Last week wasn’t a step forward for America.

Instead, it represents a stark and steely reminder of the incredible lengths still to come in guaranteeing all citizens their constitutionally promised equality.

Following the Supreme Court’s nullification of the Defense of Marriage Act, supporters of equality and basic human decency celebrated in fabulous form atop the stairs outside.

Meanwhile, political leaders in Texas were racing to pass voter identification laws, redistricted maps and restrictions to early voting that had previously been rejected by the Department of Justice for being too racially discriminatory.

Twenty-four hours before the Supreme Court struck down DOMA, it had already ruled against Section 4 of the 1965 Voting Rights Act. Section 4 provides a formula for determining which states and jurisdictions are bound by Section 5, which requires them to receive federal preclearance from the DoJ for any changes to their voting processes.

Without this formula, the legislation is unable to monitor racially discriminatory areas. Now, these areas — with proven discriminatory histories — can implement legislation that intentionally disenfranchises minority voters.

In his written statement, Chief Justice John Roberts sided with Shelby County, Alabama, stating that Section 4’s formula is a relic of the past that has run its course.

Indeed, the only thing outdated in this decision is Roberts’ continued disregard for anyone who isn’t white and hopes to enjoy their constitutional right to vote.

It’s true that Section 4 of the VRA uses data from 1972. However, Congress has updated the act four times, most recently in 2006 when after 21 hearings and the collection of over 15,000 pages of evidence the Senate and House of Representatives overwhelmingly voted in favor of using the old data.

In his dissenting opinion of the Court’s ruling on DOMA, Justice Antonin Scalia argued the court had no power to “invalidate (the) democratically adopted legislation,” completely ignoring his vote a day earlier against the congressionally reauthorized VRA. Additionally, Justice Roberts stated that this decision doesn’t gut the VRA, as Section 5 is still enforceable so long as Congress creates a new, updated formula.

It appears that Roberts and Scalia hope to have their cake and eat it too. (Although it appears as if Scalia has gone for seconds.) A new formula does invite discussion for ways of ensuring more equitable representation. Yet, Congress can’t even pass gas after eating Chipotle, let alone a vital stipulation of the most important piece of civil rights legislation.

In practice, Section 4’s use and relevance has only increased over time, as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion. Furthermore, a 2006 study by our very own University’s Law Prof. Ellen Katz found that while areas covered by the now defunct Section 4 accounted for only a quarter of the country’s population, they represented more than half of all successful Section 2 litigation brought between 1982 and 2004 (Section 2 provides a nationwide stipulation to not engage in voting practices that discriminate.)

Typical challenges include an attempt by the all-white Board of Aldermen of Kilmichael, Mississippi to cancel town elections in 2001 after an unexpected amount of African Americans announced their candidacy. The DoJ said uh-uh and the town elected its first black mayor. Similarly, in 2004, Waller County, Texas tried to reduce access to early voting near a historically black university after its attempts to prosecute two black students running for office had failed.

What’s that saying again? If it ain’t broken … break it yourself?

None of these blatant attempts at racial discrimination should come as any surprise, as these are areas that routinely failed to prove they were done with that whole racism thing. The VRA stipulates that if any jurisdiction goes 10 years without racially discriminating, they are removed from Section 5. Towns in a number of states did just that, thus removing themselves from the burden of preclearance.

All any of the bounded jurisdictions had to do was simply stop discriminating to remove themselves. However, that would have first required them to stop being racist. But no matter — our country’s highest judicial court was more than willing to embrace them.

Instead, this decision shifts the burden from the states to individuals, who must now challenge each discriminatory act through costly court processes after the fact.

Which brings us back to the rainbows.

The exuberance outside the Supreme Court following the DOMA decision was a colorful affair, filled with kisses and cheers.

Still, try as I might, I couldn’t bring myself to smile. I had already seen Roberts’ knowing wink a day earlier, his feint before the inevitable right hook.

Don’t misinterpret his vote against DOMA. He is a calculating man, meticulously aware that the ruling still leaves same-sex marriage legality at the discretion of the state, particularly those who have actively worked toward restricting votes within their communities.

The effects of the VRA are far-reaching and profound. Roberts doesn’t expect Congress to revitalize the legislation by creating an updated formula through which the federal government can monitor racially discriminatory areas.

Here’s to hoping they rip the cake right out of Scalia’s hands.

Ben Gloger can be reached at

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