I grew up in an ACLU household; the heroes of the civil rights revolution were our heroes, and the passage of the 1965 Voting Rights Act (VRA) was the watershed event that enfranchised minority voters in the South for the first time since Reconstruction. The key provision in the VRA effecting this change was Section 5, which transferred the burden of proof from minority voters to southern states, requiring them to prove that proposed changes to their voting laws would not harm minorities. Earlier this year the civil rights community worked with congressional leaders to fashion legislation extending Section 5 and other expiring provisions of the VRA for another 25 years; Congress passed this legislation unamended, and the president signed it into law late last month. So why am I uneasy?
As an answer, it is worth pondering why this bill would pass with the strong support of Republicans in Congress and the White House. It might be, of course, that Republicans have seen the light and, in line with the president's recent speech to the NAACP, are trying to out-Democrat the Democrats in search of more electoral support from minority communities. (Indeed, the bill was put on a fast track in the Senate so that it would pass the same day as the president's speech, even before a committee report was issued.)
But there's also the possibility that this bill helps further Republicans' electoral and policy goals. Electorally, as is well known, both Republicans and minorities can come out ahead, at the expense of non-minority Democrats, through the establishment of gerrymandered majority-minority districts. As populations of solidly Democratic African Americans are squeezed into fewer and fewer districts, that is, the surrounding “bleached” districts have higher chances of electing Republicans.
But policy-wise? I don't see it. For all the former talk of a “big tent” Republican party and the supposed coincidence of Republican and minority values on certain social issues, there seem to be little if any points of intersection between what the Republicans offer and what minorities want. Indeed, the only real enthusiasm Bush got at the NAACP convention was his announcement that the VRA renewal would soon pass. None of his substantive policy proposals -- including school vouchers and the new Medicare drug benefit -- drew more than lukewarm applause, while some were greeted with outright hostility.
The fact is, the voting arrangements that elect the most minorities as possible to office are not the same as those that do the most to promote the policy goals supported by minority voters. This wasn't always the case; it used to be that the best way to get pro-minority legislation was to construct districts that were sure to elect minority-supported representatives. But with the decrease in polarized voting in the South, and increased polarization between the parties in Congress, this equation no longer holds. Indeed, research I have conducted with Sharyn O'Halloran shows that with the rise of the Republican Party's fortunes in the South, the “hazard rate” in that region is now 2 to 1: for every extra majority-minority district created, that is, two extra Republicans get elected from surrounding districts. This means that, on average, each additional majority-minority district results in the loss of one vote for minority-supported legislation.
This isn't to say that such districts shouldn't be constructed at all, just that in some cases they might also be counterbalanced by a certain number of districts that spread out minority voters more, helping to prevent the election of representatives unfriendly to minority policy concerns. There is no easy answer to the question of how to strike this balance, but the deafening silence you hear is a conversation that is not taking place. No one is willing to broach the topic of whether it might ever serve minorities' interests to support voting arrangements aimed at advancing their policy interests, even if it comes at a small cost to their concentrated impact as voters or to the electoral prospects of minority politicians.
In fact, the VRA renewal legislation just passed explicitly tries to prohibit these types of tradeoffs by overruling a Supreme Court decision -- Georgia v. Ashcroft -- that would have given states more flexibility in trading off descriptive representation (getting more minorities elected to office) and substantive representation (promoting policies favored by minority voters). It would have been possible to address Georgia v. Ashcroft with more finesse, allowing substantive/descriptive tradeoffs to be made, but only when they clearly had the support of the minority community. And given that such tradeoffs would help Democrats at a time when control of the House is up for grabs, one might have expected someone from that camp to suggest such a modification.
In the end, though, the politics of the situation were too powerful. The civil rights community favored renewal of the VRA in the strongest form possible; mainstream Republicans supported it, in many cases for the political advantages it conferred; and Democrats could not publicly oppose it, despite the reservations many had about its consequences for their party's electoral fortunes. It's for these reasons that I, and others I've talked to, remain apprehensive about the long-term policy implications of what's just happened -- not because we did not want to see the VRA renewed, but because we would have preferred it be renewed in a form that allows minorities to pursue substantive as well as descriptive representation if they so choose.
David Epstein is a professor of political science at Columbia University.