From NBC News’ opinion section:
Republicans and Democrats alike have been unwilling to reprimand voters or to hold them accountable. But racist voting isn’t an accident.
Image: Donald Trump
Jan. 17, 2020, 1:30 AM PST
By Noah Berlatsky
Terry Smith, a visiting professor at the University of Baltimore School of Law, offers a different response in his new book, "Whitelash: Unmasking White Grievance at the Ballot Box." Rather than excuse racist voters or try to figure out how to live with their choices, he argues that racist voting is not just immoral, but illegal. The government, Smith says, has the ability, and the responsibility, to address it.
This sounds radical. But Smith argues that it's in line with the Constitution and with years of court rulings. For example, Smith points out that racist appeals in union elections are illegal and that an election in which one side uses racist appeals can be invalidated by the National Labor Relations Board. Similarly, in the 2016 case Peña v. Rodriguez, the Supreme Court ruled that when a juror expresses overt bigotry, the jury's verdict should be invalidated.
“When voters go to the booth, they’re not expressing a mere personal preference,” Smith told me. According to Smith, voters who pull the levers to harm black people are violating the Constitution. If the Constitution means that overt racist appeals undermine the legality of union elections, it stands to reason that they undermine the legality of other elections, as well.
So how can you tell when voters are acting out of prejudice? Again, Smith says, employment discrimination law provides a useful analogy. In discrimination cases, courts look for pretexts. If someone gives a reason for a hiring decision that is obviously false or makes little sense in context, the court has good reason to believe that prejudice or bias may have influenced the hiring decision.
Trump's unprecedented, compulsive, easily documented lying during the 2016 campaign made him an irrational choice. It's reasonable to conclude that voters were willing to swallow the falsehoods because they liked what they heard: overt racist appeals and incessant lies about rising crime rates.
The total number of murder victims in the United States increased a record-setting 24.8% during the Black Lives Matter era of 2014 to 2016.
…Even more ambitiously, Smith suggests expanding the Voting Rights Act to address the racist patterns of voting in Senate elections in the South. Because the majority of white voters in the South vote Republican, and because they outnumber black voters, there isn't a single Democratic senator from the Deep South other than Doug Jones in Alabama, who may well lose his seat in 2020. Smith argues that we could remedy these disparate, racially motivated outcomes by creating Senate districts. Presumably, that would make it at least possible for black voters to elect a senator who would support their interests.
… Still, Smith points out, in the long term, “these remedies are a lot more practical than a lot of people might think.” Republicans won’t always control the presidency and the Senate, and judges don’t live forever. Democrats could also expand the number of seats on lower courts or even on the Supreme Court — another controversial proposal known as court-packing. If Democrats decide that responding to racist voting is a vital priority, they could, in time, take steps to do something about it.
Why not just arrest voters red-handed for voting Republican? Haul them out of the voting booth in handcuffs.
… Racist voting isn’t an accident. It’s a choice that may violate the principles of our Constitution and our legal system. We should say so, and then we should find ways to reduce the harm it causes.
Noah Berlatsky is a freelance writer and cultural critic based in Chicago. He edits the website The Hooded Utilitarian and is the author of several books, including most recently “Wonder Woman: Bondage and Feminism in the Marston/Peter Comics, 1941-1948.”