When he was in his late 20s, John Roberts was a foot soldier in the Reagan administration’s crusade against the Voting Rights Act. Now, as chief justice of the Supreme Court, he will help determine whether a key part of the law survives a constitutional challenge.
Memos that Roberts wrote as a lawyer in President Reagan’s Justice Department during the 1980s show that he was deeply involved in efforts to curtail the effectiveness of the Voting Rights Act, the hard-won landmark 1965 law that is intended to ensure all Americans can vote. Roberts’ anti-VRA efforts during the 1980s ultimately failed. But on Wednesday, when the Supreme Court hears oral arguments in Shelby County v. Holder, he’ll get another chance to gut the law. Roberts’ history suggests a crucial part of the VRA may not survive the rematch.
At issue in Shelby County is whether a major portion of the Voting Rights Act, called Section 5, is constitutional. Section 5 compels jurisdictions with a history of discrimination, mostly in the South, to ask the Justice Department for permission—preclearance, in legalese—before making any changes to election laws. Shelby County, Alabama, is arguing that Section 5 is an extreme measure that is no longer justified because racism is no longer the problem it once was. If Section 5 is overturned, voting rights groups say, the federal government’s ability to ensure Americans are not denied the right to vote on the basis of race—at a time when race has been used as a proxy for party identification—will be severely weakened.
Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an “assessment” of the law.
Six years ago, to much fanfare, Congress extended the lifespan of the Voting Rights Act’s crucial preclearance provision, Section 5, by twenty-five years. (Section 5 requires covered jurisdictions, mostly in the South, to get permission from the federal government before enacting any new electoral laws.) But Congress didn’t just renew Section 5; it also revised it. Section 5 now bars covered jurisdictions from diminishing minority groups’ “ability to elect” the candidates of their choice. The provision now also forbids these jurisdictions from passing election laws with “any discriminatory purpose.”
At the time these amendments were made, their consequences were highly uncertain. No one knew whether minorities would be able to elect more or fewer candidates as a result, or whether Democrats or Republicans would benefit. As Columbia professor Nathaniel Persily wrote in 2007, “there is disagreement about … how one determines minorities’ ‘ability to elect,’” and “[t]he potential interpretations of the law run the gamut from entrenching either Republican or Democratic gerrymanders.”
Thanks to a major decision last Tuesday by a three-judge court in Washington, D.C.—the first to carefully examine the new statutory language—we no longer need to speculate about the law’s implications. At least as applied by these judges, the revised Section 5 is extraordinarily favorable to minorities, and almost as beneficial to Democrats. But, ironically, these very attributes may spell doom for the provision when, most likely next year, it reaches the Supreme Court.
You couldn’t devise a better political hit-and-run.
In the summer of 2010, an unknown group called the Commission on Hope, Growth, and Opportunity (CHGO) asked (PDF) the Internal Revenue Service to grant it 501(c)(4) tax-exempt status. The organization told the IRS it didn’t plan to spend a penny on politics. Once the IRS gave CHGO the green light, however, the group plunged into the 2010 political season. It would ultimately raise $4.8 million—$4 million of that from a single anonymous donor—and spend $2.3 million on TV ads attacking 11 House Democrats running for re-election. (Ten of them lost.)
Later, on its 2010 and 2011 tax returns, CHGO claimed it hadn’t spent money on politics. Watchdogs filed complaints against CHGO alleging it had flouted tax and election laws. But sometime in 2011, after the Republicans’ 2010 “shellacking,” CHGO quietly disappeared. The group, and the anonymous individuals behind it, has yet to face any punishment.
The tale is a familiar one in the campaign finance world, illustrating the slow-moving, scattershot nature of justice when it comes to political money.