WHOSE VOTES COUNT? Affirmative Action and Minority Voting Rights By Abigail M. Thernstrom A Twentieth Century Fund Study Harvard University Press. 316 pp. $25
TWO YEARS AGO, Abigail Thernstrom produced dismay and a few hoots among civil rights activists by suggesting in a New Republic article that William Bradford Reynolds, the assistant attorney general for civil rights, was, in fact, not too conservative, but too liberal when it came to enforcing the Voting Rights Act. Now, Thernstrom has produced a book that expounds on her argument and adds the courts and Congress, as well as the U.S. Justice Department, to the list of those who have reneged on their responsibility to treat white, as well as black voters with an even hand.
Among men and women who have manned the trenches in the battle for black voting rights, she is likely to find few sympathizers. However, it is a sign both of changing times and of black progress that a less involved audience may find appeal in Thernstrom's view of the Voting Rights Act as a legislative good work run amok.
In Whose Votes Count?: Affirmative Action and Minority Voting Rights, Thernstrom -- a senior research associate at the Gordon Public Policy Center of Brandeis University -- correctly argues that there have been "breathtaking changes in southern politics" in the 22 years since the Voting Rights Act became law. She is also on target on her identification of the act as a radical solution that has become more, not less, intrusive with each amendment and extension.
Where Thernstrom and traditional civil rights forces will part company is in her assertion that the act is now grounded in an unconstitutional premise. Since its passage in 1965, she says, there has been "a profound transformation of the act." No longer is the goal to make sure that all citizens can walk, unhindered, into a voting booth and pull a lever. Now, Thernstrom contends, the underlying proposition is that blacks deserve proportional representation. If 50 percent of the citizens of a city or town are black, then 50 percent of the offices should be held by black officials.
Overzealous judges and administrators, coupled with misguided congressmen, have transformed the act, says Thernstrom, "from the first truly effective vehicle for southern black enfranchisement to a means by which political power is redistributed among blacks, whites, and (since 1975) Hispanics." Her particular concerns are with Section 5, which has been used to halt annexations, redistrictings and a variety of electoral changes judged discriminatory to blacks, and Section 2, cited in a series of recent court cases which threaten to make at-large electoral systems extinct in the South.
"An alleged voting rights violation today is a redistricting plan that contains nine majority black districts when a tenth could be drawn . . . A maximum number of safe minority districts -- or close to it -- has become the rule in an electoral landscape from which at-large voting is being systematically cleared," Thernstrom writes. "The question is: how much special protection from white competition are black candidates entitled to?"
It is in answering that question that Thernstrom falls prey to some of the vagueness and confusion of which she accuses Congress, the courts and the Justice Department. She recognizes that a law which protected only the right to register and vote would be too simplistic. If the overall system of elections in a community has been designed specifically to keep power in white hands, then the structure should be changed, Thernstrom acknowledges.
However, she writes, "only when black voters are 'isolated' within the political system -- only when the electoral process is distorted by racism" should there be the sort of special protection the Voting Rights Act now affords. "Isolated" and "distorted" hardly seem more objective measures than criteria currently in use.
Thernstrom is clear in identifying certain situations where she believes the Voting Rights Act should not have applied. She cites, for example, the case of Charleston, S.C. That city was forced, under the Voting Rights Act, to switch from at-large to district voting because a series of annexations had reduced the black population by a mere 2 percent. The fact that the change to districts has produced a biracial city government, far more reflective of the city's racial makeup, is no justification for intruding on local prerogatives, in Thernstrom's view.
What remains unclear is whether dozens of other localities -- from Edgefield County, S.C., to Greenwood, Miss. -- would have undergone political change had the Voting Rights Act been structured in Thernstrom's mold. Could local blacks have proven, as Thernstrom would have them do, that "considerations of race dominate the electoral process?" The history of legal challenges, at least in Edgefield County and Greenwood, leaves considerable doubt. Yet in those locales, despite a population that was half-black, not a single black officeholder had been elected to the county's governing board until a change in election structure was ordered under the Voting Rights Act.
Thernstrom brands the Voting Rights Act as "a controversial policy that has somehow stirred no controversy." At least in academic circles, her book -- while cumbersome reading at times -- may help fuel the debate she seeks.
Margaret Edds, author of "Free At Last: What Rally Happened When Civil Rights Came to Southern Politics," is a political reporter for The Virginian-Pilot of Norfolk.