Cumulative Voting Imposed in Maryland County

Judge's Historic Ruling Sets Precedent        

Deborah Jeon

On the night of April 5, 1994, in her home on Maryland's rural Eastern Shore, 65-year-old Grace Purnell whooped with joy when she heard the news. Across the Chesapeake Bay in Baltimore, federal judge Joseph H. Young had ordered the Worcester County Commissioners to replace their old, racially exclusive election system with cumulative voting.

The ruling came in a lawsuit filed by the American Civil Liberties Union and brought to the brink of reality a centuries-old dream of the County's African American community to elect candidates of their choice. The case also marked the first time any court had ordered cumulative voting implemented as a remedy under the Voting Rights Act, drawing national attention to the case.

One could scarcely imagine a less likely place than Worcester County for cutting-edge electoral reform. Best known to the outside world as the home of the Ocean City beach resort, Worcester remains to its African American citizens a sleepy backwater, clinging to old-fashioned ways. Whites live in a world of power and privilege, blacks in another world entirely. Fully 40% of young black children live in poverty, the unemployment rate for blacks is nearly triple that for whites, and black workers earn just 48 cents for every dollar earned by white citizens. African Americans remain fearful of the County's all-white power structure, and yearn for the opportunity "to speak for ourselves." Never in Worcester's 250-year history has a black candidate been elected to any county-wide public office.

Judge Young began the process of changing that in January 1994, when he struck down the County's at-large, designated-post election system as violative of the Voting Rights Act. The system "interacts with past and present discrimination to deprive African Americans of...the same opportunity as other members of the electorate to participate in the political process and to elect representatives of their choice," he wrote. The Court then directed the County to propose a new plan to remedy the vote dilution violation.

The Commissioners balked at the Court's directive. Instead of submitting a plan that corrected the discrimination, Worcester re-submitted another at-large, designated-post plan. The plaintiffs opposed that plan, and submitted two alternative proposals: a system of five single-member districts, and a cumulative voting plan. The County objected to both of the plaintiffs' proposals, telling Judge Young that the only system acceptable to Worcester County was its existing at-large election system.

The Court considered all three proposals, and rejected the defendants' plan as racially discriminatory. Both of the plaintiffs' plans were legally acceptable, Young found. But the cumulative plan was better suited to Worcester County because it accommodated the County's legislative objectives -- including the Commissioners' oft-stated objection to race-conscious districting. Just as the Commissioners had urged, candidates elected under the cumulative plan would "reflect the collective interests of a greater number of citizens resulting from a county-wide election." The plan was ordered into effect within 60 days.
Black Worcester residents immediately embraced the new election system. "This will give us a chance to have somebody up there who represents the whole county but is also sensitive to our voice," Grace Purnell explained. Ms. Purnell spoke for many of the plaintiffs in saying she preferred cumulative voting over single-member districts. Through a year-and-a-half of litigation, the Commissioners had batted the plaintiffs over the head with Shaw v. Reno, complaining that they would not submit to a "racial gerrymander." Use of the colorblind, cumulative voting system deftly answered County arguments -- and tested the Commissioners' sincerity.

For whatever reasons, the County did not accept the plan. As quickly as black voters had endorsed the court ruling, the County Commissioners denounced it and vowed to appeal. They claimed cumulative voting was "exotic" and would be too confusing for Worcester voters. Black voters scoffed at these claims. "They underestimate our intelligence all the time," plaintiff Saunders Marshall responded wearily.

True to their word, the Commissioners appealed Judge Young's decision to the Fourth Circuit Court of Appeals. Concurrently they moved to stay the electoral process pending resolution of the appeal. Due to the looming autumn elections, the appeal was placed on a fast track, with briefs due in June 1994, and oral argument conducted in July.

During the appellate hearing, the Commissioners told the court something they had never revealed to Judge Young: If forced to choose between cumulative voting and a single-member district plan, they "strongly preferred" single-member districts. Just over a month prior to scheduled election primaries, the three judges stayed county elections pending "further order of the Court."

"Further order" came on September 16, when the appellate court affirmed the district court's finding that Worcester's at-large election system violates the Voting Rights Act. The Court forcefully rejected the County's reading of Shaw v. Reno, noting that Shaw had found use of race in the redistricting process objectionable only in those exceptional cases where "traditional districting principles are ignored and the resulting districts are so geographically bizarre that they are explainable only as an act of racial segregation." The Worcester case did not present this problem, the Court held.
Setting an important precedent, the appellate court also rejected the County's contention that cumulative voting is a "radical departure" from traditional election practices, or one that may not be judicially imposed to remedy a Voting Rights Act violation. Quoting the concurring opinion of Justice Clarence Thomas in Hall v. Holder (which, in turn, had cited Judge Young's decision in the Worcester case) the Court wrote "nothing in our present understanding of the Voting Rights Act places a principled limit on the authority of federal courts that would prevent them from instituting a system of cumulative voting as a remedy under Section 2."
Here, however, the Court questioned use of cumulative voting. In light of the Commissioners' revelation to the appellate court that they strongly
prefer single-member districts, the case was remanded to Judge Young for further remedial proceedings.
For the African-American residents of Worcester County, the long wait continues. But hopes are high and faith runs deep. Election day is coming, they say, and not far off.
Deborah Jeon is a staff attorney for the American Civil Liberties Union on the Maryland eastern shore. She represents the plaintiffs in Cane v. Worcester County. For information, contact the ACLU's eastern shore office at: 100 N. Liberty Street, Centreville, MD 21617.

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