(By Will Consovoy, Consovoy McCarthy Park PLLC and Former Clerk to Justice Thomas)
The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and it further empowers Congress to “enforce” this right “by appropriate legislation.” Justice Thomas has been steadfast in his support of this transformational provision. But he has recognized that Congress may not override the power of States to control their elections. In several opinions, Justice Thomas has pushed back against Congress’s attempts to seize authority over elections that the Constitution did not confer upon it.
In Holder v. Hall, Justice Thomas objected to the Court’s acceptance of “vote dilution” as a cognizable harm under Section 2 of the Voting Rights Act. As he explained, “in setting the benchmark of what ‘undiluted’ … voting strength should be, a court must necessarily make some judgments based purely on an assessment of principles of political theory.” But “dabbling in political theory that dilution cases have prompted,” he explained, “is hardly the worst aspect of our vote dilution jurisprudence. Far more pernicious has been the Court’s willingness to accept the one underlying premise that must inform every minority vote dilution claim: the assumption that the group asserting dilution is not merely a racial or ethnic group, but a group having distinct political interests as well. Of necessity, in resolving vote dilution actions we have given credence to the view that race defines political interest.” As Justice Thomas put it: “The assumptions upon which our vote dilution decisions have been based should be repugnant to any nation that strives for the ideal of a color blind Constitution.”
In Northwest Austin Municipal Utility District No. 1 v. Holder, Justice Thomas urged the Supreme Court to overturn Section 5 of the Voting Rights Act as unconstitutional (a recommendation the Court later adopted in Shelby County v. Holder). Section 5 required certain States to get permission from the federal government before making changes to any of their voting laws because of their history of racial discrimination. Justice Thomas recognized that, “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.” At the same time, Justice Thomas understood that “[t]he 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.” He was not saying “that voter discrimination is extinct,” but that “[t]he burden remains with Congress to prove that the extreme circumstances warranting Section 5’s enactment persist today …. An acknowledgment of Section 5’s unconstitutionality” thus “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”
Finally, in Alabama Legislative Black Caucus v. Alabama, Justice Thomas’s dissent lamented “the disastrous misadventure of this Court’s voting rights jurisprudence.” “The Court’s interpretation of Section 2 and Section 5 have resulted in challenge after challenge to the drawing of voting districts …. The consequences have been as predictable and as they are unfortunate. In pursuing ‘undiluted’ or maximized minority voting power, we have devised a remedial mechanism that encourages federal courts to segregate voters into racially designated districts to ensure minority electoral success.” Justice Thomas understood that to “maintain these racially safe burroughs States or courts must perpetually divide the country into electoral districts along racial lines—an enterprise of segregating the races into political homelands …. It is this fateful system that has produced these cases.”