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.
Full Article: A signal it’s time to change the court | The Great Debate.