
          The Law.
          Reviewed by McDonald, LaughlinLaughlin McDonald
          Vol. 11, No. 5, 1989, pp. 21-23
          
          Whose Votes Count? Affirmative Action and
Minority Voting Rights by Abigail M. Thernstrom (Cambridge:
Harvard University Press, 1987. 316 pp. $25. Paperback edition, 1989,
$10.95.)
          The Voting_Rights_Act of 1965 has had a profound impact on minority
political participation in the South, and increasingly in the nation
as a whole. In some jurisdictions registration and turnout of
minorities are now equal to those of whites, while the number of
minorities elected to office-not simply blacks in the South but
Hispanics, Asians, and Native Americans in the North and West-has
grown steadily each year. Significant disparities remain but this
progress is encouraging, representing as it does the growing
fulfillment of the long deferred promises of the Fourteenth and
Fifteenth amendments, as well as an increasing national consensus in
support of minority political participation.
          The Act has always had its critics, of course, but they were
usually from the expected quarters. They were mainly disgruntled
Southern solons who complained that the legislation was punitive and
regionally based, whites whose political and economic control was
threatened by voting reforms and those who supported racial
segregation and "the Southern way of life."
          Now, ironically, comes Abigail Thernstrom, not a Southern
malcontent but a Senior Research Associate at the Gordon Public Policy
Center at Brandeis University. Armed with a grant from the prestigious
Twentieth Century Fund and the new conservative's hostility to
affirmative_action and race-conscious remedies for civil_rights
violations, she argues in her book, Whose Votes
Count?, that the Voting_Rights_Act has been transformed, wrongly
and dangerously, from a law whose "single aim" was
to remove blatantly discriminatory barriers to registration and voting
into "an instrument for affirmative_action...to promote the
election of blacks to public office." She is particularly critical
of single member districts, a form of neighborhood or community
voting, which she sees as basically a scheme to achieve proportional
representation and unfairly protect minority candidates from white
competition.
          The Supreme_Court and Congress disagree with Thernstrom that the
Act was concerned only with vote denial. Congress was certainly
concerned with the difficulties blacks had in registering, but it was
also 

concerned with practices that could dilute the effectiveness of a
ballot actually cast.
          Congress knew that prior voting_rights laws had failed in part
because local jurisdictions could always think of new ways to
discriminate and stay one step ahead of the federal_courts. As soon as
a court invalidated an objectionable practice a jurisdiction could,
and generally did, simply enact another to take its place. For that
reason Congress not only banned such discriminatory practices as the
literacy tests for registration, but it provided in Section_5 of the
Act that certain "covered" jurisdictions had to preclear any
new voting laws with federal officials and demonstrate that they did
not have a discriminatory purpose or effect.
          In the Supreme_Court's first decision construing the scope of
Section_5, in 1969, Allen v. State Board of
Elections, a majority of the justices concluded on the basis of
the legislative history that Congress intended to require preclearance
of all laws enacted by covered jurisdictions which altered election
practices in even a minor way, including the adoption of procedures
such as at-large elections that could dilute minority voting
strength. The Court has applied this standard in every subsequent
preclearance case.
          Moreover, when Congress extended preclearance in 1970, 1975 and
1982, it discussed and expressly approved the Supreme_Court's
interpretation of Section_5. Had Congress felt that the Voting Rights
Act had the sole and narrow purpose of eliminating only discrimination
in registration, it could have said so and taken corrective
action. But it did not.
          In concluding her discussion of Allen,
Thernstrom does an anomalous and abrupt about face. While she
professes not to like its prohibition on vote dilution, she concedes
that Allen "was both correct and
inevitable."
          Thernstrom is highly critical of the 1982 amendment of Section 2 of
the Act in which Congress provided that voting practices, whether or
not subject to preclearance and whether or not purposefully
discriminatory, are unlawful if they "result" in
discrimination. The amendment passed, she says, not on its own merits
but because Congress was "slapdash" and "inattentive."
The press was guilty of "distortions" and reported only
"partial truths." The real villains, though, were the civil
rights activists who supported the "result" standard. They had
a "self-proclaimed moral superiority." They hewed "to a hard
line." They were "diehards." They had set out merely "to
peddle a product."
          Arrayed against these forces of Congressional, communications
media, and civil_rights sloth and zealotry was a stable of academics
collected by Senator Orrin Hatch to testify at the Senate
hearings. According to Thernstrom, they were "distinguished...a
balanced and impressive group." But the "deck was stacked so
mightily against" them and against Hatch, that their warning went
unheeded that if the result standard were enacted single-member
districts would spread "like a blight across the nation."
          The reason Section 2 was amended, and it is a reason Thernstrom
generally ignores, is that the case was fully and fairly made in
Congress that race is still a factor in American political life and
that the result standard was needed to combat continuing
discrimination in the electorate. According to Congress, which
carefully considered and repudiated the charge, calling the remedial
use of single-member districts in racially polarized jurisdictions a
blight was "like saying that it is the doctor's thermometer which
causes high fever." Experience has shown, in fact, that
single-member districts, and the black electoral success associated
with them, tend to break down racial isolation by bringing minorities
into the decision-making process. They also tend to make government at
all levels more responsive to minority concerns.
          At the end of her book Thernstrom again confronts the hard line of
new conservatism and again she flinches, effectively answering her own
argument that single-member districts are an unfair form of
affirmative_action.
          She conceded that where 'racial politics...dominates the 
electoral process' and public
office is largely reserved for whites, the method of voting should be
restructured to promote minority officeholding. Safe black or Hispanic
single-member districts hold white racism in check, limiting its
influence. And where whites- and often blacks-regard skin color as a
qualification for office (in part because no experience suggests
otherwise), the election of blacks helps to break both white and black
patterns of behavior.
          Few civil_rights activists would disagree.
          Where there is considerable disagreement is in how many
jurisdictions are dominated by racial politics. For Thernstrom there
are very few. One does not have to be a prophet of racial doom or deny
the fact of change, Thernstrom suggests, to appreciate that race is
still dynamic in American politics. One should have to be naive to
believe that it isn't.

          The extent of Thernstrom's naivete shines through in her discussion
of South_Carolina politics, which she believes is far removed from the
racial vulgarities and excesses of other Southern_states. South
Carolina, she writes, has "an unusual commitment to law and orderly
change, stemming perhaps from an aristocratic respect for
civility." As evidence of this, she reports that blacks and whites
can be seen standing side by side in Charleston markets picking over
the local okra, depicting "a life that in significant ways was
shared." And, she adds, in 1963 "South_Carolina governor Donald
Russell held an inaugural barbeque that was attended by both blacks
and whites."
          Thernstrom would have rendered a more accurate account of the
significance of race in South_Carolina politics if she had told more
about life beyond the imagined intimacies of the okra bin, if she had
reported, for example, that Governor Russell, following his inaugural
barbeque, became a United_States Senator and cast one of eighteen
votes in the Senate against the Voting_Rights_Act of 1965, or that
South_Carolina led the challenge to the constitutionality of the Act
immediately after it was passed, or that modern voting_rights cases
continue to document extremely high levels of racially polarized
voting, or that nearly all of the black elected_officials in the state
were elected by constituencies in which members of their own race were
in the majority. One of the failings of Whose Votes
Count? is that, despite being eight years or more in the making,
it contains very little original research and relies primarily upon
court decisions and interviews, many of which are anonymous and
essentially impressionistic.
          Thernstrom believes that the ideal electorate is one composed, not
of black, brown or white voters as such, but of "a community of
citizens." Most civil_rights proponents do, too. Thernstrom,
however, apparently thinks a community of citizens is a present day
reality and that minorities need only look for the protection of their
rights to "the political process left substantially to its own
devices." I cannot imagine anyone even casually familiar with the
protracted struggle for civil_rights in this country taking that
advice, and therefore this book, very seriously. 
          
            LAUGHLIN McDONALD is Director of the Southern Regional
Office of the American Civil Liberties Union. Perhaps no other
attorney has been responsible for as many redistricting cases. (An
abbreviated version of this review appeared in Foundation
News, May/June, 1989.)
          
        
