Wednesday, June 04, 2008
Rick Hills' Marshall McLuhan Moment
I am thoroughly upset by this request for humility from law professors in our spouting. Written in my best Claude Rains (I am shocked there is gambling going on.)
The granularity of these intricate issues of what protects minority voting progress is the key idea and it is very well taken by me.
Thanks for taking the time to lay all of that out. It was very useful for me.
Our three clients – Yvonne Kennedy, James Buskey, and William Clark – are as fundamentally experienced with local government and its peculiar issues as it’s possible for human beings to be. All three of them have served, for decades, in the Alabama Legislature. Rep. Clark retired in 2006 after more than 20 years’ service; Reps. Kennedy and Buskey continue to represent districts in Mobile County, Rep. Kennedy since 1982 and Rep. Buskey since 1976. Given their experience over the long haul, I’m not sure why Rick assumes that they’re “short-sighted.” If all politics is local, then local government law is likely to be particularly local. Our clients, who have been firmly rooted in Mobile and who understand Alabama in a way that folks like Rick Hills and I can only imagine, are far likelier than we to assess accurately what’s in minority voters’ best interests.
Or, at least, what's in minority politicians' best interests.
More fundamentally, section 5 doesn’t ask the abstract sort of question Rick wants to debate. The question is never “is practice X good for minority voters as a general matter?” Rather, it’s whether, under the particular circumstances existing in this jurisdiction this change will lead to a retrogression of the political power of minority voters.
This is a very good point, and as a matter of reading Section 5 you're definitely right. Unfortunately for you, though, and maybe this is what Hills was getting at, I think what you're saying just points to the infirmities of Section 5. There's nothing wrong, per se, with retrogression of minority voting strength. Underrepresentation, descriptive or substantive, may be undesirable, invidious discrimination is always wrong, but retrogression isn't always an evil, particularly if you're not retrogressing to a point of severe dilution or underrepresentation. For example, take this very case. Gubernatorial appointment in case of vacancy isn't exactly a horribly dilutive practice. Yet if you retrogress from special election to gubernatorial appointment, the VRA bans it. Why? Because of a history of bad faith in the preclearance states. When southern states backslid, the assumption in 1965 was that they were doing so for racially discriminatory purposes. The question in the Austin utility district case is whether that assumption remains a valid one. I don't think it does, and I think what Hills was saying is that we've reached a point in the enforcement of Section 5 where all kinds of plainly nondiscriminatory stuff, like going back to gubernatorial appt. in the case of vacancy when it turns out to be required by a state constitution, or a black caucus-endorsed plan that drops the percentage of the black vote in some districts from 60% to 50% (GA v. Ashcroft as overruled by the GA v. Ashcroft "fix"), is getting shot down - even if these retrogressions actually help minority voters in the long run. His ruminations on the possibility of a global special elections law in Alabama may be a little speculative, but what about a situation like the one in Page v. Bartels? There the New Jersey state legislature cured a Republican gerrymander by lowering BVAP in a few districts, ultimately helping black voters see their preferred party obtain a majority in the legislature - and the reauthorized VRA may effectively overrule the decision that upheld that redistricting. Who benefits from that?
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