But in my own view, there there is a quite realistic sense in which voting rights really are hopeless given our current Constitution. What I mean is that there actually can't be a good decision regarding Sec. 2 of the Voting Rights Act. That's because the very point and idea of gerrymandering is to ensure more winners for a particular faction, and no SCOTUS decision can be devised that won't allow such practices given the Constitution as it now stands. In other words, any judicial opinion on the matter will have to be bad in principle, whether it helps or hurts this or that minority.
Republicans have long been quite fond of claiming color-blindness, and, although such claims are in laughably bad faith, who can blame them for wanting to seem like the good guys here? The notion of Black districts is distasteful on its face, even if it seems necessary given the vast amount racism in this country, particularly in the South. My own view is that given these difficulties, there are unbridgeable chasms to what can be done by the courts. No doubt, if Justice Kagan were writing for the majority, the immediate result would be more equitable for Black voters—correcting for the deep-seated reality of Southern racism and producing a result that feels "fairer" in the moment. However, we must recognize that even this "better" judicial outcome leaves democracy itself in a precarious state. By upholding Section 2 in its current single-member framework, the Court would have essentially conceded that democratic health must depend on race remaining a reliable proxy for partisan preference. An authentic democracy should not rely on any such allegedly essential connection to function. When we celebrate a "good" decision, we are merely cheering for a more sophisticated way of managing a system that is fundamentally rigged by the very existence of district lines.
There is no judicial exit from this trap. That means that Drutman et al. are generally right about the need for multi-member districts (and Pildes and other nay-sayers are wrong). We simply have to get rid of all district lines affecting state or federal elections except state boundaries, which can't be altered at legislative whim. (Their fixed nature is why we need not be as drastic as Stephen Legomsky, who recommends eliminating states completely). The moral is that citizens should be allowed to vote on pretty much everything except electoral mechanics--and those include district lines. If states can do whatever they want to ensure that some party gets as many winners as possible, they can simply vote away democracy altogether.
So I think it's important to remember that the quite serious problems with democracy in the U.S. can't be fixed by having better Justices who will write better decisions. Furthermore, while particularly awful things can be delayed by Congress writing better laws, that isn't really the answer either. We need to get rid of single member districts altogether, and that would likely take a Constitutional change.#
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#While the 1967 law requiring single-member districts makes it conceivable that a similar federal statute requiring that all Congressional members from each state be fairly elected from a single statewide district (i.e., not via anything like at-large voting), not only is it hard to imagine anything like that ever passing, but it would leave state legislative districts to be crazily gerrymandered.
