In 2006, Congress voted overwhelmingly to reauthorize key provisions of the Voting Rights Act of 1965 for another twenty-five years. The legislation passed 390–33 in the House and 98–0 in the Senate. Every top Republican supported the bill. "The Voting Rights Act must continue to exist," said House Judiciary chair James Sensenbrenner, a conservative Republican, "and exist in its current form." Civil rights leaders flanked George W. Bush at the signing ceremony.
Seven years later, the bipartisan consensus that supported the VRA for nearly fifty years has collapsed, and conservatives are challenging the law as never before. Last November, three days after a presidential election in which voter suppression played a starring role, the Supreme Court agreed to hear a challenge to Section 5 of the VRA, which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government. The case will be heard on February 27. The lawsuit, originating in Shelby County, Alabama, is backed by leading operatives and funders in the conservative movement, along with Republican attorneys general in Alabama, Alaska, Arizona, Georgia, South Carolina, South Dakota and Texas. Shelby County's brief claims that "Section 5's federalism cost is too great" and that the statute has "accomplished [its] mission."
The current campaign against the VRA is the result of three key factors: a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination.
The push by conservatives to repeal Section 5 comes on the heels of what NAACP president Benjamin Jealous has called "the greatest attacks on voting rights since segregation." After the 2010 election, GOP officials approved laws in more than a dozen states to restrict the right to vote by requiring proof of citizenship to register to vote, shutting down voter registration drives, curtailing early voting, disenfranchising ex-felons and mandating government-issued photo IDs to cast a ballot — all of which disproportionately target communities of color. The states covered by Section 5 were significantly more likely to pass such laws than those that are not.
Attorney General Eric Holder has called Section 5 the "keystone of our voting rights," and the Justice Department and voting rights groups have argued that it is an essential tool for dismantling barriers to the ballot box. "The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last forty years," Congress stated in reauthorizing the act in 2006. The disappearance of Section 5 would be a devastating setback for voting rights — akin to the way theCitizens United decision eviscerated campaign finance regulation — and would greenlight the kind of voter suppression attempts that proved so unpopular in 2012.
Overturning Section 5 is in many respects the most important battle in the GOP's war on voting. As Holder noted in a recent speech, there have been more lawsuits challenging the constitutionality of Section 5 over the past two years than during the previous four decades. Section 5 is in the gravest danger at a moment in contemporary history when it's needed the most.
The Fifteenth Amendment, which Congress ratified in 1870, states that the right to vote "shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Yet it took nearly a century, until the passage of the VRA, for those words to become the enforced law of all the land. "Section 5 was not the first response to the problem, but it was the first effective one, enacted only after case-by-case litigation and less stringent legislative remedies failed," says a recent brief filed by the NAACP Legal Defense Fund. The law led to the abolition of poll taxes and literacy tests; spurred massive voter registration drives; and laid the foundation for generations of minority elected officials. Even conservatives like George Will regard the VRA as "the 20th century's noblest and most transformative law."
Section 5 gave the law its bite. As Chief Justice Earl Warren wrote in the 1966 case South Carolina v. Katzenbach, the first of many challenges to the statute, the law "shift[ed] the advantage of time and inertia from the perpetrators of the evil to its victims." The burden of proof was also shifted to the perpetrators, who now had to show that a voting change was not discriminatory before putting it into effect. "Section 5 gives the federal government a more effective tool for combating discrimination in voting than anything else that Congress has ever come up with," says Sam Bagenstos, a former deputy assistant attorney general for civil rights in the Obama Justice Department. The law covers all of Alaska, Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, and parts of California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota.
It's not surprising that the most recent challenge originates in Alabama, which, more than any other state, is responsible for the passage of the VRA. LBJ announced the legislation eight days after police brutally beat civil rights activists during the 1965 "Bloody Sunday" protests in Selma. "The Voting Rights Act is Alabama's gift to our country," says Debo Adegbile, director-counsel of the NAACP Legal Defense Fund. Shelby County is a wealthy, white-flight exurb of Birmingham, once regarded as the most segregated city in America and known as "Bombingham" for the frequency of attacks on black citizens at the height of the civil rights struggle. (The Alabama GOP held its 2012 election night "victory party" at a gun range in Shelby County, where attendees fired away while awaiting election returns.)
Calera, a once-sleepy town from which the lawsuit stems, is fifty-five miles north of Selma. Best known for its Heart of Dixie Railroad Museum, Calera became the fastest-growing city in the state over the past decade, adding new businesses like Walmart and Cracker Barrel off the busy I-65 highway running from Birmingham to Montgomery. Before local elections in 2008, Calera redrew its city boundaries. The black voting-age population had grown from 13 percent in 2004 to 16 percent in 2008, but the new maps eliminated the City Council's lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery's district from 71 to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood. A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city's demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes.
A soft-spoken and civic-minded precision machinist, Montgomery grew up going to segregated schools until junior high, but he didn't think race was as big an issue in Calera as it was in other parts of the state. That changed in 2008, when he knocked on doors in the lily-white subdivisions of his new district — which he knew well from his time on the city planning commission — and was told by residents that they were supporting his opponent, who'd lived in the town for only three years. When asked why, they couldn't give him a good reason. Montgomery could come to only one conclusion: "they voted against me because of the color of my skin."
The Justice Department negated the election results and, after a year of negotiations, Calera moved from single-member districts to an at-large election system for the City Council. Montgomery was easily elected under the new system, winning the largest number of votes of any candidate, while his opponent from 2008 received the second-fewest. After the two elections, "I realized how important Section 5 is," Montgomery said.
That would have been the end of it — if Ed Blum, director of the Project on Fair Representation, a conservative legal-defense fund devoted to fighting raced-based protections in public policy, hadn't convinced Shelby County's lawyer to challenge the constitutionality of Section 5. "Shelby County was, essentially, invited to participate in this case," says Ryan Haygood, head of the voting rights section at the NAACP Legal Defense Fund. "We don't think it would have been heard on its own."
The disputed election in Calera is "a textbook example of why you need Section 5," says Bagenstos. Kevin Myles, southeast regional director for the NAACP, compared the lawsuit to "a fox filing a lawsuit saying the chicken coop is too secure." (From 1975 to 2008, elections laws in Shelby County were judged to have discriminated on the basis of race under the VRA in twenty separate instances, according to Caltech historian Morgan Kousser.) Yet Blum described Shelby County as "the ideal plaintiff" to challenge the constitutionality of Section 5 head-on.
Blum, a former stockbroker at PaineWebber with no legal background, has devoted two decades of his life to "lessening and eliminating the use of race in public policy." According to Reuters, he has "filed at least a dozen lawsuits attacking race-based protections," including another case before the Supreme Court opposing affirmative action at the University of Texas. Blum matches local plaintiffs with powerful Washington attorneys, paying the legal fees thanks to generous donations from the biggest funders in the conservative movement.