Blum began his crusade against the VRA after losing a 1992 Houston congressional race to Craig Washington, one of the first African-Americans elected to the Texas House, and who later served in Congress. Blum believed Washington was the beneficiary of unfair racial gerrymandering mandated by the VRA. "The VRA — Section 5 in particular — was the most effective piece of congressional legislation in the twentieth century," Blum told me. But he believed that by the late 1980s, it had outlived its purpose and become a malicious force.
Blum moved to Washington and founded the Project on Fair Representation in 2005 to oppose the 2006 reauthorization of the VRA. He testified before Congress and wrote prolifically for publications like The Weekly Standard and National Review, calling Section 5 "the greatest affront ever to our system of constitutional federalism." He was one of a small group of advocates, including Abigail Thernstrom of the Manhattan Institute and Roger Clegg of the Center for Equal Opportunity, who "provided intellectual support" for overturning Section 5, according to National Review. When Blum resoundingly lost that battle, he turned to the courts.
Eight days after Bush signed the VRA's reauthorization, a Blum-sponsored case, Northwest Austin Municipal Utility District Number One v. Holder, was filed challenging the constitutionality of Section 5. "I was putting out feelers all over the country, hoping to find a jurisdiction that would challenge the reauthorization," Blum said. The filing called Section 5 "an unconstitutional overextension of Congress's enforcement power to remedy past violations of the Fifteenth Amendment."
Three months after Barack Obama's 2009 inauguration, the Supreme Court heard oral arguments in the NAMUDNOcase. The Court eventually punted, exempting the small local utility from Section 5 oversight (known as a "bailout") without resolving the larger constitutional questions. But, in a hopeful sign for the plaintiffs, the conservative majority expressed strong skepticism about the continued relevance of Section 5. "The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns," Chief Justice John Roberts wrote for the majority. In the lone dissent, Clarence Thomas went further, writing that "the lack of current evidence of intentional discrimination with respect to voting renders Section 5 unconstitutional."
During the 2006 congressional debate, few Republicans were willing to challenge the VRA publicly, and no other jurisdiction covered by Section 5 joined the NAMUDNO lawsuit. But the Court's opinion "emboldened many in the Republican Party to feel more comfortable criticizing Section 5," Blum said. Southern conservatives had long opposed the VRA, but until recently they were a minority within the GOP. All four congressional reauthorizations of the VRA — in 1970, 1975, 1982 and 2006 — were signed by Republican presidents.
Following George W. Bush's 2004 re-election, Republican National Committee chair Ken Mehlman embarked on an ambitious effort to court minority voters, particularly African-Americans, apologizing for his party's "Southern strategy" at the NAACP convention and trying to rebrand the GOP as "the party of Lincoln and Frederick Douglass." But that effort collapsed in the wake of the Bush administration's mishandling of Hurricane Katrina, which decisively turned blacks against the GOP, and its failure was codified with the election of Barack Obama, who won 80 percent of the minority vote in 2008. Instead of wooing an ever more diverse electorate, Republicans began looking for new ways to suppress its votes, as became evident following the 2010 election, when GOP state legislators introduced tough new voting restrictions in thirty-eight states. The NAMUDNO and Shelby County lawsuits prefigured this shift. "It's at those moments when minority communities are poised to exercise their political voice that we see the most intently focused voting discrimination," says Adegbile.
Many of the states and donors who have supported discriminatory voting laws are also backing Blum. His Project on Fair Representation is exclusively funded by Donors Trust, a consortium of conservative funders that might be the most influential organization you've never heard of. Donors Trust doled out $22 million to a Who's Who of influential conservative groups in 2010, including the American Legislative Exchange Council (ALEC), which drafted mock voter ID laws and a raft of controversial state-based legislation; the Americans for Prosperity Foundation, the Koch brothers' main public policy arm; as well as Grover Norquist's Americans for Tax Reform Foundation. Donors Trust has received seven-figure donations from virtually every top conservative donor, including $5.2 million since 2005 from Charles Koch's Knowledge and Progress Fund. (The structure of Donors Trust allows wealthy conservative donors like Koch to disguise much of their giving.)
From 2006 to 2011, Blum received $1.2 million from Donors Trust, which allowed him to retain the services of Wiley Rein, the firm that unsuccessfully defended Ohio's and Florida's attempts to restrict early voting in federal court last year. As a "special program fund" of the tax-exempt Donors Trust, Blum's group does not have to disclose which funders of Donors Trust are giving him money, but he has identified two of them: the Bradley Foundation and the Searle Freedom Trust. The Wisconsin-based Bradley Foundation paid for billboards in minority communities in Milwaukee during the 2010 election with the ominous message "Voter Fraud Is a Felony!", which voting rights groups denounced as voter suppression. Both Bradley and Searle have given six-figure donations to ALEC in recent years, and Bradley funded a think tank in Wisconsin, the MacIver Institute, that hyped discredited claims of voter fraud to justify the state's voter ID law, currently blocked in state court.
Blum has useful allies on the Supreme Court, notably Chief Justice Roberts. As a young lawyer in the Reagan Justice Department, Roberts led the fight in 1982 against Section 2 of the VRA, which prohibits "denial or abridgement of the right of any citizen of the United States to vote on account of race or color." Section 2, unlike Section 5, applies nationwide and puts the burden on plaintiffs to prove that a voting change is discriminatory after it has gone into effect. (Section 2 has been described as the "sword" to Section 5's "shield.") In order to challenge a voting change, Roberts argued, plaintiffs should be required to prove discriminatory intent, not discriminatory effect — a much more difficult bar to clear. "Violations of Section 2 should not be made too easy to prove," Roberts wrote. He urged the Reagan administration to take an "aggressive stance" against Section 2, which he claimed would "establish a quota system" and "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes."
The House ultimately overruled Roberts, 389 to 24. Years later, during Roberts's confirmation hearing as chief justice, Senator Ted Kennedy noted that Roberts "had a rather cramped view of the Voting Rights Act." Rick Hasen, a law professor at the University of California, Irvine, told The New York Times that "had the Roberts view prevailed, we would have many fewer minority elected representatives in Congress." If Blum, with Roberts's help, prevails in the Shelby County case, the results would be even more damaging.
When he began working on the 2006 reauthorization of the VRA, Representative Sensenbrenner knew that a court challenge was coming. "That's why we held extensive hearings and compiled 12,000 pages of testimony," he said. "There was a lot of invidious discrimination shown." Congress held twenty-one hearings over ten months, compiling a voluminous record documenting modern-day voting discrimination. Sensenbrenner called it "one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the twenty-seven and a half years that I have [served]."
That evidence persuaded Congress to emphatically reauthorize the act. In states like Virginia, Texas and Florida, minority voter registration and turnout rates lagged well behind that of whites. Three of the original six states covered by Section 5 — Mississippi, Louisiana and South Carolina — had never elected an African-American to statewide office. The attorney general blocked 2,400 discriminatory voting changes based on 750 Section 5 objections from 1982 to 2006. Clearly, voter suppression efforts had endured into the twenty-first century. Justice Souter likened it to pouring "old poison into new bottles."
Adegbile's favorite example was in Kilmichael, Mississippi, where the white mayor and all-white board of aldermen of the newly majority-black town canceled local elections in 2001 rather than cede power. The Justice Department forced the town to hold elections, and three black aldermen and the city's first black mayor were elected as a result. "Congress was asking the question 'Where are we?' in 2006," Adegbile says. "And their answer was, 'We've made a lot of progress — but while we've cut the weeds, lots of the roots are still there. And if we don't continue the remedy, the roots will grow back.'"
The South had not been reformed to the extent that opponents of Section 5 claimed. University of Michigan law professor Ellen Katz analyzed Section 2 lawsuits in the covered versus noncovered jurisdictions and found that more than half the successful lawsuits originated in regions subject to Section 5, which made up less than one-quarter of the US population. A study conducted by historian Peyton McCrary, who works for the DOJ, found that 81 percent of successful published and unpublished Section 2 lawsuits originated in Section 5 jurisdictions.