By Janai S. Nelson

September 28, 2007

     Hope has been a common theme of the handful of Black presidential candidates in America.  The New York Times called Shirley Chisholm’s 1972 foray into presidential elections “a venture in the politics of hope.”  In his 1988 concession speech, Jesse Jackson rallied us to “keep hope alive."  And, in his most recent book, Barack Obama dared us to hope with audacity. 

     And there seems much to be hopeful about.  Oprah Winfrey, a Black woman, who is one of the wealthiest and most influential people of our time, recently endorsed Obama, a Black man, who currently stands as one of the leading presidential nominees of a major political party and the most viable Black presidential candidate to date.  At a glance, a more promising and hopeful picture could not be painted for racial advancement in America.  However, there is a notable downside to this powerful imagery.  Although a recent Gallup poll shows that the percentage of Americans responding positively about matters of race is only slightly higher in 2007 than it was in 2006 and preceding years, in popular discourse on race Obama’s candidacy is often referred to as an example of African-American success and the country’s overall progress toward racial equality.
    
    Indeed, the salience of Obama’s candidacy inadvertently invites the conclusion that the problem of race is past and exacerbates the “race fatigue” that has set into the American psyche in recent decades.  With few exceptions, America appears, at best, to be increasingly numb to or, at worst, exhausted by claims of racial discrimination.  For a palpable example, look at the instant malaise surrounding Katrina.  As it concerns allegations of race discrimination in the election arena in particular, the image of a fresh-faced Obama and his multiracial throngs of supporters threatens to transform race fatigue from a dull yawn to a state of “racial comatose.”  Certainly, if American politics can peacefully sustain the viable candidacy of a Black man, with a Black family, and an even Blacker name, we must have achieved the dream.  To suggest that there are still real barriers to full and equal political participation in American politics that have inadvertent or intentional racial dimensions consequently becomes an audacious claim. 
    
    But all hope is not lost.  The solution to claiming Obama’s candidacy as a success story for race relations in America while still confronting racial inequality, lies in perceiving Obama’s candidacy along a continuum and acknowledging the racial inequities in political power and access.  The dialogue that surrounds race must struggle to reconcile electoral successes with the realities of African-American voters.  Race discrimination in the electoral process, like race discrimination more broadly, need not be divorced from racial progress, but neither can it be eclipsed by it or by Obama’s seismic popularity.  Indeed, as with most goings-on of great political salience, the fact of Obama’s candidacy has little direct bearing upon the manifold challenges that will confront everyday citizens as they seek to cast a meaningful vote in the 2008 elections. 

    Take for example the matter of voter identification (ID) requirements, the practice and policy of denying voting rights to persons with felony convictions, otherwise known as felon disfranchisement, and the phenomenon of racial bloc voting.  These three distinct issues illustrate both the complexity and variety of election laws and practices that constrain and even impede political participation among African Americans and other minority groups.  I take them in turn to expose the potential impact on minority voters in the 2008 elections, and consequently on Obama’s candidacy, despite Obama’s success to date.

Voter Id Requirements

     As the latest wave in election reform, the political and highly partisan tempest of voter ID requirements is dominating election law discourse.  If you have not been following the controversy, your initial reaction rightfully might be that voter ID requirements are a no-brainer—they apply to everyone and are a legitimate and appropriate requirement of anyone who wants to exercise the franchise.  But the various state laws that impose such requirements demand a more critical analysis as do the recent federal court opinions that have decided challenges to these laws.  This is so because of what the treatment of these proliferating regulations of the vote means for our underlying democratic principles, our reliance on the Constitution, and our concerns about minority voter participation.
 
     Each of these factors was a backdrop to the Supreme Court’s opinion in Purcell v. Gonzales last year where the Court unanimously upheld the use of Arizona’s voter ID requirements amid allegations that the laws were unconstitutional and would wreak havoc upon minority voter participation.  The Court did not reach its result by closely weighing the interests of protecting voter access and the right to vote against preventing voter fraud, but, rather, by reasoning that the imminence of the election and the inadequate record on which to resolve the factual disputes in a timely manner made it “of necessity” that the election proceed without suspending the voter ID requirements.  The Court reached this conclusion despite evidence that voter ID requirements resulted in nearly 1/6 of all voter registration forms being rejected over a two-year period in Arizona’s largest and most racially diverse county and absent any evidence of voting fraud that could be prevented by the ID requirements. The Court’s willingness to err on the side of potentially infringing upon the fundamental right to vote with no empirical counterweight and in the face of allegations of race discrimination is telling.  

    Even outside of the courtroom, there appears to be little empirical evidence of the impersonation fraud that theoretically could be cured by voter ID requirements despite the racially disparate impact such requirements might cause.  What evidence there is of fraud usually relates to absentee ballots--not the impersonation fraud that voter id requirements might bear upon.  By contrast, a report commissioned by the Election Assistance Commission in 2006, which it reluctantly released only after revising several of the report’s findings, showed that racial minorities are less likely to vote as a result of increasingly restrictive voter identification requirements.  Other developing research and anecdotal evidence compel the same conclusion.

    Just this week, the Supreme Court agreed to take a voter ID case from Indiana, Crawford v. Marion County Board of Elections, in which similar arguments of fraud prevention and disparate impact are being raised.  In light of the Court’s unanimous endorsement of empirically unsupported claims of fraud and its rejection of race-based claims of voter disfranchisement through the use of voter ID requirements in Purcell, the Supreme Court’s intervention is troubling, to say the least.  Indeed, the failure of federal courts to grapple seriously with allegations of race discrimination resulting from the use of voter ID requirements, coupled with growing support for or indifference toward these new regulations speaks volumes about Americans’ interest in examining political inequities based on race.  And, with Obama’s success, it becomes an even a harder story to tell.  Ironically, Obama’s ultimate success at the polls may be tied directly to whether voter ID requirements have the predicted impact of excluding a significant portion of minority and poor voters from the voting booth.   For these reasons, Obama’s success cannot be perceived in a vacuum.  
 
Felon Disfranchisement

    Felon disenfranchisement laws—laws that bar persons from voting either temporarily or permanently because of a felony conviction—deny an estimated 5.3 million Americans to right to vote.  Of those disfranchised Americans, 1.5 million are Black citizens, of which 1.4 million are Black men.  Looking at it another way, 13% of Black men in America cannot vote because of felon disfranchisement laws—a rate nearly seven times the national average.  Black women are not spared either.  An estimated 245,925 Black women in this country are prohibited from voting because of a felony conviction, leaving one of every fifty Black women outside the voting booth at a rate three times the national average for women.

    Not only do felon disfranchisement laws literally lock citizens out of the political process, they harm specific racial groups by disproportionately denying their members the right to vote and thereby diluting the voting strength of the group as a whole.  There are other ancillary harms associated with the enforcement of felon disfranchisement laws such as the over-purging of minority voters from the registration rolls because they are disproportionately misidentified as having a felon conviction.

    Like voter ID requirements, felon disfranchisement laws threaten the success of candidates like Obama by denying voting rights to what would otherwise be a natural base of voters and contributing to the overall apathy of minority voters.  So while racial discrimination in the electoral process may appear ostensibly to be diminished by Obama’s success, failure to confront it will ultimately harm his electability.    

Racial Bloc Voting

    Those who are eligible to vote and meet the necessary ID requirements will face another barrier to casting a meaningful vote at the polls:  racial bloc voting.  Racial bloc voting is a practice whereby members of a racial group vote as a bloc usually to defeat the vote of other groups.  It is a less obvious restriction on voting power than voter ID requirements and felon disfranchisement laws but, in many ways, it is a more powerful one. 

     To be sure, there is overwhelming data in recent polls to suggest that Americans of all races would be willing to vote for an African-American candidate.  In fact, 92% of Americans said they would vote for an African-American president.  These data however are inconsistent with the pervasive and documented racial bloc voting, or racially polarized voting, that occurs in this country.  Indeed, studies show that American voters are notoriously duplicitous when responding to polls of this nature.  Pre-election, Americans often say that they would vote for a Black candidate but on election day many instead choose a non-Black candidate if one is available.  Even American voters are suspicious of the race neutrality expressed in these surveys:  Only 59% of those polled say that America is ready for a Black president even though they overwhelming represent that they would vote for one. 
    
     Other statistics have shown that whites of both the Republican and Democratic parties are less likely to vote for their party’s candidate when he or she is Black, regardless of the candidate’s qualifications.  Nationally, white Republicans are twenty-five percent more likely, on average, to vote for a Democratic senatorial candidate when the GOP candidate is Black.  And because race, ethnicity, and partisanship are inextricably linked, even when partisanship surfaces as a motivation for candidate choice, the racial implications and potential inherent biases cannot be easily untethered.  So, while Obama has enjoyed unprecedented multi-cultural support, it is less than certain that it will translate into equivalent votes at the polls or votes sufficient to overwhelm the racially polarized voting that is sure to present.        

     This bleak picture notwithstanding, by nearly all accounts, African Americans are doing better now than their ancestors and are indeed thriving in many respects.  However, there remains substantial work to be done to undo the myriad and compounded harms inflicted by slavery, perpetuated through Jim Crow, and that are bred daily because of extant racism.  Accordingly, Obama’s candidacy, while promising, should not leave anyone with the hope that we have somehow solved the matter of racial inequality in the election arena or elsewhere.  Indeed, his electability depends on it.