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70 Duke L.J. 261 (2020-2021)
Reconstructing Racially Polarized Voting

handle is hein.journals/duklr70 and id is 260 raw text is: Duke Law Journal VOLUME 70 NOVEMBER 2020 NUMBER 2 RECONSTRUCTING RACIALLY POLARIZED VOTING TRAVIS CRUMt ABSTRACT Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary-but not a sufficient-condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2's constitutionality. The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, not the 1960s. Prior to the Fifteenth Amendment's passage, Republicans received overwhelming support from newly enfranchised Black voters in the former Confederate States and expected that support to continue. The Reconstruction Framers were thus attentive to the realities of racially polarized voting and openly recognized that extending the franchise would empower Black voters to mobilize politically and protect their Copyright © 2020 Travis Crum. t Associate Professor of Law, Washington University in St. Louis. For constructive comments and helpful conversations, I would like to thank Bruce Ackerman, Vikram Amar, Douglas Baird, Will Baude, Kiel Brennan-Marquez, Emily Buss, Justin Driver, Dan Epps, Bill Eskridge, Heather Gerken, William Hubbard, Michael Kang, Elizabeth Katz, Genevieve Lakier, Joshua Matz, Jennifer Nou, John Rappaport, Arn Smith, Doug Spencer, Nick Stephanopoulos, David Strauss, and participants at the Junior Scholars Colloquium at the University of Chicago, the Yale Moot Camp, and workshops at the University of Chicago, the University of Illinois Urbana-Champaign, and Washington University in St. Louis. Finally, I thank the editors of the Duke Law Journal for their dedicated work on this Article during the ongoing coronavirus pandemic.

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