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It's happening this morning. The Supreme Court is hearing arguments over the Voting Rights Act, and the outcome will determine whether Republican-led legislatures throughout the South are able to enact a 21st century version of Jim Crow.

The constitutionality of the law is being challenged, and specifically, section 5 of the law is under attack. That's the portion of the law that requires states with a history of voting discrimination to pre-clear with the Department of Justice before instituting them. It's a law that dealt firmly with the realities of racism, and painted those listed states with a racially discriminatory label that they rightly earned. The message from Congress back then was clear - you've proven that you will enact laws to keep minority voters from casting their votes, so you've not earned the benefit of the doubt that typically accompanies our version of judicial legislative review.

But if MSNBC is correct, it looks like section 5 is in serious danger. They're reporting that a couple of the important swing votes have shown a willingness to question the necessity of the restricted state list. It's difficult to know for certain how these things will turn out, and a Justice's line of questioning in oral argument does not always indicate his or her decision. But as this article notes, things are not looking great:
Both Chief Justice Roberts and Justice Kennedy, the likely swing votes, reportedly had concerns with the law. Williams reports that Kennedy said at one point during the hearings “The Marshall Plan was a good thing at one time but times change.”

The justices were apparently concerned with the fact that the law is too “backward looking” focused on the states with a history of racial discrimination. “Many of the justices said that the problems in the south aren’t as bad as they are in places in the north and it troubled them that the law doesn’t have any way to deal with that,” he said.

These very insulated Justices are making the following apparent argument - this law was necessary back when people in state legislatures were racist and politically-minded, but we've totally moved past that. Which sounds nice, until you realize it's completely inaccurate.

State legislatures have shown themselves to be just as racist as ever, as their policies, both on voting rights and things like welfare reform, display a dog-whistle form that could be heard by even the deafest canine. All across the South and in other places, Republican-led legislatures have attempted to enact laws that specifically disadvantage minority voters. It's what many have described as a solution in search of a problem. More aptly, a policy proposal that uses demagoguery to achieve a desired result. That result? Keep minorities from voting, since those people are more likely to vote democrat. It's an old Republican gag, and one that fails to deal with reality. When the electorate evolves, and your policies are no longer palatable, just make sure the only people who can vote are those lily-white souls who still agree with your outdated agenda.

The court has taken an interesting approach here, and it's one specifically designed to limit their culpability. They've said that the law's problem is its inability to address voter suppression problems in states not on the restricted list. That's the equal protection gab, and it's what Southern states have hung their hat on. Why are we being singled out when places like Pennsylvania are just as likely to be racist pigs?

So the court takes the bait, washing its hands of blame. They seem set to invalidate section 5, asking Congress to come up with new, more "fair" ways to screen laws from vote-suppressing states. The problem with this is clear. In order to bring about this result, the court must invalidate the law, then wait for Congress to act. It seems highly unlikely that the current House of Representatives will allow passage of a new restriction apparatus. In effect, we're left with a court that asks Congress to improve the Voting Rights Act, but knowing full and well that Congress won't do it.

Both bodies are to blame for enabling the hateful, insidious stupidity that is sure to erupt from state houses across the country. Is there any doubt that Southern states, led by people like Nikki Haley and Rick Perry, will take their new toy out for a spin over the next couple of years? Despite clear evidence that voter fraud is a mostly mythical problem dealt with effectively by criminal penalties, they'll enact laws that make voting more costly and much more inconvenient for minority populations.

And if we need to march in the streets again, I'm glad I'll be around for this one.  

Originally posted to Coby DuBose on Criminal Injustice, Race, and Poverty on Wed Feb 27, 2013 at 10:03 AM PST.

Also republished by I Vote for Democrats.

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