|Race and Democratic Contestation|
|Michael S. Kang [View as PDF]|
117 Yale L.J. 734 (2008).
As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that the growing skepticism about the VRA and majority-minority districting is misguided by a simplistic and impoverished account of electoral competition in American politics. Electoral competition should be judged with reference to the ultimate ends it is intended to produce— more democratic debate, greater civic engagement and participation, and richer political discourse—all of which are generated by a deeper first-order competition among political leaders that this Article describes as “democratic contestation.” This Article offers democratic contestation, in place of electoral competition, as a basic value in the law of democracy and as the foundation for a new theory that helps reconcile approaches to race, representation, and political competition. A theory of democratic contestation shifts the normative focus from the pluralist absorption with which groups get what from politics to a new focus on the tenor and quality of political competition among leaders. When viewed through a theory of democratic contestation, the VRA is crucially procompetitive in the broader sense of democratic contestation. By carving out safe majority-minority districts, the VRA may break the discursive stasis of racial polarization in which politics revolve around the single axis of race. A theory of democratic contestation reveals how majority-minority districts may energize the process of democratic contestation and enable an internal discourse of ideas that moves beyond the racially polarized divide, an otherwise inadvisable move in the face of racially polarized opposition. A theory of democratic contestation thus demands a reevaluation of the Supreme Court’s recent decision in LULAC v. Perry and provides a new understanding of the renewed VRA going forward in the modern world of national partisan competition.