RACE, RECKONING, REFORM, AND THE LIMITS OF THE LAW OF DEMOCRACY.

• Author: Sellers, Joshua S.

INTRODUCTION 1996 I. THE RANGE OF RACIAL REFORMS 1998 II. LAW OF DEMOCRACY SCHOLARSHIP AND BLACK EQUITY 2004 CONCLUSION 2013 INTRODUCTION

It is a moment of racial reckoning. It is not the first, it will not be the last, and it assures no restitution. But it is, nonetheless, a moment. As befits such moments, assorted conversations are occurring about the significance of race in American life and how to meaningfully improve Black lives. These conversations--debates might be the more accurate noun--have inspired calls for recompense and broad structural reforms. (1) The Black Lives Matter movement, for example, advocates for reparations, police defunding, education reform, and a restructured political economy. (2)

Scholars from varied disciplines, though united in their commitment to racial equity, likewise contribute to policy debates over reform objectives. These debates frequently echo longstanding disagreements over the fundamental causes of contemporary (i.e., post-Jim Crow) Black disadvantage. According to many, race is the principal driver of political, economic, and social outcomes. (3) Others rebut this claim by emphasizing the considerable importance of economic status or class in shaping individuals' lives. (4) As evidence against both views, others underscore how race and class are inextricably related. (5) These debates, while worn, remain generative. They often clarify how racial discrimination persists and which reform strategies are most promising. Legal scholarship, though, rarely contends with the insights generated from these debates. These deficiencies impede our ability in the legal academy to fully ascertain how law shapes and preserves Black disadvantage. (6)

This is apparent even in the context of "law of democracy" scholarship. The law of democracy refers to the system of laws, institutions, and norms that define the rules of our democratic practice. As an academic field, and particularly as compared against other public law fields, the law of democracy is conspicuously race-conscious. (7) More precisely, questions and concerns about the impact of various election-related policies on racial groups are prevalent in law of democracy scholarship (and in election litigation). One might think, then, that law of democracy scholarship would be a deep repository of books and articles explicating the connections between electoral structures and contemporary Black hardship.

Yet, because the vision of equality animating the field is narrow, these connections are obscured. Commonly suggested remedies for Black disadvantage--new, revised, or more consistently enforced federal legislation, evidentiary burden-shifting, minor doctrinal tweaks--rest on the presumption that political participation is inherently fateful. Simply put, there is discordance between what impactful reform looks and sounds like to those outside the law, and reform as commonly conceived of in law of democracy scholarship. Given this disconnect, this Essay argues for a reorientation of law of democracy scholarship toward broader considerations of how electoral structures, policies, and practices impede Black equity.

Black equity, as I conceive it, encompasses political, economic, and social initiatives that afford Black citizens not just the right to vote in periodic elections on roughly equitable terms with others, but the power to combat the maldistribution of resources and opportunities that hinders Black progress. An emphasis on Black equity demands historical analysis of the ways in which the law of democracy has contributed to the entrenchment of Black disadvantage (reckoning) and invites incorporation of public and non-legal scholarly insights about how to meaningfully improve Black lives (reform).

Part I of this Essay outlines the range of perspectives informing the public and non-legal academic conversations about race and reform; conversations that are unobservable in law of democracy scholarship. Part II makes the affirmative case for law of democracy scholarship that explicitly contends with how to achieve Black equity.

1. THE RANGE OF RACIAL REFORMS

   In March of 1972, a high school in Gary, Indiana played host to the National Black Political Convention. The event brought several thousand Black Americans of widely divergent political views, including elected officials, together for the purpose of developing a unified Black agenda. To the extent that the three-day affair is remembered, it is often cited as an example of how difficult it is to elide substantive policy and strategic disagreements under the guise of racial unity. (8) Described as "a shotgun wedding of the radical aspirations of Black Power and conventional modes of politics," (9) the event rendered clear the tension between those seeking Black autonomy, community control, and structural reform,") and those seeking greater standing and representation in mainstream politics. (11)

   The dissension revealed at the Convention ultimately empowered the burgeoning Congressional Black Caucus (CBC), established in 1969, which emerged as "a power broker on behalf of African Americans in the legislative arena." (12) Viewing the Convention in retrospect, however, serves as a reminder of how multifaceted Black political activism once was. While "Black Power!" is recalled as a slogan, the movement it represented was extraordinarily diverse, encompassing socialist, Marxist, cultural nationalist, and integrationist segments, to name but a few. Organizations like the League of Revolutionary Black Workers (LPvBW), formed (like the CBC) in 1969, built, in its home city of Detroit, an anti-racist, anti-capitalist, anti-imperialist union-based movement. (13)

   The LRBW, like many similar organizations, was ultimately undone by a combination of internal conflicts, pronounced opposition by outsiders, and a growing sense that that surest road to Black advancement was through affiliation with the Democratic Party. (14) "Black officialdom" flourished throughout the 1980s and thereafter, most apparently in the increased election of Black candidates to Congress. (15) As the visibility and influence of the Black activist left diminished, electoral success became the sine qua non of Black political progress. (16)

   This history bears directly on the present. In August 2020, the Movement for Black Lives organized the Black National Convention, an online (due to COVID-19) "series of conversations, performances, and other activations geared toward engaging, informing, and mobilizing Black communities." (17) The event was directly inspired by the 1972 National Black Political Convention and involved at least some collaboration between past and present attendees. (18) Many of the concerns raised at the 1972 Convention correspond with those raised in 2020. (19) And, as was the case in 1972, doubtfulness about the gains to be had through a reform strategy centered around electoral success remains. (20)

   So, to reiterate, it is a moment. The Movement for Black Lives has expanded the realm of the possible to an extent not seen since the 1970s. It has altered the public conversation about Black advancement in much needed ways, (21) and prominently exhibited--for many, for the first time--the range of perspectives held by Black activists. (22) It has highlighted the limits of incremental change and put pressure on public officials to act. And it has the benefit of hindsight, of learning from what did and did not work between 1972 and the present.

   Alongside this participatory movement, academics have similarly, over the past fifty years, considered the most effective means of improving Black lives. The resulting studies are rich and varied and can hardly be summarized in short form. But in brief, some understand race to be the most salient aspect of Black political, economic, and social outcomes. This perspective interprets various ills--residential segregation, labor market inequality, voter suppression, racially-disparate access to medical care--through a predominantly racial frame. (23) On these accounts, race-focused remedies are a necessary component of any viable reform effort.

   A competing perspective emphasizes the considerable importance of class in shaping individuals' lives. This perspective, once most closely associated with the sociologist William Julius Wilson, contends that economic inequality is the primary impediment to racial equality. (24) This distinction between a predominantly racial frame and one oriented around class is crucial, it is argued, because a misdiagnosis of what ails Black people leads to ineffectual remedies. As two proponents of a class-focused perspective put it, "[r]acism is real and antiracism is both admirable and necessary, but extant racism isn't what principally produces our inequality and antiracism won't eliminate it." (25)

   Others emphasize the complex interrelation between race and class. Race informs both political economy and class divisions, they assert, making an approach that overreads either race or class imprecise. (26) The utility of this perspective is best revealed through examples. Consider President Bill Clinton's infamous 1996 welfare reform bill. The bill was racially-coded, (27) yet its enactment cannot be fully explained through a solely racial (or racist) frame. As described by Jonah Birch and Paul Heideman, the bill "was promoted by low-income employers who wanted an even more pliant and desperate workforce." (28) Absent this lobbying, it is not clear that the bill would have found support. As Birch and Heideman conclude, "[y]ou can't understand the course of welfare reform if you leave out the political economy." (29)

   Hurricane Katrina offers another useful example. The harrowing televised images of Black Louisianans "abandoned and left to fend for themselves at the Superdome and the Convention Center" (30) supported claims of racism among government officials responsible for providing relief; the images reinforced the view that...