Frank “Butch” Ellis Jr. was sitting in his law office a half-hour’s drive from Birmingham, Ala., about three years ago when Edward Blum, an investment banker turned conservative legal activist, called him to discuss the Voting Rights Act. Although the two had never met, they quickly bonded over a common grievance.
Blum specifically wanted to discuss a provision in the landmark civil rights law requiring localities with a history of racial discrimination to obtain U.S. Justice Department permission to make any changes to their election procedures. Ellis, during nearly a half-century practicing law in Shelby County, had watched municipal clients jump through procedural hoops to gain “preclearance” from Washington lawyers. Moving a polling place could take months, for example, and require a voluminous paper trail.
When Blum suggested that Shelby County officials, with Blum’s financial support, someday might challenge the provision in court, Ellis agreed. “We knew the only way to attack it was in the courts, in Washington,” Ellis explained recently. “We had the desire to do it, we just couldn’t spend our taxpayers’ money on it.”
That conversation was the start of a case that could dramatically alter the scope of the Voting Rights Act, a central feature of President Lyndon B. Johnson’s Great Society program. On Feb. 27, a legal team recruited by Blum will argue before the Supreme Court that the law’s preclearance requirement is an outdated vestige of the Old South that should have been updated or abandoned decades ago.
“The South has changed,” Ellis says. “We’ve changed; the economic situation has changed.”
Whether the justices agree will depend in large part on the record Congress left for the courts when it last reauthorized key parts of the Voting Rights Act in 2006 — specifically, whether lawmakers had enough evidence of discrimination to warrant renewing the preclearance process without substantial revision.
The bill was ushered through a Republican-controlled Congress with limited debate and virtually no public dissent. But some of the same lawmakers who stood by as President George W. Bush proudly signed the reauthorization in a ceremony on the White House grounds just the previous day had signed their names to a revised committee report on the bill that raised serious concerns about the statute and the process by which it had been renewed, even calling the Voting Rights Act a “tool for political and racial gerrymandering.”
Those doubts about the reauthorization, whether the preclearance provision was still needed and, if it was, in what form, could make it easier for the justices to toss it out.
“It was clear that the seeds were being sown for a legal challenge,” says Rick Hasen, a law professor at the University of California, Irvine.
Should the court now overturn the preclearance process, congressional supporters would be hard-put to restore it. Republican Jim Sensenbrenner of Wisconsin, who helped drive the 2006 reauthorization as chairman of the House Judiciary Committee, no longer has that leverage. Many of the Republicans who helped him six years ago have left Congress, and the parties are more divided than ever.
“I don’t think it’s an impossibility,” Sensenbrenner says, but it would be “more difficult following a Supreme Court decision than with a congressionally imposed expiration date.”
A Pre-Emptive Law
The Voting Rights Act of 1965 was the federal government’s response to nearly a century of race-based voting discrimination, in the form of intimidation, poll taxes and literacy tests, that had lingered after such practices were outlawed by the 15th Amendment during Reconstruction.
It was prompted by a spring of violence. Jimmie Lee Jackson, an unarmed protester, had been shot and killed by Alabama state troopers in February 1965. Police officers then used tear gas and batons to block nearly 600 protesters from marching over the Edmund Pettus Bridge on their way from Selma, Ala., to the state capital in early March. The group reached Montgomery on the third attempt, after Johnson dispatched thousands of soldiers, federal agents and marshals to ensure their safe passage.
During a joint session of Congress just eight days after the first Selma march, Johnson delivered one of the most affecting speeches of his presidency, likening the moment in time to a “turning point in man’s unending search for freedom,” akin to Lexington, Concord and Appomattox.
“What happened in Selma is part of a far larger movement, which reaches into every section and state of America,” Johnson said. “It is not just Negroes but, really, it is all of us who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”
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.
Section 4 of the law instructed the government to weigh the past use of tests or devices that restricted voting and evidence of low turnout during the most recent elections in 1964 to figure out which areas would be covered. Section 5 required those areas to clear any changes to their voting procedures with the Justice Department or a federal court.
The preclearance provision was never intended to be permanent. A procedure was included and later expanded that allowed areas to “bail out” if they could prove they no longer should be covered. Originally slated to expire after five years, the provision’s efficacy persuaded Congresses to extend it in 1970, 1975, 1982 and again in 2006.
“This process, which is known as preclearance, has been a very, very powerful tool in combating discrimination for decades,” Thomas Perez, assistant attorney general for Justice’s civil rights division, said during a recent symposium hosted by the George Washington Law Review.
Debo P. Adegbile, special counsel with the NAACP Legal Defense and Educational Fund, said if the Voting Rights Act was the “centurion guarding the path to the ballot box” then the preclearance provision was its “heart” or driving force.
“It’s the tool that finally began to dislodge discrimination in the places where it was most entrenched and where earlier congressional civil rights statutes had failed,” Adegbile said during a recent interview as he readied the defense fund’s filing in the Shelby case.
The constitutionality of the Voting Rights Act was not a topic of debate when Congress took up a renewal of parts of the statute in 2005. Sensenbrenner was an ardent supporter of the law, which he thought addressed discrimination against minorities in some of the plans submitted for Justice Department review.
Sensenbrenner also was in a hurry: The preclearance section of the law would expire in August 2007, after the midterm elections and after Sensenbrenner would have to yield the Judiciary gavel under House GOP term limits. His successor as the committee’s senior Republican would be Lamar Smith of Texas.
“I wanted to get it done while I was still there as its supporter,” Sensenbrenner said. “If we waited for a new Congress to be seated, opponents could have stalled it out past the August expiration date. If the expiring sections were allowed to go out into space, it would have been much harder to reinstate them.”
Sensenbrenner teamed up with fellow committee member Melvin Watt, a Democrat from North Carolina who at that time chaired the Congressional Black Caucus, and the duo became “bipartisan partners in crime,” as Sensenbrenner puts it, to get the act renewed ahead of schedule.
The House held 12 hearings, during which 46 witnesses testified but few raised serious concerns about the statute’s renewal. The bulk of the record reinforced the continued constitutionality of the expiring provisions. One election lawyer contended that Sensenbrenner and the civil rights community failed to weigh seriously whether the statute should be updated lest the political coalitions backing the measure object.
There was opposition, though. Two Republican factions — Southerners who felt their states were unfairly singled out based on decades-old data and those who opposed a requirement that non-English-speaking voters in some areas be given language help at the polls — forced the cancellation of a vote, given a leadership rule at the time that required “majority of the majority” support for a bill to come to a vote.
The House eventually reauthorized the expiring provisions, 390-33, after rejecting four amendments. Georgia Republican Lynn Westmoreland, who had proposed an amendment that would ease preclearance procedures for his and other states, said at the time that though it might have looked as if “some old boys from the South” were trying to do away with the civil rights law, they were actually trying to save it. “These old boys are trying to make it constitutional enough that it will withstand the scrutiny of the Supreme Court,” he told The New York Times.
Changing the Record
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.
It wasn’t the first time Blum had turned to the courts. He successfully challenged Texas’ redistricting process after losing a 1992 House race there.
“The Texas Legislature had systematically, almost block by block, street by street, harvested African-Americans and Hispanics out of multiracial, multiethnic neighborhoods in order to create safe majority-minority districts that violated every basic tenet of traditional redistricting principles,” Blum said.
He first founded the Campaign for Colorblind America to challenge some redistricting plans. Its successor group, the Project on Fair Representation, is fully funded and receives administrative support from DonorsTrust, a charitable organization devoted to “the ideals of limited government, personal responsibility, and free enterprise.” Blum said he draws a modest salary.
Blum started searching for a jurisdiction that could be a plaintiff in a case challenging the constitutionality of the preclearance statute, eventually settling on a municipal utility district outside Austin, Texas, in which the board is publicly elected. The Supreme Court, in Northwest Austin Municipal Utility District Number One v. Holder, ruled in 2009 that the district was entitled to an exemption from preclearance, but it avoided addressing the constitutionality of the provision and its most recent authorization.
“When that was the outcome,” Blum said, “it became apparent to me and others that we were going to need to pursue finding a new jurisdiction and coming at this from a slightly different way than the first go-round.”
Blum spends between 15 and 20 hours a week reading news articles and regulatory filings related to race-based legislation, as well as the Justice Department’s preclearance denial letters. He is the engine behind an affirmative-action case, Fisher v. Texas, that the justices also will rule on this term.
When he noticed that some annexations by the city of Calera, Ala., had been denied because they diluted the power of minority voters, he called the city attorney to find out why. The attorney was Ellis, who also happened to represent Shelby County.
“We talked about our mutual hope that the court would end Section 5 and, failing to do so, that perhaps Shelby County might be the next plaintiff that would bring a challenge,” Blum said.
Ellis had grown up on a dairy farm just a mile from his law office in the Shelby County seat of Columbiana. Back then, the county, which lies southeast of Birmingham, was almost exclusively dairy, cotton and soybean farms. In the years since, its population has exploded from just more than 30,000 in 1960 to nearly 200,000 in 2010, with most residents commuting to professional jobs within its borders. “I don’t think we have a single dairy farm left in the county now,” Ellis says.
Although Ellis considers himself a “strong proponent and believer in the Voting Rights Act,” he thinks that for the most part, Shelby County has changed with the times. Its largely white population routinely elects black candidates, he says, so he wonders why it should have to ask the federal government for permission before moving a polling location from one church to another across the street.
“I’ve seen what has happened over the past 48 years and I’ve seen, without question, substantial changes,” Ellis said. “And I’ve had a chance to absorb the changes, which of course are not unique to Shelby County but throughout the South and throughout the covered jurisdictions” — those subject to preclearance.
Shelby County has asked the high court to consider why Congress reauthorized the preclearance provision through 2031 without updating the formula that defines which jurisdictions are covered — it was last revised in 1975, based on numbers from elections in 1964, 1968 and 1972. In its initial filing, the county noted that even though the justices declined to address the overall statute in the Northwest Austin case, they nevertheless acknowledged that the Voting Rights Act’s “preclearance requirements and its coverage formula raise serious constitutional questions.”
The justices are unlikely to dodge the question a second time.
“I think the calculation was that the Supreme Court would not have the guts to overturn the ‘crown jewel’ of the civil rights movement,” said Hasen, of the University of California, Irvine. “Things are different now than they were in 2006. The Austin decision was a clear statement that the Voting Rights Act is in great danger, and many saw it as an invitation to Congress to take this up so the court would not have to strike it down, and yet Congress again did nothing.”
At the George Washington Law Review symposium in November, the Shelby County case consumed a large chunk of Perez’s lunchtime address, an entire afternoon panel and much of the water cooler discussion. Many of the junior attorneys in the Justice Department’s civil rights division attended. Civil rights law practitioners seemed nervous.
“In the six years since its reauthorization,” Perez said in his remarks, “Section 5 has regrettably, increasingly come under attack by those who claim it is no longer needed because apparently discrimination is a thing of the past.”
“But I regret to inform you,” the assistant attorney general continued, “based on the work that we have done, and the reality that we have seen in all too many jurisdictions across this country, that both overt and subtle forms of discrimination remain all too common, and they have not been relegated to the pages of history.”
Lawyers are normally loath to read the tea leaves when it comes to the Supreme Court, but during an hourlong panel on the Voting Rights Act that followed Perez’s lunchtime presentation, the attorneys present — on the panel and in the audience — seemed to be girding themselves for the court to strike down Section 5.
After Michael Carvin, a Jones Day partner who has litigated such cases, finished explaining why the court would rightly toss the preclearance provision out, the moderator turned to the academics at the table, many of whom have civil rights backgrounds.
“I agree with the predictive judgment here,” said Ellen Katz of the University of Michigan Law School, one of the panelists, “but I disagree with the second statement that it’s the right answer.”
Many who say the preclearance provision is no longer needed point out that there are other laws in place that prohibit voting discrimination. But civil rights advocates say there are key differences between even the permanent parts of the Voting Rights Act and Section 5, the only statute that requires some jurisdictions to justify new election laws before they take effect.
When a three-judge panel in Texas rejected a 2011 redistricting plan, for instance, it said that “the parties have provided more evidence of discriminatory intent than we have space, or need, to address here.” Individual plaintiffs could have challenged the plan using a different part of the Voting Rights Act, but the case might have taken years and perhaps two congressional elections.
The Supreme Court, in its first decision upholding the constitutionality of Section 5 in 1966, called the preclearance plan an “inventive” solution.
“Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits,” Chief Justice Earl Warren wrote at the time. “The question remains, of course, whether the specific remedies prescribed in the Act were an appropriate means of combatting the evil.”
In 1966, the justices decided 8-1 that they were. A new court will decide later this term whether it still agrees.
Editor’s note: This story first appeared in CQ Weekly.