By Andrew Cohen
Voting rights experts from across the U.S. converged on Berkeley Law to discuss a troubling development: a growing effort to disenfranchise minority segments of the electorate. Although the U.S. has seen a dramatic increase in minority populations and political activism over the past several years, it has also seen myriad efforts to restrict ballot access.
To confront these developments, the Berkeley Journal of African-American Law & Policy and the Berkeley Law Raza Law Journal co-hosted a symposium titled “Mapping the Ballot Box: Voting Rights and the Propensity for Electoral Success in a ‘Post-Racial’ America.”
During the first three years of Barack Obama’s presidency, 14 states passed 25 measures curtailing voting access. There were also heated redistricting battles over “majority-minority” congressional districts, in which the majority of constituents are racial or ethnic minorities. Although the Voting Rights Act permits and sometimes requires states to create majority-minority districts to maintain minority voting strength, many such efforts have been thwarted in recent years.
“Each of these developments has undermined the ability of African-Americans and Latinos to participate in the political process and affected their communities’ desired political and socio-economic reforms,” symposium editors Ian Brown ’14 and Sonja Diaz ’13 wrote in the event program.
In February, the U.S. Supreme Court heard oral arguments in Shelby County v. Holder, to determine whether Congress exceeded its constitutional authority in 2006 by reauthorizing section 5 of the Voting Rights Act. Section 5 requires that certain states and municipalities—located mainly in the South and Southwest—obtain federal preclearance for all voting changes before implementation. To obtain preclearance, a jurisdiction must show that the change has no discriminatory purpose or effect.
Advocates voiced concern that section 5 is in peril and lamented what lies ahead if it is eradicated. Berkeley Law Professor john a. powell faulted Supreme Court Justice Antonin Scalia for calling the Voting Rights Act a “perpetuation of racial entitlement,” during oral arguments.
“The message from these voter suppression laws is that the country doesn’t truly belong to you unless you’re white,” said powell, who directs UC Berkeley’s Haas Diversity Research Center. “We’re seeing a concerted effort to limit the right to vote based on race.”
Panelists discussed the political efforts to weaken the impact of urban centers by gerrymandering congressional districts and by limiting voting times at polling booths, forcing citizens in minority districts to wait on long lines.
Attorney Nicholas Espiritu of the Mexican American Legal Defense and Educational Fund said “the idea that states are completely sovereign when it comes to internal elections is wrong…. Congress is not overstepping its bounds when it tries to level the playing field within constitutional bounds.”
Florida State Professor Franita Tolson echoed the call to take the offensive on voting rights rather than simply fend off restrictive efforts. She noted that section 2 of the 14th Amendment “allows Congress to actually reduce a state’s representation and impose other penalties if they abridge the right to vote.”
A panel led by Berkeley Law Professor Bertrall Ross grappled with constitutional challenges posed by shifting demographics. Ana Henderson of the law school’s Warren Institute on Law and Social Policy led a panel that examined the discrepancy between increases in minority populations and actual representation. According to census data, between 2000 and 2010, the nation’s Latino and Asian populations each grew by 43 percent while the African-American population grew by 15 percent—in contrast with the country’s overall 9.7 percent increase.
“African-Americans lost big in this redistricting cycle because partisans drew the majority of these seats rather than bi-partisan commissions,” said Myrna Perez of NYU’s Brennan Center for Justice. “Redistricting should involve transparency and clear rules; that’s how it’s supposed to operate. Otherwise, it’s easy for minority communities to get left out.”
Astrid Garcia of the National Association of Latino Elected and Appointed Officials said her group is “pushing for public education on the importance of redistricting hearings because that’s going to help give us our political voice.” Garcia acknowledged the import of Latinos forming 10 percent of the 2012 electorate, but said that “while there have been some historic gains, as with most voting rights issues, there’s still more work to do.”