Balkinization  

Monday, February 25, 2013

The 2012 Election and the Constitutionality of the VRA

Nate Persily

Below is the introduction to a new paper completed by Charles Stewart III (MIT), Steve Ansolabehere (Harvard) and me concerning racial polarization in the 2012 election and its relevance to the constitutional challenge to section 5 of the VRA the Court will hear on Wednesday:

     Three years ago, when the Supreme Court last considered the constitutionality of the coverage formula of Section 5 of the Voting Rights Act,  we submitted an amicus brief on behalf of neither party analyzing the relevance to the case of voting patterns in the 2008 election.    In particular, the brief and a subsequent Harvard Law Review article that expanded upon it,  highlighted relative rates of racially polarized voting in the covered and noncovered jurisdictions to demonstrate where racial polarization had increased over time.  Although some states had improved and others worsened in the gap in candidate preferences between racial groups, the brief and article concluded that, contrary to much conventional wisdom, racial polarization had actually increased in the 2008 election, especially in the areas covered by section 5 of the VRA.

    We find ourselves in much the same position now as we did three years ago. We also find ourselves coming to the same conclusions, which have become, if anything, more strongly supported by recent data.  Voting in the covered jurisdictions has become even more polarized over the last four years, as the gap between whites and racial minorities has continued to grow. This is due both to a decline among whites and an increase among minorities in support for President Obama’s reelection.  This gap is not the result of mere partisanship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered states.

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