This paper, prepared for a symposium on voting rights in the George Washington Law Review, is a call to refocus attention on the role of race in politics. In recent years, many voting rights scholars have shifted their attention away from the plight of minority voters. Indeed, the issue of race came up in this symposium only obliquely, if at all, as part of a discussion of other issues. And this is more than a bit unusual, for race has been a driving force in the development of much of the law of democracy over the last several decades.
Of course, there is more to politics than race. The 2000 presidential election fiasco, coupled with the passage of the Help America Vote Act and predictions (mostly correct, it turns out) of a close presidential election in 2004, made us focus on ballot access and integrity in a way that we haven't since the passage of the Voting Rights Act. Significant new legislation and Supreme Court opinions in the areas of campaign finance and partisan gerrymandering in the last couple of years have made those issues especially relevant. And when it comes to the law of politics, we all recognize the need to strike while the iron is hot - and ballot access, campaign finance, and partisan gerrymandering are certainly the hot issues of the last election.
But the relative inattention to the role of race in politics may reflect more than the temporary rise of other issues. It may also reflect a broader belief that, when it comes to race, we've done about all we can, especially when it comes to the larger, structural issues. The thinking goes something like this. The problem of minority access to the polls was largely resolved in the 1960s through enforcement of the Voting Rights Act. The problem of minority vote dilution has proven more difficult, but the creation of majority-minority (or, more recently, coalition) districts under sections 2 and 5 of the Voting Rights Act has effectively remedied that issue. In any case, that remedy appears to have reached its limit, both because there are few places left to draw additional majority-minority districts and because the creation and maintenance of such districts may actually reduce minority influence in political affairs.
The belief that problems of minority political participation have been solved, or perhaps more accurately, that there is not that much more we can do about them within existing legal structures, comes at a critical time. Several portions of the Voting Rights Act, including section 5, come up for reauthorization in 2007. Allowing section 5 to expire without replacing it with something comparable will eliminate one of the most flexible legal tools for countering the constantly evolving methods of effectively reducing meaningful minority political participation.
This paper, then, is a plea to refocus attention on the issue of race. Part of this project must involve making sure we continue to set new goals as the old ones are achieved. Another part involves making sure that we recognize that some of the constraints that prevent minority groups from fully realizing their potential in a democratic society are of our own, or the Supreme Court's, making, and that what we have created, we can undo (or at least question). The paper, then, is a call to remain vigilant in policing the many intentional and unintentional ways in which the political rights of racial minorities may be infringed upon. And, more generally, it is an argument to think more broadly about the possibilities that may exist to improve minority participation.
George Washington Law Review
Grant M. Hayden, Refocusing on Race, 73 Geo. Wash. L. Rev. (2005)