Justice Kennedy today asked a crucial question about the constitutionality of Section 5 of the Voting Rights Act in 2009: Is the sovereignty of the state of Georgia less than the sovereignty of the state of Ohio? Justice Kennedy also echoed the argument for the Westmoreland Amendment to the 2006 VRA renewal, when he called the law’s bailout provisions "impractical." (The Westmoreland Amendment would have eased the bailout process for jurisdictions with ‘clean’ voting rights records). I’m not a lawyer, but I’m handy with math, and I can count to five. Today’s arguments gave the impression that Justice Kennedy will be that fifth and decisive vote.

It’s ridiculous that we even need to have this case before the Supreme Court. Congress was at its pandering worst when it renewed this act in 2006, with no regard for advancements made in the past 41 years. More important, Congress’ "studies" of the ongoing voting rights violations did not compare covered states with noncovered states. If Georgia or Texas isn’t different in practice, then the Constitution demands that the federal government not treat us differently.

People ignorant of the law’s real effect – which is almost everybody – will point to voting problems in South Florida in 2000, or Cleveland in 2004, as evidence that discrimination continues. But they prove my point: Those areas aren’t covered by Section 5 of the VRA. This out-of-date law works in 2009 on the assumption that absolutely nothing as changed in this country, especially the South, since 1965. This is shaky-kneed, head-in-the-sand legislating.

The lawyers with the unenviable task of defending this blatantly unconstitutional law couldn’t explain to the justices why some states are less sovereign than others. They couldn’t explain why Congress didn’t look at voting rights problems in states not covered by the Voting Rights Act. They couldn’t explain what compelling national interest there is nearly 50 years after the civil rights movement to punish today’s residents for the sins of people who are long dead.