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