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Wednesday, February 23, 2011

Two years ago, the Supreme Court looked over a cliff and decided not to jump. The question was whether a core section of the Voting Rights Act of 1965, as renewed by Congress in 2006 for another 25 years, was constitutional. A majority opinion by Chief Justice John G. Roberts Jr. strongly suggested that it wasn’t.

Against this background, the nearly complete absence of attention received by another Voting Rights Act challenge is surprising. The new case was argued earlier this month in Federal District Court in Washington, D.C., and will almost certainly make its way to the Supreme Court. There appears to be no convenient off-ramp. The jurisdiction bringing the case, Shelby County, Ala., can’t qualify for a bail-out because it doesn’t meet the law’s requirement of a 10-year record without voting-rights enforcement problems.

Shelby County is a largely white, heavily Republican (John McCain received 76 percent of the vote there in the 2008 presidential election) central Alabama county that includes part of Birmingham. Its effort to have Section 5 of the Voting Rights Act declared unconstitutional is being funded by a Virginia-based organization called the Project on Fair Representation, which according to its Web site exists to provide pro-bono representation to “political subdivisions and individuals that wish to challenge government distinctions and preferences made on the basis of race and ethnicity.” On the subject of voting, the group’s mission is “reforming those provisions of the Voting Rights Act and other laws that encourage and mandate the creation of racially gerrymandered voting districts.” (That is hardly an accurate description of the Voting Rights Act, given that the Supreme Court, in a series of cases beginning with Shaw v. Reno in 1993 [ 509 U.S. 630 ] has declared that districts drawn for purely racial reasons are unconstitutional. But my point here is to describe the origins of the current lawsuit, so I’ll move on.)

The Project on Fair Representation, in turn, is funded by an organization called DonorsTrust, the goal of which is to “promote liberty through limited government, personal responsibility, and free enterprise.” An affiliated group, Donors Capital Fund, has channeled millions of dollars to the State Policy Network, which describes itself as a group of “state based freedom fighters working to stop the expansion of the federal government and return power back to individuals.” Whitney L. Ball, president and chief executive officer of DonorsTrust, serves on the boards of the State Policy Network and Donors Capital Fund.

Of course, interest-group organizations bring, fund and participate in litigation all the time. The NAACP Legal Defense and Educational Fund, Inc., for example, has intervened in the Shelby County case, on the side of the federal government, to defend the Voting Rights Act. No surprise there. But the identity of the right-wing/states’-rights/libertarian network in which this lawsuit is nested serves to underscore the larger stakes: not only the future of the Voting Rights Act, but the power of Congress. The players certainly understand this. The implications of this case, in the midst of the historic debate now going on over the power of the federal government, make it well worth watching closely.

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