Racial Identity, Electoral Structures, and the First Amendment Right of Association

Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209 (2003).

Abstract:  This article develops a provocative approach for thinking about the role of race in democratic politics. I identify the Supreme Court’s descriptive and normative struggles with racial identity, which have led many on the Court to question the constitutionality of the Voting Rights Act. I rely upon the social identity literature in social psychology, as well as the race and politics literature in political science, to demonstrate empirically the relationship between racial and political identity. I then use the right of assciation, particularly as developed by the Supreme Court in the party and ballot access cases, to argue that the First Amendment protects the right of votes of color to associate as voters of color where race and political identity are correlated. In so doing, I characterize the Court’s attempt to grasp the proper role of race in democratic politics as a deeper struggle between equality and liberty values. I conclude by suggesting a framework for balancing liberty and equality concerns in the design of electoral institutions.

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