A Post-Racial Voting Rights Act

Abstract

The Voting Rights Act of 1965 (VRA) was enacted “to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). This article critiques the prevailing election law scholarship and jurisprudence as out of step with VRA’s post-racial aspirations and offers proposals for Congress to correct course. The United States has long been torn between civic nationalism and racial nationalism. By the mid-20th Century, the uneasy interplay of these visions had produced a remarkable expansion of citizenship to all migrants from Europe alongside appalling discrimination against, or outright exclusion of, individuals of other ancestries. The Civil Rights Movement drew on a reinvigorated spirit of civic nationalism to expel white racial nationalism from the country’s core. The rise of black nationalism and multiculturalism represent new, albeit less destructive, forms of racial nationalism that confine individuals to subjugating racial blocs. These movements have entrenched a norm in which individuals are ascribed totalizing racial scripts to perform. The diffusion of racial scripts throughout American society is sustained by a “race industrial complex” of interrelationships among self-interested academics, marketers, activists, and politicians.Nevertheless, civic nationalism retains vitality. A civic nationalist politics of deliberative exchange provides a framework for minorities to challenge white complacency in addressing structural racism, for whites to challenge minority policy preferences distorted by the race industrial complex, and for the country to reach a synthesis about maximizing social welfare. Civic nationalism can help the country achieve a post-racial society by destabilizing existing racial categories and generating national solidarity around a common hybridized culture. Voting rights law should lay the foundations for post-racial advances. VRA currently encourages formation of majority-minority districts that reward racially polarizing candidates, handicap minorities from winning politically powerful statewide races, and reproduce race as an organizing principle of American society. The law should, instead, encourage so-called crossover districts that have the exact opposite effect. Congress should also amend VRA to provide stronger protections against practices that have a disparate impact on minorities’ access to the polls. Finally, Congress should amend VRA’s preclearance scheme so that, to begin, no jurisdictions are required to preclear voting practices. Preclearance, though, should be automatically triggered for a jurisdiction when it is found liable for diluting the influence of minority votes through redistricting or denying minorities access to the ballot.