Chief Justice John Roberts was right about at least one thing. Writing for eight justices in Northwest Austin Utility District v. Holder, Justice Roberts acknowledged that, in the century following the civil war, the federal government’s protection of voting rights “can only be regarded as a failure.” Renewed efforts to enforce these rights in the 1950s and early 1960s were ineffective, he observed, because they depended on “slow and expensive” individual lawsuits filed by the Department of Justice. The litigation could not keep pace with the erection of creative new barriers to voting. Some jurisdictions adopted the practice of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones were struck down.
Congress finally responded in 1965 by passing the Voting Rights Act (the “Act”). Rather than continuing to depend on case-by-case litigation, Section 5 of the Act for a limited period directly pre-empted the most powerful tools of disenfranchisement in states with a history of exclusionary election practices. As extended by the Congress in 2006, Section 5 suspends all changes in state election procedures in those states until they are submitted to and approved by the Justice Department or by a federal court sitting in Washington.
The Northwest Austin case involved a local utility district which sought to be excused from the coverage of Section 5. A majority of the Supreme Court determined that, because the district (and any “political subdivision”) could apply for relief under the “bailout” provision of Section 5, it was not necessary for the Court to consider whether or not the continued use of Section 5 is justified by current needs.
In his dissenting opinion, Justice Clarence Thomas disagreed with the majority. He argued that the utility district should not be required to utilize the “bailout” process that the majority said was available. Rather, he suggested that Section 5 could no longer be justified and is that the Court should therefore declare it to be unconstitutional. 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. The SRC Study cites the example of Long County, Georgia, where election officials in 2004 reportedly required Spanish-surnamed residents to prove their citizenship while imposing no similar requirement on other similarly-situated residents. The SRC Study also cites the example of Randolph County Georgia, where election officials in 2006 reportedly moved Henry Cook, the African American Chair of the County Board of Education, from District Five, which is majority black, to District Four, which is majority white, despite the fact that neither the district lines nor Cook’s residence had changed.
In the absence of Section 5, the discriminatory practices such as those reported in Randolph and Long Counties could only be addressed through slow and expensive litigation, which potentially would be concluded long after the elections in question have taken place. Section 5 provides a means of correcting abuses before they are placed into effect, and it is thus a more effective way to eradicate those barriers which have been shown to persist.