Andrew Gumbel for Guardian.UK
Meet Edward Blum, who has led legal challenges to civil rights protections in recent years – from an attack on affirmative action to a call to rewrite electoral representation rules. He says it’s all about ‘one person, one vote’
Abigail Fisher, who challenged the use of race in college admissions, right, walks with lawyer Edward Blum following oral arguments in the supreme court on 9 December.
To his detractors, Edward Blum is one of the most dangerous men in America, a human wrecking ball on a mission to destroy the landmark achievements of the civil rights era and send the country back to a dark age of discrimination and harassment of minorities – in the workplace, in higher education and at the ballot box.
That’s some reputation for a slightly built former stockbroker who answers his own phone, sounds nothing like the bullying demagogues who once held sway over the deep south, and even has some misgivings about the consequences of his actions. If anything, his soft-spoken, self-deprecating, consciously neurotic manner is reminiscent of Woody Allen from his early days in standup.
Blum’s impact, though, is beyond question. For more than 20 years, working largely on his own, he has orchestrated lawsuits to challenge and, in some instances, dramatically reverse once sacrosanct legal principles. Case after case that he’s filed – on voting rights, on the drawing of electoral districts, on affirmative action – has made its way to the supreme court, often against the predictions of legal scholars, and found a sympathetic reception from the conservative majority.
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Last month, the supreme court justices heard oral arguments in back-to-back cases brought by Blum. The first was a challenge to the University of Texas’s use of affirmative action in its own admissions policies. And the second – perhaps the most radical case Blum has brought – threatens to change the entire basis of electoral representation nationwide by proposing that non-citizens, children and former felons be dropped from consideration in the drawing of state and local legislative districts.
Blum argues it’s about upholding the principle of “one person, one vote”, but the effect of such a change would almost certainly be to dilute representation in urban, Democratic-leaning districts and boost it in suburban and rural, Republican-leaning ones. Within municipalities, it is likely to make city councils whiter and more conservative. It would also counter the principle – enshrined in the constitution for federal elections, and established by the supreme court in 1964 for state-level ones – that legislators should represent roughly equal blocs of population, regardless of eligibility.
Some of Blum’s cases have had such an impact that even he has been taken aback. Nowhere is that truer than with Shelby County v Holder, a case he sponsored that in 2013 led the supreme court to overturn a key provision of the 1965 Voting Rights Act. Blum told the Guardian he has worried over the fallout from that ruling, which spurred conservative legislators in Texas, North Carolina and elsewhere to revive laws that the Justice Department had previously blocked or was expected to block on the grounds that they were vehicles for minority vote suppression.
Those laws have introduced draconian voter ID requirements, cut back on early voting, and eliminated same-day registration.
“I think about it a lot, I worry about it a lot. I agonise over this,” Blum told the Guardian. “It may be that one or two of the states that used to be covered by Section 5 has gone too far.”
Civil rights organizations and good government groups say Blum should have anticipated these effects, because legislators made little secret of their intentions and, in North Carolina, snapped into action within hours of the supreme court publishing its ruling.
“What he’s attacking are principles that have brought people into the democratic process so everyone can participate and everyone can be heard,” Stephen Spaulding, legal director of the nonpartisan government watchdog Common Cause, told the Guardian. “He’s brought a sledgehammer to the process, demolishing huge swaths of laws … This is about putting power in the hands of the very few to dictate the rules to the rest of us.”
The meaning of ‘race neutral’
Activists protest on Capitol Hill in September, calling for the restoration of Voting Rights Act protections.
Activists protest on Capitol Hill in September, calling for the restoration of Voting Rights Act protections. Photograph: Paul J Richards/AFP/Getty Images
Blum will tell you he’s doing nothing of the sort. To him, it’s about fairness – his one-man organizing outfit is called the Project on Fair Representation – and ensuring that the stain of racial animus that looms so large over American history is forever consigned to the dustbin. He insists he is not interested in putting whites above other races but rather ensuring that voting districts, government contracts, and public education policies are “race neutral”.
In the electoral arena, he instinctively dislikes districts that have been engineered to be “majority-minority” to promote greater representation for African Americans and Latinos. He (and many others) call this racial gerrymandering, and he believes it violates the 14th amendment. Blum believes racial preferences are a perversion of the civil rights legacy, not a continuation of it.
“Our history has been tainted tragically by the use of race in various public and private arenas,” Blum said. “Race [discrimination] is odious, something that the founding principles of the civil rights movement were designed to eliminate.”
Although US civil rights leaders are nearly unanimous in their condemnation of his work, Blum loves to point out that they adopt his arguments when it suits them. In a pair of cases heard by the supreme court last year, Alabama Democrats and the state’s legislative black caucus sued to overturn what they termed a racial gerrymander orchestrated by the Republican majority. They argued, with some success, that black Alabamans had been packed into majority-minority districts to dilute their representation elsewhere in the state. Blum, quoting chief justice John Roberts from another case, described this as the “sordid business of divvying us up by race”.
The argument and counter-argument can quickly make a non-specialist’s head spin – a result of what both sides characterize as a deliberate muddying of the issues for partisan advantage. It is clear, though, that Blum’s cases rely on the view that America is essentially a post-racial society in which the wounds left over from slavery and segregation have mostly healed and certainly do not require extraordinary intervention by state legislatures or the Justice Department.
It’s a view of history touted by many conservatives, including John Roberts, starting long before he joined the supreme court. Their argument, however, often fails to acknowledge that southern segregationists relied on similarly “race neutral” arguments to exclude blacks (and, often, poor whites) from the political system in the 19th and early 20th centuries through a variety of underhanded means. It also overlooks the abundant evidence of continuing harassment and exclusion of minorities, not just in the south – through restrictive registration laws, overcrowded polling places in minority neighborhoods, dishonestly compiled voter purge lists, the denial of voting rights to ex-felons, police intimidation, and the crippling effect of mass incarceration.
Spaulding of Common Cause accused Blum of perpetuating an Alice in Wonderland view of the world in which up is down and down is up. “It’s a really twisted way to read the constitution,” he said. “And he is taking advantage of a court which has shown itself to be very hostile of late to bedrock American landmark laws.”
Blum has developed a reputation for exploiting inconsistencies and loopholes in the architecture of post-civil rights America, and for his influence on supreme court justices, who frequently parrot his arguments.
The seemingly insensitive remarks made by justice Antonin Scalia last week suggesting that black college students should be on a “slower track” were, in essence, a clumsily phrased version of an argument touted by Blum and his allies for 20 years – that students admitted to universities under affirmative action programs without the requisite academic credentials can sometimes struggle to keep up.
Blum’s greatest strength is in organisation: finding suitable (and some not so suitable) plaintiffs, raising funds, and assembling legal teams with the skill and ideological commitment to prevail at all levels of the judicial system. He doesn’t claim to be a historian, and he’s not a lawyer either. Rather, he describes himself as a “conservative good government guy” and an “amateur litigator” who stumbled into political activism 25 years ago, when he moved into a majority-minority district in Houston and was bothered to learn that the incumbent black Democratic congressman was running for re-election unopposed.
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Blum urged the local Republican party to do something, and when they balked, he ran, unsuccessfully, for the seat himself. Soon after, he bankrolled his first racial gerrymandering case, hiring a lawyer from Monroe, Louisiana, because he couldn’t find anyone in Texas who thought he stood a chance. They won – as did plaintiffs in a parallel case in North Carolina that went to the supreme court. Justice Sandra Day O’Connor said the contorted map of North Carolina’s 12th district, which notoriously split a freeway in two, bore “an uncomfortable resemblance to political apartheid”.
With that, Blum was off to the races and subsequently brought successful suits against racial gerrymandering and the creation of what he terms “bug splat districts” in New York, Virginia, South Carolina, Louisiana and Florida. In all those states, the political map had been drawn by Democratic-led legislatures, so it was natural for him, as a Republican, to team up with conservative donors, the neoconservative American Enterprise Institute, and fellow ideologues like Abigail Thernstrom, arguably the leading intellectual critic of racial preferences and the Voting Rights Act.
Despite these efforts, Blum and his allies did nothing to oppose racial gerrymanders orchestrated by Republican-led legislatures, which became more common across the South in the 2000s and 2010s, and nothing to protest against gerrymandering more generally.
Blum acknowledged that this was a reflection of who his bedfellows were and which causes lent themselves most readily to fundraising. “I have to prioritise what I do,” he said. “I would challenge any racial gerrymander if I had the resources to do so.” He also pointed out a strategic advantage of Republicans: Democrats are usually up front about their intention to create majority-minority districts, so their motives are not in doubt, whereas Republicans have generally characterised their own map-carving as being about something else and can more easily muddy the legal waters.
To Blum, going after the Voting Rights Act was a natural extension of his work, because he believed the demands of the law made racial gerrymandering inevitable.. When the act was coming up for renewal in 2005 and 2006, he tried lobbying Congress and the White House to get rid of the key provision, Section 5, which forced the covered states to petition the Justice Department for pre-clearance of voting laws.
But he soon realised the Republican party did not want to be accused of waging war on civil rights in the run-up to the 2006 midterm elections – they ended up embracing renewal of the act and participating in a Rose Garden signing ceremony – so he turned to legal avenues instead.
Blum is nothing if not persistent and boundlessly patient. In his fight against racial preferences in both voting laws and university admissions, he has sometimes contented himself with a single line in a legal opinion and used it as leverage to break open the issue with the next case, or the case after that. The first time the University of Texas suit came before the supreme court, in 2012-13, he described the outcome as “not a big buffet, just a little nosh … a little half of a sushi roll” that he was then able to craft into a “bubbling bouillabaisse” for round two, on which an opinion is expected in early summer.
Likewise, it took two supreme court cases – the first out of Texas, the second out of Alabama – to neuter Section 5 of the Voting Rights Act. Blum claims he was unconcerned about what he called “harassment barriers” to voting because in his view they were a thing of the past.
Asked about voting barriers erected across the south since 2013 – described by one federal district judge in Texas as “an unconstitutional burden on the right to vote … imposed with an unconstitutional discriminatory purpose” – Blum said he felt “comforted” that these issues were being addressed by the judicial system.
Indeed, both the Texas case and a case out of North Carolina are now working their way back to the supreme court. Whether chief justice Roberts and his colleagues share Blum’s misgivings, however, remains to be seen.
Andrew Gumbel is the author of a forthcoming book, Down for the Count: Dirty Elections and the Rotten History of Democracy in America, which will be released this spring.