The Obama Factor: The Impact of the 2008 Presidential Election on Future Voting Rights Litigation

Abstract

Some commentators have begun pointing to Barack Obama's 2008 presidential victory as singular evidence that we have overcome and resolved the problem of race in America. In particular, some have suggested that his victory marks the beginning of a post-racial era in which race bears less significance or consequence. In this Article, I focus on a particular aspect of this ongoing debate - the presence of racially polarized voting in the 2008 presidential election cycle. The commentary surrounding Obama's electoral success provides some insights into prevailing attitudes about the pace of racial progress. However, there is a more immediate and pragmatic issue for those who study and litigate vote dilution claims under Section 2 of the Voting Rights Act of 1965: the probative value of the 2008 presidential contest on future efforts to measure racially polarized voting -- one of the critical pieces of evidence that plaintiffs must offer to support traditional vote dilution claims. Here, I offer some preliminary observations regarding the implications of Obama's electoral success for voting rights litigants and find that no overarching conclusions about racially polarized voting can be drawn from it. Initial analysis of the 2008 presidential election outcome reveals a mixed pattern of racially polarized voting in some jurisdictions and significant cross-racial coalition building in others. Notably, exit polling results from the November 2008 general election reveal stark racial polarization in the Deep South states of Louisiana, Mississippi, Alabama, Georgia, and South Carolina alongside exceptionally high levels of white crossover voting in the New England states of Vermont, Massachusetts, Rhode Island and Maine. While Obama's victory most certainly represents significant progress in the ongoing effort to achieve political equality, courts should hesitate to substitute Obama's electoral success for a more careful assessment and localized inquiry that can help accurately determine whether racially polarized voting persists in a particular jurisdiction.