The US Supreme Court carved out a narrow and near unanimous decision today which retains the pre-clearance provisions of the Voting Rights Act of 1965. All justices concurred in the opinion which remanded the case back to the District Court for further proceedings but, there was a partial dissent filed by Associate Justice Clarence Thomas.

The NW Austin Municipal Utility District filed an action to be removed from the pre-clearance provisions of the Voting Rights Act or to declare the statute unconstitutional insofar as it mandated the District be subject to the 2006 enactment of such requirement. The Supreme Court declined to declare Section 5 of the Voting Rights Act unconstitutional, and instead carved out a more limited remedy for political entities such as the utility district to have a private right to file suit to be removed from the pre-clearance requirement (presumably if the DOJ does not allow a “bail out”).

In his concurrence Associate Justice Thomas also dissented in part, arguing in favor of striking down the enforcement provisions of the Voting Rights Act, making the claim that;

Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of…’property qualifications’ …are gone. There is thus currently no concerted effort in these jurisdictions to engage in the ‘unremitting and ingenious defiance of the Constitution’ that served as the constitutional basis for upholding the ‘uncommon exercise of congressional power embodied in [Section] 5’ (citations omitted).

Nothing could be further from the truth.

It is in fact the case that since 1986, there have been “some 200 cases in which the voter change was withdrawn after DOJ objection” according to Associate Justice Souter in the oral arguments of the case. Associate Justice Breyer in the same oral argument noted that “[s]ince 1982 there were at least 105 successful Section 5 suits and 653 Section 2 suits.”

Justice Thomas went on:

“But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of …subterfuge to in order to keep minorities from voting.”

Nothing could be further from the truth.

To the degree that the state and national officials of the Republican Party are “public officials,” there is clear and convincing evidence that public officials stand ready to prevent black and other minority voters from voting by subterfuge and other improper tactics which arise to the level of a “property qualification.”

In 1981, the RNC in New Jersey sent out postcards to voters and challenging any voter where the post card was returned as undelivered or undeliverable (some 45,000). The areas where the post cards were sent were overwhelmingly black.

The RNC calls this “unremitting and ingenious” tactic “caging.”  “Caging” is where the RNC makes a systematic attempt at minority voter suppression by creating massive mailing lists of voters and challenging them on the claim the voters do not reside at the location listed on the voter rolls.

The practice was challenged in court and a consent decree was entered into by the Republican National Committee which prohibited such practices by the RNC nationally. Consent Order, Democratic National Committee v. Republican National Committee, CA No. 81-3876 (D. N.J. entered Nov. 1, 1982).

In 1986, in Louisiana, the RNC engaged in a similar post card mailing effort attempting to have 31,000 voters removed from the voter registration rolls, the consent decree was re-opened by the Democratic National Committee and stopped these practices. Settlement and Stipulation and Order of Dismissal, Democratic National Committee v. Republican National Committee, CA No. 81-3876 (D. N.J. entered July 27, 1987).

In 2004, the RNC did it again in Ohio and tried to challenge some 35,000 minority voters which was enjoined by the Ohio District Court. Miller v. Blackwell, 348 F. Supp. 916 (S.D. Ohio 2004),
affirmed, 388 F 3d 546 (6th Cir. 2004).

In 2008, there was a new twist added to the RNC “caging” arsenal. The Michigan Republican Party sent the post cards to addresses in low-income and minority neighborhoods where the RNC doesn’t get support and prepared to challenge the predominantly black and Hispanic voters from lists of persons which had foreclosures done on their homes! After another suit was filed, the RNC backed off, again!

In 2008, some covered states the GOP sought to suppress minority votes by subterfuge by sending out fliers or mailers to the black and Hispanic areas telling voters polling places had changed or the election date was changed or changed if it rained. Some violence or threats were indicated.

The GOP has a long history of a “Southern Strategy” to carve out white voters from the Democrats by supporting segregation; which history goes back to Civil War Reconstruction, not just back to GOP Presidential nominee Richard Nixon. If Justice Thomas had any real perception of the reality of the bitter racism held by the RNC, he would certainly be aware of the facts, and not make erroneous, sweeping claims that “…there is no evidence that public officials stand ready, if given a chance, to again engage in concerted acts of violence, terror and subterfuge in order to keep minorities from voting.”

Had Mr. Justice Thomas had his way in this case, suits under Section 2 of the Voting Rights Act would be the only way to do something about violations in the covered states, usually too late to be of any benefit in any elections.

The Roberts Court struck a reasoned balance to allow a remedy for qualifying political entities to bail out, and for still very much needed enforcement under Section 5 of the re-authorized Voting Rights Act.