Justice Thomas's Concurrence on Voting Rights

While the Supreme Court today struck only the coverage formula for the preclearance provision of the Voting Rights Act, Justice Thomas, concurring alone, would have ruled Section 5 preclearance itself unconstitutional.  That's because, according to Justice Thomas, "[t]oday, our Nation has changed."  He points to voter turnout and registration rates, which "now approach parity," and the "rare" "[b]latantly discriminatory evasions of federal decrees."  

Against these improvements, Justice Thomas argues that Section 5 itself exceeded congressional authority, especially after Congress changed and increased the preclearance requirement in reauthorizing the VRA in 2006.

Justice Thomas wrote just for himself; he garnered no other votes.  Still, his ominous conclusion rings true, given the likely inability of Congress to re-write a coverage formula that would satisfy this Court:

While the Court claims to "issue no holding on Section 5 itself," its own opinion compellingly demonstrates that Congress has failed to justify "'current burdens'" with a record demonstrating "'current needs.'"  By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. 

(Our earlier posts on the case are here, here, here, and here.  Our oral argument review is here.)

SDS