Co-authored with Ken Blackwell
The Supreme Court’s decision today in the racial preferences case Ricci v. DeStefano will be a major story. Less noticed but equally important, the Supreme Court’s decision on voting rights last week heralds a sea change in racial politics in this country. Taken with the Ricci decision, it’s clear that a new era is dawning on race in America.
The Supreme Court upheld the constitutionality of part of the Voting Rights Act on June 22. But in its opinion, the Court signaled that a massive change in voting rights was coming, and Justice Thomas took his usual role as a herald in declaring what could soon happen regarding this fundamental right.
The Court decided NAMUDNO v. Holder on June 22, where a Texas utility district argued that it should be able to escape federal supervision under the Voting Rights Act of 1965 (VRA). Most Southern states, and any political subdivision of those states, are required by Section Five of the VRA to get preclearance from the Department of Justice (DOJ) before making any changes to its voting laws, no matter how minor or insignificant those changes might be. Section Five was created during the 1960s to fight militant racism and organized voter intimidation. The preclearance process is invasive and tedious, and there is far too much opportunity for a politically-charged DOJ (such as the Obama-Holder DOJ) to use this power to shape voting laws that benefit a particular political party.
The Northwest Austin Municipal Utility District Number One (NAMUDNO), argued that its lack of discrimination history should allow it to use the “bailout” provision of the Voting Rights Act to no longer be subject to these backbreaking regulations and oversight. It also argued that, if it doesn’t qualify to “bail out,” the Supreme Court should hold that Section Five is a product of a bygone era that has no place in a country where a black man can now be elected president of the United States.
The Supreme Court unanimously held (9-0) that NAMUDNO qualifies for the bailout provision, rejecting the Obama-Holder DOJ’s position to the contrary, and so could now pursue that process to get out from under Section Five. Having done that, the Court also held 8-1 that it was unnecessary to decide whether Section Five is unconstitutional.
However, the Court also made very clear to those accustomed to reading court opinions on election law that a majority of the Court thinks that Section Five is on very shaky constitutional ground. While acknowledging that Section Five addressed some difficult problems in earlier years, the government must offer a compelling argument as to why such a tough and burdensome law is necessary in modern America.
Justice Clarence Thomas dissented from that last part, going a step further. Justice Thomas wrote that because the Court’s decision did not grant full relief to NAMUDNO, and instead only gave NAMUDNO a green light to pursue a long process with uncertain results, that the Court should instead immediately tackle the constitutional question. In doing so, Justice Thomas continued, the Court should hold VRA Section Five exceeds Congress’s power under the Fifteenth Amendment to protect minority voting, and therefore strike down Section Five as unconstitutional.
This would be a monumental change in American law, both in terms of voting rights and also of racial preferences. Striking down Section Five would signal to the country that we had forever turned a corner in terms of race in America.
For Justice Thomas to take such a stand is nothing new. In recent years, Clarence Thomas has become a herald of coming developments from the Supreme Court, accurately forecasting what would happen years before a case comes to the Court where the justices fulfill those predictions.
In 1997, Sheriff Jay Printz challenged part of the Brady gun control law that attempted to force local government officials to perform certain tasks. Sheriff Printz challenged the law on Second Amendment grounds. Although the Court struck down the law on Tenth Amendment grounds when it sided with Sheriff Printz, Justice Thomas again wrote separately to note the body of scholarly literature pointing to the conclusion that the Second Amendment guarantees an individual right to keep and bear arms. He wrote that the Court should welcome a case addressing that question. Eleven years later in 2008, such a Second Amendment case did arrive, and the Supreme Court held in D.C. v. Heller exactly what Justice Thomas said in Printz v. U.S.
Justice Thomas also did it just two months ago in FCC v. Fox Television, a case dealing with government power to regulate vulgarity on TV. Once again writing separately, Justice Thomas added that it was time to reconsider a couple of the Supreme Court’s old precedents, handed down during days of few media outlets and growing government regulation. Justice Thomas singled out Red Lion Broadcasting v. FCC, the case where the Court upheld the idea of the Fairness Doctrine. With growing threats from the Obama FCC and the Pelosi-Reid Congress to reenact government censorship through the Fairness Doctrine (only this time called “localism” and “diversity” instead of “fairness”), the Court may again follow Justice Thomas’s prediction, overruling the precedent that allows for government to censor political speech on the airwaves.
This VRA case comes at a time when Judge Sonia Sotomayor’s statements and rulings on race have become a major issue in her Supreme Court confirmations, and where her opposition to Second Amendment rights may yet become an obstacle that derails her confirmation, if gun-rights supporters mobilize. This is ironic, since the same lawyer who argued Printz v. U.S. in 1997, Dr. Stephen Halbrook, is the same lawyer representing the NRA in NRA v. Chicago, the case being offered to the Supreme Court for next year, where Justice Thomas and possibly then-Justice Sotomayor will decide it.
Now Justice Thomas invites another case challenging the constitutionality of VRA Section Five. Such a case may come soon, giving the Supreme Court an opportunity to hold that harsh laws targeting systemic racism are a thing of the past. Such a holding would turn the page on racial politics, moving us one step closer to the day where the government stops drawing distinctions between Americans based on the color of our skin.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
Ken Blackwell is the former Ohio Secretary of State, and a senior fellow with the Family Research Council.