Election Reform

Robert has been working on gutting the Voting Rights Act since 1981. http://www.motherjones.com/politics/2013/02/john-roberts-long-war-against-voting-rights-act

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. "I am sensitive to the controversy which has attached itself to some of the Act's provisions, in particular those provisions which impose burdens unequally upon different parts of the nation," Reagan wrote. "But I am sensitive also to the fact that the spirit of the Act marks this nation's commitment to full equality for all Americans, regardless of race, color, or national origin." Reagan didn't go as far as former segregationist and then-Sen. Strom Thurmond (R-S.C.) by opposing the Voting Rights Act in its entirety, but his administration fought efforts to strengthen the law.

Roberts was a major player in the Reagan administration's VRA policy, drafting numerous op-eds and memos for top Justice Department officials that argued for a weaker version of the law. At the time, crucial parts of the VRA were due to expire, but congressional Democrats and moderate Republicans weren't just trying to renew the law—they were also trying to strengthen the law. After the VRA was enacted, it was interpreted as barring all discriminatory voting practices. In 1980, however, the Supreme Court, in a case involving the election rules in Mobile, Alabama, weakened the law by ruling that, except in those jurisdictions with a sordid history of blocking minority voters, the VRA only forbade intentional discrimination. Civil rights activists wanted to fix that by modifying the law to make it crystal clear that all discrimination in voting practices, not just intentional discrimination, was illegal.

Roberts wasn't having it. Voting rights violations, according to one memo he helped draft in 1981, "should not be too easy to prove since they provide a basis for the most intrusive interference imaginable." If Roberts and the Reagan administration had gotten their way, discriminatory voting systems in most of the country could only be barred when discrimination could be shown to be intentional. That would make it much tougher for the feds to intervene in states and localities and guarantee equal voting rights. The Reagan administration argued that they were just trying to preserve the Voting Rights Act, but it was really attempting to preserve a Supreme Court ruling neutering the law.

Roberts helped the administration hone its argument. He wrote that it made sense for parts of the VRA to require proof that discrimination was intentional. "Broad aspects of criminal law and tort law typically require proof of intent," Roberts wrote in a draft op-ed in 1981. Allowing the VRA to apply in cases of unintentional discrimination all over the country and not just those places with a history of disenfranchising minorities, Roberts insisted, "would raise grave constitutional questions." In the case of Mobile, the Justice Department's voting rights attorneys eventually did prove the discrimination was intentional—by heading to Alabama and poring over the historical record to establish the election law had been passed deliberately to disenfranchise blacks.

To Roberts, that demonstrated there was no problem with requiring the government to prove that discrimination was intentional. "John Roberts and others used that case to say anyone who wants to prove intent could do it," explains Gerry Hebert, an attorney now with the Campaign Legal Center who was part of the Justice Department team that went to Alabama. But proving intent "took enormous resources that only the Justice Department could have." More important, says Hebert, having to prove "intent" placed voting rights attorneys in a difficult position: "You basically have to get judges to call local or state officials racist."

Despite the best efforts of Roberts and others in the Reagan Justice Department, civil rights activists outmaneuvered Southern conservatives and the Reagan White House, forging large bipartisan alliances in the House and Senate to reauthorize the Voting Rights Act in 1982. And they strengthened the law, amending it to explicitly ban all discriminatory voting rules across the country, whether the discrimination is intentional or not.

Roberts has been determined to gut the Voting Rights Act for a long time and had to dredge up the legal rationale behind the Dred Scott decision to accomplish his goal.