Tuesday, April 13, 2010

Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act

Nate Persily

The Harvard Law Review has just published my article coauthored with Stephen Ansolabehere and Charles Stewart III, Race, Region and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act. This article grew out of an amicus brief we filed last year in NAMUDNO v. Holder, the case challenging the constitutionality of section 5 of the VRA. The abstract appears below:

The election of an African American as President of the United States has raised questions regarding the continued relevance and even constitutionality of various provisions of the Voting Rights Act (VRA). Barack Obama’s apparent success among white voters in 2008 has caused some commentators to question the background conditions of racially polarized voting that are key to litigation under section 2 of the VRA. His success in certain states, such as Virginia, has also raised doubts about the formula for coverage of jurisdictions under section 5 of the VRA. This Article examines the data from the 2008 primary and general elections to assess the geographic patterns of racial differences in voting behavior. The data suggest that significant differences remain between white and minority voters and among jurisdictions that are covered and not covered by section 5 of the VRA. These differences remain even when controlling for partisanship, ideology, and a host of other politically relevant variables. This Article discusses the implications of President Obama’s election for legal conceptions of racially polarized voting and for decisions concerning which jurisdictions section 5 ought to cover.

Another constitutional challenge has now been filed against section 5. This one arises out of Kinston, North Carolina. The DOJ denied preclearance to a proposed change to nonpartisan elections. There may be serious and interesting standing problems in this case, but if it gets to the Supreme Court, a majority is likely to be very sympathetic given the facts.

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