Staunchly conservative Supreme Court Justice Clarence Thomas shocked many Americans yesterday when he joined the court’s liberals in rejecting a Republican-drawn North Carolina redistricting map which, they ruled, unconstitutionally uses race to limit black voting rights.
It’s actually no mystery. Thomas has no tolerance for government race-meddling in either direction, and the Tar Heel Republicans are simply obsessed with race. And not in the well-meaning, patronizing, affirmative-action way characteristic of so many white Democrats.
For several years now, something has been seriously wrong regarding North Carolina Republicans and voting rights. Thomas may have simply decided somebody had to bang a gavel.
Our story begins on February 27, 2013, when the Supreme Court heard arguments on the case of Shelby County v. Holder, which concerned the pre-clearance part of the 1965 Voting Right Act. It meant certain states and localities could not change voting rules absent federal blessing.
Media coverage suggested the Supreme Court would overturn that part of the Voting Rights Act, particularly after swing Justice Anthony Kennedy said the circumstances of 1965 no longer existed: “Times change.”
North Carolina was one of the states burdened under the provision in question, given that several counties were required to get preclearance. Buoyed by prospects of a free hand in crafting future voting conditions, members of the state legislature and their staffs engaged in research that is troubling, to say the least.
They emailed the state elections board, demanding racial breakdowns on early voting, provisional voting, and forms of identification. One enterprising representative even called the University of North Carolina to find out what percentage of its student ID cards were held by African-Americans.
On June 25, the Court announced its 5-4 decision in Shelby striking down pre-clearance, with Thomas in the majority. The Tar Heel State could now rewrite its voting laws without federal oversight.
North Carolina Republicans pounced. The day after the decision was announced, a party leader in the legislature announced the party would pursue an omnibus voting rights bill.
Later, in the very last days of the legislative session, the state’s GOP rushed through a bill that modified voting in at least five ways they knew would disproportionately hurt blacks: it tweaked voter ID requirements, shorted early voting, ended same-day registration, trimmed provisional voting, and eliminated pre-registration.
Crucially, the legislature did not change problematic practices that benefited whites – for example it did not require ID for mail-in absentee voting, despite evidence of fraud. (There was no evidence of fraud related to in-person lack of identification).
Yesterday’s decision essentially extended the principles of the voting case to redistricting. The Court found the GOP-led legislature had unconstitutionally made race a key factor in drawing its lines to maximize Republican victories.
Justice Thomas’s 218-word concurrence sides with the majority, adding that “North Carolina’s concession that it created the district as a majority-black district is by itself sufficient” to reject it if the state can’t provide a compelling justification, which he found it couldn’t.
That’s consistent with Thomas’s longstanding position that, as he wrote in 1995, “under our Constitution, the government may not make distinctions on the basis of race.”
The justice’s vote yesterday makes sense given the racially aggressive way the North Carolina GOP acted after it foretold an end to federal oversight. Shelby let states ignore race – which was the point, according to the decision’s defenders. Instead the North Carolina GOP went into racial high gear.
The answer may be found in the words of a state expert who testified in the original case: “In North Carolina, African-American race is a better predictor for voting Democratic than party registration.” So Republicans knew they could change voting rules (and, later, redistrict) based on who’s a Democrat, but they’d have more success if they focused on who’s black.
Which means, perhaps, that the motives were entirely political and did not involve any negative feelings about blacks. I certainly hope so.
But even if North Carolina Republicans used race for its partisan predictive value only, that’s not something Republicans do (or should do, anyway).
Perhaps Chief Justice John Roberts is right that Americans are letting go of racism, or perhaps the less optimistic view some say Thomas holds is right, and colorblindness is the best blacks can ever hope for in a country with our history. Either way, behavior like North Carolina’s is unseemly and inconsistent with the highest ideals of our party and our country.
In fact, when conservative principles point to a position that would hurt our party at the ballot box, we should pick values over partisanship. I have argued elsewhere that voter ID laws are inconsistent with conservative principles, and for similar reasons, I think felons should vote (because traditionalists value redemption and because representative democracy requires the broadest possible franchise).
Each position would almost certainly lead to more votes for Democrats. I don’t care. I’m not an American because it helps me be a better Republican. I’m a Republican because it helps me be a better American.
Look, given Justice Thomas’s reputation for reticence, we may never know his thought process yesterday. But I for one am glad to see a conservative stalwart reject conscious racial decision-making by our government no matter whom it helps.