English: President Lyndon B. Johnson signs the Voting Rights Act of 1965 while Martin Luther King and others look on (Photo credit: Wikipedia)

Today the Supreme Court heard a case about the Voting Rights Act, Shelby County v. Holder– specifically, whether we still need special protections in “Covered” jurisdictions- places where the legacy of racism and voting rights is so deep it requires a different standard.  Some have argued that we are over this past, and it is time to move on.

The standard in non-Covered jurisdictions is that a voting practice or procedure, such as Voter ID or redistricting, is only illegal if it is crafted with an intent to discriminate against people of minority ethnic or language groups.  This is part of Section 2 of the Voting Rights Act.  But this historic piece of Civil Rights legislation was not passed in a vacuum.  History teaches us that in certain areas the machinations and chicanery of racism has sidestepped the 15th Amendment at every turn.  Once one discrimination tool is struck down, a slightly different one rises in its place.  Therefore, Section 5 of the Voting Rights Act says that in these places, such as Louisiana, Alabama, and Mississippi, we won’t argue about what you meant to do- we are just going to look and see if it has “Discriminatory Effects.”

One key component at work, although not addressed in Shelby County v. Holder, is that the primary tool for discrimination in America today has evaded protection under the Voting Rights Act.  Felon Disenfranchisement is keeping roughly six million people from the voting booth, nearly 90,000 in Louisiana alone.  Four million people living in the community are not allowed to engage in the most basic element of citizenship: voting.

This “New Grandfather Clause” has been considered outside the Voting Rights Act because slavery, and basically revoking citizenship, is still legal under the 13th Amendment as long as that person has been convicted of a crime.  Interestingly, the 9th Circuit found that the criminal justice system has discrimination, and disparate effects, throughout all levels.  They did not find the felon discrimination in Washington state to be illegal however, unless it was shown that the discrimination was intentional.  This implies that the VRA’s Section 2 would protect people from such schemes to disenfranchise.

Yet what if the challenge in Washington came within a “Covered” jurisdiction?  What if the same discriminatory effect were shown throughout all levels of the criminal justice system?  The federal agency Equal Employment Opportunity Commission (EEOC) has declared that such effects are endemic throughout the system, thus convictions should not be used as a divider between the haves and have-nots.  Should Section 5, if surviving the latest and greatest challenge, be implicated in his massively successful tool to disenfranchise millions of (disproportionately) Black Americans?

Those who feel racism, whether overt or subtle, no longer exists in our policies have not been paying close attention.  Much of the Voter ID advocacy reeks of anti-Latino racism.  The police are still being heavily deployed in low income communities of Color, rather than dispersed evenly or, if targeting drugs, in college dorms.  Civil suits are still being filed against government officials accused of racism in the workplace, and some are victorious.  Drug testing for select people receiving government benefits also has the taint of racism and classism, as those getting the smallest benefits were put in the box.  And racialized districting can easily ensure that overwhelmingly Black and Latino districts are split across wealthier White suburbs, and create a whitewashed legislature.

Discrimination is a human emotion that grows out of wanting the best for “our” people.  The Us/Them dichotomy creates a world of negativity, and it did not suddenly spring up in 1765, than disappear in 1965.  Nor is it confined to The South.  Pretending as such only exposes oneself to ridicule.

It may be a month or so until a decision is reached on Shelby County, but the oral argument will be available here.  It is surely good listening.