President Lyndon B. Johnson presents one of the pens used to sign the Voting Rights Act of 1965 to James Farmer, director of the Congress of Racial Equality on Aug. 6, 1965. The Voting Rights Act was unlike any other law in the way that it singled out for pre-emptive enforcement specific places deemed to have a history of discrimination.
Westmoreland’s concerns were echoed by Republicans on the Senate Judiciary Committee who questioned whether Congress should update the formula used to decide which places are covered by the preclearance requirement, whether the length of the proposed extension should be changed and whether the bailout procedures should be tweaked. Any public opposition dissipated, however, when Bush, in an address to the NAACP that July, called for a speedy reauthorization without amendment. The Senate passed the extension, 98-0, the same day.
Nathaniel Persily, a professor of law and political science at Columbia University, noted in a Yale Law Review article how “virtually no one wanted to be on record opposing the legislation” because it would be politically undesirable. That led, Persily wrote, to a missed opportunity for meaningful debate. “Meanwhile,” he wrote, “Republicans on the Senate Judiciary Committee were preparing a report offering a unique case study in the self-conscious manipulation of legislative history for partisan ends.” Rather than try to block the bill on the floor, they included material in the record at the last minute that could be used in a potential court challenge.
The day before Bush signed the reauthorization bill into law, the chairman of the Senate Judiciary Committee at the time, Pennsylvania Republican Arlen Specter, signed off on a revised committee report that differed substantially from the version Democrats had earlier been given. The new report expressed serious reservations about the legislation and included “additional” views from Republican Sens. Jon Kyl of Arizona, John Cornyn of Texas and Tom Coburn of Oklahoma, who all questioned the constitutionality of the statute their committee had just renewed.
Among other issues, the senators said that evidence the committee had considered did not support a simple reauthorization, that the coverage formula should have been updated and that the rush to pass the bill prevented other needed changes.
After Judiciary’s top Democrat, Patrick J. Leahy of Vermont, found out about the revised report, he asked that the Congressional Record be updated to reflect that it had the support of only nine of the committee’s 10 Republicans and none of its Democrats. It was, Leahy said, a “highly unusual development” that “does not reflect the view of a majority of the Senate Judiciary Committee.”
As Persily says, “What looked like a consensus bill at the time the president was signing it actually turned out to have deep partisan divisions.”
Several sources familiar with the committee’s work now say that a Specter aide, hired to burnish the senator’s credentials with conservatives, spearheaded the Republican response, which was significantly more partisan than Specter’s own views. In doing so, she started laying the groundwork to weaken the preclearance provision through litigation.
Dialing for a Plaintiff
Edward Blum left a small investment bank in Houston to move to Washington. In 2005, he started the Project on Fair Representation as a “vehicle to persuade Congress and the Bush administration to revisit and revamp” the Voting Rights Act.
Two years, he figured, would give him plenty of time. “As it turns out, it was a short window, and early on it became apparent that the will to revisit Section 5 didn’t exist, so the fallback then became litigation,” he said.