Make no mistake, the Supreme Court decision in Shelby County v. Holder is a terrible one. It is a setback for civil rights as it makes one of the most important tools for equal access to voting - Section 5 of the Voting Rights Act - more or less moot since the coverage formulae has been thrown out. It may take time to remedy this legislatively.
But in the meantime, the Law of Unintended Consequences may have its say. For the dirty little secret of Section 5 was how, at the same time it led to major advances by African Americans in particular, it was also manipulated by the right wing to promote Republican white majorities in state houses and in the states of the Old Confederacy.
And so, while work begins on fixing the mess that SCOTUS created, Democrats should aggressively move to not just limit the damage but take back as much of the lost ground as possible. If done right, this can proceed with minimum retrenchment of minority progress.
Anyone who has worked on voting rights cases, particularly Section 5, knows that the politics of redistricting makes strange bedfellows. It is not uncommon for MALDEF or NAACP LDF lawsuits under the Voting Rights Act (VRA) to be joined by amicus curiae briefs from conservative legal foundations and litigated alongside GOP lawyers.
Why is this, you ask? Don't conservatives hate the idea of minorities getting a leg up? Not so fast...
The last several cycles of decennial redistrictings have seen a recurring phenomenon. While more minority (e.g. African American and Hispanic) legislators have been elected and the ranks of the Congressional Black and Hispanic caucuses have expanded with mainly democratic members, Republicans have entrenched control of state houses across the old south and in some parts of the Midwest, with GOP delegations of almost pure white.
Take the case of African Americans in the states of the Old Confederacy. The GOP has agreed to "pack" districts with African American voters who, when given a fair choice of candidates, have often ended up with African American representation (for the first-time ever in some cases). However the resultant remaining electorate was now much whiter. White Democrats who once counted on multi-racial coalitions to hold their own now had to compete - and mainly lose - in almost entirely white districts.
So perversely, while African Americans were now represented by one of their own, that new representative had less power due to the Democrats being in minority status in the state house and often in Congress as well. The same was happening with Hispanics in places like Texas and Arizona.
One of the successes of the VRA was how it had boosted black voting turnout to rates which now often exceeded whites. Yet, this meant you no longer needed a 70 percent black population to have an ability to elect a candidate of choice. In fact, by the late 1990's the now-incumbent black legislators were often holding their own with black electorates in the high 40's. Democratic redistricting plans were being drawn with "black" districts at much lower percentages due to the ability to hold these districts (in a partisan sense) at a much lower level of black electorate.
There is a robust debate in the civil rights community over this. On the one hand, you had the undeniable success of Section 5 in racial/ethnic terms. On the other hand, the new redistricting plans had been disastrous for the Democratic Party itself in some regions - a party to which the new minority members most often belonged to and to which majorities of the minority electorate still identified. Many civil rights advocates remain suspicious of white Democrats from the old southern power structure who used black votes as fodder while holding to Dixiecrat voting patterns. To them, the idea of "influence districts" sounds like a return to the old Southern Democrat way of doing things.
The consensus - and I believe the correct approach - has been that the progress of minorities to take seats in states and Congress has been worth it. In other words, the partisan aspects were outweighed by the advances in racial justice.
And yet. We now have enough evidence to show that, with higher black turnouts, Democrats might again be able to compete in these southern states if the redistricting plans post-Shelby are drawn without Section 5 guidance (note - Section 2, a lawsuit process, is still available but is nowhere near as effective as preclearance was).
This is very troubling and rightly so. Do Democrats now go into the next redistricting cycles and spread black and Hispanic voters around so as to ensure the maximum number of Democrats win in the general election? Does this mean losing many minority members and returning to white predominance?
I don't think it has to be that way. It depends on how you view the potential of multi-racial coalition success in 2014 and beyond.
If you are an optimist, you will point to Barack Obama and the election of some blacks from majority white districts at state and federal level and say it can be done. In other words, the Congressional Black Caucus ranks can remain filled at current levels, albeit those members will represent districts that are more and more multi-racial/ethnic and may even be minority black.
If you are a pessimist (or to be fair, a realist?) you point to what happens in the at-large voting for US Senate seats - the US Senate remains a white preserve.
However for the short term the choice cannot be avoided. How should redistricting be approached as long as Shelby remains the law of the land? Do Democrats try and ju-jitsu this into an advantage by parceling out minority voters to elect more Democrats? Can this be done with advantage to racial and ethnic minorities or at least the least harm? Is is plausible we have advanced far enough to roll the dice on true multi-racial/ethnic coalitions?
Ironically, if a multi-racial/ethnic coalition proves successful, conservatives and right wingers may jump on that as confirmation of their theories. However I suspect it would be cold comfort if the outcome of their glee was new governing Democratic majorities in southern state houses and congressional delegations.
To win back the old south for a new multi-racial Democratic Party, one built on the ashes of the old Dixiecrats, may end up making lemons out of this lemonade.