Desmond King and Rogers M Smith
In our book, Still a House Divided (2011), and set of published papers, we argue that American racial politics has historically been structured by opposed policy alliances (or “racial orders”) that include movement activists, political parties, and governing institutions, connected through shared views on how to resolve the central racial policy issue of their eras—first slavery, then de jure segregation, and in the modern day, whether material racial equality is best realized by insisting that public policies disregard racial categories, the color blind policy alliance, or by consciously constructing measures to reduce material racial inequalities, the view of the rival “race conscious” policy alliance.
Most Americans who vote support color blind policies. But somewhat in contradiction, most Americans also oppose any measures that appear to retreat from the accomplishments of the 1960s civil rights era (King and Smith 2011, 285-286). Consequently, elected officials of both parties often prefer to leave controversial racial questions to less visible administrative agencies or the politically insulated courts than to engage with these issues in election campaigns. An illustration of this electoral silence is the non-discussion of segregation in the last Chicago mayoral election campaign in 2011 as explained by Steve Bogira. And the fact that the nation has had a preponderance of Republican presidents since the 1970s means that the Supreme Court has achieved a firm majority that has moved toward rigid insistence on color blind views of constitutional equality (King and Smith 2011, 130-131, 291-292).
Whether this Court position will continue depends on who is appointed to succeed Justice Scalia after November 2016. The Supreme Court’s serving 8 justices are evenly divided between 4 Republican nominated color blind supporters and 4 Democrat nominated race conscious supporters—with one of the Republican justices, Anthony Kennedy, sometimes providing a swing vote, but more rarely over time. The ninth position will determine which racial policy alliance has a reliable majority. Of course, most justices don’t openly declare to be either color blind or race conscious advocates (though the late Justice Scalia was outspoken in favor of color blindness). These are labels we ascribe to them on the basis of their voting records and written opinions. But it is the case that in the recent court appointments, justices have aligned strongly with the preferences of the partisan coalition which nominated them. Justices serve for life and are unaccountable.
The Voting Rights Act: 1965-2013.
The destruction of the Voting Rights Act in the 2013 Court judgment, Shelby County v. Holder, illustrates the policy alliances at work.
Although comparable rights are enshrined in the Fifteenth Amendment to the US Constitution, passage of the Voting Rights Act in 1965 (before President Johnson signed the law on 6 August), was as fraught, protracted and bitter as the previous year’s enactment of a new civil rights law. So fraught and bitter was the law that it passed at first as a temporary measure with a relatively early identified end date, (though it has now repeatedly been renewed and extended). That the Fifteenth Amendment proved innocuous as a constitutional guarantor of equal voting rights made the new law vital. The VRA outlawed all of the devious devices and tools used by states to bar blacks from registering and voting, and gave private citizens the right to sue in a federal court if they faced discrimination. Initially employed chiefly in respect to federal elections, the law increasingly applies to elections to state legislatures and local bodies such as city councils or school district boards. Establishing a pre-clearance mechanism for identified jurisdictions meant these electoral districts could undertake no modifications or amendments in the absence of Justice Department approval.
The Shelby decision declared unconstitutional the VRA’s Section 4(b) formula for subjecting jurisdictions to the Section 5 power of pre-clearance established in 1965. Pre-clearance is a power which required states and county electoral boards in jurisdictions with low registration or turnout rates to seek permission from the US Department of Justice or a federal court before changing their electoral districts to ensure they better complied with race equity criteria. Getting Shelby was a triumph for color blind opponents of civil rights who had worked from the 1980s to end the VRA. The present Chief Justice, John Roberts, worked in the early 1980s on civil rights in the Reagan administration. Consciously promoting color blind positions, Republican legislators have worked – nationally and in state legislatures – to enact new barriers to likely Democratic and non-white voters.
Since the Court ruling in Shelby, of states covered by the 4(b) formula, eight have moved to adopt new voter ID laws or other voter validation checks or to implement their recent voter ID laws, including Texas which previously had its law rejected by the Justice Department when it sought pre-clearance. Six states not covered by 4(b) have adopted similar measures. This set of initiatives to restrict voting has prompted VRA Section 2 lawsuits, used to challenge voting qualifications, practices and procedures that deny or abridge voting rights on account of race or color, against the state governments. These suits have the potential to reinstate pre-clearance requirements going forward, but they cannot be filed until racially unjust elections have already occurred.
Defenders of civil rights and advocates or race-conscious measures opposed the Shelby ruling. President Obama called the Court’s decision “deeply disappointing.” Advocacy groups representing minority voters such as the NAACP and the NAACP LDF challenged the decision as unjustified given the persistence of efforts to suppress African American voting rights in most of the areas covered by the 4(b) formula. These and other groups maintained that continuing problems of voter discrimination – an issue the majority justices accepted – rendered abolition of 4(b) unwarranted.
The racial alliances framework
We argue that the Shelby decision is best understood as an expression of the conflict between the color blind and race conscious policy alliances, and that the Court’s dilution of the voting rights act constitutes a significant advance for color blind opponents of an active federal government pursuing policies to advance racial equality. The decision thus has contemporary and prospective resonance.
Since its founding, the United States has been divided into two competing racial orders, favouring or opposing racial equality. These orders shift over time in focus – between the 1880s and 1950s the conflict concerned segregation, since the 1960s it has been about voting rights, material inequality and criminal justice amongst other issues – and the dominant groups and leaders change. But the presence of a continuing dichotomy about racial equality is a constant.
In large part, because European-descended Americans acquired land in North America through extensive forcible displacement of indigenous tribes, and their newly independent United States then built its economy through substantial reliance on the plantation labor of enslaved workers from Africa, from early on in their history Americans elaborated ideologies and laws privileging those racialized and labeled “whites” over most of those racialized as non-whites and particularly those racialized as “black.” The specification and defence of “white supremacy” justifications for Native American removal, the Mexican American War, and above all chattel slavery created material and psychological investments in racially in-egalitarian institutions and practices for many whites; but other Americans of all races also always condemned slavery as morally wrong, economically inefficient, and politically corrupting. Yet even after a massive civil war enabled the US to end slavery, commitments to white supremacy remained so powerful and entrenched that anti-civil rights white supremacists subverted and then defeated racially egalitarian Reconstruction programs and created a new white supremacist racial order, the Jim Crow segregation system, that prevailed in American life and U.S. politics from the 1880s to the 1960s.
This history is familiar. But it is germane to modern conflicts about voting and also to the controversies about how best to address enduring material inequalities, discrimination and injustices. The political, economic, and social systems advantaging whites built up during that long history persist in many forms – for example, black-white household income and housing ownership disparities and in lower intergenerational income mobility rates for African Americans compared with whites – despite Americans’ formal repudiation of legalized white supremacy.
The Voting Rights Act, combined with the 1964 Civil Rights Act, enshrined full rights for African Americans and formally ended legal discrimination and segregation. But the enactment of these two laws only initiated processes of building racially inclusive and egalitarian institutions and practices. Angry disputes and controversies over how far and in what ways to pursue those goals in many areas still divide Americans today.
The struggle over voting rights will always be a key area of racial alliance conflict since voting is the key democratic mechanism giving access to political power. Few white Americans now believe their nation should be one that explicitly gives special de jure privileges to whites, but as the Trump campaign shows, many do express anxiety at the prospect that whites might soon no longer have anything approaching the disproportionate political power and economic status they have enjoyed throughout US history (King and Smith 2011, 168-191, 253-284).
White Americans accepted the repudiation of their de jure privileges in the 1960s only under extraordinary and exceptional circumstances. These conditions included principally the heightening of many decades of protesting, marching, organizing and litigating by what became known as the civil rights movement; the external scrutiny placed on America’s racial inequalities in the context of the Cold War; the assassination of President John F. Kennedy in Texas soon after he proposed what became the 1964 Civil Rights Act; and the consequent rise to the heights of power of a politician, Texas’s Lyndon Johnson, determined to be a towering figure in the history of American democracy. The Voting Rights Act was enacted by Congress in 1965 after a concentrated and purposeful exercise of presidential persuasion by President Lyndon B. Johnson. Johnson was a reformed segregationist southern Democrat who won a landslide election victory after pushing through the civil rights act. Together the VRA (1965) and the CRA (1964)) extended equal rights of citizenship to African Americans and other discriminatedagainst minorities. The new laws restored the unfulfilled promise of the post-Civil War amendments and civil rights statutes.
As we show in Still A House Divided, these legislative changes in the 1960s provoked new battles in racial policy and politics. Initially these struggles prompted discussions of a range of policy instruments about how best to address racial inequality. But remarkably within the space of a decade this range of options had collapsed and coalesced into two mutually exclusive approaches.
The color blind alliance. First is the color blind policy alliance whose members vigorously oppose government action to reduce the many persisting racial inequalities that advantage whites, especially if those actions come in the form of direct, race-targeted measures—though many color blind advocates condemn all race conscious policy making as equally immoral, whether or not explicit racial classifications are used. They have mobilized against affirmative action and integration initiatives in education and employment (including seeking to truncate the impact of the Equal Employment Opportunity Commission and pursuing Supreme Court cases which in piecemeal fashion have banned or discouraged minority set-aside and federal contract compliance programs, and school district powers to foster racially integrated schools); they have opposed efforts to promote integrated affordable housing and environmental justice efforts focused on minority communities; and they campaigned first to prevent the VRA from being extended and, when extended, then to dilute the voting law’s efficacy.
As measured by voting choices and in public opinion attitudes, this color blind racial policy alliance has gained great acceptance amongst white voters, and it continues to shape white voter opinion on a wide range of issues. As Tesler (2012) shows, for example, how this racial policy outlook amongst white voters influenced attitudes toward the Affordable Health Care Act. The influence of color-blind stances converges with a rightward shift amongst many, though not all voters, expressed in America’s sharp polarization. The U.S. electorate’s partisan polarization was higher in 2012 than at any point in the previous twenty-five years according to the Pew Center. Most of these voters or conservative color blind activists do not explicitly favour white supremacy. But equally there is little doubt that most think it unwise and unjust for public policies to seek aggressively to transform further the political, economic, and social institutions and practices built up under centuries of white supremacist policies–institutions and practices in which whites continue to hold advantaged places, in practice if not in law.
Opposing these proponents of color blindness is the race conscious policy alliance. Members of this loose alliance champion positive, sometimes explicitly race-targeted policy instruments to address racial inequalities, including voting discrimination. The race conscious policy alliance programs – such as affirmative action (focused both on legacies of the Jim Crow era and more recent barriers to equality), enforcing anti-discrimination laws in housing, multicultural education initiatives, expanded EEOC regulatory powers in labor markets to counter discrimination, criminal justice reforms aimed at ending the disproportionate incarceration of non-whites, and more – have all been under multiple political challenges since the 1970s, with declining congressional and judicial support even after the election of America’s first African American president. But for many decades most opponents of race-conscious policies chose to identify with, rather than to oppose openly, the now widely admired major civil rights laws of the 1960s. Consequently, it has generally proven possible for race conscious proponents to sustain and sometimes to extend those original measures over muted color blind opposition.
A major success came for the race conscious alliance in 2006, when the VRA was renewed after Congress spent 10 months reviewing the act, holding 21 hearings attended by over 90 witnesses and examining over 15,000 pages of evidence in addition to looking at the voting patterns in and outside the 16 Section 5 covered jurisdictions. The review and associated deliberations acknowledged post 1965 advances but concluded that entrenched voting discrimination in the areas singled out by the 4(b) formula endured, as civil rights reformer Congressman John Lewis summarised in his 2013 op ed for the Washington Post, “Why we still need the Voting Rights Act”. In economic arenas, race conscious alliance supporters point to the documented erosion of effective regulatory agency efforts to root out labor market discrimination. This leads them to argue that efforts to aid racial minorities continue to be needed.
Advocates of race conscious reform policies insist that whether or not the proponents of color blind measures explicitly desire to maintain white privileges, adoption of their stance inevitably means that many longstanding forms of white advantage will persist for at least the near to middle term future. One of those advantages is the disproportionate electoral political power of whites, the specific racial inequality that the Voting Rights Act sought to end.
Diluting the VRA: Scalia triumphs over Ginsburg
After listening to the Justice Department defence of the VRA, Justice Antonio Scalia suggested that members of the US Senate who supported the Section 5 preclearance provisions did so for political reasons only, contending that such elected officials feared being criticized for opposing it. Undoubtedly the 4(b) formula was clearly race conscious, since it was concerned with obstacles to minority voters; but the formula was not explicitly race targeted. It focused only on percentages of registered and actual voters, not the race of voters per se. Nonetheless Scalia still excoriated congressional renewal of the VRA as being part of a “phenomenon that is called perpetuation of racial entitlement” (as reported in the Washington Post by Robert Barnes, February 27 2013).
The VRA’s record in advancing voting rights decisively animated Justice Ruth Bader Ginsburg’s robust dissent in Shelby County and her assessment that “the scourge of discrimination has not yet extirpated.” Ginsburg reported: “all told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory” (Shelby County v. Holder, Ginsburg, Breyer, Sotomayor and Kagan dissenting, 13). In a carefully drafted and heavily referenced opinion, Ginsburg cited Congress’s 2006 decision to reauthorize the VRA because of its continuing efficacy as an instrument against discrimination against non-white voters in many parts of the country, including the covered regions, and she contended:
“But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights” (Shelby County v. Holder, Ginsburg et al., 1,2 ).
The dissent ended with a pointed metaphor. Ginsburg concluded that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet” (Shelby County v. Holder, ibid., 33).
Shelby County v. Holder is a major inroad to the central American battleground upon which the two modern racial policy alliances have been fighting for nearly three decades: the structuring of access to electoral power. This battle extends well back into America’s past including outright disenfranchisement in the first half of the twentieth century and then brutal oppression of the civil rights movement leaders’ and supporters’ efforts to establish federally monitored voting registration and ballots, a struggle part of which was vividly captured in the 2014 movie Selma, direct by Ava DuVernay.
In sum, the majority Court decision in Shelby County v. Holder, to strike down an effective and prestigious law, renders the Scalia majority Republican-appointed Supreme Court as the most aggressive member of the modern racial political alliance forging color blindness. The opinion sits with and complements the Court’s steadfast erosion of affirmative action, set asides, school integration programs, and federal contract compliance measures since the early 1980s. But as the rise of the Black Lives Matter movement and the coded anti-Obama racist rhetoric to ‘make America great’ indicates, the struggle over color blind versus race conscious remedies to deep and enduring material racial inequality is far from ended.
Tesler, Michael. 2012. “The Spillover of Racialization into Health Care: How President Obama Polarized Public Opinion by Racial Attitudes and Race.” American Journal of Political Science. 56: 690-704.
Desmond King is the Andrew W Mellon Professor of American Government at the University of Oxford and Rogers M Smith is the Christopher H Browne Distinguished Professor of Political Science at the University of Pennsylvania. Their influential work on racial inequality in American politics includes: “Racial Orders in American Political Development,” American Political Science Review vol 99 (May) 2005, Still a House Divided: Race and Politics in Obama’s America (Princeton University Press, 2011) and “’Without Regard to Race’: Critical Ideational Development in Modern American Racial Politics.” Journal of Politics. vol 76 (October) 2014.
Image: SEIU: Protect the Voting Rights Act rally at the Supreme Court of the United States, Feb 27 2013. CC BY-NC-SA 2.0