In the Supreme Court's recent decision in Northwest Austin Municipal Utility District Number One v. Holder, Justice Clarence Thomas filed a dissent concluding that the Court should have found a major provision of the Voting Rights Act, Sec. 5, to be unconstitutional. None of the other justices joined Thomas' dissent, and the majority decided the case without reaching the constitutional issue.

Charles S. Johnson, a partner at Holland & Knight and board president of the Southern Regional Council, in a post for the southernchanges blog wrote:

In the course of his opinion, Justice Thomas acknowledged the history of coordinated intimidation and violence which prevented people from voting during the Jim Crow era. He acknowledged that this campaign of violence was eventually supplemented and in part replaced by more subtle methods of discrimination, such as discriminatory literacy tests and voter qualification laws. He acknowledged that case-by-case voting rights litigation in the years prior to the adoption of the Act was inadequate to ensure that all citizens were able to vote.

According to Justice Thomas, however, the kind of discrimination which previously justified Section 5 no longer exists. As proof, he noted that the systematic campaigns of intimidation and violence are gone, as are the discriminatory voter qualification laws. Although Congress had taken note of ‘second generation barriers' constructed to exclude minority voters, Justice Thomas concluded that evidence of such barriers was not sufficient to justify the continued use of Section 5.

Contrary to Justice Thomas' assertion, barriers to voting continue to be erected in jurisdictions covered by Section 5. Evidence of these barriers is described in the Congressional record and in a recent study by the Southern Regional Council. This evidence demonstrates ongoing attempts to dilute and diminish minority voting strength, including restrictions on registration and voting, discriminatory annexations and de-annexations, high school diploma requirements for holding office, discriminatory consolidations, and relocation of polling places.

Johnson's entire blog post is here. For further analysis of Northwest Austin Municipal Utility District Number One v. Holder see Mark A. Posner's guest blog here.

By Mark A. Posner, Senior Fellow, Lawyers' Committee for Civil Rights Under Law; Former Special Sec. 5 Counsel, Civil Rights Division, U.S. Department of Justice

Ever since July 2006, when Congress acted with overwhelming bipartisan majorities to reauthorize the "preclearance" requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the civil rights community has waited with a mixture of anticipation and trepidation for the day when proponents and opponents of this key voting rights provision would stand before the Supreme Court to argue its constitutionality. That day, April 29, 2009, has finally come and gone, in the case of Northwest Austin Municipal Utility District Number One v. Holder. The Court's decision is expected in late June, and until then one is left to ponder and dissect the over 60 minutes of intense questioning offered up by eight of the nine Justices. Unhappily, this review strongly suggests that trepidation should be the predominant feeling while we wait for the Court to rule.

By way of background, Section 5 requires certain jurisdictions with a history of voting discrimination to obtain federal approval ("preclearance"), from either the Justice Department or the U.S. District Court for the District of Columbia, before implementing any change in a voting practice or procedure. Preclearance is obtained by demonstrating that the change does not have a discriminatory purpose or effect. The covered jurisdictions include all or parts of 16 states located primarily in the South and Southwest. Congress initially adopted Section 5 in 1965, and then reauthorized the statute in 1970, 1975, 1982, and 2006. The Supreme Court has upheld the constitutionality of the statute in four previous cases. In the current case, a three-judge panel of the D.C. District Court unanimously found the reauthorization to be constitutional, 557 F. Supp. 2d 9 (2008), and the plaintiff appealed to the Supreme Court.

As the oral argument began, much attention was focused on Justice Anthony Kennedy, as the justice who might be a swing vote on a Court that often has been sharply divided on civil rights issues. Justice Kennedy asked questions of all three attorneys who argued, the attorney for the plaintiff (an obscure municipal utility district located in Austin, Texas), the Deputy Solicitor General of the United States, and a civil rights attorney who spoke on behalf of several individuals and organizations that had intervened to defend the statute. Justice Kennedy's questions repeatedly returned to the single issue which he apparently believes is paramount: whether the record before Congress when it reauthorized Section 5 in 2006 justified Congress's decision to treat different states differently, keeping some states covered by Section 5 while leaving other states not covered. As the Justice colorfully put it, the question presented for him is whether Congress has justified treating the "sovereignty" of the covered states as being less than the "sovereign dignity" of the non-covered states.

Making this issue the sine qua non of whether Section 5 is constitutional puts Section 5 on shaky ground, in large part because this fundamentally alters the test the Court previously has employed to decide Section 5's constitutionality. In 1966, when the Court first upheld Section 5, the Court concluded that the coverage decisions made by Congress were rational, and thereafter the Court held that the validity of a Section 5 reauthorization depends on whether Congress has compiled a record demonstrating that voting discrimination continues to be a widespread and substantial problem in the covered areas. In reliance on this clear precedent, Congress created a massive pre-enactment record that made what was thought to be the necessary showing. This record also indicated that voting discrimination is a greater problem in the covered, rather than the non-covered, jurisdictions, but Congress did not make this question its primary focus. At oral argument, Justice Ginsburg nonetheless sought to suggest that there was quite a bit of information presented to Congress prior to the 2006 reauthorization that compared the covered and non-covered jurisdictions.