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tv   [untitled]  CSPAN  June 21, 2009 8:30am-9:00am EDT

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when congress asserts control, how happy they are to give it up, but the basic substantive point is obviously that the first issue of minority equal access for minority voters was a basic command to the constitution, which congress had implemented under the voting rights act. then we got into of the much trickier question, the much more difficult question of well, should blacks or other minorities be able to win elections, and the supreme court in this case, said to, this is all about equality of access to the ballot, it doesn't have anything to do with winning elections. in response, in 1982, congress amended section 2, and now they said, instead of saying anything which will deny you the right to vote, they say, which results in a denial or abridgement and then it defined that as saying, if the lit processes are not equally open to participation by members of the class of
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citizens, in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their kiss and that's the key thing. equal opportunity to elect representatives of your choice, obviously that -- that issue, as rick was pointing out, is actually grappling with the issue that i think i has bedevid political scientists for centuries. i'm a minority, i'm a republican in the district of columbia and i have absolutely no opportunity like the candidate of my choice, and i don't feel that my right to vote has been in any way infringed, so you have to start something some very basic questions, lay den with all sorts of value judgments elect by non-judiciary. first question, why do they get to win elections? why when we immunizing
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authorities from the normal obligation to haul ground. what does equal mean? i understand equal opportunity, equal access get on the ballot to run, but you're looking at a election results, so what does equal results mean? it can only mean i assume some reference to your representation in the population, so we're clearly talking about proportional representation. what does it mean to be disadvantaged on the account of race. as rick again was pointing out, all kinds of losses by minority supported candidates have nothing to do with the race of the voter or the candidate, just because they happen to live in a predominantly republican district, like i have happen to live in a predominantly republican district and if racial live polarized voting means black votes different than "outdoor wisconsin," every county in the country, including the district of column beef is racially polarized, because there's no county that votes 90 to 95% democratic, not
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hispanics, not gays, not union members. so there's always going to be -- so if you start confusing racial disadvantage with political disadvantage, you have taken something normal, the perfectly fine operation of the democratic processes and somehow labeled it illegal and it's very difficult, i would argue, and impossible to distinguish between political disadvantage, the norm lal operation of politics, and other factors. how are you supposed to figure out without psycho analyzing every voter who cast a vote whether race entered into his calculus and then there's the final issue, which abbey talked about and the one i want to focus particular attention on is what do we mean by equality. is there this descriptive representation where we have x percentage of black and latino o'and other kinds of representatives, or are we talking with where at the participate in the normal political process an eventually within and sometimes win
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elections, where people, although not of their group are certainly sensitive to the issues of their group which is also borderline racial notion where there are distinct latino and black interests, distinct from those of other americans, but that was the dilemma. when in 1982 we decided to go from a regime of equal access for voters to a regime of proportional results for minority politicians, we dramatically changed the landscape of what the voting rights act was supposed to do and there's a lot of people as abbey pointed out said that we needed to take that step, at least during the early 1980's and the 1970's because of persistence to barriers to minority opportunity but the inevitable result was to engulf of the court in these extraordinarily complicated political science issues with utterly no direction from congress on how to resolve them, other than the meaningless platitudes i just read you in the statutory language. so with i was in the reagan administration civil rights division, we went up and said the 1982 voting rights act leads
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to proportional representation and these racially jerry meand meandered districts, every one said we were backward racist, but that could never happen in a million years and i think they did wait about an hour and a half after the law was enacted before they started demanding proportional representation in majority-minority districts, which anyone that looks at what happened in the early 1980's and 1990's, is exactly what happened furthered by a case called jingles, written by justice brennan, which made up three factors that had absolutely nothing to do with the rang of the statute and basically said if you're a majority-minority, you can draw a square majority-minority district if minority are losing elections outside of toes districts and then they said and we will also look at the so-called senate report factors, which again have absolutely nothing to do with how people vote or how the lines are drawn, but socioeconomic
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disparities between minorities and other groups, so you had essentially proportional representation regime, but they didn't want to call it proportional representation regime, so there are all these factors them walk through and at the end of the day, upled come up with these majority-minority districts. then you go to the 1990's, you had a somewhat conservative extreme court, which i think was generally appalled at the kind of districts that emerged from the 1990 redistricting that abbey quite rightly says were drawn with four blocks from here to the civil right division where they sat down and said these are your minority districts, draw the rest yourselves and these are what you're going to come up with and they were grotesque, concept you'll hard and the basic dynamic was, look, you have two alternatives. you can have the 35% black district next to another 30% to 35% black district, i'm using black as a shorthand for minority and that will almost
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guarantee a that you will elect a democrat in those districts, because that will give them enough solid voting block, but you'll almost always guarantee it will be a white democrat and the class of jerry meandering was to take that 70% black concentration, split it in half and you have two 35% districts. if you kept the 70% together or created the 70%, you would have a black democrat pitch splitting it down the middle, you had a very safe district for white democrats, but not one in which black democrats could win. so that's what you saw in the 1990's, was taking all of these -- and 1980's, taking all of the 35% districts that had been so cracked, putting them back together and having the majority-minority district. i was appalled by that, but i was advocating those districts as a republican lawyer, because the other great, not very secret point is, if you create a 70% black district here, you're
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going to create one or two adjacent nearly 1-% white districts, which of course are tremendous republican opportunity districts, so the republicans and minority advocates essentially had, you know, an alliance of convenience, where they were all advocating for the super majority black districts. the republicans were naked, partisan purposes. and that's essentially what was the dynamic in the 1990's. in the 1990's, you also had the shaw district, which put some constraints or those majority-minority districts, but the other change you saw, which is less common, was that the democrats of course, switched positions entirely, on the desirability of these majority-minority districts and this had been a very effective political strategy for the republicans. i think after the 1990 redistrict, a roughly equally divided georgia representative
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in the house of representatives, went from a 50-5ology democratic-republican where you didn't have one democrat returning to the house of georgia. the only two democrats were in the super majority black districts. now they turned around and said to, it's really much better, we don't like the descriptive representation, those 35% districts are fine. and in candor, because of the diminution of the racially polarizing voting, you can elect black or white candidates in 35% districts. so now you've got this dynamic where the democrats are advocating that, and of course, the republicans are saying, no, no, that would diminish minority voting opportunities and that's a terrible thing. supreme court comes along in the ashcroft versus georgia decision and says, well, do you want to go to 30-30 or 35-35, that's ok,
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we're not going to stop you from doing it, because after all, you won't be able to dismantle these 60% districts and we're going to give you that opportunity to do did. now the democrats took that and said well, if you can get to 35% districts, then we are going to insist that you must go to the 35% districts, because after all, a 35% district is is better than this 5% white district that the republicans have created next to it, so now we're going to start if existing that the voting right act affirmatively require these districts, even if they've always elected white districts. so in the texas district, you had morgan frost arguing that this 22% black district, which he had jerry meandered himself in the 1990's, was a minority opportunity district, because why, he a white democrat kept getting 95% of the vote, so he was obviously the minority
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preferred candidate of choice and the court was like no, that doesn't work and the case had in my view had a tremendous political impact and has really not gotten the press attention it deserved, was a decision from earlier this term out of north carolina where it was putt right on front burner, we absolutely want to require the section 2 to mandate districts, even where minorities don't control 50% of the population, where there's less than 50%. so we want you to mandate the creation of these 30 odd percent which we used to call influence districts and the court 5-4 said to, there's no requirement that you engage if that kind of maximummization for one political party. we're talking about equal racial opportunity, not preferential political treatment and that had a huge impact, because it definitely helped republicans across the country and in my view as a citizen ended this extraordinary view on race. if they had extended the jingle
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decision, the section 2 mandate, to situations where minorities couldn't comprise more than 50% of the population, than the kind of race based redistricting are, where there are potential minority districts, would have stepped to virtually every district across the country. in the face of that, this was in 2006, i will now return to the section 5 part of the story, i'm going to slightly disagree with rick. rick said there was no change. it's actually wasn't that me imposed the same requirements in 2006 through 2031, that they had imposed on selma, alabama, in 1965. they made it more difficult on covered jurisdictions, and that's the other language change i wanted to bring to your attention. the backdrop of this again is this ashcroft decision where the supreme court said, you can undo these majority-minority
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districts, you can bring it down to 30% and the parts sans didn't like that for republican reasons, they took a law that says you can't deny or abridge the right to vote and amended it in 2006 to say, you can't -- any voting qualification, that diminishes the opportunity to elect preferred candidates of choice, no redistricting scheme can elect minorityees ability to elect their preferred candidate of choice. well, outside of dade county, miami, of the preferred candidate of kiss is always a democrat, so you had a republican-controlled congress passing a federal law saying don't diminish the ability to elect democrats. they are the same party, they have lived up to their reputation and in my view, engaged in just the most naked sort of and gratuitous racial mandate possible, which i don't think the court will get to in this text 5 discussion for this
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case, but is obviously in my mind, anything but proportional, which is the standard. they have again, added a substantive requirement, helping minority candidates, not minority voters, in 2006 on top of the mandate of equal access in 1965. so that has maybe undone some of the benefits for the republicans that you got out of this north carolina case, so that brings us to the section 5 controversy and the current state of majority-minority districts an abbey has made the point in her talk today and in the book very well about, why minority-majority districts have really lost, i think, the need for them. they were generally justified as a necessary evil of the time. certainly that point is passed. certainly it's like, you know, the march of dimes, trying to continue to go after polio, after the disease had been cured
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and in my view, it had serious negative political consequences again that abbey is very articulate about, marginalizing minority representatives, keeping them out of the normal kind of mainstream of backing and forting, that produces a a figure like obama, who can reach across different groups and get much more mainstream support from democrats and republicans and that's a very persuasive political science argument. my only addition is that the threshold question is why in the world would you empower judges to make these kinds of sensitive, racial litinged decisions, that involve of the those basic kind of again, political science questions. it really can't be that we have empowered the judiciary to make these decisions and it inevitably evolves to -- once you cut through the verban.
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if you don't agree with me, read justice souter's decision in the bartlett case he was talking about. he finally rips off a figure leaf and says it's all about proportional representation. you have less than proportional representation, then you haven't given as much pou power. and the other problem is, of course, in addition to being, in my view, very -- completely lawless, rick used the word, it's a flexible and dynamic statute, which i think is am deke i can't for lawless -- academia for lawless and we'll make it up as we go along and it's fine for professors to figure this stuff out but i don't want people wearing robes to do it, but it also creates inevitable tension which they tried to do under the 14t 14th amendment under saw. you have a statute that says you have to create the minority-majority districts. shaw says you can't create the
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districts and it creates this incredible dilemma for state legislature. you have not only reached an incoherent point in the law, you've reached a law that's at war with itself. the best solution is to step back, no longer edge garage in the racial preference mandate and come to some notion of basic equality and the final not i'll make interns of what both rick and abbey alluded to, there's a case pending in the supreme court, what's going to happen in terms of the future section 5. you can go broke better, on which way the supreme court is going to come out, particularly justice kennedy. my own view is that they're greatly concerned with the point, yeah, we're going to defer to congress on whether it continues to exist and you could even cobble together an argument, not very persuasive, butlers some argument if 2008 between the covered jurisdictions and non-covered jurisdictions, awe of that is extraordinarily -- the registration rates in the covered jurisdictions for minorities is higher than in the
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font covered jurisdictions, but in all events, the complete answer seems to me and the one that i think justice kennedy might arrive at, you've at least got to try. you've at least going to try and articulate some difference between the covered jurisdictions and the non-covered jurisdiction. how are they deciding whose redistricting plans are going to be submitted to a bunch of bureaucrats in 2030? presidential turnout in the 1964 and 1972 election. well, that doesn't -- you couldn't issue dog licenses on the basis of that, because it would be this congress in 1965 said we're going to divvy up the covered and non-covered jurisdictions by looking at the presidential election results on who ran against fdr. most people -- by own guess is, they probably will strike it down on that basis, with a lot of language saying of course if
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congress does look at this and come up with a formula, they can reenact section 5. my own view is congress can enact that formula, because the minute you bring a non-covered jurisdiction in, you lose all those votes and there's literally no formula that remotely includes most of them and excludes others. it i am right, and it is struck down, it will be an interesting shows logical experiment -- shows logical payment to see what happens to minority voting power without section 5. my own prediction it, it will have virtually no negative impact. you might see a fewer minority offices but you'll receive alet more districts where people are responsive to minority voting interests and i think the net of it is probably going to help the democratic party and i think help minorities, but i certainly don't see any of these kind of dramatic predictions coming true, and it will be interesting to see what happens, if you do try to struggle by if 2008
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without this kind of washington oversight. thanks. [applause] >> all right. you've been very patient. i would like to give abbey some brief comments i before i turn e microphone over to you. >> i'm going to make it very, very brief. i loved what both of these people said. when rick said that i'm -- that there's a kind of ambivalence that runs through the book on redistricting, he's perfectly right. it bothers me actually. i told him, he whispered to me, perfectly right, and he said ambivalence was good. i'm not sure that that's correct. the case before of the supreme court currently, whic it all cos
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down to justice kennedy, so of the question is, how much weight do you putt on one particular aggress -- put on one particular aggressive question from justice kennedy at the time. look, just as congress likes to hide underneath its members -- members of congress like to hide underneath their desks with it comes to civil rights questions, i'm just having a hard time thinking that at the end of the day, kennedy will really want the headlines he will get, if he takes a very bold stand on the question of the constitutionality of section 5. in a way, it's a frustrating case. rick said, well, it doesn't reach the issues that most interests me of racial jerry meandering, it could reach toes issues, if it so coasts, but the
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thrust of the argument in the case is -- focuses on federalism issues, on the intrusion on state prerogatives to manage their own electoral affairs an here we have a tiny little utility district that didn't even exist until the late 1980 1980's, and never had any districting problems and has never in fact had any kind of change that has been -- hasn't been precleared, moved a polling place from a residential home to a school, more access for voters and of course of the justice department said yes, so in many ways, it's an unsatisfactory case, and again, i'm going to say, i don't know how it's going to come out. i don't know what kind of wait to give to justice kennedy's one
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forceful question. i don't what to say something about the racially polarized question. both rick and mike pointed out if the republicans vote as republicans and the -- most whites vote republican and that's in the south, very often true, maybe all the time true, and blacks overwhelmingly vote democratic, well, you've got what is called by many courts, although there have been lower court judges that have objected to the definition of rarely live polarized vote willing, usually used as bureaucrats and whites, -- blacks and whites, the majority of blacks and whites each voting differently, i mean, you have a ridiculous definition that is in effect built into the law. it's a definition that means that, for instance, when congressman john lewis ran
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against julian bond, and most blacks voted for -- or more blacks voted for julian bond than at th they did for john led por whites voted for john lewis, well, was that an unacceptablely racially pol polarized election? no. and it seems to me a lot of our problems in these cases at least go back to that very muddled and indeed pernicious definition of what a racial block voting is all about, and it is absolutely central in so many many of the outcomes of these cases. i guess this is the last thing i'll say.
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mike at the end said, well, there are a lot of things i could say but this is the last thing i want to say, i want to open it up to the audience, said, well you want judges to make all these basic decisions about nature of representative government and american democracy and a place with minorities in it. no, i don't. and i also don't want the justice department, attorneys, paralegals, and sometimes kids out of college who are reviewing this stuff, and in effect, making decisions when, i mean, the justice department in fact often knows very little about the places they are trying to assess in terms of the racial -- of race and politics, in them, and i will never forget, i mean
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i started -- my interest in this whole area of the law started out with i discovered i was teaching harvard undergraduates in the late 1970's, and i discovered a case called, united jewish organizations versus kerry, 1977 case, which involved jews in new york and districting and bumping up a 62.4 black or minority district with blacks and puerto ricoans, justice department forcing them to push it up to 65%, because that was a safe district and a couple of percentage points lower was not and it split a hasidic community in two, and the court said, well, they're perfectly well represented by other whites in the city. well, if you know anything about
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ethnic politics in new york, you know that that's an has been subscription of this -- absurd description of this ins already minority, perfectly well represented by other whites and i was later, and this is literally the last thing i'm going to say, i was later writing, hanging around the justice department and testify a map of new york city, actually of manhattan, an they've got red dots for where minority voters lived, and i said to one of the attorneys there, what do you mean red dots? do you understand how complicated racial and ethnic politics are in new york and you can't have red dots? all minorities don't think of themselves as one happy political family. and he -- and he shrugged and said, well, we actually don't know much about new york city, that's true, but yo you know, wh you've got two questions of
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equal electoral opportunity if repoet southern counties or towns that the justice department almost never visited, and they had information about only because self-selected people would call up the justice department and say, x or y about the place, i mean, you know, the pro sincere is egregious and so it's not just judges that worry me, it's the whole process of the justice department, and again, they're dealing with very -- questions very central to american democratic government. that's the end. we have should open it up to the us aens. >> -- to the audience audience. >> raise your hands and i'll call on you. for the benefit of our c-span audience, rate for one of the microphones to come around.
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over here. please mention your name and affiliation before the we have. >> name is stewart kayloy, national journalism magazine. abbey, i think you said the court could consider the districting problems that you all have discussed. how could they, since there aren't any districts in that jurisdiction? >> well, mike carbon should talk to this too. well, i mean, if they uphold the constitutionality of section 5 and really what they would be upholding is the constitutionality of section 5 as amended in 2006, that is the issue in the case, they haven't taken on the whole history of how that -- the preclearance provision was enforced before 2006, i mean, it was considerably changed, i mean, there is going to be


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