The Supreme Court may finally pull the plug on the Voting Rights Act (VRA) in its current term. Enacted in 1965 when segregation was still apparent in the South and poll taxes had only recently been outlawed, the VRA sought to protect voter access to the polls. That was a good thing. But good ends don’t always justify the means, and some of the VRA’s means were and are questionable.

Take preclearance. Because of the South’s record in blocking voter access, the VRA required various jurisdictions -- including during its history nine whole states -- to obtain “preclearance” of any changes they made to their voting laws if they were thought to affect voter registration or participation. Those provisions were initially enacted for five years. In 1970, Congress extended them another five, then seven, then 25 and another 25.

Under the Constitution, voting is basically a matter of state control. The VRA, enacted pursuant to the Fifteenth Amendment, was intended to address egregious situations that, by the 1960s Americans recognized should be eliminated. But, as the original bill envisioned, such congressional intrusion was intended to be therapeutic and temporary.

Instead, it became quasi-permanent. Like “affirmative action” (AKA “reverse discrimination”) it was recognized that this “temporary” arrangement was an exception both to American practice and usual constitutional tradition. But, like affirmative action, its proponents were never willing to say when this “temporary” fix should end.

The truth is that its proponents never wanted their ‘temporary’ intrusion to stop because it was their useful cudgel to stop states from doing things that were arguably constitutional but they didn’t like. All they had to do was move and rebrand the “discrimination” goalposts.

Let’s take two examples. Is it unlawful “discrimination” if a state does not print ballot materials in English? To vote requires being a citizen. You are either born in the United States and so should speak English or you are naturalized and supposed to have basic command of English. Does a person unable to function in English really have the capacity to make the kinds of political decisions affecting the community that voting implies?

Is it “discriminatory” if a state requires a potential voter to show identification prior to voting? You need to prove your identity (and often age) to do lots of things. Board a flight. Drive a car. Buy a beer. Get a job. Buy cigarettes. Open a bank account. Buy a gun. So, why is having to show ID to vote so burdensome, so egregious, so “discriminatory?”

VRA’s eternal but indefinite mañana sunset finally forced the Supreme Court’s hand: in 2013, it finally stopped the preclearance rule.

The current case before the Supreme Court affects drawing districts for representation. The VRA says states cannot “dilute minority representation.” That’s been taken to mean the creation of legislative districts cobbled together to ensure in practice the election of minority candidates.

Louisiana had one such district. Concerned about federal court oversight, the state created a second. Concerned that designing legislative districts explicitly intended to take race into account violated the 14th Amendment’s equal protection requirements, plaintiffs sued.

That’s the core question: can race be an affirmative factor in creating legislative districts? It’s one thing to say race cannot impair your voting rights, i.e., you can’t be denied the right to vote because of your race. But it’s another thing to say that a legislature must consciously take race into account when it apportions seats. What that essentially says is that it’s not race that is a disqualifying criterion in political decisions but which race? The upshot is there’s “bad discrimination” and “good discrimination.” Plaintiffs insist the Constitution says: “NO discrimination.”

Legislatures can divvy up seats based on all sorts of reasons. Geographic contiguity. Economic connectedness. Historic relationships. Even political considerations. The question is: is race ever a legitimate criterion for apportionment? Plaintiffs are asking the Supreme Court to say “no.”

To the degree that the VRA demands “minority districts,” it requires the same kind of reverse discrimination evident in affirmative action and its various “diversity, equity, and inclusion” incarnations. It’s a racialism that says designing a district in the name of blacks or Latinos is a legitimate racial consideration, but building one in the names of whites or Asians a forbidden consideration.

The promise of the Civil Rights movement was to advance America as a color-blind society. That vision has transmogrified into a tawdry counterfeit that sees racism as “endemic” and an indefinite if not eternal racial spoils system as the only way to achieve “justice.”

Spelled out in such explicit terms makes it questionable how many Americans would agree.

Image: Bom Isopod