A signal it’s time to change the court

February 4, 2013

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.



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Here’s why Section 5 of the Voting Rights Act is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court: http://www.pacificlegal.org/opeds/Overtu rn-unconstitutional-Voting-Rights-Act

What’s especially ironic is that the principal use to which Section 5 is put today is forcing jurisdictions to create and maintain racially segregated and gerrymandered voting districts – which is completely at odds with the original ideals of the Civil Rights Movement.

Posted by RogerClegg | Report as abusive

It is truly disgusting that the author is lauding Section 5 for its role in fostering political apartheid in America by forcing states to draw districts along racial lines (i.e. a black district here, an Hispanic district there, etc.)

Posted by kramartini | Report as abusive

In 2012, Section 5 shouldn’t be necessary, but it clearly is. It is frustrating to be a Texas resident who lives in one of those illegally drawn Congressional districts. It was clear to all observers that they were illegally drawn at the outset, the State then used my tax money to litigate the case with the Federal government. The Court rules that they were in fact illegal, yet conceded that at the time of the ruling it was too close to the election to change the districts without further damaging the Democratic process. So, elections continued, voting rights were suppressed, the Republican-led gerrymandered plan lost in court but won at the ballot box, which is all they care about.

The courts will require the maps to be redrawn for 2014, yet all indications point to the same farceaand al litigious outcome. Without Section 5, there would be even less hope.

Detractors say that you can’t judge laws that don’t overtly consider race (like voter ID laws) by the effects they have, even if they are discriminatory. Unfortunately, some local governments have shown over and over again that they are willing to use sophisiticated voter data to carefully predict the net outcomes of new laws and tweak them to their benefits. (E.g. A voter ID law that permits a concealed handgun license to be an acceptable ID, but not a disabled veteran card). Simply put, it is naive to assume that in today’s world that the law-writers aren’t fully aware of the outcomes of the voting laws they create, just as they were years ago when men were required to be landowners to vote.

Because even with Section 5, in States like Texas, where the Republican leadership sees that it’s in their best interest politically to break the law and then litigate, I propose a stronger Section 5. Much like a recidivist criminal might get harsher penalties for each successive crime, a three-strikes rule could place map drawing in the hands of a federal panel of judges for an extended period (10 years?) for those bad actors who insist on repeatedly flouting the law and subverting our democracy.

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