TABLE OF CONTENTS
INTRODUCTION: THE VOTING RIGHTS ACT AND THE ELECTION OF AN 1386
AFRICAN AMERICAN PRESIDENT
I. THE POTENTIAL LEGAL IMPLICATIONS OF THE 2008 ELECTION 1389
A. The Role of Racially Polarized Voting in Litigation Under 1390
Section 2 of the VRA
B. The Coverage Formula for Section 5 of the VRA 1396
II. RACIAL DIFFERENCES IN VOTING PRIOR TO 2008 1400
A. Presidential Election Exit Polls, 1984-2004 1401
B. The 2004 Election 1405
III. RACE AND VOTE CHOICE IN THE 2008 ELECTION 1409
A. National Results 1411
B. The Section 5 Coverage Formula and the Results of the 2008 1413
C. Accounting for Party and Ideology 1424
D. Race and Vote Choice in the 2008 Primary 1431
CONCLUSION: CHANGE IN VOTING BEHAVIOR WE CAN BELIEVE IN? 1435
INTRODUCTION: THE VOTING RIGHTS ACT AND THE ELECTION OF AN AFRICAN AMERICAN PRESIDENT
When Congress passed the Voting Rights Act of 1965 (1) (VRA), the election of an African American President was inconceivable. Even when Congress reauthorized expiring provisions of the VRA in 2006, (2) such an election appeared a distant possibility. Now, as the Supreme Court has cast constitutional doubt on the reauthorized VRA, (3) what once seemed impossible or unlikely has become concrete and real: a member of the racial minority for whom the VRA was written occupies the Oval Office.
It is unsurprising, then, that the election of Barack Obama has led some commentators to question both the relevance (4) and the constitutionality (5) of the VRA. If an African American candidate can win a majority of the national vote and even do better than previous Democratic nominees among white voters in states as varied as Colorado, Indiana, and Virginia, do the fundamental assumptions underlying the VRA need to be rethought? In particular, does the 2008 election signal a fundamental shift in race-based patterns of voting behavior, such that the geographic reach of section 5 of the VRA (6) or the primacy of racially polarized voting in analysis under section 2 of the VRA (7) requires updating?
In this Article, we assess the patterns of race and political preference in the 2008 election and consider their relevance for the meaning and constitutionality of the VRA. (8) The exit polls and election returns suggest that the 2008 election did not represent a fundamental shift in national patterns of race and vote choice. However, these national patterns mask great variation at the state and county level. In particular, Obama's relative success among white voters, as compared to John Kerry four years earlier, varied greatly by region. In the Deep South, Obama actually did worse than Kerry among white voters. Nationally, Obama did much better among African Americans and Latinos, with both groups turning out to vote at higher rates and giving him a higher proportion of their votes.
We view these findings as principally a response to the charges that the 2008 election represented a fundamental transformation in voting patterns relevant to the VRA. However, we recognize that this evidence bears on an ongoing debate concerning the relevance of racially polarized voting patterns, particularly to the constitutionality of section 5 of the VRA, (9) as well as perhaps to the continued operation of section 2. In Part I we discuss the importance of racially polarized voting patterns for the meaning of section 2 and the constitutionality of section 5 of the VRA. Part II presents background data from 1984 to 2004 against which we can judge any transformation that took place in the 2008 election. The data show persistent differences between minorities and whites in their candidate preferences and between the preferences of whites in the covered and noncovered states. …