Texas Redistricting: Why Clarence Thomas Wants to Strike Key Voting Rights Act Provision

on January 20 2012 1:41 PM
clarence thomas
"[Lawyers] have 30, 40 minutes per side for cases that are important to them and to the country. They should argue," U.S. Supreme Court Justice Clarence Thomas said of his penchant for staying quiet on the bench. Reuters/Jim Young

U.S. Supreme Court Justice Clarence Thomas Friday emphasized his opposition to a key part of the 1965 U.S. Voting Rights Act (VRA) in a ruling over a new map for Texas' political districts.

When it comes to new U.S. Congressional and state legislative districts, Texas is covered under a section of the landmark 1965 civil rights law that requires either the U.S. Department of Justice or a three-judge panel in Washington to approve of any election law changes in certain states and counties with a history of racial discrimination. Texas opted to try its luck in court.

The legal battle in Perry v. Perez pitted Republican lawmakers who drew the maps against critics who argued that the new districts failed to fully account for the Lone Star State's burgeoning Hispanic and black population. As the preclearance process dragged on, a federal district court in San Antonio drew new interim maps, which the state challenged before the Supreme Court.

Friday's 11-page unsigned opinion from the high court ordered the San Antonio court to reconsider its interim maps because it ignored the states' interests and implemented its own.

Justice Thomas: Section 5 Is Unconstitutional

Thomas, breaking from his colleagues, said Texas should have been able to go forward with its original maps because the preclearance provision of the VRA, called Section 5, is unconstitutional.

In my view, Thomas wrote in a two-page concurrence, Texas' failure to timely obtain Section 5 preclearance of its new plans is no obstacle to their implementation, because, as I have previously explained, Section 5 is unconstitutional.

In addition to Texas, the other Section 5 jurisdictions include Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Virginia. Other jurisdictions include several counties in California, New York City and North Carolina, as well as towns in Michigan and New Hampshire.

So what is Thomas' problem with requiring states such as Texas to go through a preclearance process with the Department of Justice or federal court review?

He lays it out in a 2009 opinion for a case over a small utility district board in Austin made up of elected members. Thomas was the lone dissenter in a ruling that avoided the constitutional issues over Section 5, which Congress must reauthorize.

In his opinion, he essentially described Section 5 of the VRA as an antiquated provision that can no longer be justified as a constitutional way to enforce the Fifteenth Amendment, the Reconstruction Amendment that protects all citizens' from race-based voting discrimination.

While Thomas acknowledges that there was once a need for preclearance -- The massive scale of disenfranchisement efforts made case-by-case enforcement of the Fifteenth Amendment impossible, if not Sisyphean, he wrote -- he argued that the extensive racial discrimination giving cause to Section 5 no longer exists.

Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence, Thomas wrote. The lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of Section 5 undermines any basis for retaining it.

Though Congress just reauthorized Section 5 until 2031, the provision may be facing certain death at the Supreme Court. The majority opinion in the 2009 case signaled the justices' willingness to retire Section 5.

In Friday's ruling on the Texas district maps, the Supreme Court referenced its 2009 decision about the serious constitutional questions raised by Section 5's intru­sion on state sovereignty.

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