Justice Thomas on Full Representation Voting Systems

Excerpts from Concurring Opinion in Holder v. Hall

Clarence Thomas

The Supreme Court ruled in 1994 that a Georgia county was not required by the Voting Rights Act to increase the size of its county commission. Justice Clarence Thomas sided with the majority, writing a concurring opinion -- joined by Justice Antonin Scalia -- that was critical of federal court rulings allowing racial and ethnic minorities to obtain "majority minority" single-member districts.

Justice Thomas' opinion included a lengthy, well-informed analysis of proportional voting systems (not to be confused with "proportional representation" as defined by race rather than voters). Following are excerpts from his opinion.

It should be apparent, however, that there is no principle inherent in our constitutional system, or even in the history of the Nation's electoral practices, that makes single-member districts the "proper" mechanism for electing representatives to governmental bodies or for giving "undiluted" effect to the votes of a numerical minority. On the contrary, from the earliest days of the Republic, multimember districts were a common feature of our political systems. The Framers left unanswered in the Constitution the question whether congressional delegations from the several States should be elected on a general ticket from each States as a whole or under a districting scheme....

The decision to rely on single-member geographic districts as a mechanism for conducting elections is merely a political choice and one that we might reconsider in the future.

Single member districting was no more the rule in the States themselves, for the Constitutions of most of the 13 original States provided that representatives in the state legislatures were to be elected from multimember districts.... [Today,] over 60% of American cities use at-large election systems for their governing bodies....

The decision to rely on single-member geographic districts as a mechanism for conducting elections is merely a political choice -- and one that we might reconsider in the future.... Already, some advocates have criticized the current strategy of creating majority-minority districts and have urged the option of other voting mechanisms -- for example, cumulative voting or a system using transferable votes [e.g., preference voting] -- that can produce proportional results without requiring division of the electorate into racially segregated districts.

Indeed the unvarnished truth is that all that is required for districting to fall out of favor is for Members of this Court to further develop their political thinking.... Once we candidly recognize that geographic districting and other aspects of electoral systems that we have so far placed beyond question are merely political choices, those practices, too, may fall under suspicion of having a dilutive effect on minority voting strength. And when the time comes to put the question to the test, it may be difficult for a Court, that, under Gingles, has been bent on creating roughly proportional representation for geographically compact minorities to find a principled reason for holding that a geographically dispersed minority cannot challenge districting itself as a dilutive electoral practice. In principle, cumulative voting and other non-district-based methods of effecting proportional representation are simply more efficient and straightforward mechanisms for achieving what has already become our tacit objective: roughly proportional allocation of political power according to race.

At least one court, in fact, has already abandoned districting and has opted instead for cumulative voting on a county-wide basis as a remedy for a Voting Rights Act violation. The District Court for the District of Maryland recently reasoned that, compared to a systems that divides voters into districts according to race, "[c]umulative voting is less likely to increase polarization between different interests," and that it "will allow the voters, by the way they exercise their votes, to ‘district’ themselves," thereby avoiding government involvement in the process of segregating the electorate.... If such a system can be ordered on a county-wide basis, we should recognize that there is no limiting principle under the Act that would prevent federal courts from requiring it for elections to state legislatures as well.

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