I have long felt and said to many skeptical people that DOMA wouldn’t survive a Supreme Court challenge and that Justice Kennedy would be the one to write the opinion. I am an eternal optimist in my measured way. But even being right on top of being happy about this big win doesn’t make me very happy today. The massive victory in Texas, despite the fact that it decisively achieved the goal of embarrassing the Republicans, helps a little, but still. It’s hard to be happy, because the blow to democracy that the Supreme Court delivered yesterday in striking down part of the 1965 Voting Rights Act—even though that act was passed to protect a right enshrined in the Fourteenth Amendment—is so beyond depressing. This, even though it’s also no surprise, as conservatives have been obsessed with rolling back minority voting rights ever since they were first protected. It seems it’s quite possible it amounts to a license to Republican-controlled states to basically terminate the voting rights of vast swaths of people with the same tactics that were used in the Jim Crow era, and that the VRA was meant to bring an end to.
In particular yesterday’s decision overturns nearly half a century’s guarantee of democracy for those Americans who had been denied that guarantee since the Republic’s founding. Within hours of the decision, at least four states that already had a history of vote suppression began introducing bills in their legislatures favoring more punitive voter-identification laws, fewer polling places in minority districts, and shorter hours in which to exercise the right that a democracy allegedly holds most sacrosanct.
The court’s judicial action yesterday was created from bad faith and custom built for obfuscation. It pretends to uphold the rest of the 1965 act signed by Lyndon Johnson—and renewed by virtually unanimous, bi-partisan votes in the Congress as recently as seven years ago—while striking down the provision of the law that in fact makes the rest possible. In so crafting their majority opinion, five of the court’s nine justices set out to lose themselves amid weeds of legalese in the hope that history will lose sight of what they’ve done.
I fear that the voter ID stuff may just be the beginning of it. This decision makes the VRA so hard to enforce that we shouldn’t be surprised to see the return of more egregious tactics. We’re already seeing longer voting lines in minority-dominated districts. That will almost surely get worse. I’m hoping the threat of lawsuit at least keeps ye ol’ literacy tests and poll taxes away, but man, this—like Planned Parenthood v. Casey—is basically an invitation to the right to keep coming up with ever more ingenious ways to make a constitutional right a theory more than an actual right for large numbers of Americans.
So be happy for the day, but understand this: Things are bad. Really, really bad. How bad is hard to say right now, but we cannot relax about this. The fundamental right to marriage may have a victory today, but the even more fundamental right to vote has suffered a serious blow.