University of Baltimore Law Professor Garret Epps has this piece in the Atlantic (yes Virginia, people really pay for it) characterizing Arizona’s lawsuit challenging the continued constitutionality of Section 5 of the Voting Rights Act as “weird.”

“Arizona’s new Republican Attorney General, Tom Horne, filed a suit last month asking a federal court to declare that § 5 of the Voting Rights Act of 1965 is unconstitutional. Arizona–in some ways the Mississippi of the 21^st Century–is a weird plaintiff, and its claims are even weirder; but weirder claims have succeeded in the past. The Supreme Court signaled in 2009 that it was a bit weary of all this right-to-vote business.”

This is typical of the tactics used by the civil rights industry – claim that the entire right to vote is under attack, and demonize good faith legal efforts to test the limits of federal power.  First the exaggeration: the Supreme Court has never signaled that it is “weary of all this right to vote business.”  Nice way to stoke the mob professor.  In reality, the Court questioned whether the federal government has the power to approve or reject election laws in 16 states based on events that happened almost 50 years ago.  Nobody, particularly the Supreme Court, is questioning the viability of right to vote statutes like Section 2 of the Voting Rights Act, as the article concedes once the mob is sufficiently stoked.

Second, the complaint is neither bizarre nor weird.  It firmly and credibly tests the limits of federal power using a theory some of the zealous defenders of Section 5 think will prevail.  Worse for Professor Epps, the people charged with defending Section 5 don’t view the complaint as weird or outlandish.  They understand the serious vulnerabilities of the provision and have adjusted their preclearance policies to help preserve this constitutionally vulnerable statute.