Why Are Conservatives Trying to Destroy the Voting Rights Act?
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.
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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.