Nathaniel Persily

Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act

The election of an African American as President of the United States has raised questions as to the continued relevance and even constitutionality of various provisions of the Voting Rights Act (VRA). Barack Obama’s apparent success among whites in 2008 has caused some to question the background conditions of racially polarized voting that are key to litigation under Section 2 of the VRA. His success in certain states, such as Virginia, has also raised doubts about the formula for coverage of jurisdictions under Section 5 of the VRA. This Article examines the data from the 2008 primary and general election to assess, in particular, the geographic patterns of racial differences in voting behavior. The data suggest that significant differences remain between whites and racial minorities and between jurisdictions that are covered and not covered by Section 5 of the VRA. These differences remain even when controlling for partisanship, ideology and a host of other politically relevant variables. The Article discusses the implications of President Obama’s election for legal conceptions of racially polarized voting and for decisions concerning which jurisdictions Section 5 ought to cover.

Solutions to political polarization in America

1. Introduction Nathaniel Persily 2. Causes and consequences of polarization Michael Barber and Nolan McCarty 3. Confronting asymmetric polarization Jacob Hacker and Paul Pierson Part I. Reforming the Electoral System: 4. Polarization and democratization Arend Lijphart 5. Eroding the electoral foundations of partisan polarization Gary C. Jacobson 6. Solutions to polarization Elaine C. Kamarck 7. Geography and gridlock in the United States Jonathan Rodden Part II. Strengthening Parties: 8. Parties as the solution to polarization Nathaniel Persily 9. Reducing polarization by making parties stronger Nolan McCarty 10. Focus on political fragmentation, not polarization: re-empower party leadership Richard H. Pildes 11. Two approaches to lessening the effects of partisanship Bruce Cain Part III. Empowering and Informing Moderate Voters: 12. Data science for the people Adam Bonica 13. Using mobilization, media, and motivation to curb political polarization Markus Prior and Natalie Jomini Stroud Part IV. Lowering Barriers to Policy Making: 14. Beyond confrontation and gridlock: making democracy work for the American people Alan I. Abramowitz 15. American political parties: exceptional no more David Karol 16. Partisan polarization and the Senate syndrome Steven S. Smith 17. Finding the center Russell Muirhead Part V. Fostering Negotiation: 18. Making deals in Congress Sarah A. Binder and Frances E. Lee 19. Helping Congress negotiate Jane Mansbridge 20. Staying private George C. Edwards, III.

Solutions to Polarization

Polarization makes it far more difficult to conduct the essential tasks of governance, from passing a budget that would keep the government functioning, to staffing an administration. And polarization makes it almost impossible to address complex problems whose solutions require bipartisan support. Polarization does make it easier for elected officials to cross the line separating robust democratic discourse from deliberate misrepresentation and personal calumny. It contributes to diminished trust and confidence in our public institutions, and it leads to a view of politics as warfare in which contested issues are never resolved but rather are endlessly re-litigated. Polarization has, at its roots, deeply held philosophical differences about the public sphere and what should or should not go on there. Short of one side finally winning the argument – through gradual demographic change or sudden catastrophic change – we have no easy answers for resolving deeply held differences. What we can do, however, is look at how our democracy is structured and examine the possibility that changes in the structure of government and politics might reduce some of the most severe political polarization. Hence, what follows are three ideas for structural reforms that might mitigate some of the worst aspects of polarization and a final note on why they may not be necessary after all. IDEA #1: REFORM CONGRESSIONAL PRIMARIES IN WAYS THAT WILL INCREASE TURNOUT Low turnout is an enduring characteristic of all primary elections, and congressional primaries are no different. Turnout (as a percentage of voting age population [VAP]) in congressional primaries does not even break into double digits in a year like 2010 when a great deal of attention was paid to primaries. Turnout in contested primaries in 2010 was 7.5% of VAP, compared to turnout in contested primaries in 2006 of 4.6% of VAP and in 2002 of 5.4% of VAP (Galston and Karmarck 2011).

Data Science for the People

Reformers concerned about the rise of partisan polarization often advocate reforming institutions, reducing the influence of political actors believed to have a polarizing effect on politics, or simply adopting a cynical “throw the bums out” mentality. In this chapter I propose that, rather than seek to improve our institutions, we seek to inform and empower voters by combining recent advances in political science and technology. Just as Amazon has made smarter consumers and Netflix has made it easier to discover movies and television shows we like, data and technology can similarly transform the political marketplace. The marvels of the big data revolution that helped campaigns learn about voters and to predict their behavior have been widely lauded following the 2012 elections. However, I believe that the true potential of the big data revolution for politics will be realized by harnessing its power to help voters learn about candidates in an engaging and efficient way. Much of the unease concerning the rise in partisan polarization relates to the perceived incongruence between the ideological extremity of elected politicians and the relative centrism of the electorate they are sent to represent. Although the mass public has become more polarized in recent decades, it has done so much more slowly than politicians (Fiorina, Abrams, and Pope 2005; Theriault 2008; Abramowitz 2010). This disconnect has fueled concerns about the health of our democracy and that broken electoral and representative institutions have prevented voters from electing the types of representatives they want or deserve. However, others push back, arguing that a flawed electorate, rather than flawed institutions, is to blame. Scholars have struggled to reconcile the disconnect between the ideological dispositions of voters and those of the politicians elected to represent them. This debate has identified two general lines of explanation, one relating to candidate entry and the other to voter competence.

Fig Leaves and Tea Leaves in the Supreme Court’s Recent Election Law Decisions

This Article, which will appear in the Supreme Court Review, reads the fig leaves and tea leaves in the five election law decisions the Supreme Court handed down during the 2007-2008 term. The fig leaves are the strategies the Chief Justice has used to craft consensus in these cases. In particular, the Court has massaged the doctrine concerning facial and as-applied challenges in such a way as to leave more divisive election law controversies for another day. It has also buried any concerns the Justices have previously voiced concerning incumbent or party entrenchment in the enactment of election laws. In reading the tea leaves from these decisions, the Article describes the signals the the Court has sent regarding most of the critical election law controversies that have preoccupied it in recent years: campaign finance, voting rights, redistricting and regulation of political parties.

Soft Parties and Strong Money

Even in the 1,638 pages comprising the opinions of the district court judges and the more than 300 pages of opinions emerging from the Supreme Court, these maxims appeared uncontested. Of course, the agreement ended there, and the parties to the litigation, the district court judges and the Supreme Court Justices were bedeviled by the empirical details surrounding the BCRA’s soft money ban: Did soft money strengthen parties? Would the BCRA weaken parties? Were parties strong or weak before the passage of the BCRA? Much of the battle concerning the effect of the soft money ban and the BCRA’s threat to parties’ freedom of expression and association took place on shaky, contested terrain concerning the definition of party “strength.” Needless to say, a lack of agreement as to whether the BCRA will weaken parties is unsurprising when no one can agree on what defines a strong party or how to measure a party’s strength. I suggest here a few ways of defining party strength and evaluate the state of the parties before and after the BCRA according to these measures. Measuring party strength is difficult, however, not only because of the contested notion of “strength,” but also because of the multiple incarnations of America’s political parties. Parties exist vertically at every level of American federalism, horizontally in the executive branch and two houses of the legislature, and functionally in the formal party apparatuses and the less formal groupings of party adherents. Ultimately, I argue that the BCRA may have weakened parties according to some measures while strengthening it according to others and, perhaps more accurately, has shifted power in the party system away from some incarnations of the party and toward others. Finally, it may be the case that the soft money ban has had different effects on the two parties; contrary to the interests of its principal supporters and detractors, the ban may have made the Republican Party “stronger” and the Democratic Party “weaker.”

‘Celebrating’ the Tenth Anniversary of the 2000 Election Controversy: What the World Can Learn from the Recent History of Election Dysfunction in the United States

This essay recounts the history of election dysfunction in the United States over the past ten years with an eye toward lessons it can teach the rest of the world. The U.S. experience has been plagued by three deeply rooted problems, each of which exists in other countries, but which, in combination, have made U.S. election reform quite difficult. First, the U.S. has not found a way to craft authentically nonpartisan institutions to oversee elections. Second, the extreme decentralization of the American system ensures that the quality of democracy will vary both between and within states. Finally, the reliance on relatively untrained volunteers to supervise the actual process of voting inhibits the potential for legal change as the voting experience depends on the fortuity of judgments made by novice administrators. The essay concludes with a discussion of potential metrics for democratic success.