Diversity, Voting, and Perverse Incentives

Many high school students feel alienated and alone. For some non-white students attending a majority-white school, such as Amherst Regional High School, the feelings can be exacerbated by the soft bigotry of low expectations and a sense of racial isolation. Rather than writing off these feelings as just a non-white variant of universal teenage angst, we should recognize that they are well grounded. Amherst is part of the Pioneer Valley, where the degree of racial segregation is a disgrace. Partly the legacy of sundown towns, partly the result of economic decline, and partly a function of white flight, the city of Springfield, in particular, exemplifies our failure to produce a more racially integrated society. A few years ago I wrote about the problem and proposed one possible step on the path toward a solution in a paper entitled Desegregating Our Schools.

Having noticed that my proposal found no takers, I believe that while Desegregating Our Schools gathers dust we need to address segregation in the Pioneer Valley by a variety of means. Electoral politics is one of those means. But I do not believe that voting against white people qua white people in the name of diversity (usually presented as voting for the non-white candidate) can possibly help. Equally unhelpful, in my opinion, is bandying about unfounded allegations of voter intimidation.

Perverse Incentives

Like many public policies, attempts to achieve and perpetuate greater diversity in public office sometimes work and sometimes backfire. Racially-gerrymandered districts, for example, ensure that non-white candidates get elected but tend to reinforce segregated housing patterns, counter to the policy of the federal Fair Housing Act with its statutory requirement that public and private actors alike promote integration. Politicians who depend on racial bloc voting have a vested interest in discouraging zoning and development measures that promote racially integrated neighborhoods.

Admittedly, proponents can cite examples from history to demonstrate that racial bloc voting produces visible, quantifiable results. For example, a racially-homogeneous district ensured that African-American voters in Boston had at least one voice in the State House during the latter part of the Nineteenth Century. From 1867 until 1902, the historically black neighborhood on the north slope of Beacon Hill elected more than a dozen African-American representatives to the Legislature, including George L. Ruffin, who went on to become a judge. But after black voters became less concentrated in that legislative district (whether through the voluntary movement of black residents from Beacon Hill to other parts of the city, or through racially-motivated gerrymandering, or both) no African Americans sat in the Legislature again until 1947.

As with racial gerrymandering, making it standard practice to always vote for the candidate who represents greater racial diversity (i.e. the non-white candidate) is prone to worsen matters rather than improve them. It sends white politicians an important signal. If I know in advance that whatever I do — no matter how hard I work, how many risks I take, how much political capital I expend — you will not vote for me, that knowledge will influence my conduct in office should I happen to win. While I might not deliberately harm you, I will not go out of my way to help you. Why should I, when I already know that you are irrevocably committed to my opponent and that there is absolutely no act, practice, or promise on my part that could possibly woo you away? My melanin level is beyond my control, and you are beyond my reach.

Putting to one side the foot-in-mouth moments that make election campaigns so entertaining, most of the time most candidates act rationally, using that adverb in its narrowest, Economics 101  sense. They have limited time, money, and other resources, which they have to deploy efficiently in order to secure re-election. I base this assertion on experience not conjecture, by the way, having run for Governor’s Council twice, the first time successfully and the next time less so. For those of you who have not run for office but are on record as having a party affiliation, I feel sure that in the run-up to general elections you have observed or inferred this phenomenon yourself, from the deluge of direct mail from your chosen party and the dearth of same from the other side.

Did you hear about that Democratic candidate in the overwhelmingly Democratic district who blew half his budget trying to persuade the handful of registered Republicans to recant and vote Democratic? No, neither did I. Elections are largely about identifying and then mobilizing voters, not converting them.

Voter Intimidation

When I became an attorney in 1998 I took an oath to uphold the Constitution of the United States, and four years later when I became a citizen I took it again. Just to be on the safe side they made me take it a third time at my swearing-in ceremony for the Governor’s Council at the State House in 2005. Among the provisions I am thrice oath-bound to uphold is the Fourteenth Amendment’s guarantee of equal protection. So when I hear or read an allegation of voter intimidation in my home town I feel obliged to make reasonable inquiry, particularly when the source of the allegation is an elected official.

Professor Amilcar Shabazz, the Faculty Advisor for Diversity and Excellence to the Chancellor of the University of Massachusetts, Amherst, and member of our town’s school committee, made a claim of voter intimidation on March 25, 2014 (see previous blog post). He wrote:

“We have a real-world election taking place right now with people to help to get to the polls. We have our signs being taken down and voters being intimidated right now. We have a school committee meeting tonight where a teacher who was horribly attacked in our high school wants to make a statement but… So sorry folks but I don’t have time to ponder and debate with a lawyer who ought to know better” (emphasis added).

Despite the use of the passive voice (“voters being intimidated”) I concluded that somebody was doing the intimidating. Unless Professor Shabazz meant that Ms. Douangmany’s supporters were going around intimidating one another (unlikely) or that neutral parties with no particular axe to grind were to blame (also unlikely) I inferred that supporters of the opposing campaign were the ones engaging in this felonious conduct. Voter intimidation is a crime and a serious allegation to level at somebody, even by innuendo.

By juxtaposing his claim with a genuine act of racial hatred, namely the graffiti targeting one of our high school teachers, Professor Shabazz left no doubt that there were instances of voter intimidation taking place, “right now” in the course of the “real-world election.” No reasonable person would make an allegation of that sort — one that implies, none too subtly, that Ms. Appy’s supporters were violating their opponents’ civil rights — without a good faith basis.  Any reasonable person with a good faith basis would inform the relevant authorities, e.g. the police, the town clerk, or the elections division in the Office of the Secretary of the Commonwealth. So last week I  asked those official agencies whether they had received any such complaints or reports. They had not.

When I asked Professor Shabazz for details, this is what he wrote:

“My only comment here will be to ask if anyone would message me privately with info on attys I could recommend–esp. ones who won’t charge someone for a discussion of their experience–who could advise someone on how to file a complaint. I did not hear of any threats of physical violence from anyone, but I did hear other reports of people who felt intimidated. I am not a lawyer and I have no knowledge of any statutory or case law definitions of voter intimidation. Since I am messaging with lawyers let me add that I made NO representation about any ‘side’ doing anything. I think it is quite a leap to go there but I have found that Peter Vickery can easily make such leaps and others can to. That’s all folks.”

Guilty as charged: I did make a leap. When I read Professor Shabazz’s words “we have our signs being taken down and voters intimidated right now” I thought he meant there were signs being taken down and voters being intimidated right now. Now I am supposed to believe that (1) he meant nothing of the sort, and (2) he would like to talk to a lawyer about filing a complaint anyway.

Disclaiming knowledge of the meaning of the phrase “voters being intimidated” might pass the straight-face test coming from a middle-schooler, but not from a professor in the W.E.B. DuBois Department of Afro-American Studies at the flagship campus of the University of Massachusetts, the presenter of Law Written in Blood: Trying to Vote in Hale County in the 1960s, and Civil Rights in America: The Journey Toward a More Civil Society, 1964-2014 who has taught the undergraduate course “The Struggle for Equality in the U.S.,” and who states on his ScholarWorks website: “My  research interests include African Americans in the history of education, cultural and political movements against oppression, and comparative studies in the African world. I am active in educational policy affairs and public history.” It is with confidence that I leap — as is my wont, apparently — to the conclusion that such scholarship must entail at least a passing familiarity with the topic of voter intimidation.

The saddest part about Professor Shabazz’s semi-sort-of-not-quite-retracted allegation of voter intimidation is the way he bracketed it with the factually established racist graffiti incidents at Amherst Regional High School:  “We have our signs being taken down and voters being intimidated right now. We have a school committee meeting tonight where a teacher who was horribly attacked in our high school wants to make a statement.” By uttering the two statements in the same breath, Professor Shabazz prompts readers to put them both in the same category. Casting a shadow of doubt on the graffiti incidents was probably not his intent, but few laws are as inflexible as the law of unintended consequences.

Professor Shabazz should now remove the doubt he has generated, and make unequivocally clear that while the graffiti is real, his claims of voters being intimidated in Amherst on March 25, 2014, are not.


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