Wall Street Journal Pushes Myths On Voting Rights Act By The Man Behind Constitutional Challenge

The Wall Street Journal published an op-ed on the Voting Rights Act by Edward Blum, founder of the in-house legal project of the right-wing's Donors Trust, but failed to disclose his ties to the Supreme Court's VRA case, Shelby County v. Holder. The op-ed, which identifies Blum as a fellow at the conservative American Enterprise Institute and director of the Donors Trust-supported Project on Fair Representation, recycles misinformation about the challenge that has been extensively and widely debunked.

Blum Pushes Falsehood That Racially-Based Voter Suppression Is No Longer Concentrated In Southern States

Blum: “Most Americans Already Recognize” That Voters Of Color In The South Have The Same Opportunities To Vote. Blum claims that the process known as “preclearance,” in which jurisdictions with a history of racially-based voter suppression must submit election changes to federal review under Section 5 of the Voting Rights Act, is no longer necessary:

On Feb. 27, the justices will hear oral arguments in Shelby County, Ala. v. Eric Holder. Most court watchers anticipate a more definitive ruling than three years ago in Northwest Austin [Municipal Utility District Number One v. Holder] --either striking down or upholding Sections 4(b) and 5 of the Act. Many believe both provisions are in serious trouble. If they are struck down, the justices will validate what most Americans already recognize--that minorities in the deep South have the same opportunities to participate in elections as they do in the rest of the nation. [The Wall Street Journal, 2/24/13]

Civil Rights Icon Rep. John Lewis: Historic Voter Suppression Based On Race Is Ongoing In Alabama. In an op-ed for The Washington Post, Rep. John Lewis (D-GA) noted that Alabama continues to struggle with voting discrimination based on race:

Congress came to a near-unanimous conclusion [in its 2006 reauthorization of the VRA]: While some change has occurred, the places with a legacy of long-standing, entrenched and state-sponsored voting discrimination still have the most persistent, flagrant, contemporary records of discrimination in this country. While the 16 jurisdictions affected by Section 5 represent only 25 percent of the nation's population, they still represent more than 80 percent of the lawsuits proving cases of voting discrimination.

It is ironic and almost emblematic that the worst perpetrators are those seeking to be relieved of the responsibilities of justice. Instead of accepting the ways our society has changed and dealing with the implications of true democracy, they would rather free themselves of oversight and the obligations of equal justice.

Calera, a city in Shelby County, Ala., provides a prime example. Once it was an all-white suburb of Birmingham. Rapid growth created one majority-black district that in 2004 had the power, for the first time, to elect a candidate of its choice to city government, Ernest Montgomery.

Just before the 2008 election, however, the city legislature redrew the boundaries to include three white-majority districts in an effort to dilute the voting power of black citizens. The Justice Department blocked the plan, but Calera held the election anyway, and Montgomery was toppled from his seat. [The Washington Post, 2/24/13]

Blum Questions Constitutionality Of Section 5 Of The Voting Rights Act

Blum: Congress Was On “Shaky Legal Ground” In Reauthorizing The VRA. Blum alleges the constitutionality of Section 5 of the Voting Rights Act was always in doubt:

Given the long history of official chicanery in the South, these provisions, although draconian, were considered necessary to allow blacks to gain the franchise. By every measure, the Voting Rights Act ended black disenfranchisement in the South and elsewhere within a remarkably short time--dramatically narrowing the registration-rate gaps by 1975.

Section 5, however, was originally set to expire after five years. The framers of the act understood that they were on shaky legal ground here. After all, shifting procedural control of elections from the states to the federal government was an unprecedented extension of federal authority. [The Wall Street Journal, 2/24/13]

Law Experts: Congress Well Within Its Constitutional Authority To Renew Voter Protections If Racial Discrimination Continues. As recounted by legal expert and UC Irvine School of Law Dean Erwin Chemerinsky:

It always is tempting to declare that our society is post-racial and that racism is over. In 1883, less than two decades after the Civil War, the Supreme Court in the Civil Rights Cases declared unconstitutional the Civil Rights Act of 1875 and said that "[w]hen a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws."

Now challengers to Section 5 of the Voting Rights Act are arguing that the law is no longer needed because race discrimination in voting is largely a thing of the past. That is simply wrong, and the Supreme Court should defer to the nearly unanimous judgment of Congress that this law remains an essential weapon in the fight against race discrimination in voting.


In South Carolina v. Katzenbach (1966), the Supreme Court upheld the constitutionality of Section 5 of the Voting Rights Act and spoke of the “blight of racial discrimination in voting.” Congress repeatedly has extended Section 5, including for five years in 1970, for seven years in 1975, and for 25 years in 1982. After each reauthorization, the court again upheld the constitutionality of Section 5. Georgia v. U.S. (1973); City of Rome v. U.S. (1980); Lopez v. Monterey County (1999). [The National Law Journal, 2/25/13]

Blum Pushes Myth That Section 5 Cannot Focus On States With Specific Histories Of Voter Disenfranchisement   

Blum: Section 5 Violates The “Equal Sovereignty” Of Covered States. Blum repeats the complaint of southern states that - despite their long history of voter suppression on the basis of race - they are unfairly singled out by Section 5 of the VRA:

Congress failed to modernize the [2006 reauthorization of the VRA] in light of the remarkable changes in the covered states during the last 40 years. The emergency that existed in 1965 is over.

It is a compelling argument. Congress reauthorized these provisions in 2006 based upon the black-voter disenfranchisement in the deep South that existed in 1965, but those conditions measurably don't exist anymore. Furthermore, Congress made no effort to analyze minority electoral conditions outside of the covered jurisdictions. It makes no sense today for Texas and Alabama, but not Arkansas or Kentucky, to be supervised by the federal government.


These provisions are stuck in a time warp, rendering them unconstitutional. Our system of government requires that federal laws should be one-size-fits-all, but that all 50 states are entitled to equal sovereignty. [The Wall Street Journal, 2/24/13]

Law Professor Garrett Epps: “Sovereign Dignity” Of States Is Not Mentioned In The Constitution. As explained by legal expert and University of Baltimore law professor Garrett Epps:

The theoretical sin of § 5 is that it treats some states--those with the worst history of racial exclusion from the vote--differently than others.  Justice Anthony M. Kennedy summed up the objection in 2009 during oral argument in an earlier case, Northwest Austin Municipal Utility District v. Holder: “the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other.”

The correct answers to this question are, respectively, “yes,” and “what's your point?” The states and parts of states covered by § 5 are “trusted” less than others because Congress has repeatedly found them to be the worst offenders in the historical crime of racial vote-rigging.  And neither those states--nor any other state in the Union--has any kind of “sovereign dignity” that needs the Court's protection against infringement by their own voters.


This principle, and these words, are mentioned nowhere in the Constitution.  They refer to what might be called the theology of American law. The idea is that a state exists in some way apart from its people, and that this mini-leviathan has a “dignity” that must be protected against those very people. 

At the Philadelphia Convention in 1787, Alexander Hamilton pleaded with his fellow delegates not to sacrifice the interests of Americans to the imagined interests of their state governments: “as States are a collection of individual men which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition[?]” he asked.  “Nothing could be more preposterous or absurd than to sacrifice the former to the latter.”

Today, as in 1787, the idea that we must cripple a crucial national norm to avoid offending the “dignity” of Alabama is “preposterous and absurd.” It is akin to demanding that someone apologize for sitting down on top of Harvey the Giant Rabbit. [The Atlantic, 2/24/13]

Blum Calls On The Court To Ignore Precedent And Scrap Section 5 Of The VRA

Blum: The Supreme Court Should “Modernize” The VRA. Blum argues the Supreme Court should not only overrule Congress and the executive branch, but its own precedent:

Three years ago, in the widely watched case Northwest Austin Municipal Utility District Number One v. Holder, the U.S. Supreme Court did something that many court observers found astonishing: It gave Congress an opportunity to, in effect, do over some provisions of the Voting Rights Act it reauthorized in 2006. The decision was 8-1. Congress and the Obama administration ignored the justices' suggestion. Now a new case about the same provisions is back before the court.


Congress and the administration could have avoided this litigation by updating the coverage formula or strengthening existing election laws that apply to the entire nation. Their failure to acknowledge the remarkable racial progress made by the deep South and elsewhere by modernizing the statute means that the Supreme Court may well strike down these sections of the law, as it should.

National Review Editor: To Invalidate Civil Rights Laws Through The Court “Is Precisely What Conservatives Usually Mean By 'Judicial Activism.'” National Review senior editor Ramesh Ponnuru has warned his colleagues that although they may ultimately receive the opinion they want, their opportunism abandons principles for policy preferences:

[W]hen it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

[Northwest Austin Municipal Utility District Number One v. Holder] was a case in point. Eight justices avoided weighing in on the constitutionality of the law's requirement that certain jurisdictions, mostly in the South, get Justice Department permission before making any changes to election procedures. Instead they ruled that a utility district in Texas that wanted to be freed from the provision should have an opportunity to try.

But Justice Clarence Thomas went further, declaring the provision unconstitutional. Congress, he argued, was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed.

Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body to make that judgment. In 2006, it decided to renew the law for 25 years. Its determination that the law was still necessary may have been mistaken, but it is not clear that the Constitution authorizes judges to second-guess it.


Judicial restraint has also been absent. That virtue is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments. To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by “judicial activism.” [The New York Times, 6/23/09]