Dakota Beacon

Recently I read an essay in the “Claremont Review of Books,” a journal published quarterly by the Claremont Institute for the Study of Statesmanship and Political Philosophy, a steal for $19.95 a year. The essay “Voting Rights and Wrongs” by Charles R. Kesler, editor of the Review, was too rich not to share.

In a word, Kesler traces the history of voting rights from the end of the Civil War up through a disturbing trend promising an ill future for democratic elections.

What follows is a digest of Kesler’s article. He identifies a first, second, and third generation of voting rights measures to denote a manipulative progression of change overtime.

The first generation of voting rights, like God-given rights, were acknowledged to exist within the individual and were essentially colorblind. Added to the US Constitution in 1870, the 15th Amendment reinforced and codified this right prohibiting the federal government or states from denying or abridging the right to vote on the basis of “race, color, or previous condition of servitude.”

The uproar of the 1960s civil rights movement culminated with the second generation of voting rights measures prompted by the Voting Rights Act (VRA) of 1965. As intended, it added teeth to the 15th Amendment to thwart laws and policies imposed in the post-Civil War South that kept blacks from voting. The objective was to end discrimination against blacks in the electoral process.

Through progressive rulings, federal judges began to distinguish between “first generation” and “second generation” voting rights. First generation rights protected the individual’s right to cast a ballot and have the ballot counted. Second generation rights were about the right to an “effective” vote, that is, a vote that succeeded in electing a minority group’s preferred candidate to back their interests in the policy process.

This new regard for voting rights spurred a major impact in 1969 with Chief Justice Earl Warren’s Supreme Court decision in Allen v. State Board of Elections. Writing for the Court he argued that “…substituting at-large elections for district elections…would dilute the black vote by submerging it into a white majority. No black voter would be denied a ballot…but the right to vote can be affected by a dilution of voting power …” Warren stated, “This type of change could therefore nullify their ability to elect a candidate of their choice, just as would prohibiting them from voting.” Kesler observed the subtlety of the expansion of Warren’s thinking. “…Citizens voted not merely as individuals but as members of communities…” Including their racial community.

Enter law professor Lani Guinier (1950-2022) and her troubling article, “The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success” (available on the internet).

In her view, second generation measures failed to account for the fact that “as a general rule, whites do not vote for blacks.” Guinier saw America as suffering from a “permanent majority tyranny based on prejudice” (her words). As Kesler articulated her position, “The open secret of proportional representation was that if 12% of the population were black, civil rights litigators would be satisfied if 12% of elected officials nationwide were black. The proportion would quickly become … a ceiling”. Therefore, blacks would always be at a disadvantage in a “permanent majority tyranny based on prejudice.”

Sensing headway, Guinier and her compatriots were not about to rest on their laurels. There was more to come. A third generation of voting rights measures would correct the shortcomings of the second generation voting rights failures.

Kesler makes an astute observation of Guinier’s thinking. “The problem of a permanent, racist majority could only be solved by changing the composition of that majority, or by abandoning the principle of majority rule altogether. Perhaps the former could be accomplished by wholesale re-education or new immigration (!). This was the direction, she speculated, that third generation rights theory should, and would, take.” Her own plan was deliberately vague. But she did point to constitutional changes that could weaken the power of the majority.

For example, why not empower the minority by adopting weighted voting? Theodore R. Johnson at the Brennan Center for Justice proposed that enslaved black Americans, for tax purposes, once counted as three fifths of a person. Blacks should be compensated today by assigning them five thirds of a vote, a form of reparations.

Why stop there? Brandon Hasbrouck, an associate professor at Washington and Lee University, proposed double-counting all black persons’ votes, also as a form of reparations. Two is certainly better than one. Of course, deciphering who is black and who is mixed race might be a challenge. To turn a phrase, “Complication is as complication does.”

Behold the transformation of America from a republic of equal citizens to an oligarchy of unequal ones!

Dennis M. Patrick can be contacted at (JavaScript must be enabled to view this email address).