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Testimony
May
17, 2006
"Understanding
the Benefits and Costs of Section 5 Pre-Clearance"
Testimony of Abigail Thernstrom, Senior Fellow, The Manhattan Institute and Vice-Chair, U.S. Commission on Civil Rights Before the Committee on the Judiciary U.S Senate
Mr. Chairman and distinguished Committee members,
thank you for the opportunity to testify this
morning.
My name is Abigail Thernstrom. I am a senior
fellow at the Manhattan Institute, a public policy
think tank, and the vice chair of the U.S. Commission
on Civil Rights. By training I am a political
scientist, having received my Ph.D. from the Department
of Government, Harvard University, in 1975. I
have been writing on race-related issues my entire
professional career. My first book, Whose Votes
Count? Affirmative Action and Minority Voting
Rights, published by Harvard University Press
in 1987, won four awards, including one of the
American Bar Association's two book prizes. After
an absence of two decades, I have returned to
the topic of voting rights with a book in progress
tentatively titled Voting Rights-and Wrongs:
The Elusive Quest for Racially Fair Elections.
I want to talk today about one of the costs of
renewing the preclearance provision of the 1965
Voting Rights Act, which was viewed as constitutional
only because of its emergency status and its very
limited life. Initially, of course, it was expected
to expire in 1970, along with the other temporary,
emergency provisions.
There are costs I could discuss having to do
with the distortion, by now, of our constitutional
structure and of the statute itself. But I will
leave those topics aside and focus on one issue:
the pernicious impact of race-based districting
on the racial fabric of American society. I am
not alone, of course, in expressing concern. Indeed,
my argument elaborates on a theme that runs through
a number of recent Supreme Court voting rights
decisions.
But before I get to the heart of my argument,
a preliminary word.
I sympathize with the desire of both Democrats
and Republicans to support a fourth extension
of the emergency provisions. It's tough to come
out against a bill that appears on the side of
our better angels. Race is still the American
Dilemma, and racial inequality is the great wound
that remains unhealed. Nevertheless, I would like
to persuade at least some members of this committee
that a vote to support this bill is a vote against
racial progress and racial equality.
Unlike the original Voting Rights Act, this bill
is not about remedying disfranchisement. At the
heart of the disagreement between opposing sides
are different views of the level of racism today,
and, specifically, the need to protect minority
candidates for political office from white competition.
For that is precisely the point of majority-black
and -Hispanic districts, drawn to ensure minority
officeholding roughly in proportion to the minority
population. Inevitably, providing such protection
from white competition (creating safe minority
districts in which whites are unlikely to run)
involves racial sorting-racial classifications,
which have had such a long and ugly history.
We've arrived today at an interesting historical
moment. By numerous measures blacks and Hispanics
are becoming integrated into mainstream American
life, and yet, simultaneously, our federal government
is segregating them politically. As Justice Clarence
Thomas has said (in part, echoing Justice Sandra
Day O'Connor): "We have involved the federal
courts, and indeed the Nation, in the enterprise
of systematically dividing the country into electoral
districts along racial lines-an enterprise of
segregating the races into political homelands
that amounts, in truth, to nothing short of a
system of 'political apartheid.'"
In the remarks that follow, I will focus on African
Americans, because their history makes them most
vulnerable to the damage that any form of ongoing
state-imposed or state-encouraged separation incurs.
Consider some evidence that shows increasing
integration of blacks into American society. As
others will testify, black voter registration
and turnout today is very high, and is especially
impressive in the South. That alone should raise
questions about the need to renew the draconian
provisions of the act. But the progress America
has made in racial integration is much broader
and deeper than that. In 1975 only one-fifth of
all blacks said they had good friends who were
white; by 2003, the figure had jumped to 88 percent
over that time. And the proportion of whites with
good friends who were African American soared
from 9 to 82 percent. By now, among blacks and
whites ages 25-to-29 the proportion who have graduated
from high school is roughly the same. The concentration
of blacks in heavily black neighborhoods has dropped
precipitously in recent decades and less than
a third of African Americans now live in census
tracts that are over 80 percent black. Since 1970
the rate of black suburbanization has been much
higher than that for whites.
And yet blacks who move up the economic ladder
and escape overwhelmingly one-race inner city
neighborhoods aren't necessarily allowed to join
their new friends and neighbors in a legislative
district defined by common economic and other
nonracial interests. Instead, for political purposes,
they're stuck in the putative "community"
that they have worked hard to leave. Their old
district lines, more likely than not, chase them.
That is, those engaged in drawing new maps after
every decennial census use sophisticated software
to make sure that majority-black districts stay
safely black. And with increasing black suburbanization
that means grabbing scattered black families to
create districts whose shape is a bizarre mess,
dictated by racial considerations. This egregiously
race-based line-drawing has been forced upon jurisdictions
by a Justice Department that has generally viewed
what the ACLU used to call "max-black"
districts as an entitlement under the Voting Rights
Act.
American law contains important messages about
our basic values, and race-driven legislative
maps (allegedly demanded by the Voting Rights
Act) send the wrong message. Race-based districting
has become equated with minority electoral opportunity.
The message implicit in this racial sorting seems
to be:
- Blacks are different than whites.
- And it's okay for the state to label them as
such.
- Statements that say, in effect, "blacks
are…x," or "blacks believe…y"
pose no problem.
It is these messages that Justice Anthony Kennedy
so strongly rejected in expressing concern that
the state was assigning voters on the basis of
race and thus engaging in "the offensive
and demeaning assumption that voters of a particular
race, because of their race, 'think alike, share
the same political interests, and will prefer
the same candidates at the polls.'" (In part,
quoting O'Connor.)
The point can be put slightly differently. When
the state treats blacks as fungible members of
a racial group, they become, in Ralph Ellison's
famous phrase, "invisible men," whose
blackness is their only observed trait. But that
view-the view that individual identity is defined
by race-is precisely what the civil rights movement
fought so hard against. Do we really want to sign
on to the notion that group racial traits override
individuality-perpetuating old and terrible habits
of thought?
Blacks are not a separate people, a nation within
our nation, in part because the civil rights movement
refused to accept the notion of race as destiny-for
political or any other purposes. The idealism
of those years would never have countenanced the
notion that only blacks could properly represent
black interests (with its corollary, whites needing
white representatives). When implemented as race-based
districting, it's an assumption that amounts to
a form of political exclusion-masquerading, of
course, as inclusion.
Much social science evidence indicates that,
at long last, blacks are moving towards becoming
another American ethnic group. No thanks to the
federal government. Or, I should say specifically,
with no help from Congress, the courts, and the
Department of Justice, all of whom have amended
a once-perfect statute and turned it into a system
that's much too close to political apartheid.
The overwhelming majority of Americans don't
like racially safe boroughs. In 2001, a Washington
Post/Kaiser poll contained the following question:
"In order to elect more minorities to public
office, do you think race should be a factor when
boundaries for U.S. Congressional voting districts
are drawn, or should it not be a factor?"
Seventy percent of blacks, 83 percent of Hispanics,
and 90 percent of whites said race should not
figure into map-drawing.
I urge distinguished members of this Committee
to be careful what they wish for. This bill may
bring champagne on the day it's passed, but tears
down the road. Racial classifications, however
prettily they're dressed up, are-and always will
be-the same old classifications that have played
such a terrible role in this great and good nation.
They separate us along lines of race and ethnicity,
reinforcing racial and ethnic stereotypes, and
turning citizens into strangers. Haven't we, as
a nation, had enough of that miserable stuff?
Thank you for the opportunity to present these
views.
- Abigail Thernstrom
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