Reconstructing Racially Polarized Voting

71 Pages Posted: 27 Feb 2020 Last revised: 2 Nov 2020

See all articles by Travis Crum

Travis Crum

Washington University in St. Louis--School of Law

Date Written: February 20, 2020

Abstract

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, not the 1960s. Prior to the Fifteenth Amendment’s passage, Republicans received overwhelming support from newly enfranchised Black voters in the former Confederate States and expected that support to continue. The Reconstruction Framers were thus attentive to the realities of racially polarized voting and openly recognized that extending the franchise would empower Black voters to mobilize politically and protect their own interests. Racially polarized voting was a feature—not a bug—in the passage and ratification of the Fifteenth Amendment. Accordingly, this Article argues that the Court’s treatment of racially polarized voting as a constitutional taboo is historically unfounded and doctrinally incoherent.

There are significant implications for acknowledging the role of racially polarized voting during Reconstruction. This historical insight moves vote dilution claims—and their predicate finding of racially polarized voting—far closer to the heart of the Reconstruction Amendments and challenges the Court’s hostility to race-based redistricting. It is powerful evidence that Congress is well within its enforcement authority to remedy and deter dilutive measures that exploit racially polarized voting. Finally, reconstructing racially polarized voting helps reorient voting rights doctrine toward a Fifteenth Amendment framework.

Keywords: Voting Rights, Election Law, Fifteenth Amendment, Fourteenth Amendment, Constitutional Law, Legal History, Race and the Law

Suggested Citation

Crum, Travis, Reconstructing Racially Polarized Voting (February 20, 2020). 70 Duke Law Journal 261 (2020), Available at SSRN: https://ssrn.com/abstract=3541863

Travis Crum (Contact Author)

Washington University in St. Louis--School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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