A signal it’s time to change the court
If the Supreme Court strikes Section 5 of the Voting Rights Act, what next? It’s a depressing question, with a depressing answer. That’s because no practical substitute solves the problem that Section 5 solves.
Section 5 is special medicine for broken democracies. It demands that the federal government sign off on election changes, in areas where less than half the eligible population was able to vote in 1964, 1968 or 1972. Majority rule is grade-school civics. But in these jurisdictions, a majority of the electors could not cast a valid ballot. That is broken democracy.
In these areas, democracy was often broken by design ‑ crafty tactics to lock out the most vulnerable and shifting representational schemes to dilute the influence of the few who were able to sneak through.
As a result, Congress enacted Section 5 as a backstop. It does not demand utopia. It asks only that new laws not make things worse.
Thankfully, the worst of Jim Crow is gone. But four decades have not wholly healed democracies broken for more than a century.
Jurisdictions with a clean record for 10 years can “bail out” of Section 5 oversight. Many have. Those that have not either don’t want to ‑ or can’t. “Can’t” means “still broken.” Or, at least, “not yet entirely better.”
To some extent, ideological partisanship has replaced racial or ethnic animus as the prime motivation for misconduct in these jurisdictions. But race and ethnicity remain overused weapons.
Consider Texas, a dedicated recidivist. From 1982 to 2006, the Voting Rights Act blocked 307 new policies. In 2011 the legislature redrew district lines, diluting the Latino vote yet again. One district, for example, was painstakingly crafted, block by block, to look like it would provide Latino opportunities. But it actually limited the chance that any Latino-preferred candidate could win. Neither the goal nor the ingenuity is a recent anomaly.
The bad behavior is hard to stop. Regular lawsuits are complex, slow and expensive. Well-funded groups may fight at the statewide level ‑ but tainted elections will continue (and those elected will continue making policy) while the plaintiffs wait for victory. And that’s just at the state level. Locally, in city councils and school boards where democracy should be most responsive, litigation resources are most scarce and the threat of backsliding most severe.
As a remedy, some now call for legislation based on a different model: reforming the conditions of voting, like strict ID requirement and long lines. There is a need for action. But I am wary of federal mandates sufficiently palatable to pass. The price of helping the worst regions may well be hurting the best.
Moreover, even the best new ideas aimed at mechanics don’t substitute for Section 5. The ability to vote is small comfort when political power is systematically squelched. There is no prospect of national agreement on the standards for distributing local power.
That’s the genius of Section 5: It’s not a one-size-fits-all federal mandate. It allows endless local experimentation under one condition — the experiments cannot come at minorities’ expense.
Where discriminatory democracies were broken and have not fully healed, local decisions on representation need a sturdy federal floor protecting race and ethnicity. If the 15th Amendment does not grant Congress that power, nothing does.
Which means that if Section 5 falls, the only effective change may be change at the Supreme Court.
ILLUSTRATION: MATT MAHURIN