Shelby County v. Holder
570 U.S. ___ (2013)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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No. 12–96

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SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL, et al.

on writ of certiorari to the united states court of appeals for the district of columbia circuit

[June 25, 2013]

     Justice Thomas, concurring.

     I join the Court’s opinion in full but write separately to explain that I would find §5 of the Voting Rights Act unconstitutional as well. The Court’s opinion sets forth the reasons.

     “The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.” Ante, at 1. In the face of “unremitting and ingenious defiance” of citizens’ constitutionally protected right to vote, §5 was necessary to give effect to the Fifteenth Amendment in particular regions of the country. South Carolina v. Katzen-bach, 383 U. S. 301, 309 (1966) . Though §5’s preclear- ance requirement represented a “shar[p] depart[ure]” from “basic principles” of federalism and the equal sovereignty of the States, ante, at 9, 11, the Court upheld the measure against early constitutional challenges because it was necessary at the time to address “voting discrimination where it persist[ed] on a pervasive scale.” Katzenbach, supra, at 308.

     Today, our Nation has changed. “[T]he conditions that originally justified [§5] no longer characterize voting in the covered jurisdictions.” Ante, at 2. As the Court explains: “ ‘[V]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at un-precedented levels.’ ” Ante, at 13–14 (quoting Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 202 (2009) ).

     In spite of these improvements, however, Congress increased the already significant burdens of §5. Following its reenactment in 2006, the Voting Rights Act was amended to “prohibit more conduct than before.” Ante, at 5. “Section 5 now forbids voting changes with ‘any dis-criminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice.’ ” Ante, at 6. While the pre-2006 version of the Act went well beyond protection guaranteed under the Constitution, see Reno v. Bossier Parish School Bd., 520 U. S. 471 –482 (1997), it now goes even further.

     It is, thus, quite fitting that the Court repeatedly points out that this legislation is “extraordinary” and “unprecedented” and recognizes the significant constitutional problems created by Congress’ decision to raise “the bar that covered jurisdictions must clear,” even as “the conditions justifying that requirement have dramatically improved.” Ante, at 16–17. However one aggregates the data compiled by Congress, it cannot justify the considerable burdens created by §5. As the Court aptly notes: “[N]o one can fairly say that [the record] shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Ante, at 21. Indeed, circumstances in the covered jurisdictions can no longer be characterized as “exceptional” or “unique.”  “The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists.” Northwest Austin, supra, at 226 (Thomas, J., concurring in judgment in part and dissenting in part). Section 5 is, thus, unconstitutional.

     While the Court claims to “issue no holding on §5 itself,” ante, at 24, its own opinion compellingly demonstrates that Congress has failed to justify “ ‘current burdens’ ” with a record demonstrating “ ‘current needs.’ ” See ante, at 9 (quoting Northwest Austin, supra, at 203). By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court’s opinion, I would find §5 unconstitutional.

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