residential occupation and other aspects of the social landscape. jews are under 2% of the american population. they hold approximately 13% of the seats in congress. and 22.2% of the seats on the u.s. supreme court. should federal power be used to correct such imbalances? given the history of racism in america, it has certainly been legitimate to provide remedies where racist exclusion has seemed the likely explanation for disproportionately low number of black members on, say, a school board or another elected legislative body. ..

have long believed that the meaning and patronizing and unfair to the students themselves, they don't work as if tended. in addition, university policies are clouded and secrecy and dishonesty, while distributing maps are public documents, and they do work precisely as intended. as i have realized, i do not have a clear-cut off day after which race conscious disi object tricking was -- districting was to longer necessary, but surely it is not needed today. such districting was a temporary measure to give blacks what ucla law professor daniel lowenstein calls a jump start in po politi. a jump start is one thing, but the guy who comes and charges up your car when the battery is dead, he doesn't stay there trailing behind you, with a

cable stuck as you drive down the freeway. he let's it go. it's time to let race-driven districting go the way of those jumper cables. america is better off with increasing the number of black officials who gained office in large part due to the deliberate drawing of majority-minority constituencies, but black politics has come of age and black politicians can protect their turf, fight for their interests, and successfully compete even for the presidency. today, most southern states have higher registration rates than those outside the region and over 900 blacks hold office, public office in mississippi alone. covered and non-covered states in the south are almost indistinguishable by the measure of african-americans elected to state legislatures.

massive disenfranchisement is ancient history, as unlikely to return as segregated water fountains. and yet section 5, the pre-clarence provision was actually street end in 2006. it was always a temporary emergency measure, and thus periodically up for renewal. three years ago, its life was extended for another quarter century. in passing the amendments of 2006 with a barely a day centsing vote, republicans and democrats alike accepted the argument offered by civil rights advocates and including in the house judiciary committee report that discrimination had just become more subtle than it was in 1965. minority voters are still prevented from fully participating in the electoral process, the 2006 statute itself says, rarely in the rich annals

of congressional deceit and misconception have for false or foolish words be uttered. well, the ink was barely dry on the 2006 amendments, section 5, when a tiny texas utility district challenged their constitutionality. their decision is most likely to come down on the as day of there are court's term, i believe that's june 29, somebody can correct me if that's wrong. i do not believe the court will simply strike down section 5 as unconstitutional but most supreme court watchers disagree with me. in any case, if the court let's section 5 stand, it will be rejecting some wisdom from justice david souter. minority voters who wrote in 1994 are not immune from the obligation to poll, haul and trade to find common political ground, the virtue of which is not to be slighted in applying a

statute meant to hasten the waning of racism in american politics. the voting rights act has become "a model from earlier he can dade that is increasingly irrelevant and not designed for the voting problems of today." i agree. america has been racially transformed. let's celebrate that remarkable transformation and let's move on. thank you very much. [applause] >> i want to start off by

thanking first, abby for encouraging ai to invite me to this event and even more so for the intellectual honesty with which she uses my work in this new book of hers and also thank aei and henry and michael for sharing this afternoon together. i always think the greatest tribute to scholarship is to engage with it substantively and that's what i want to do today with abbey's book. the book sweeps extremely broadly over the history of the voting rights act, the supreme court engagement with issues of voting and districting, starting from the 1960's and going up to the present and so what i wanted to do was to highlight three particular issues, several of which -- or two of which i think at least abbey has talked directly about and try to provide some perspective on these particular issues.

one is the question of what congress did a few years ago, with it reconfronted the voting rights act for the first time if 25 years. the second is going to be the supreme court's imminent decision about what congress brought in 2006 and then the third large issue i want to deal with is the one i think is really at the heart of abbey's book and what's at the core of her talk which is the issue of racial redistricting as a sort of broad general matter. so let me start with congress in 2006. and this is the statute that the court is now reviewing. the theme here for me is congressional abdication. this was the first major civil rights policy issue that congress had to confront since the 1991 civil rights restoration act. and it was the first time congress had confronted the voting rights act since 1982. and undoubtedly, congress would not have turned its attention to

issues of race and politics if 2006, but for the fact that this particular part of the voting rights act, section 5, had a sunset provision, and the act was to expire, this portion of the act was to expire in 2007, unless congress acted. so if 2006, on the eve of the expiration of the act, congress was forced to engage with these issues. now, with congress last addressed these issues, not in 1965, with the act was first passed, but in 1982, when it had last amended section 5, even as of 1982, there are a variety of circumstances in american politics and race relations that were clearly different by 2006. for example, even in 1982, there were minuscule number of black office holders in the united states and certainly in the south. it was only 17 years since the

voting rights act had first been enacted. there was basically no meaningful, two-party competition in the south. the democratic party still had its century long monopoly on political power in the south, which made it much easier for one parity to exploit the interests of any particular group or constituency, such as black voters in the south. racial polarization and voting patterns, again, particularly in the south, were extreme. so you had a system that was still one of largely formal parts patory rights, since the voting rights act had enfranchised everybody, but de facto exclusion from office holding for minority office holders in much of the country, but particularly in the south. now, obviously, over 25 years, various of these elements had changed. how much, we can debate, but of course, there was the dramatic rise of office holding among minority office olders in the

south that abbey mentioned. most find it striking to note that today, 31% to 45% of elected democratic officials if southern legislatures are black. in addition, we have in the decline to some -- we have the decline, to some extent, of racially polarizing voting patterns, not just dramatically evidenced in president obama's election, but for toes of us watching these issues, these tan for passions were manifest in a variety of less visible races, even before 2008. the voting problems that grabbed national attention over the last decade were not in places that were singled out by section 5 of the voting rights act for this unique regime of federal coverage. they were in places like ohio in the 2004 election or florida in 2000, in which only a few of the counties are actually covered by

this portion of the act. so the problematic areas in which there were disputes about access to the ballot, counting the votes and the like, had changed since 1982. now when congress sat down in 2006 to revisit all of this, i assumed that it would make some changes in this regime, however modest. to reflect some of these developments. and much to my surprise, and i think to the surprise of many voting rights experts and academics, congress changed absolutely nothing from the regime that had been in place since 1982, and in fact, that regime largely went back to 1975. congress didn't change what parts of the country were covered or not covered. it didn't change the approach to defining when racially polarized voting was a problem. it extended the statute not for

a shorter term, as it had done in some earlier iterations of section 5, such as for seven years, but it extended it for another 25 years, to 2031. and i saw this as i have said if print, as congress throwing a gauntlet down to the supreme court because the supreme court over the last 15 to 20 years, has made it clear that it is going to apply much closer scrutiny to legislation in two areas, both of which, section 5 of the voting rights act implicate. one areas that involve race conscious public policy making are ones where the court has signaled very clearly, starting in the voting area with the racial redistricting cases of the 1990's, that it is going to look very closely at the extent to which congress has adequate justification for adopting race

conscious policies, and second, the court consistently pronounced for 15 to 20 years had as one of the more aggressive themes, the more aggressive superintendent of legislation that has distinct federalism kinds of implications. and what you have with section 5 is the only statute if american history that ingels out a particular region of the country for distinct federal oversight and control, if an area of race conscious public policy making and which had not been updated since 1982. so as i say, in the face of what are obvious changes, whatever one makes of them ultimately for public policy and in the face of the development of these constitutional doctrines, one would have expected congress to make some effort to acknowledge in the structure of section 5,

that we were to longer in 1982, let alone, 1965. congress failed to do that for reasons that abbey's first book i think actually identified very well, which is the political economy of this kind of legislation is fairly unusual in that you don't have as in the labor area, very strong competing, well organized interests pushing and fighting against each other. workers, employers, unions, and business. what you have in this area is a statute that is very freighted obviously and is a symbol to me and many people in american democracy, which regulates public practices if particular parts of the country, where elected officials are unlikely to want to take the political heat for raising questions about the statute, where you have a conspiracy of silence across the

political aisle and so you get the statute in 2006 virtually unanimously reendorsed by congress. now, the second thing i wanted to mention just briefly is the imminent supreme court decision on whether this is constitutional. and i don't like to predict supreme court decisions here, but the questioning from the court, the oral argument was extremely aggressive as to why this statute continued to have the same structure, why some parts of the country that had been singled out essentially, as of 1975, were still the only places that made sense to target today. and every question that the court asked was raised in testimony to congress in 2006, and simply not responded to by congress. but if the court holds section 5 unconstitutional, it will on the one hand be one of the most

dramatic acts of had if american constitutional history, because for the supreme court to hold even a portion of the voting rights act unconstitutional, will be traumatic and momentous symbolically, but at the same time as a practical matter, even if the court reaches that conclusion, i think it will only slightly touch upon the issues that abbey is raising. because the only issue before the court is whether the regime that congress has reinforced of singling out particular parts of the country for unique federal oversight, remains constitutional and adequately justified. but even if the court says to to that, that decision will not directly address the issues of race and redistricting that i think are so central to abbey's book. and so as a third issue, let me

turn to that question kind of head on. and at least try to provide some perspective on it issue and here my theme is going to be ambivalent, which i actually think was reflected in abbey's reparks and is reflected to some extent in her book. abbey's book starts with an epigram from an article of mine in which i say something like the voting right act is the most ambitious in the world to struggle with issues of minority representation in a majority aryan democratic system and what i mean by that is democratic systems have a number of devices that have been used in different places to deal with this deep and difficult question of how minority groups can be ensured respect for their conclusions in democratic political systems which we foe are capable of exploiting the interests of minority actors of various

sorts. some countries have what are sold consocialization structures for doing this, which actually set aside some number of seats for political bodies for vulnerable minority groups. obviously the voting rights act does not do that. it does not set aside x percent of seats in the congress or in the senate or in state legislatures that can only be held by people of a certain race or ethnicity. secondly, some countries use proportional representational systems, most countries do, which don't directly ensure -- but because much smaller groups can effectively get seats in a proportional representation system, those systems are often felt to at least ensure more adequate representation of different interests, even if there are various costs to proportional representation, but that's another solution in some

places. a third solution is federalism, which in areas where vulnerable groups are concentrated geographically can be a way of ensuring some sort of minority representation and self-protection in the political process. ok. the voting rights act doesn't do any of this and what makes it particularly ambitious and interesting i think, is that it was designed if a system of first past the foe territorial districts to be dynamic and responsive over time to the actual dynamics of race and political representation. in the sense that the act was based on the notion that only where we can identify particular problems with race and representation in politics are the obligation of the act, including the obligation to design safe minority districts trigger. so that was the concept.

again, a rejection of set aside seats, a rejection of shows-year-oldization structures, an effort to recognize on the ground realities and to create a statute that would be responsible over time to changing dynamics. now, part of the problem with the way the statute has worked out is that the key idea to keeping the statute flexible and dynamic and responsive to changing circumstances was the idea of racially polarizing voting, which was supposed to tell us when we had a defective political order that required the kind of response of safe minority districting. and the problem is that the concept of racial polarization became understood in a very mechanical and sort of rigid way, so that it means and still means today, any situation in which black voters overwhelmin overwhelmingly vote for a minority preferred candidate,

white voters overwhelmingly vote for the opposing candidate, and that is racial polarization, as the law recognizes it. ok? now, as soon as i put it to you that way, i assume you can recognize that in a world of two-party politics, take the south, if 80% of white voters regularly vote for the republican party and fin 90% of voters vote for the black party, every election is racially polarized, no matter who is is running for office, whether it's a white candidate or a black candidate, so that's where i think some of the real difficulties of adapting this regime to present circumstances come in. now, what's the solution to this? and this is where i want to bring out some of abbey's ambivalence and press her a little bit and i'll close with these remarks. one solution could be to take the view that the law should no longer ever mandate the creation of safe minority election

district. and i think sometimes abbey sounds like that's the position she's endorsing. it might be the case that if local political bargaining processes lead to situations in which some majority black, hispanic, farming, whatever districts are drawn, that's fine, but the law should never mandate it. ok. a second position could be at the other extreme, that the constitution should be understood to prohibit race conscious districting in esendingly all circumstances. a third position is that we should continue to recognize that there are some contexts in which these kinds of districts ought to be legally required to be drawn, and we have to modify the way the act imposes this requirement and when the act imposes this requirement. and unless you're drawn to the first or the second, to either

of those polar positions, it seems to me, that's where i tend to be on these issues and that's where the difficult questions lie. now, i'm not sure which of these three positions abbey is taking, so i told her it's a question i want to put to her, but in addition, if the approach ought to be to update the statute if a way that not every contest that recognizes voting recognizes racial politics, racial exclusion, and racial hostility, then how do we modify the statute to identify the circumstances that are particularly troubling, where this kind of requirement still is justified, and how do we distinguish the circumstances in which it's not is thi? and i think that that's a challenging question. it's easy to react to some of

the extremes that have emerged from the political process, but once you say, let's resist the extremes, how you define an appropriate regime if a majori majorityaryan political system like all majoritian systems recognize minority interests through a legal structure, like the voting rights act, seems to me a very, very daunting challenge. last thought actually. i was going to close there, but i want to make sure your see a link between this issue an one bigger issue. there's a larger question about how we think of election districts in general, which is do we want them to be designed in a way that concentrates lots of individuals with common interests whether those interests are economic, tied to identity, tied to partisan

affiliation or do we want to design as many districts as possible that are quite heterogeneous in many ways. i think the problem of racial districting should be seen as the problem of racial redistricting in general, in which we now have a system in which legislators stuff democrats or republicans into districts to maximize the likelihood of one party or foregaining a seat. those voters have common interests, like -- or they may have common electoral interests, like black voters in minority districts. they may vote for the same candidates, but if the problem of racial redistricting is as acute as we hear it described, i think the problem of partisan redistricting is also a very, very acute problem and closely related. and part of the polarization we get if american politics, at least for districted representative bodies like the house or the state legislatures,

comes from the fact that we do now have a system that permits very aggressive manipulation of the design of these districts for lots of purposes, in order to concentrate particular kinds of voters in particular districts. so i like to think of this problem as a subset of that larger problem, with those questions and thoughts, i will turn it over to michael. [applause] >> thank you. i should begin by endorsing abbey's book and recommending that you all buy it. it's really a terrific -- for those of you who either know about the voting rights act or don't know a lot about it, it's a terrific way of looking at the evolution over the last 40 or so years of the issues that have come up, interest a sociological, political science and legal perspective and showing you how some of the issues have been papered over,

some of them have been resolved one way or the other. i have thought i would try to focus on some of the same issues shall maybe from a more straightforward legal perspective and cat about some of the points rick made as well. and one of the easiest ways to do this is one of the many virtues of abbey's book is she includes an appendix of the statutory language and how the statutes have evolved over the years and it's really kind of interesting to look at what the original voting rights act said and how it's evolved and the two kinds of evils that we're trying to get at and i'll start with the 1965 version of section 2, which was very straightforward, that there can't be any voting qualification that abridges the right of any citizen to vote on the basis of race or color. you can't exclude access to the ballot to the right to vote because of somebody's skin color. that among right-thinking people is not controversial and a very appropriate role for the federal government to do. section 5 had almost identical

language, the original section 5, and that was por controversial, because -- por controversial, because it had divvied up america into two groups, which were subject to extraordinary preclearance environments and some of which were not, but again the rationale there, even for a federalist like me, wasn't too tough to justify. first of all, clearly the groups identified in having those states identified had different and more horrible history. there was no way to compare mississippi to ohio or other places and they did deserve some kind of special review, and then of course, the other way it was sold, this was simply for five years. this was enacted in 1965, has been city said, sort of jump starting basic equality and then we would take it from there. abbey pointed out that five year temporary mix is extending to 2031, which is 66 years, so for those of you who are interested in how long