"Racial Entitlements?" Long-Term Effort to End Voting Rights Act and Affirmative Action May Finally Pay Off

The U.S. Supreme Court may roll back two pillars of the civil rights era this term -- the Voting Rights Act of 1965 and affirmative action -- both of which have long been targeted by the right-wing and whose challenges are backed by the same set of deep-pocketed ideological funders.

Scalia Sees Voting Rights and Affirmative Action as "Racial Entitlements"

Wednesday's oral arguments in Shelby County v. Holder indicated hostility among some justices towards Section 5 of the 1965 Voting Rights Act (VRA), which requires states with a history of state-sanctioned racial discrimination to get federal pre-approval before implementing changes to their voting laws or procedures. Congress has renewed it four times since 1965 with significant bipartisan support, most recently in 2006, when every U.S. Senator voted for it.

But that support was "very likely attributable to a phenomenon that is called perpetuation of racial entitlement," Justice Antonin Scalia asserted from the bench. "Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes," he said, a characterization of the landmark civil rights law that was met with gasps in the courtroom.

This is not the first time Scalia has talked about "racial entitlements" -- and his perspective will almost certainly apply to another civil rights case in the Court's docket this term.

"To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred," he wrote about affirmative action in a concurring opinion in the 1995 case Adarand Constructors v Pena, a decision that enacted a high bar for government affirmative action programs.

Chief Justice John Roberts has expressed similar support for so-called color-blindness under the law. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he wrote in a 2007 case striking down the consideration of a student's race by school districts striving for diversity in schools in Seattle, Washington, and Louisville, Kentucky. Likewise, in a 2009 decision about the VRA, Roberts expressed a view that race matters less today, and therefore Section 5's federal pre-clearance requirement may no longer be justified since "things have changed in the South."

Roberts and Scalia have another bite at the affirmative action apple this term. In October, the Court heard oral arguments in Fisher v University of Texas, which challenges race-conscious university admission policies. Questioning from Chief Justice Roberts and Justice Scalia indicated the Court may have a five-justice majority to reverse parts of a 2003 ruling that allowed consideration of race in college admissions (a decision that came before President George W Bush named two justices to the court).

The statements from these justices on affirmative action and voting rights reflect a view that race plays little role in America today (!), or at least that it should no longer be acknowledged under the law. In fact, "explicit anti-black attitudes" have actually increased over the past four years, particularly among Republicans, according to research by social scientists at Brown and the University of Michigan.

If the Court sides with plaintiffs in Fisher and Shelby County, it would be a victory for the right, which for decades has been laying the groundwork for rolling-back these sorts of progressive gains by adopting the terminology of "color-blindness."

Long-Standing Opposition to Affirmative Action, Section 5

Both the VRA and affirmative action grew out of the civil rights struggle of the 1960s, and have been targeted for reversal ever since by generations of reactionaries.

President Lyndon Johnson's support for the 1964 Civil Rights Act and the 1965 Voting Rights Act led to realignments within America's two major political parties. Southern Democrats like "Dixiecrat" Senator Strom Thurmond of South Carolina defected to the Republican Party, and over time many voters who had long supported "the Party of Lincoln" shifted their allegiance to Democrats.

Ronald Reagan's opposition to civil rights programs, for example, was a key part of his effort to win the presidency by appealing to the racial views of white Southern voters. He famously kicked-off his successful presidential bid by declaring his support for "state's rights" at a Mississippi event held just a few miles from where three civil rights activists were murdered in 1964. "States rights" had been a rallying call for Southern states opposing Brown v. Board of Education and the end of racial segregation, and provided a facially neutral way to oppose the VRA's Section 5 federal pre-clearance requirements. He called the VRA "humiliating to the South" and described affirmative action as a form of "reverse discrimination" where whites are "victims." As legendary campaign consultant Lee Atwater acknowledged after the campaign, the way Reagan discussed voting rights and affirmative action was part of a careful effort to garner the votes of white Southerners by using "abstract" and coded language to avoid express racism.

Once elected, Reagan stopped enforcing several affirmative action programs, and his Justice Department began filing amicus briefs in support of white men claiming injury from the programs. In 1982, when the Voting Rights Act was up for reauthorization, John Roberts was working for the Reagan Administration and argued for a watered-down version of the law. After Congress rejected the administration's efforts and passed a strengthened VRA with bipartisan support, a hesitant Reagan nonetheless signed the reauthorization -- prompting Roberts to write "we were burned." President Reagan also appointed U.S. Supreme Court Justices who passed the litmus tests of a narrow view of affirmative action and civil rights laws: Antonin Scalia and Anthony Kennedy, who are still on the Court, as well as William Rehnquist and Sandra Day O'Connor.

Right-Wing Institutions Laid Groundwork

Part of the long-term success of modern Republicanism, which grew out of opposition to the civil rights gains of the 1960s, is attributable to the development of a network of right-wing funders and well-funded institutions starting in the mid-1970s. For example, in 1973, legendary right-wing activist Paul Weyrich co-founded both the American Legislative Exchange Council (ALEC) and the Heritage Foundation.

ALEC, as the Center for Media and Democracy has documented, has advanced an array of policy initiatives at the state level to advance a right-wing agenda, for example by privatizing public institutions like education and prisons, and by successfully promoting efforts to restrict voting rights (some of which have been thwarted in the past year by Section 5 of the Voting Rights Act). In addition to voter ID legislation, ALEC has adopted model bills like the deceptively named "Civil Rights Act" to end affirmative action programs run by states and universities.

The Heritage Foundation has become one of the largest think tanks in the country, and has long opposed affirmative action and Section 5. In recent years, Heritage Foundation legal fellow Hans Von Spakovsky (who was recently profiled by New Yorker author Jane Mayer in a piece crediting research from CMD) has promoted the myth of rampant voter fraud to justify restrictive state voting laws. He argues that Section 5 is an outdated statute that allows the feds to trample on state liberty and has also opposed affirmative action.

The last three or four decades have also seen the development of an array of legal institutions attempting to achieve right-wing political victories through the courts. The best known is the Federalist Society, which has contributed to the development of legal theories to advance preferred policy outcomes through the judicial system, and has cultivated a network of like-minded lawyers and judges, including Justice Scalia and Chief Justice Roberts.

And these groups have been funded by a shared set of wealthy donors. In the 1970s and 1980s, foundations created by the Coors and Scaife family fortunes provided the seed money for groups like ALEC and the Heritage Foundation. The Bradley Foundation and Koch family foundations also provide tens of millions to an array of right-wing organizations.

Likewise, the current Supreme Court challenges to both the Voting Rights Act and university affirmative action programs are backed by top funders of the movement and were organized by the same right-wing activist -- and are carrying forward this long-term project to roll-back the gains of the civil rights era.

Same Group and Donors Behind Fisher and Shelby County Cases

The Project on Fair Representation is a "legal defense fund" dedicated to reversing race-based legal protections, and its director, Ed Blum, coordinated the challenges in both the Fisher and Shelby County cases. Blum has likened his role in high-profile litigation to "Yenta the matchmaker."

"I find the plaintiff, I find the lawyer, and I put them together, and then I worry about it for four years," he said.

Blum urged Shelby County, Alabama, to bring its Section 5 challenge after the Department of Justice blocked its effort to dilute the voting power of the growing African-American population. He also connected with Abigail Fisher, a white student who was denied admission to the University of Texas at Austin and claimed it was because of her race. Blum was also behind the last Voting Rights Act challenge to make it to the Supreme Court, Northwest Austin Municipal Utility District No. 1 v. Holder.

The Project on Fair Representation's legal fees are entirely funded by the secretive Donors Trust, which has been described as a "Dark Money ATM." Donors Trust funnels money from the Kochs and other funders to organizations in the right-wing network, but keeps the original donors secret.

Blum's known contributors include the Bradley Foundation, which also bankrolls groups promoting voter suppression, writes Ari Berman of The Nation:

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.

The Bradley Foundation has also been a major funder of attacks on affirmative action. It has given millions to Ward Connerly's anti-affirmative action "American Civil Rights Institute," and it has given over one million dollars to a group that calls itself the "Center for Equal Opportunity," whose activities include traveling the country urging Republican legislators to crack down on affirmative action programs, which it claims constitute "reverse discrimination." In 2011, a Center for Equal Opportunity representative claimed the University of Wisconsin was guilty of "severe racial discrimination." This is a difficult claim to believe given that 2.6 percent of the university's 42,180 students are African-American and 3.8 percent are Hispanic, much lower percentages than the general population.

Legal Victories May Not Help GOP's Long-Term Viability

Institutions of higher education -- and many employers -- indicate that taking race into account remains an important tool for promoting diversity in classrooms and the workplace, particularly to help compensate for the institutional forms of racism that contribute to ongoing inequity.

And civil rights groups strongly contend that Section 5 remains a vital part of the VRA's goal of protecting access to the ballot box. The Act was designed to end decades of racist Jim Crow voting restrictions, like literacy tests, which might have been facially neutral but had a racially discriminatory impact. And in the past year, Section 5 has been applied to block the wave of voter ID restrictions passed in states like South Carolina and Texas, as well as to stop discriminatory redistricting in Texas and to keep Florida from reducing early voting hours in certain areas. Like the Jim Crow-era restrictions, the ALEC-inspired voter ID laws and limits on early voting would disproportionately impact voters of color.

The problems of the 1960s and 1970s remain concentrated in the areas covered by Section 5: six of the nine states fully covered by the provision have passed new voting restrictions since 2010, but only one-third of the rest of the country passed similar restrictions during the same period. Justice Elena Kagan noted during Wednesday's oral argument that while covered jurisdictions hold less than 25% of the U.S. population, they account for 56% of successful voting-rights lawsuits.

Although each case currently before the court asks a separate constitutional question -- for Fisher, whether considering race in university admissions violates the 14th Amendment's Equal Protection guarantees, and for Shelby County, whether requiring federal approval for changes in state voting procedures violates the 10th Amendment's protections for "state's rights" -- if the Court sides with the plaintiffs, the cases will represent major victories for the right-wing movement's effort to roll-back civil rights gains.

But, as today's Republican Party tries to lose its image as the party of white people, these potential legal wins may instead be pyrrhic victories that reinforce it.