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The last few years have seen a renewed interest
in the use of alternative electoral systems[2]
to enhance minority representation. Recent Supreme Court cases
invalidating minority congressional districts as "racial
gerrymanders"[3]
have curtailed the ability of legislators and litigators to draw districts
designed to enhance minority voting strength (the traditional remedy for
perceived minority vote dilution).[4]
This in turn has triggered a reexamination of alternative systems as a
means to address minority vote dilution without constitutional
difficulties[5]
-- to find a route to escape the dilemma posed by the race-conscious
imperatives of the Voting Rights Act and the race-neutral imperatives of
the recent Supreme Court cases. Legal and social science scholars echo
this trend.[6]
Citing this scholarly interest, a district court recently imposed an
alternative electoral system as a remedy in a voting rights case, basing
its decision on precisely this constitutional dilemma regarding
race-conscious districting.[7]
In a recent article,[8]
I joined this chorus. In addition to advocating alternative schemes as
remedies for minority vote dilution[9]
under Section 2 of the Voting Rights Act,
[10]
as ìthe way outî of the dilemma described above, I
proposed a new legal standard to be used when Section 2 plaintiffs seek to
replace illegal, dilutive systems with alternative schemes (rather than
the traditional single-member district remedy). <<PK: I donít
think a pinpoint cite to my article is necessary here.>> I argued
that this new legal standard could be used to challenge either a dilutive
districting system or a dilutive traditional, "winner-take-all"
at-large election. In short, that article discussed what it should take to
establish Voting Rights Act liability where the end result sought was the
imposition of an alternative electoral system.
With that preliminary question addressed, this
Article tackles the tougher problems arising in the remedial phase. It
answers two remedial questions pertinent to any use of alternative schemes
pursuant to the Voting Rights Act once liability has been established.
First, where both a traditional district remedy and an alternative remedy
are demographically feasible, what standards should courts (and litigants)
use in choosing between the two? Second, what standards should be used in
choosing among the three alternative electoral systems?
Part I sets out necessary background on minority vote
dilution, Section 2 of the Voting Rights Act, the Supreme Court's
"racial gerrymander" cases, and the workings of alternative
electoral systems. It also summarizes the new liability analysis advanced
in the previous article. Part II answers the first question posed above by
arguing that courts initially should defer to the defendant jurisdiction's
preference and to any applicable state law restrictions; where none of
these speaks to the issue, courts should have a general preference for
alternative systems. Part III answers the second question by advocating
"preference voting" [also known as choice voting] as the best of the three alternative
methods, because, among other things, it most effectively enhances
minority voting strength and does not penalize intra-group competition
within the minority group. Part IV applies these principles to the special
case of judicial elections, where courts adjudicating Voting Rights Act
challenges have articulated policy concerns unique to the election of
judges.
[1]
Attorney, U.S. Department of Justice, Civil Rights Division; J.D.,
William & Mary, 1989. The opinions expressed in this article do
not necessarily reflect those of the United States Department of
Justice.
I would like to
acknowledge gratefully the assistance provided by Neal Devins, Lani
Guinier, Pamela Karlan, Peyton McCrary, and Robert Richie. This
article is dedicated to Amy Mulroy, for her patience and forbearance.
[2] By "alternative electoral systems,"
I mean cumulative voting, limited voting, and preference voting (also
known as the "single transferable vote" or "the Hare
system"). These electoral schemes are designed to enhance the
opportunity of voting minorities to win representation in accord with
their voting strength, and to ameliorate the
"winner-take-all" aspect of traditional at-large elections
or district elections.
[3] See
Shaw v. Reno, 509 U.S. 630 (1993), and
its progeny; Miller v. Johnson, 115 S.Ct. 2475 (1995); Vera v. Bush,
116 S.Ct. 1941 (1996); Shaw v. Hunt, 116 S.Ct. 1894 (1996); Abrams v.
Johnson, 117 S.Ct. 1925 (1997).
[4] See
Part I.A., infra.
[5] See,
e.g., William Raspberry,
in North CarolinaSuperdistricts, Wash.
Post, Apr. 17, 1998, op-ed page; Michael Lind, Alice
Doesnít Vote Here Anymore, Mother
Jones, Mar./Apr. 1998, at 53; Reflecting
All of Us, Boston Review,
Feb./Mar. 1998 (series of articles by various authors in symposium
issue devoted to proportional representation systems); Redistricting:
Look Beyond Political Fighting over Single-Member Districts, Charlotte
Observer, Apr. 24, 1998, editorial page; John Anderson, Go
Back to the Drawing Board to Make More Votes Count, Christian Sci. Monitor, January 12, 1996, at 18; Better Politics from an Old Idea, Chicago
Tribune, May 40, 1995, editorial page.
[6] See,
e.g., T. Alexander Alenikoff
and Samuel Issacharoff, Race and Redistricting:
Constitutional Lines After Shaw v. Reno, 92 Mich.
L. Rev. 588, 628 (1993); Richard Engstrom, Jason F. Kirksey,
and Edward Still, One Person,
Seven Votes: The Cumulative Voting Experience in Chilton County,
Alabama, in Affirmative
Action and Representation: Shaw
v. Reno and the Future of
Voting Rights (Anthony A. Peacock, ed., 1997) (hereinafter
Person, Seven Votesî).
[7]
v. Reno and the Future of
Voting Rights (Anthony A. Peacock, ed., 1997) (hereinafter
Person, Seven Votes
[7]
McCoy v. Chicago Heights, 6 F. Supp.2d 973,
981 (N.D. Ill. 1998).
[8] Steven J. Mulroy, The
Way Out: A Legal Standard For Imposing Alternative Electoral Systems
As Voting Rights Remedies, 33 Harv. C.R.-C.L. L. Rev. 333 (1998).
[9] ìMinority vote dilutionî occurs where
ìthe voting strength of an ethnic or racial minority group is
diminished or canceled out by the bloc vote of the majority.î
Chandler Davidson, Minority Vote
Dilution: An Overview, in Minority
Vote Dilution 1, 4 (Chandler Davidson, ed., 1984). It is a
special case of the general vote dilution process, in which
ìelection laws or practices, either singly or in concert, combine
with systematic bloc voting among an identifiable group to diminish
the voting strength of at least one other group.î Id.
[10] 42 U.S.C. 1973b (1994).
Part One, Alternative Ways Out: A Remedial Road Map For The Use Of Alternative
Electoral Systems As Voting Rights Act Remedies
Part Two, Authority And Standards For
ìThe Way Outî
Authority of Courts to Adopt
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