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Touro Law Journal of Race, Gender, & Ethnicity & Berkeley Journal of African-American Law & Policy


Decades after passage of the historic Voting Rights Act, so much has changed. And yet, so much remains the same.

Racial minorities are registering to vote and turning out at the ballot box in record numbers. However, they remain under-represented in local elected positions and virtually excluded from national and state political office. Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population, but only 3.3% of elected offices are held by Latinos. In states that until recently were covered by the Voting Rights Act (VRA), such as Texas, Alabama, Mississippi, and Louisiana, 11 %, 25%, 30%, and 18% of elected positions are held by African Americans, respectively. Meanwhile, the proportion of African Americans in the state populations is higher at 12.3% in Texas, 26.5%, in Alabama, 37.4% in Mississippi, and 32.4% in Louisiana thereby evincing that racial diversity in elected offices does not represent the population at large.

African Americans are also graduating from college at historically higher rates at 21% in 2012 compared to 4% in 1964. And yet, the socio-economic disparities between blacks and whites are alarmingly stagnant when compared to the 1960s when the VRA was passed. Black workers earn on average half as much as their similarly situated white counterparts. The average wealth of a black family is one sixth that of a white family. 77.4% of those living in poverty in the United States are racial minorities compared to 22.6% are whites. And 54% of the prison population is non-white even though they comprise only 37% of the total US population. While some Americans may still harbor racially-biased explanations for such disparities ranging from inferior abilities, laziness, to genetic propensities to violence; open expressions of such biases have become more taboo now than fifty years ago. As explicit forms of racism are normatively and legally rejected, they are replaced with more stealth and subtle expressions of underlying racial prejudices.

Negative stereotypes of racial minorities as lazy, ungrateful, incompetent, violent, dishonest, or inassimilable infiltrate decision making processes in schools, workplaces, media, and politics. Collectively, this produces institutional racism that keeps many racial minorities in perpetual poverty under pretextual basis. The social problems that arise from poverty serve to reinforce the negative stereotypes, which in turn perpetuate the socio-economic racial disparities. And thus the cycle continues, leaving racial minorities as a group still noticeably worse off than their white counterparts nearly fifty years after the passage of the VRA.

One cause of this phenomenon is electoral disenfranchisement arising from modern-day tactics and mechanisms intended to keep certain races politically marginalized. For if racial minorities have meaningful access to the ballot box such that they are collectively able to select those elected to office, then they may impose changes to the laws, policies, and practices that produce systemic racial disparities in wealth, education, employment opportunities, and a host of other contexts. Fully cognizant of the relationship between political empowerment and material disparities among races, the drafters of the VRA sought to leverage the power of the federal government to level the electoral playing field at the local and state level. Furthermore, the VRA was not merely about protecting the mechanics of voting, but rather an acknowledgement that certain privileged groups, i.e., powerful whites, would continue to attempt to disempower other groups, particularly blacks during the 1960s, through various techniques that would evolve with time and changing circumstances.

Notwithstanding significant progress made in decreasing overt discrimination, discriminatory tactics aimed at disempowering minority voters continue to plague the American electoral process. From unnecessarily stringent voter identification laws, limits to early voting, and limits to same day registration, to redrawing legislative districts for purposes of segregating races; the problems the VRA originally aimed to address are still pertinent today. While the explanations provided for adopting such practices may appear race-neutral, the underlying objectives are far from it. Predominantly white decision makers are rewriting election rules to dilute the votes of racial minorities. As a consequence, minority voters are unable to collectively elect representatives whom they can hold accountable if they fail to incorporate minority communities’ needs into the political agenda.

Rather than acknowledge the plethora of evidence that proves the continuation of pervasive discriminatory electoral processes, albeit in different forms than five decades ago, the U.S. Supreme Court in Shelby County v. Holder adopts a specious colorblind narrative that focuses on form over substance. That is, so long as racial bias is not overt or explicit in state voting laws, the Court treats it as non-existent. And by refusing to acknowledge its existence, racism will somehow disappear. Thus, no effort need be made to scratch beneath the illusive race-neutral surface to inquire into the purposes of policies that systematically produce racially disparate outcomes. Similarly, there is no need to inquire why educational, and economic disparities continue to prevail along racial lines five decades after the civil rights movement.

But all of this begs the question: why do electoral processes matter so much that over 48 amici briefs were filed in Shelby, a plethora of news articles were written about the case, and civil society organizations mobilized across the country to defend the VRA? Are the stakes at issue in Shelby merely about abstract notions of state sovereignty, the mechanics of voting, or something much larger that implicates every person in the United States and defines the character of the nation? It is in answering these questions that Americans as a collective have a mutual interest in seeing the forest from the trees. Failure to do so could risk falling into the treacherous pitfalls experienced by other nations who face insurmountable obstacles in achieving democracy due to the absence of legitimate electoral processes.

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