding that " litigators should seriously consider using Chin and Wagner's argument and evidence to challenge the invocation of counter-majoritarian concerns in voting rights cases."
Yet Banks extends (and in some ways updates) Chin and Wagner's argument:
While I agree with Chin and Wagner that the counter-majoritarian principle
has been misapplied by the Court in race discrimination cases involving
black Americans . . . Fear of black majority
rule was not the sole reason for black disenfranchisement efforts in the late
nineteenth and early twentieth century. If it had been, disenfranchisement
efforts would have decreased as the percentage of black voters in the states
decreased. Yet, as even Chin and Wagner concede, efforts to disenfranchise
black voters have continued into the twenty-first century in the absence of
black majorities or pluralities in the former states of the confederacy. Thus, I
contend that black disenfranchisement on both a local and national level is
linked to resistance by white racial conservatives to full political equality for
black Americans (and often other non-white racial/ethnic minorities).
Further, Chin and Wagner seem overly optimistic in believing that the
problem with the minority model analysis is simply the Court's unwilling-
ness to recognize the lingering effects of disenfranchised black majorities or
pluralities. Continued resistance among white racial conservatives (whose
interests are currently favored by the federal courts) to full political equal-
ity for black Americans makes it unlikely that "law" will grapple with the
consequences of nineteenth- and early-twentieth-century black disen-
franchisement anytime in the near future . . . . the Court continues
to further the rights of white racial conservative minorities nationally and locally.
Banks turns to several recent cases to prove her point. Her analysis of Justice O'Connor's use of counter-majoritarian discourse in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) is the best I've seen; I expect it to be turning up in the notes of every Constitutional Law Casebook in the near future. She also addresses Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) as a springboard to discuss her theories linking resource equality with racial diversity, and linking educational equality and rights with the larger social good. Additionally, Banks argues that Bush v. Gore, 531 U.S. 98 (2000), should be read as a case about African-American disenfranchisement - - - again, I expect to be seeing the arguments excerpted in the notes of every ConLaw Casebook.
These two articles should be required reading for anyone interested in Northwest Austin Municipal Utility District v. Holder, the United States' deeply problematic history of voting, and judicial theorizing invoking counter-majoritarian difficulties.