Thomas: Section 5 is from bygone era

U.S. Supreme Court Associate Justice Clarence Thomas, the justice from Georgia and sole African-American member of the high court, wrote the lone dissenting opinion in last week’s ruling concerning part of the Voting Rights Act.

The ruling

The court did not overturn the Voting Rights Act’s key enforcement tool —- Section 5, which requires that changes in voting procedures in Georgia and some other states be “precleared” by the Justice Department. The provision was intended to help ensure the 1965 law prevented voter discrimination.

The catch

However, the court has sent strong signals to Congress that the law needs work. The justices said in the 8-1 decision that counties, towns, school boards and utility districts, mostly in the South, no longer have to comply with the law if they can show their electoral procedures have not been blemished by discrimination over the past decade.

The case

The law had been challenged by officials from a water district near Austin, Texas, who said they should not have to ask for permission from Washington for switching a polling place from a house to a public school. While the court backed the district, it didn’t use the case to negate Section 5 but to show how governments can opt out.

The reasoning

When Congress reauthorized the Voting Rights Act in 2006, it retained the Section 5 restrictions on the same states —- Georgia, Virginia, Alaska, Alabama, Arizona, Louisiana, Mississippi, South Carolina and Texas and parts of seven others —- without an examination of whether some should be removed or others added. In the opinion, Chief Justice John Roberts noted that Congress used election data that was more than three decades old when it overwhelmingly passed the 25-year extension.

In his dissent, Thomas explicitly pointed out the history of intimidation of black voters as well as Jim Crow laws. However, Thomas noted, “Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose.”

Sources: Staff and news reports, U.S. Supreme Court

Staff writer Ron Sirmans compiled this article.

What Thomas said

Here are some other excerpts from Thomas’ dissenting opinion, explaining why he thinks Section 5 is unnecessary today and is actually unconstitutional:

“The Court quite properly alerts Congress that Section 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional.”

“… enforcement efforts before the enactment of Section 5 had rendered the right to vote illusory for blacks in the Jim Crow South. Despite the Civil War’s bloody purchase of the Fifteenth Amendment, ‘the reality remained far from the promise.’

“… Thus, by 1965, Congress had every reason to conclude that States with a history of disenfranchising voters based on race would continue to do all they could to evade the constitutional ban on voting discrimination. By that time, race-based voting discrimination had ‘infected the electoral process in parts of our country for nearly a century.’ “

“The explicit command of the Fifteenth Amendment is a prohibition on state practices that in fact deny individuals the right to vote ‘on account of’ race, color, or previous servitude. In contrast, Section 5 is the quintessential prophylaxis; it ‘goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law —- however innocuous —- until they have been precleared by federal authorities in Washington, D.C.’

“… More than 40 years after its enactment, this intrusion has become increasingly difficult to justify.”

“The extensive pattern of discrimination that led the Court to previously uphold Section 5 as enforcing the Fifteenth Amendment 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.”

“In sum, evidence of ‘second generation barriers’ cannot compare to the prevalent and pervasive voting discrimination of the 1960s.

“This is not to say that voter discrimination is extinct.”

“In 1870, the Fifteenth Amendment was ratified in order to guarantee that no citizen would be denied the right to vote based on race, color, or previous condition of servitude. Congress passed Section 5 of the VRA in 1965 because that promise had remained unfulfilled for far too long. But now —- more than 40 years later —- the violence, intimidation, and subterfuge that led Congress to pass Section 5 and this Court to uphold it no longer remains. An acknowledgement of Section 5’s unconstitutionality represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”