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.
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.
During the 2006 congressional debate, Southern conservatives were unhappy that their states were still subject to Section 5. Georgia Representative Charlie Norwood offered an amendment that would have exempted the entire Deep South and covered only Hawaii, a state with no history of racial discrimination in voting. The amendment was defeated 318 to 96.
Changing the places covered by Section 5 would have blown up the entire bill. There was no political will or necessity to expand Section 5 nationwide, and "no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions," wrote Nate Persily, a law professor at Columbia University. "The fact that Section 5 was geographically targeted has always been seen as one of its constitutional saving graces." The statute is intentionally narrow and deep rather than shallow and wide.
Prior to the NAMUDNO case, Section 5 had been upheld each time it was challenged before the Supreme Court — in 1966, 1973, 1980 and 1999. That pattern has continued, in the lower courts, with the Shelby County case. "This Court finds that Section 5 remains a 'congruent and proportional remedy' to the 21st century problem of voting discrimination in covered jurisdictions," wrote District Court Judge John Bates, a George W. Bush appointee, in September 2011. "Congress determined that '40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment.'"
The tide of voter suppression during the last election cycle makes the case for Section 5 even more persuasive. As Holder put it, "Even today, too many citizens have reason to fear that their right to vote, their access to the ballot — and their ability to have their votes counted — is under threat."
Shelby County makes two principal arguments in its brief, both of which quote Roberts's opinion in the NAMUDNOcase: first, that "things have changed in the South," and second, that the "evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance." In other words, the Jim Crow era is over — but even if it's not, these days the North is no better than the South. "If we're going to have federal laws that protect the enfranchisement of minorities, those federal laws have to be one-size-fits-all," Blum says.
But past remains present to a disturbing degree in the South. States and counties with a history of voting discrimination in the 1960s and '70s are still trying to suppress their growing minority vote today. Six of the nine fully covered states have passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas). But only one-third of noncovered jurisdictions passed similar restrictions during the same period. The worst of the worst actors are still those covered by Section 5.
It's certainly true that voter suppression efforts have spread to states like Ohio, Pennsylvania and Wisconsin. If anything, though, that's an argument for expanding the statute, not eliminating it. "It's a unique concept to say, 'Well, since you're not catching everybody, you can't catch anyone,'" says Anita Earls, a prominent civil rights lawyer and executive director of the Durham-based Southern Coalition for Social Justice.
In last year's election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina's voter ID law for 2012. "One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here," Judge Bates wrote during South Carolina's voter ID trial. "Without the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive."
In addition to passing a raft of new voting restrictions, Republicans across the South used their control of state legislatures following the 2010 election to pass redistricting maps that have led to a resegregation of Southern politics, placing as many Democratic lawmakers into as few majority-minority districts as possible as a way to maximize the number of white Republican seats [see Berman, "The GOP's New Southern Strategy," February 20, 2012]. Republican leaders say they're only following the guidelines of Section 5, but in reality they've turned the VRA on its head. (Most recently, on Martin Luther King Day, the GOP-controlled Virginia Senate redrew its maps to reduce Democratic seats by diluting black voting strength in at least eight districts.)
Expanding voting rights in these areas has been shaky at best. "Black voters and elected officials have less influence [in the South] now than at any time since the civil rights era," says a 2011 report from the Joint Center for Political and Economic Studies, which points out that only 4.8 percent of Southern black state legislators serve in the majority, compared with 54.4 percent in the rest of the country. Before the 1994 election, 201 of 202 black state legislators belonged to the majority party. Following the 2010 election, only fifteen of 313 did. There are more black elected officials in the South today, but they have far less power. And without Section 5, there would also be far fewer.
In Alabama, for example, Republicans targeted nearly every white Democrat in the state legislature for extinction but preserved the twenty-seven majority-minority districts in the House (even adding one more) as well as eight in the Senate in order to clear the maps with the feds. (At the time, the head of the Senate Rules Committee, Republican Scott Beason, referred to blacks as "aborigines.") "If there's no Section 5, all those majority-black districts are now vulnerable," says Jim Blacksher, a longtime voting rights lawyer in Birmingham. "And there is no question in anybody's mind what will happen next." He calls Section 5 "the most important sea anchor against the ongoing, uninterrupted, virulent white-supremacy culture that still dominates this state."
The kind of postracial society that would signal Section 5's irrelevance isn't anywhere on the horizon. Following Obama's re-election, white students at the University of Mississippi yelled racial slurs during an impromptu demonstration. Obama won only 10 percent of the white vote in Mississippi and 15 percent in Alabama. "Overall, Obama won about 46 percent of the white vote outside the South and 27 percent of the white vote in the South," observes Kevin Drum of Mother Jones.
Section 5 is invoked only in the most extreme circumstances and remains an imperfect and underused remedy. From 2010 to 2011, the Justice Department has objected to only twenty-nine of 19,964 submitted voting changes. Localities with a clean record are increasingly "bailing out" from the statute. "More jurisdictions have bailed out in the three years since NAMUDNO than the total number of jurisdictions that had bailed out in the 27 years prior to NAMUDNO," writes Gerry Hebert, a voting rights lawyer and longtime Justice Department official. "Not a single government that has sought bailout has been turned down." Adds Sensenbrenner, "Rather than throwing Section 5 out, which allows the people who haven't cleaned up their act to get out, why not have the people who don't discriminate anymore utilize the procedure to bail out?"
When the Supreme Court heard the NAMUDNO case shortly after Obama's election, opponents of the VRA argued that the election of the first black president showed that long-disenfranchised minority groups no longer needed special constitutional protections. It's much harder, after reviewing the ugly attempts at voter suppression in 2012, to make that argument now. "Our history," Harvard University historian Alex Keyssar testified to Congress in 2006, "makes plain that the right to vote can be as fragile as it is fundamental." Seven years later, those words have never been more true.