The Yale Law Journal


Backlash at the Booth: Latino Turnout After H.R. 4437

06 Aug 2006

The Latino community has mobilized as never before in response to H.R. 4437, the punitive immigration bill sponsored by Rep. James Sensebrenner (R-WI). Newspapers declared that the marches in Los Angeles, Dallas, Phoenix, and Chicago marked “a new day of Hispanic political involvement.” More than just getting Latinos in the streets, however, this mobilization will greatly increase Latino participation in American politics, and could even mean more Latinos elected to the 110th Congress this fall.

Latinos have a surprisingly moderate record on immigration issues. In a national survey conducted in 2004 by the Pew Hispanic Center and the Kaiser Family Foundation, Latinos ranked immigration as the issue they would care about leastabout in reaching their decision in that year’s presidential election. That same survey revealed that one in three registered Latino voters thought that undocumented immigrants hurt the economy by driving wages down. This wariness of large immigrant flows is not limited to self-reporting on surveys—in November 2000, fully forty-seven percent of Latino voters in Arizona voted in favor of Proposition 200, a measure that denied welfare benefits to undocumented immigrants.

Raise the stakes, however, and things change. As the debate shifts from discussions of wage effects and taxpayer-funded benefits to more fundamental questions about rights and opportunities, Latinos become less concerned with their pocketbooks, and more protective of each other. Hence, in 2004, an overwhelming majority (84%) of registered Latinos favored measures that would provide undocumented immigrants an opportunity to legalize their status. The current immigration debate is taking place at this higher-stakes level: H.R. 4437 not only denies undocumented immigrants an opportunity to earn legal status; the bill would also criminalize their very existence in this country.

As the pro-immigrant mobilizations have shown, this is a bill and a debate that will get Latinos on the street—and into the voting booth. This is great news for Latinos, who historically have had lower participation rates than non-Hispanic whites and blacks. In fact, unlike whites and blacks, Latinos have a large reserve of eligible voters that have never registered to vote. In 2004, only 58% of eligible Latinos were registered to vote, compared with 69% of blacks and 75% of whites. Given the timing of the current immigration debate—which is occurring months ahead of the 2006 elections, allowing Latinos plenty of time to register—there is thus potential for a major increase in Latino electoral participation, the likes of which would not be possible among non-Hispanic whites and blacks.

An increase in Latino political participation will do more than increase the Latino share of the national vote; it will also go a long way to fix what’s wrong with the way we elect our representatives. Latinos are hardly ever elected outside of majority-Latino districts. Recently, however, several Supreme Court cases have severely curtailed the formation and maintenance of such districts; two stand out in this regard. In 1993, Shaw v. Reno established thatdistricts whose boundaries appeared to have been largely drawn along racial lines could be deemed invalid under the Equal Protection Clause. This was particularly troubling for Latinos, who, because of their residential dispersion, often cannot be drawn into a majority-Latino district without wide-ranging district boundaries. Ten years later the Court handed down an equally damning precedent: Georgia v. Ashcroft. In Georgia, the Court held that areas covered by section 5 of the Voting Rights Act—a restrictive provision that requires certain jurisdictions to “preclear” all changes to voting rights laws with the federal government—could eliminate majority-minority districts in favor of districts in which the election of a minority candidate would be less likely or impossible.

To the extent that an increase in Latino political participation could increase the number of Latino candidates elected outside of majority-Latino districts—and hence decrease Latinos’ reliance on such districts—such a mobilization would mitigate the damage caused to Latinos by Shaw v. Reno and Georgia v. Ashcroft. There are various districts where a minor increase in Latino turnout could easily result in the election of a Latino candidate. California’s 28th district, for example, covers various portions of suburban Los Angeles and has a 49.18% Latino voting-age population. At least two other districts in California have been able to elect Latino candidates with smaller Latino populations. The recent mobilization of Latinos during the immigration debate—including a 500,000 person pro-immigrant rally in downtown Los Angeles—could make it very easy for a Latino candidate to win in the 28th.

In Spanish there is a saying “no hay mal que por bien no venga”—a rough equivalent of the old adage “every cloud has a silver lining.” H.R. 4437 is one of the most draconian immigration measures in Congressional history. Regardless of whether the bill ever becomes law, the Latino mobilization that it inspired will lead to increased Latino political participation that could far outweigh bill’s negative consequences, potentially leading to the addition of numerous eligible Latinos to voting rolls, and possibly to a tempering of the harms to Latinos occasioned by at least two prominent voting rights cases.