Voting Rights Act: What Should We Do If Section 5 Is Struck Down?

Owen Poindexter
Section 5 of the Voting Rights Act may be in on its way out. If it is, maybe America will get on a task that it desperately needs to take care of anyway: gerrymandering.

What the U.S. needs now is a fairer way to draw our political boundaries. This would mitigate some of the damage done from losing Section 5 of the Voting Rights Act.

The Supreme Court may be on the verge of delivering a death blow to Section 5 of the Voting Rights Act. Section 5 mandates that any voting changes in 9 states (7 in the South, plus Arizona and Alaska) and districts in 7 other states be submitted to the Department of Justice before being approved, to ensure that they don't adversely affect racial minorities. We still need Section 5 (Charles Blow of the New York Times opines that it should be expanded), but for whatever reason, the Supreme Court looks hungry to strike it down.

So, what should we do?

America has a real problem, not just with racially-based election games, but partisan gerrymandering. In 2012, Democrats received more than a million more votes for candidates in the House of Representatives, but Republicans won 12 more seats. The 2010 Republican victories in state governments across the country gave them an enormous safety net, because that coincided with the census, and subsequent redrawing of the lines. Estimates of how much the Democrats would have to win the popular vote by to take back the House range as high as 7% (when, in a purely democratic system, it should be less than 1%).

How the lines are drawn is just one of many things that Section 5 of the Voting Rights Act covers (everything from voter registration forms to voter ID laws is covered under Section 5), but gerrymandering is the heart and soul of anti-democratic election meddling, and if we could fix gerrymandering, we could mitigate a lot of the harm done from losing Section 5 while getting quite a lot in side benefits.

Okay, so how do we fix gerrymandering? Here are three ideas:

1. Independent commission. The reason gerrymandering exists is almost too obvious to state: the people drawing the lines have a stake in how they're drawn. It would be like playing Monopoly, but every ten turns, the player with the most money gets to decide which properties are grouped together as monopolies. Do people still play Monopoly? Larger point: if you're playing the game, you shouldn't be making the rules too. A non-partisan independent commission should draw the congressional districts of every state. California does this now after a 2010 voter referendum.

2. Leave it to Law-Bot. Which is to say, create a computer program based on whatever criteria are deemed best (geography, demography, etc.), but NOT party ID, and let Law-Bot draw the lines. States would be able to sue (the People vs. Law-Bot) if their districts were poorly drawn for one reason or another, but the burden of proof would be on the people.

3. Expand the House of Representatives. The number of congresspeople in the House of Representatives is capped at 435. Originally, the House was supposed to have one member for every 33,000 people, but now there are over 600,000 people per each member of the House. The result is that some districts are much more populous than others, meaning that their votes are less valuable, and that there is plenty of wiggle room to bend congressional lines. While it would create confusion elsewhere in government, we would have a more democratic system if we had more like 2,500 congresspeople. Yikes.

All of these solutions are fraught with complications, but they are all far more fair than our current one of letting the winners change the rules every ten years to suit their liking. I dearly hope that Section 5 remains intact, but if it falls, it could be a chance to reconsider one of the least democratic parts of American politics.