The Future of Majority Minority Districts

Last Friday, Duke Law School hosted a conference on the future of redistricting in the United States. The last panel of the day debated the future of the majority-minority district. However one comes out on that question -- whether these districts are either necessary or no longer needed, even unconstitutional -- should be informed by the successes and failures of James Fields, a black representative elected by a southern white electorate, and J. Raymond Jones, Harlem's longtime political boss.

In a recent post, Guy posed two questions in response to Mr. Fields' experience representing a southern white constituency: What is the cost to black elected officials of running in white districts in the South; and, is the case of Mr. Fields proof of the declining need for majority black and Latino districts? In his post, Guy examined the first question. In this post, I explore the second.

Mr. Fields ran for office in Cullman County, a county of 81,000 people yet only 401 blacks. This is the county known in Birmingham, Alabama as "the racist white bigot county." This is also the same Alabama where 88% of whites voted for John McCain over President Obama in the last election. This is a figure that David Bositis, a well known political analyst for the Joint Center for Political and Economic Studies, attributes, "all of it to racial bias."

In sum, this is not only not a majority black district, but as far from it as an electorate can be. Yet Mr. Fields won election with 59% of the vote, a remarkable figure by any metric. This raises the immediate question of, how was he able to do it?

As the article illustrates, Mr. Fields personalized the election. He broke down "the traditional Southern political narrative." Accordingly, he was not a black candidate, he was a Southern candidate. For example, he does not have an office in the county, but rather, "he comes to you. Most of the county seems to know his cellphone number." He is a black man only until he starts talking to his constituents, "whereupon he really seems just like another Southerner." Most telling are the words of one Rickey Peek, a used-auto-parts dealer who watches Fox news, listens to Rush Limbaugh and hates President Obama. Here is what Mr. Peek has to say about Mr. Fields: "James is not like any black man that I know. He’s just different. He just don’t have that mentality, anybody owes him anything. He just gets out and works and helps people, earns what he gets. If James wasn’t black, you’d think he was white. That doesn’t sound right, but you know what I mean."

What this means, according to Wayne Flynt, a retired Auburn historian, is that "personalism can trump racism." This is also the view of Congressman Arthur Davis, who says that in the Alabama of today "race is not an insurmountable obstacle." In fairness, this view is not universally shared. But the election of Mr. Fields is no less significant. It is nothing short of remarkable.

Standing alone, Mr. Fields symbolizes the America that supporters of the Voting Rights Act envisioned over forty years ago, a polity where race would ultimately cease being the driving force in Southern elections. This is also the America that justices on the U.S. Supreme Court often uphold as the aspiration of the Act. Supporters of the Act today argue, to my mind convincingly, that we are not there yet. It might appear, if Mr. Fields example is any indication, that we might be closer than generally presumed.

After reading about Mr. Fields, I subsequently came upon the example of Raymond Jones, documented in the same edition of the Times yet in a separate section. The contrast is remarkable. Mr. Fields highlights the exciting possibilities that a competitive South may bring. Mr. Jones, in contrast, highlights the dangers of power and incumbency, the very things that are often established by safe districts.

Mr. Jones, also known as "the Harlem Fox," is the legendary Democratic leader from New York who nurtured the political careers of many New York politicians, including Charles Rangel, David Dinkins, and David Patterson. The last week has not been kind to this group, with recent revelations leading Governor Patterson to announce that he is not seeking reelection and a House ethics panel admonishing Congressman Rangel for recent actions, with more inquiries soon to follow.

I could not help reading these two articles as one piece on the state of Black politics and, more specifically, black politicians. Now, I understand that the goal of the VRA, and particularly section 2, is to afford black and Latino voters the opportunity to elect their candidates of choice. I get that. But these two examples place much stress on defenders of the VRA to defend the use of race in the 21st century. This is not to say that such a defense is not possible. Rather, it is to say that such a defense would be difficult.

At the very least, supporters of the Voting Rights Act better hope that Justice Kennedy does not read the Times.

Are the Democrats Winning on Healthcare?

I have no idea whether the President has been listening more to Rahm Emmanuel or not, but whoever is devising the White House's new healthcare strategy deserves a raise.  There was no doubt that not too long ago, the White House was getting killed by the healthcare question.  But the tide appears to be turning.

The Second Amendment and the States: The City of Chicago Case

The Supreme Court heard arguments yesterday in McDonald v. City of Chicago, this Term's Second Amendment case. The case follows the recent Heller decision, which held that the Second Amendment encompasses the individual right to possess guns, at least to defend oneself in the home. In City of Chicago, the question is whether the holding in Heller extends to state and local communities.

The transcript of the oral argument should be required reading for anyone trying to understand how the Supreme Court works. Everything you needed to know about the Court, you can learn from the City of Chicago transcript.

For example:

--You can tell good oral advocacy from bad pretty quickly

--The oral argument changes few minds and is, at best, a ceremonial display of the Court's power

--You get a pretty good idea of where the justices stand from the questions they ask

--Justice Scalia might actually be funny, even if sometimes he tries too hard.

--Justice Thomas might not even be there.

It is impossible to read the transcript -- even if you gave it a cursory reading at best, as I did -- and not conclude that political scientists have it right: ideology drives the justices' decision-making; the law plays a secondary role at best.

Consider, for example, how the conservative justices come to the defense of counsel for their preferred side. In an exchange between Justice Breyer and counsel for the petitioner challenging the city ordinance, for example, Justice Scalia at one point didn't even bother to ask a question, wishing instead to answer Justice Breyer's. The Chief Justice similarly came to the defense of Paul Clement, former solicitor general and counsel for the NRA, or else he was simply thinking out loud the implications of Justice Stevens' question. Very kind either way. It also makes you wonder what the role of the oral argument is, and who is the justices' intended audience.

Unsurprisingly, the conservative justices were not as kind to James Feldman, counsel for the city. Even Justice Alito sprung into action and joined in the fun.

Two moments in the argument deserve special mention. The first happened right at the onset, when counsel for Mr. McDonald pressed his first argument to the Court: overruling the Slaughterhouse cases, a precedent that has stood for over 150 years. As he told the justices, "the Slaughter-House cases should not have any stare decisis effect before the Court. The Court has always found that when a case is extremely wrong, when there is a great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force."

This is clearly the argument of a lawyer who pays attention and knows to count to five. This is hubris, plain and simple, or else stupidity. Only Justices Ginsburg and Sotomayor bothered to pursue this line of inquiry, until Justice Scalia came to the rescue and offered the second moment.

Recall that the argument is whether to bring the Second Amendment (that is, to incorporate it) to the states. Rather than waste any more time with the prior line of argument, Scalia helpfully asked: "Is it easier to do [bring the Second Amendment] under privileges and immunities than it is under substantive due process?" The answer was obvious, though not free of difficulty. Yes, it is easier to place oneself within existing doctrine, distasteful as that doctrine may be, than to overrule a precedent 150 years old. But make no mistake, this is substantive due process. This is the terrain of unenumerated rights, of Roe v. Wade and the right to privacy. Hardly the stuff of conservative jurisprudence.

Not to worry, Justice Scalia helpfully reminded us: "Why do you want to undertake [the burden of overruling the Slaughterhouse cases] instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?"

Whew. Maybe this means that Roe is on safe ground?

This case makes me long for the conservative justices of old, believers in judicial restraint and for allowing the political process to run its course. After all, how else to decide contested questions of public policy? (In the interest of full disclosure, I am a big fan of Justice Frankfurter. That puts me in distinct company.) These old justices had principles. They had conviction. They would make the Federalist Society proud.

In contrast, the modern conservative justices are conservative in name only. This is the bloc that gave us Citizens United and who take on Congress with increased regularity. These are the justices who have set their sights on the Voting Rights Act and will likely cripple it or strike it down altogether in the near future. These are the justices who can now turn to substantive due process, smile, and tell us that the Second Amendment is incorporated by the 14th and applies t the states.

Only the sky appears to be the limit.

If I ever hear a President tell us that she wants to appoint Justices in the mold of Justices Scalia and Thomas, I will throw up.

Literally.

The Puzzling Case of Harold Ford, Jr.

In today's edition of the New York Times, Harold Ford, Jr. explains why he will not be challenging Senator Gillibrand for the U.S. Senate. To run in the primary would be to cripple the eventual Democratic nominee, and Ford, Jr. simply "refuse[d] to do anything that would help Republicans win a Senate seat in New York, and give the Senate majority to the Republicans."

We can certainly disagree about the sincerity of his views, and whether he stood a chance in the primary contest. From where I sit, far away from New York politics, the Harold Ford, Jr. non-campaign raises innumerable questions about the media and U.S. politics. As I think about these, I cannot help but return to the one fundamental question: why the obsession with Mr. Ford?

From the moment in early January that we heard that Mr. Ford was contemplating a challenge to Ms. Gillibrand, the attacks began slowly yet relentlessly. They came from all quarters, and even Steven Colbert joined the fray. In fairness, Mr. Ford offered an easy target. It was also great fun to boot, to watch him squirm and defend past positions in light of a changed prospective constituency.

(In the interest of full disclosure, I must note that I am a big fan of the Colbert Report AND loved the Ford interview, the way one loves an impending car crash)

The day Ford announces his decision not to enter the race, Steve Kornacki over at Salon asks "where will Harold Ford Land?" He offers four choices: the governorship of Michigan or Texas, the DC mayor's office, or the U.S. Senate race in Pennsylvania. It is pretty funny stuff, even worth reading.

But the whole story is still puzzling all the same. Certainly Ford is not the first candidate to relocate to New York and run for office there. Surely commentators remember Bobby Kennedy's 1964 successful Senate run, or Jim Buckley's successful run in 1970, not to mention Hillary Clinton's run in 2000. So carpetbagging can't be it.

Another reason often cited is that Harold Ford is a phony. This might be part of the answer, but cannot be all of it. After all, we are talking about politics, an arena where phoniness and flip-flopping are job requirements. It is not as if politicians have just acquired a new persona in the public imagination, yet Harold Ford somehow missed out.

Besides, as I have written before, Ford's "phoniness" is not as simple as columnists like to argue. He is a politician running for office in New York, trying to make his case to a left-of-center electorate. In his last race, for a Senate seat in Tennessee, he had to make his case to a right-of-center electorate. Now, it is obvious that his prior views must change if he stood a chance in the New York race. But the better question is, what exactly do we want to see in our ideal representative? I won't rehash this argument here. Rest assured, the argument is not terribly complicated. Unfortunately, that argument neither sells papers nor amuses readers.

I neither have the time nor the inclination to look back through prior campaigns and compare the media treatment given prior outsiders running in New York. I can sincerely say that I do not remember a similar skewering of Clinton's obvious carpetbagging. I also wonder about Kennedy and Buckley.

As I ponder the questions posed by the Ford "campaign," I think of James Fields, the Alabama state representative featured on the Sunday Times. In reaction to this piece, Guy asks: "what does it cost black elected officials (or would be elected officials) to run for office in predominantly white electoral districts in the deep South." That is a very important question to ask. The treatment of Harold Ford Jr.'s non-candidacy makes me wonder whether the question should be applied across all fifty states.

The Black Representative of the White Electorate

There is a great article in the NY Times Magazine by Nicholas Dawidoff entitled Race in the South in the Age of Obama. The article, which is beautifully written, brings to light local black politicians in places in the deep South who have managed to win elections in predominantly white electoral districts. The Article raises two questions for me. First, what does it cost black elected officials (or would be elected officials) to run for office in predominantly white electoral districts in the deep South. Second, are these black elected officials indicators of the future of black politics. Put differently, are we witnessing the demise of the justification for majority-minority districts (districts in which voters of color--the minority--are the majority of the electorate)? In this post, I will address the first question.

Busing in North Carolina

On Tuesday, the Wake County Board of Education will consider whether to restrict the distance that students may be bused. This sounds like the prototypical busing example where race takes center stage, with white parents pushing back on busing plans that take their kids away from local schools.

But the Wake County example appears more complicated than that.

Two aspects of the debate jumped out at me. First, this is a busing plan defended on the value of economic diversity, not race. This is a sensible strategy. This comes up often in affirmative action debates: rather than take race into account, which in the end might benefit rich and poor indiscriminately, plans should take class, or economic disadvantage into account, which will target the "truly disadvantaged."

Incidentally, it appears the plan is working, if test scores are any indication. But the benefits of the plan might not be enough to offset the costs, at least for the parents whose children must bear much of this cost. Unfortunately, Black and Latino children are disproportionately poor within the district, so the plan ultimately pits rich white parents against parents of color. And in such a fight, I think we can safely predict who will prevail.

Second, this debate is taking place in Wake County, an affluent and Democratic county outside Raleigh, North Carolina. Busing is traditionally a highly polarizing issue. After all, it asks parents to bear direct costs of policies that will benefit their own children indirectly. Adding race to the mix only worsens matters. Wake County is not an exception. In the most recent election, four Republican candidates won a seat on the school board, pledging to end the policy. They swept into office by an average of 64% of the vote. After the election, the composition of the Board shifted from 8-1 in favor of the busing policy to 5-4 against it.

This is yet another example of the toxicity inherent to debates over race and politics. More importantly, this is an example of the promise of political action as well as its inherent limitations. White parents mobilized and, aided by the Republican Party, were able to see direct results. This is sure to warm the heart of anyone who believes in the promise of Democracy and the power of people to affect action in their communities. What is not to like about that?

Conversely, to lose in this debate is to end up in inferior schools. This is no small matter. Worse yet, this is an outcome that could have been predicted even before it began: rich white parents against poor and often colored communities.

This was hardly a fair fight.

This is the oldest story in history, the classic prisoners' dilemma: what to do when community benefits come in direct tension with benefits to individuals? For a majority of parents in the Wake County district, the answer is clear. Their position should surprise no one.

All the same, it is regrettable.

There They Go Again: College Sports

Binghamton University is the "academic jewel" of the SUNY system. According to the New York Times, Binghamton was also the site of gross academic misconduct, including the lowering of admission standards and the changing of grades, in the name of "athletic glory."

This was in the sports section of the paper, though it really should have been front page news.

This story epitomizes the vacuity of college athletics.

Somehow, the Times missed the larger import of the story. As you turn to the rest of the story, you find out about the lengths to which university administrators went to improve the men's basketball program. It is all pretty sickening. Yet it also made me wonder: surely, if small Binghamton University goes to these lengths, what else is everybody else doing to either achieve athletic excellence or to remain there?

Perhaps coincidentally, perhaps not, the Times included an AP story on the next page about how the "Longhorns are Preparing for Life After McCoy." This is a story about the University of Texas' football program and the upcoming season. This is the same program whose coach will be paid in excess of 5 million dollars a year, and whose budget is around 127 million dollars.

To pose the obvious question: if it happens at Binghamton University, what are the chances that it does not happen at the University of Texas? or put a different way: to what lengths would administrators at the top revenue producing programs go in order to reel in top recruiting classes while ensuring that their players remain academically eligible?

We can only wonder.

However, it is hard to be optimistic.