The US Presidential Elections and the Issue of Race

Is it true that in the last decade states with a Republican majority have again attempted to prevent Blacks from exercising their voting rights?

Yes. As a result of a Supreme Court ruling in 2013 (Shelby County v. Holder) some states have instituted or reinforced forms of indirect but intentional discrimination against Black voters. This discrimination includes the closing of polling stations in counties where there are many Black residents, as in Kentucky and Georgia. It also includes limiting access to polling stations only to voters carrying an ID with a photograph, as in Texas and Alabama. In fact, Blacks are overrepresented among voters who do not hold a driving license, which, in the United States, is about one of the only identity documents that includes a photograph and the securing of which is not cheap. On top of that, there are older restrictions, such as in Florida, where about one million and a half former inmates are deprived of their voting rights, half of whom are Blacks, whereas Blacks make up only 17% of the population of the state. Moreover, there are also indirect and less obviously intentional forms of discrimination that nonetheless have exclusionary effects. What I have in mind here is the design of ballots, in a context where the voters are called upon to elect not only the president but also their representatives in the House and, in some cases, senators, judges, etc. In a dozen states or so, including North Carolina and Michigan, ballots that allowed to vote for all the candidates of the same party by checking a single box were replaced by ballots requiring voters to vote for each office separately. This elimination of the most straightforward voting option has had significant consequences. It lowers voter turnout, because the extra time required to fill out the ballot and to get to the polling station due to the line-ups caused by this initial slowdown acts as a deterrent. Moreover, this decline is not evenly distributed: as might be expected, it primarily affects members of the working class in general and Blacks in particular. Finally, holding the election on a weekday disadvantages the workers who cannot afford to lose half a day or a full day of work to go to the polling station. Again, Blacks are overrepresented in this category. In short, there are many more or less deliberate hindrances facing Democratic voters in general and Blacks in particular l. How effective they will be remains to be seen.

What may be the electoral impact of the unrest triggered by some of the protests that were sparked by police violence, and more specifically by the death of George Floyd on 25 March 2020?

It is hard to say. In any case the issue is inflammatory. To take but one example, David Shor, a Democratic consultant, was recently accused of racism and fired for having circulated the content of an article by an African American political scientist, Omar Wasow, from Princeton University, published by the American Political Science Review in June 2020.1 This article highlighted the increase in the vote for the Republican candidate Richard Nixon during the presidential election in 1968 in the counties that had witnessed riots following the assassination of Martin Luther King in April of that same year. According to Wasow, this increase s might have been large enough to determine the outcome of the election. Simply emphasizing the perverse effect of the most violent forms of collective action sparked by police violence is apparently illegitimate in the eyes of the most illiberal component of the American Left. However, there is every reason to believe that the problem raised by Wasow and that unfortunate consultant is real and will not disappear as if by magic. How large it is remains to be seen.

What about affirmative action policies? Will the death of Ruth Bader Ginsburg and her replacement by a much more conservative judge, Amy Coney Barrett, lead the way to an overall dismantling of these programs by the Supreme Court?

I don’t think so. Trump was lucky enough to make three Supreme Court appointments during his term—the nomination of Amy Coney Barrett following those of Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. The conservative block including Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, Samuel Alito, and Clarence Thomas would thus have a majority of six votes out of nine. This block may unravel, however. It often happens that Supreme Court Justices appointed by a Republican president and with strong conservative credentials move toward the political centre or even the left once involved in their new judicial function. Among examples of dramatic moves from the right to the left of the political spectrum, think about Earl Warren, the former Republican governor of California and unsuccessful candidate for the vice presidency, running alongside Thomas Dewey in 1948. After having been appointed to the Supreme Court by Eisenhower in 1953, he became the iconic president of the most “progressive” Supreme Court in the history of the United States. To take but one example, he wrote the unanimous Brown v. Board of Education of Topeka decision of 1954, holding unconstitutional the laws in the southern states that mandated the race-based segregation of schools. And Warren is not an outlier: William Brennan, also appointed by Eisenhower, in 1956, was a pillar of the left wing of the Court until the end of the 1980s; Harry Blackmun, appointed by Nixon in 1970, was the author of the majority opinion in the Roe v. Wade decision (1973) in which the Supreme Court acknowledged the right to abortion. Other similar examples include John Paul Stevens, appointed by Gerald Ford in 1975, and David Souter, appointed by George H. W. Bush in 1990. As for moves toward the centre, which are less spectacular but perhaps even more outcome-determinative, in a not-so-distant past Justices Sandra O’Connor and Anthony Kennedy, both appointed by Ronald Reagan, wrote the majority opinions in major decisions validating affirmative action programs such as Grutter v. Bollinger (2003) and Fisher v. University of Texas (2016), or establishing the existence of a right to marriage for same-sex couples (Obergefell v. Hodges, 2015).

Of course, the issue is whether this dynamic can be reproduced within the Supreme Court as it currently stands. Many American observers doubt it. Yet there is already evidence of such an evolution. President John Roberts, for example, joined the “progressive” camp in the decision validating the law on health insurance in 2010 (Affordable Care Act), probably in order to preserve the institutional legitimacy of the Court by preventing it from being held responsible for undoing the main legislative achievement of the Obama presidency (National Federation of Independent Business v. Sebelius, 2012). More recently, in June 2020, in the Bostock v. Clayton County decision, Roberts and Neil Gorsuch joined the minority left-wing Justices to rule, by six votes against three, that the Civil Rights Act of 1964, which forbid companies of more than 15 employees from discriminating in access to employment on the basis of sex, also prohibited discrimination based on sexual orientation. These precedents suggest that in the case of a highly political issue such as affirmative action the Court will not go beyond allowing states to introduce additional restrictions. Affirmative action has already been eliminated in the public sector in nine states, including California, Florida, and Michigan, and the Court held that the local referenda (‘popular initiatives’) that led to this result in most cases did not stand as a violation of the Constitution (Schuette v. Coalition to Defend Affirmative Action, 2014). This paves the way for an extension of the undoing of affirmative action through local democratic procedures. As far as direct affirmative action is concerned, it is unlikely that the Court will go further. It is even less likely that the Court will do away with the forms of indirect affirmative action based on class and geography that have been introduced in some states as substitution strategies.2 In this respect, the much dreaded conservative revolution will not take place.

Beyond the November 2020 election, what are the political consequences of the changes in the ethno-racial makeup of the American population?

Overall, the demographic factor works in favour of Democrats. As a consequence of the 1965 Immigration and Nationality Act, which eliminated the restrictive quotas introduced in the 1920s, the proportion of immigrants in the American population is now 13.7%. This is barely less than the record rate of 14.7% in 1910. Moreover, new immigrants come predominantly (80%) from Latin America, the Caribbean, Asia, and Africa. As a result, according to estimates of the Census Bureau, unless the very definition of the White population is broadened, as it has been in the past, in 2060 Whites will have become a numerical minority, while Blacks should represent 14.3% of the American population, Hispanics 28.6%, and Asians 9.3%. In the short term, this trend—much covered by the media—is perceived as a threat by a fraction of the White population and may encourage the latter’s shift to the right. Donald Trump’s victory in 2016 suggests as much, since the Republican candidate won precisely in the Midwestern states in which there have been the highest inflows of Hispanic immigrants since 2000, such as Wisconsin, Minnesota, and Indiana. Still in the short term, many factors mitigate the electoral impact of these demographic transformations: the concentration of ethno-racial minorities in the states that are Democratic or Republican strongholds, while Whites, on the contrary, are overrepresented in swing states; the lower education levels of Blacks and Hispanics, which brings down their turnout rates; the overrepresentation of Hispanics among minors on one hand, and among foreigners on the other hand, who of course do not vote. In the long term, however, this ongoing diversification of the American population can only work to the detriment of a Republican Party that has surrendered itself to its most xenophobic faction and that seems to be unwilling and/or unable to get back on track.

Picture copyright: Shutterstock

• 1. Omar Wasow, “Agenda Seeding: How 1960s Black Protests Moved Elites, Public Opinion, and Voting,” American Political Science Review, 114 (3), 2020, p. 638-659.
• 2. Daniel Sabbagh, “The Rise of Indirect Affirmative Action: Converging Strategies for Promoting ‘Diversity’ in Selective Institutions of Higher Education in the United States and France,” World Politics, 63 (3), 2011, p. 470-508.