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.