Alternative Ways Out: A Remedial Road Map For The Use Of Alternative Electoral Systems As Voting Rights Act Remedies

Steven J. Mulroy[1]

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 ýthe way outţ 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 donÝt 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 DoesnÝt 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 Votesţ).

[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] ýMinority vote dilutionţ occurs where ýthe voting strength of an ethnic or racial minority group is diminished or canceled out by the bloc vote of the majority.ţ 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 ýelection 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.ţ 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 ýThe Way Outţ Authority of Courts to Adopt