Until the Last Vote is Counted

Democracy is voting. Voting is democracy. A country is only democratic to the degree that the binding votes tallied represent the will of the people.

And by that standard, there are no perfectly democratic governments--though some are far worse than others. Democracy is indeed, as Donna Brazile remarked in a recent interview, "a work in progress." Long lines at polling places keep away urban voters in high-population, low-income areas, while low wait times give higher-income voters a leg up. But when we compare the status quo to the status quo ante, it's clear that we're much closer to a perfect democratic system of government than we were 50 years ago.

So much of that can be attributed to Section 5 of the Voting Rights Act of 1965 which, if you believe so many of these headlines, the U.S. Supreme Court "upheld" with an 8-1 majority yesterday. But the fine print reveals that the Court didn't uphold Section 5 at all--it just saved the constitutional question for another day--and there are strong indications that Section 5, holding states with a history of segregation to a higher degree of federal scrutiny in matters pertaining to voting rights, may have only been one or two justices away from being repealed.

Would it matter if it had been? In his lone dissent, Clarence Thomas argued in the negative. But his argument is less than compelling:

The lack of sufficient evidence that the covered jurisdic­tions currently engage in the type of discrimination that underlay the enactment of §5 undermines any basis for retaining it. Punishment for long past sins is not a legiti­mate basis for imposing a forward-looking preventative measure that has already served its purpose. Those sup­porting §5’s reenactment argue that without it these jurisdictions would return to the racially discriminatory practices of 30 and 40 years ago. But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities from voting.

Yes, but...

1. The very purpose of Section 5 is to prevent such evidence from manifesting itself in the form of unjust voting regulations.
2. Under the definition of discrimination outlined by Justice Scalia in his dissent in last year's Indiana voter ID case (a dissent that Justice Thomas joined), even unfair voting regulations can't be considered discriminatory unless the justices of the Court are somehow prepared to prove that the legislators intended for it to be discriminatory. Since Supreme Court justices are not noted for their ability to read the minds of strangers, this effectively means that even the most stereotypical Jim Crow laws, such as poll taxes and literacy tests, would pass constitutional muster under Justice Thomas provided that they were not officially designated as racist by their authors.

The Court's 8-1 ruling was correct inasmuch as it did not strike down Section 5, but that gives us no indication of how close the Voting Rights Act might be to extinction.