Race and Democratic Contestation

Michael S. Kang, Race and Democratic Contestation, 117 Yale L.J. 734 (2008).

Abstract:  As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and soon faces constitutional challenges to its recent renewal, a growing number of liberals and conservatives once united in their unqualified support now share deep reservations about it. In this Article, I argue that the growing skepticism about the VRA and majority-minority districting is misguided by a simplistic and impoverished sensibility about the value of electoral competition in American politics. Electoral competition should be judged with reference to ultimate end states it is intended to produce – more democratic debate, greater civic engagement and participation, and richer political discourse – all of which are generated by a deeper first-order competition among political leaders that I describe as ‘democratic contestation.’ In the Article, I offer democratic contestation, in place of electoral competition, as a basic value to be pursued in the law of democracy and as foundation for new theory that helps reconcile approaches to race, representation, and political competition. A theory of democratic contestation shifts the normative focus from the pluralist absorption about which groups get what from politics, to a new focus on the tenor and quality of democratic contestation among leaders.

When viewed through a theory of democratic contestation, the VRA is crucially pro-competitive in the broader sense of democratic contestation. By carving out safe majority-minority districts, the VRA breaks the discursive stasis of racial polarization in which politics by definition revolve around the single axis of race. A theory of democratic contestation reveals how majority-minority districts energize the process of democratic contestation and enable an internal discourse of ideas that moves beyond the racially polarized divide, otherwise impossible in the face of racial polarized opposition. A theory of democratic contestation thus demands a thorough re-evaluation of the Supreme Court’s recent decision in LULAC v. Perry and provides a new understanding of the renewed VRA going forward in the modern political world of national partisan competition.

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