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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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