“Whitelash,” Voting Rights, and Discrimination

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Fordham faculty and close friends of the late former Fordham Law Professor Terry Smith gathered for a webinar on Sept. 23 to discuss his last publication, Whitelash: Unmasking White Grievance at the Ballot Box. “Whitelash”short for “white backlash”was coined by CNN commentator Van Jones in November 2016 to describe the reaction of white voters at the ballot box in opposition to civil rights advances.

In the book, Smith weaves together critical theory, legal history, and research to showcase the extent of racial polarization and its impact on policy. As possible solutions, he argues provisions of the Voting Rights Act should be enforced and that the Electoral College and U.S. Senate elections should be reformed to be more democratic.

Smith sadly passed away this past April, three months after the book was published.

“Terry’s legacy will continue in the scholarship, his past successes as a lawyer, and his role as a mentor, professor, and friend,” said Archibald R. Murray Professor of Law Tanya Hernández, who moderated the panel discussion. “His scholarship forged a compelling intersection between election law and critical race theory.”

Whitelash takes aim at racist voting in the United States and asks the question of why American society allows this behavior. Smith, for example, points out how society has outlawed racial discrimination in employment, housing, and jury selections and thus argued that racialized decision-making at the ballot box is no different. Using evidence of race-based voting in the 2016 presidential election, he deploys legal analogies to demonstrate how courts can decipher when groups of voters have been impermissibly influenced by race, and impose appropriate remedies.

Matt Gallaway, senior editor at Cambridge University Press and Smith’s editor, compared Whitelash to a classic Shakespearean tragedy with a “beautiful structure.” He said Smith’s chapter on remedies, as well as other ideas brought up throughout Whitelash, exemplified original thought and interesting ways of thinking.

“The idea of white voter privilege as sort of an addiction, I think is a really interesting concept that I don’t see very often in the mainstream media,” Gallaway noted.

Whitelash also explores the racial gap when it comes to electoral politics. Associate Professor of Political Science at Fordham University Christina Greer brought up how Black women typically support Democratic candidates, whereas white women vote Republican.

Professor Darren Hutchinson, the Raymond & Miriam Ehrlich Eminent Scholar at the University of Florida Levin College of Law, discussed Smith’s analysis of racism among white voters and the sophisticated remedies he proposes. Hutchinson observed that “Smith’s use of new social science measures of racial hostility, including implicit bias, racial resentment, and social dominance theory, makes his analysis richer than most works in the field of law and politics.” He also lauded Smith for examining “structural or institutional racism, rather than limiting his analysis to individual prejudice.”

Hutchinson then turned to Smith’s discussion of structural elements in United States politics that severely erode the strength of Black and Latino votes, including the winner-take-all allocation of electoral votes, equal allocation of senators, and statewide senate elections. He argued that “the resulting impediment to racial equality measures in federal and state governments justifies the broad actions that Smith proposes in Whitelash.” While Smith’s recommendation for aggressive enforcement of the Voting Rights Act to counter the systematic dilution of Black and Latino votes might appear overreaching to some readers, Hutchinson argued that the “intergenerational and grave consequences of racism provide overwhelming support for his proposals.”

Janai Nelson, associate director-counselor at the NAACP Legal Defense Fund, argued that there has been a sharp increase in racial and partisan polarization in our electorate and the Electoral College.

“This polarization results in the skewed electoral outcomes that were evidenced by Donald Trump’s 2016 victory, despite the fact that he had a deficit of 3 million popular votes,” she said. “Terry is demanding that we unpack that dissonance and better understand what a still sizable voting block saw in the election of Trumpwhat they were relying on, what they were expecting of him to deliver as a candidate and, ultimately, as the president.”

Audrey McFarlane, associate dean of faculty research and development at the University of Baltimore School of Law, reiterated towards the end what all the experts elaborated on throughout the discussionhow racial animus has shaped American politics.

“It’s shaped what we think are attractive policies or potentially doable policies, and it’s shaped the way so many things work,” she continued. “Terry’s book reminds us that voting is not merely just the act of voting. Voting is how we shape the way resources are allocated, the way we structure our society, and the way in which you have a voice in that.”

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