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A. Vote Dilution and Single-Member Districts
Congress passed the Voting Rights Act in 1965 to
address the problem of racial discrimination in voting. When enforcement
of the Act in the 1960s and 1970s led to increased voter registration
among formerly excluded minority groups,[11]
voting rights advocates discovered still another hurdle to effective
participation by these groups in American democracy: minority vote
dilution. Simply put, electoral systems were in many places designed to
prevent minority voters from exerting any real influence in electoral
outcomes, thanks to the bloc voting patterns of the white majority. This
vote dilution was accomplished in two ways: through the use of at-large
electoral systems, and through districts ěgerrymanderedî to minimize
minority voting strength. <<PK: I donít think a fn necessary
here--I develop these concepts and cite where appropriate in the
paragraphs above.>>
The traditional, ěwinner-take-allî form of
at-large election was (and is) commonly used for local elections such as
for city councils or county commissions. <<PK: I donít think fn
necessary here.>>It has voters from all over the jurisdiction voting
to fill open seats on jurisdiction-wide legislative bodies. Under this
method of election, each voter may cast only one vote for each candidate
for a particular office, up to the number of empty seats, with the top
vote-getters filling these seats. A related approach elects several
representatives each from large ěmultimemberî districts. Within each
such multimember district, elections operate in a manner similar to
at-large elections. Most local jurisdictions in the United States use
single-member districts, winner-take-all at-large elections, or some
combination of the two.[12]
It has long been acknowledged that where voting is
polarized along racial or ethnic lines, these ětraditionalî or
ěwinner-take-allî at-large/multimember methods allow the white
majority to vote as a bloc and fill all seats, ensuring the defeat of
candidates backed by minority voters and thus ědilutingî minority
voting strength.[13]
For example, suppose a five-member county commission
in a county where black persons[14]
constitute 40% of the population. Where, as is commonly the case, black
voters consistently prefer different candidates from white voters, the 3/5
white majority can continually ěshut outî the black minority and fill
all five seats with white-preferred candidates. Even though the
politically cohesive voting bloc of black voters represents 2/5 of the
populace, they are unable to elect a single candidate of choice.[15]
This inability is the arbitrary result of the particular method of
election interacting with the prejudices of white voters.
Minority vote dilution also occurs in settings using
single-member districts, geographic electoral units from which only a
single candidate is elected, as in the U.S. House of Representatives. Just
as these districts can be politically gerrymandered to disproportionately
elect Democrats or Republicans, they can be drawn to disproportionately
elect white-preferred candidates and underrepresent minority-preferred
candidates.
The canonical remedy for minority vote dilution
through electoral method (i.e., through at-large/multimember systems) and
through gerrymandered districting has been to draw single-member districts
with significant minority populations.[16]
Litigants can force the creation of such minority-oriented districts
through lawsuits under Section 2 of the Voting Rights Act.
B. Section 2 and Gingles
The statutory solution to this problem is set out in
Section 2 of the Voting Rights Act, which Congress passed in 1965. Section
2 prohibits States and political subdivisions from using any standards,
practices, or procedures that abridge the right to vote of any member of a
protected class of racial and ethnic minorities.[17]
In 1982, Congress amended Section 2 to clarify that it intended to apply a
ěresults testî to Section 2 vote dilution claims. Rather than
requiring a showing of discriminatory purpose on the part of the
government body implementing the challenged electoral practice, a
plaintiff could prevail simply by showing that the ětotality of
circumstancesî reveal that ěthe political processes leading to
nomination or election ... are not equally open to participationî by
members of the protected class, because those members ěhave less
opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice.î[18]
The legislative history of the amendment sets out a lengthy, nonexhaustive
list of factors to be considered under the ětotality of
circumstances,î[19]
referred to commonly as the ěSenate factors.î
In 1986, the Supreme Court clarified how courts were
to implement the ěresults testî amendments in Thornburg v. Gingles, a
Section 2 challenge to certain North Carolina state legislative
multimember districts.[20]
In Gingles, the Court established that Section 2 plaintiffs must establish
three ěpreconditionsî to make out a prima facie case: (1) the minority
group is sufficiently numerous and compact to form a majority in a
single-member district; (2) the minority group is politically cohesive
(i.e., its members tend to vote alike); and (3) the white majority votes
sufficiently as a bloc so as usually to defeat the minorityís preferred
candidate.[21] The first of these preconditions is often referred to
simply as ěcompactness,î and the second and third are often referred
to together as ěracial bloc votingî or ěracially polarized
voting.î[22]
If plaintiffs failed to prove any of these three preconditions, they lost.
If they could establish all three, they still had to prove a violation
under the ětotality of the circumstancesî analysis, which incorporated
the ěSenate factors.î[23]
For years before Gingles, and with even more vigor
for seven years thereafter, voting rights litigants used Section 2 to
force the creation of numerous minority-oriented districts at the
congressional, state, and local level.[24]
Some, but not all, of these districts were oddly-shaped. Sometimes the
districts were oddly shaped because that was the only way to create
majority-minority districts while still satisfying one-person, one-vote
concerns.[25]
At other times, the odd shapes were the result of incumbent legislators
trying to satisfy the Voting Rights Act while simultaneously protecting
their own incumbency.[26]
The minority districts were often no more oddly shaped than other,
non-minority districts drawn by the same jurisdiction.[27] The degree of non-compactness of (both minority and
non-minority) districts increased over time as improvements in
redistricting computer technology allowed ever-more-sophisticated
fine-tuning of demographic data by drawers of redistricting plans.[28]
Nonetheless, the race-influenced oddities were bound to attract the
attention of the Supreme Court, and in 1993 one such district did.
C. Shaw, Miller, and Reverse-Discrimination "Racial
Gerrymanders"
In Shaw v. Reno,[29] the Supreme Court considered a challenge to North
Carolinaís Twelfth congressional district, a long, snake-like
minority-majority district which stretched along Interstate 85.[30]
In Shaw, the Court recognized a new constitutional cause of action
challenging an oddly-shaped minority district as a ěracial
gerrymanderî under the Fourteenth Amendment.[31]
This new cause of action was ěanalytically distinctî from the
traditional vote dilution claim and did not require proof that a
particular groupís vote was in fact diluted.[32]
Instead, the harm caused by such ěgerrymanderingî was two-fold: it
reinforced the stereotype that members of the same racial group think and
vote alike (ěstigmatic harmî), and it encouraged elected officials
from such districts to represent only the members of their racial group
rather than the district as a whole (ěrepresentational harmî).[33]
As explained in succeeding cases, a Shaw plaintiff
confronts a threshold question as to whether race is the ěpredominant
factorî driving the configuration of the challenged minority district.[34] To make this showing, the plaintiff must prove that
the challenged district ěsubordinated [to race] traditional race-neutral
districting principles,î such as ěcompactness, contiguity, respect for
political subdivisions, or communities defined by actual shared
interests.î[35] If the plaintiff fails to make this showing, the
minority district will be upheld and the analysis ends there. If the
plaintiff meets the ěpredominant factorî threshold, the constitutional
standard of ěstrict scrutinyî applies: the district will be
invalidated unless its configuration was narrowly tailored to serve a
compelling governmental interest.[36]
Although the Court has not detailed a definitive list of governmental
interests which would support a Shaw-type racial gerrymander, compliance
with Section 2 is likely one such interest.[37]
The Shaw line of cases has severely curtailed the
ability of legislators, litigants, and courts to create single-member
districts which provide minority voters with a realistic opportunity to
elect candidates of choice.[38]
In doing so, the cases create a dilemma for anyone interested in remedying
minority vote dilution. Persons interested in assuring fair representation
to minorities must steer a narrow middle course between the Scylla of the
Voting Rights Act, which requires that race be taken into account when
drawing districts, and the Charybdis of Shaw, which requires that race not
be used ětoo much.î The performers in the upcoming 2000 redistricting
circus will be walking a tightrope, and no net can cushion them from the
risk of protracted, expensive litigation and disrupted election cycles.
These pitfalls can be avoided, however, by eschewing districting
altogether and adopting alternative electoral systems.[39]
D. Alternative Electoral Systems
Although at-large systems used in the United States
have traditionally been of the ěwinner-take-allî variety, other
varieties have been and are employed here.[40]
These systems employ special voting rules designed to enhance the ability
of voting minorities to obtain some representation. There are three such
systems which have a history of use in the United States. They can be used
in partisan or non-partisan elections, and which have been discussed as
non-district alternative voting rights remedies at the local level.[41] These three systems are limited voting, cumulative
voting, and preference voting (also known as choice voting or the Single
Transferable Vote).[42]
In a limited voting system, a voter casts one vote
per candidate to fill a number of seats, but the total number of votes a
voter may cast is lower than the total number of seats to be filled.[43] For example, a voter might be allowed to vote for only
four candidates to fill five seats on a city council. This limitation is
designed to prevent the majority "from making a clean sweep of all
seats by voting a straight ticket."[44]
Limited voting systems are used in numerous local jurisdictions in North
Carolina, Alabama, Connecticut and Pennsylvania.
[45]
In a cumulative voting system, voters have X number
of votes and can distribute them among the candidates any way they see
fit. This number of votes is usually, but need not be, equal to the number
of seats to be filled.[46]
If a voter has five votes, she can cast one vote each for her top five
preferred candidates, she can "plump" all five votes for one
candidate for whom she has an especially strong preference, or she can
divide her votes 3-2 between her top two choices, and so on.
[47]
Cumulative voting is used in scores of jurisdictions
in Texas and Alabama, as well as in Peoria, Illinois.[48]
Historically, it was used to elect members of the Illinois House of
Representatives from 1870 to 1980.[49]
In preference voting,[50] the voter ranks the candidates in her order of
preference, putting beside each candidate's name a "1,"
"2," etc., for as many candidates as she wishes. The votes are
counted in a series of rounds. In the first round, candidates netting more
than a certain minimum amount of first-choice votes
[51]
are assigned a seat; their "excess" votes
(i.e., the number of votes they received above the minimum) are reassigned
to other candidates based on the votersí second-choice selections. In
the second round, any candidates above the minimum quota of first-choice
votes (after reassignment) are seated; if there are no such candidates,
the lowest vote-getter is disqualified, and his votes are reassigned on
the same second-choice basis. This process of seating and disqualifying
candidates, and reassigning their votes accordingly, continues through as
many iterations as necessary to fill all the seats.[52]
Preference voting is used in Ireland and Australia, among other countries.[53]
In the United States, it is used in city council and school board
elections in Cambridge, Massachusetts, and in local community school board
elections in New York City.[54]
Historically, it was used to elect city councils in approximately two
dozen American cities throughout all regions of the United States.[55]
For each of these three alternative systems, a
mathematical formula exists which determines the minimum percentage of the
electorate a politically cohesive minority group needs to be in order be
assured of electing at least one candidate of choice. This formula,
universally acknowledged by political scientists, is called the
ěthreshold of exclusion.î For both cumulative and preference voting,[56]
the threshold of exclusion is:
1 / (# seats to be filled) + 1
[57]
These alternative systems have proven to be effective
at enhancing the ability of racial and ethnic minority voters to elect
candidates of choice.[58]
Importantly, they do so in a race-neutral manner, and thus do not raise
Shaw concerns.[59]
For this reason, commentators[60]
have argued that courts should use these alternative systems as remedies
in minority vote dilution lawsuits under the Voting Rights Act. In many
cases, such remedies have been adopted by consent decree in Section 2
litigation,[61]
but they have rarely been imposed by judicial fiat as a Section 2 remedy
over the objection of a defendant jurisdiction.
Part Two, Authority And Standards For
ěThe Way Outî
Authority of Courts to Adopt
[11] Evidence regarding the increase of minority
voter registration in the years following the passage of the Voting
Rights Act can be found in James E. Alt, The
Impact of the Voting Rights Act on Black and White Voter Registration
in the South, in Quiet Revolution in the South: The Impact of the Voting Rights Act,
1965‑1990 at 351, 352-354 (1994) (summarizing findings); see
also id. at 351‑73.
[12] See
Edward Still, Alternatives to Single-Member Districts, in Minority Vote Dilution
Alternatives to Single-Member Districts, in 249, 249 (Chandler Davidson ed.,
1989). The dominance of these systems is a historical product,
stemming from their use in England.
[13] See Rogers v. Lodge, 458 U.S. 613, 616
(1982); Chapman v. Meier, 420 U.S. 1, 17-18 (1975).
[14] For much of this article, I use black persons
in examples involving minority groups suffering vote dilution. These
examples should be understood to apply equally to members of any
minority group protected under the Voting Rights Act.
[15] This was exactly the situation in Granville
County, North Carolina, site of a vote dilution lawsuit under the
Voting Rights Act. See McGhee v. Granville County, 860 F.2d 110 (4th Cir.
1988). Situations like this have been and continue to be common.
e.g., Teague v. Attala County, 92 F.3d 283, 283 (5th
Cir. 1996) (no blacks elected at-large in modern times despite blacks
making up 40% of population).
[16] See,
e.g., Major v. Treen, 574 F. Supp. 325, 355 (E.D. La. 1983)
(ordering creation of black-majority congressional district in New
Orleans); Westwego Citizens for Better Government v. City of Westwego,
946 F.2d 1109, 1124 (5th Cir. 1991) (ordering creation of
remedial districting plan to remedy minority vote dilution).
[17] The Voting Rights Act bars voting-related
discrimination against persons on account of race, color, national
origin, and membership in a ělanguage minority group.î 42 U.S.C.
ß 1973, 1973b(f) (1994). The Act defines a ělanguage minority
groupî to include Asian-Americans, Hispanics, Native Americans, and
Alaskan Natives. 42 U.S.C. ß 1973l(c) (1994).
[18] 42 U.S.C. ß 1973(b).
[19] The Senate Judiciary Committee majority
report on the Act lists the following factors, focused on the
particular defendants State or political subdivision: (1) the history
of official discrimination affecting the right to vote; (2) the degree
to which voting was racially polarized; (3) the use of other dilutive
voting procedures such as majority vote requirements; (4) any denial
of minority candidate access to candidate slating processes; (5)
socioeconomic disparities on the part of the minority group members;
(6) racial appeals in campaigns; (7) the degree of minority candidate
electoral success; (8) the degree of responsiveness on the part of
elected officials to the concerns of the minority group; and (9) the
extent to which the policy underlying the challenged practice or
procedure is tenuous. See S. Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 205-207.
[20] 478 U.S. 30, 30 (1986).
[21] Id.
at 50-51.
[22] Id.
at 55; Teague v. Attala County, 92 F.3d 283, 287 (5th Cir.
1996).
[23] Id. at 43-52.
[24] See,
e.g., Major v. Treen, 574 F. Supp. 325, 355 (E.D. La. 1983)
(ordering creation of black-majority congressional district in New
Orleans); DeGrandy v. Wetherell, 815 F. Supp. 1550, 1560 (N.D. Fla.
1992) (invalidating Florida state legislative districting plan),
in part, reversed in part, Johnson v. De
Grandy, 512 U.S. 997
(1994); Westwego Citizens for Better Government v. City of Westwego,
946 F.2d 1109, 1124 (5th Cir. 1991) (ordering creation of
local remedial districting plan to remedy minority vote dilution).
[25] See
Reynolds v. Sims, 377 U.S. 533, 559 (1964) (explaining one-person,
one-vote requirement); see, e.g., In Re Constitutionality of SJR 2-G, 601 So.2d 543, 546
(Fla. 1992) (explaining odd shape of state senate district in this
manner).
[26] See,
e.g., Shaw v. Reno, 509 U.S. 630, 672 & n.10 (1993) (noting
assertions that odd shape of congressional district can be explained
in this manner).
[27] See,
e.g., Lawyer v. United States, 117 S.Ct. 2186, 2194-95 (1997)
(upholding constitutional challenge to minority state senate district
in part on this ground); Miller v. Johnson, 515 U.S. 900, 940 (1995)
(describing evidence to this effect regarding Georgia minority
congressional district) (Ginsburg, J., dissenting).
[28] See
Vera v. Bush, 116 S.Ct. 1941, 1953 (1995) (emphasizing evidence of
advanced redistricting computer abilities) (opinion of OíConnor,
J.); Declaration of John Guthrie, Scott v. United States Dept. Of
Justice, No. 94-622-Civ-T-23C (M.D. Fla.) (three-judge court) (filed
Nov. 17, 1995) (describing evolution of redistricting computer
technology and its resulting increase in non-compact districts).
[29] 509 U.S. 630 (1993).
[30] Id.
at 630.
[31] Id.
at 657.
[32] Id.
at 650-653. That is, even if a Shaw
plaintiff could point to no cohesive group which would have less of an
opportunity to elect candidates of choice as a result of the
challenged minority district, or which would be significantly
underrepresent ed in proportion to its share of the population, the
plaintiff could still prevail if it made out the other elements of the
Shaw claim.
[33] Id.
at 647-648; see also United States v. Hays, 515 U.S. 737, 744 (1995) (further
explaining stigmatic and representational harm).
[34] See
Miller v. Johnson, 515 U.S. 900, 915-916 (1995); Vera v. Bush, 116
S.Ct. 1941, 1951 (1996).
[35] Id.
at 916.
[36] Id.
[37] In Vera v. Bush, 116 S.Ct. 1941 (1996), supra,
Justice OíConnor held that compliance with the ěresults testî of
Section 2 could be a sufficiently compelling state interest to justify
a ěracial gerrymanderî subject to strict scrutiny. 116 S.Ct. at
1968-1970. This is in accord with the views of four other Supreme
Court justices. id. at
1974, 1989 (Stevens, J., dissenting, joined by Breyer & Ginsburg,
J.J.); id. at 1997, 2007 (Souter, J., dissenting, joined by Breyer and
Ginsburg, J.J.). The remaining Justices who have dealt with the issue
recently have assumed this point without deciding it. See id. at 1960.
[38] Almost every Supreme Court opinion
considering a Shaw challenge
on the merits has invalidated the challenged district(s) and issued
language cautioning against over-using race in making redistricting
decisions. See Miller v.
Johnson, 115 S.Ct. 2475, 2493-2494 (invalidating minority
congressional district in Georgia); Bush v. Vera, 116 S.Ct. 1941, 1951
(1996) (invalidating three minority congressional districts in Texas);
Shaw v. Hunt, 517 U.S. 899, 917 (1996) (Shaw
II) (invalidating North Carolina congressional district); Abrams
v. Johnson, 117 S.Ct. 1925, 1935 (1997) (criticizing other proposed
minority congressional districts); see Lawyer v. Department of Justice, 117
S.Ct. 2186, 2195 (1997)
(upholding minority state senate district in Florida). The repeated
Supreme Court criticism has, to put it mildly, the potential for
causing a chilling effect on the creation of minority-oriented
single-member districts.
[39] By advocating this course, I do not mean to
suggest agreement with the Shaw
line of decisions, which I believe (for reasons outside the scope of
this article) to have been wrongly decided. Although I consider
alternative electoral methods often to be preferable to single-member
districts, infra, I
consider such districts generally preferable to traditional, dilutive,
ěwinner-take-allî at-large methods of election, and I acknowledge
that there are circumstances where minority districts are the best
vote dilution remedy.
[40] There is no federal constitutional or
statutory provision banning the use of alternative electoral schemes,
or their adoption by federal courts. See Holder v. Hall, 512 U.S. 874, 896-99, 908-13 (1994)
(Thomas, J., concurring); LULAC v. Clements, 986 F.2d 728, 814-15 (5th
Cir. 1993), on other
grounds, 999 F.2d 831 (5th Cir. 1993) (en banc); United
States v. Marengo County Commín, 731 F.2d 1546, 1560 (11th
Cir. 1984); Dillard v. Town of Louisville, 730 F. Supp. 1546, 1548
(M.D. Ala. 1990).
[41] See, e.g., Richard L. Engstrom,
Multi-Seat Election Systems as Remedies for Minority Vote Dilution,
21 Stetson L. Rev. 743, 750
(1992) (hereinafter ěModified
Multi-Seat Systemsî).
[42]
The description of these three alternative systems which follows
borrows from Mulroy, supra note 8. For a fuller discussion of these
systems, see that article at 14-22.
Alternative electoral systems are often referred to as ěproportional
representationî systems. This usage raises two definitional
concerns. First, although all three systems tend to produce electoral
results that are more ěproportionalî to voter preferences than
winner-take-all systems, only preference voting produces results that
are reliably ěproportionalî as a strictly defined, mathematical
matter. Therefore, political scientists consider only preference
voting (also known as "choice voting" or the ěsingle transferable voteî) an example
of ěproportional representation,î calling limited and cumulative
voting ěsemi-proportionalî systems. Douglas
Amy, Real Choices, New
Voices 186 (1993); Edward Still, Alternatives
to Single-Member Districts, in
Minority Vote Dilution 249, 258
(Chandler Davidson ed., 1989) . Second, these systems should not be
confused with the party-list, parliamentary systems used in Europe.
These systems are also examples of proportional representation, but
have distinct features alien to the American experience, such as
voting rules requiring voters to vote for parties, not candidates, and
a weak executive whose administration may be truncated by a vote of
those legislators. See Amy, supra, at 227-230. Such parliamentary features are not found in the
alternative systems used in the United States, and I do not advocate
their adoption here. See
Mulroy, supra note 8, at 339.
[43] See Still, Alternatives to Single-Member Districts,
supra note 42, at 249, 253.
[44] Id.
[45] See Cleveland
County Assoc. For Government By The People v. Cleveland County Bd. of
Commírs, 965 F. Supp. 72, 79 & n.9 (D.D.C. 1997) (describing use
in three county and two municipal elected bodies in North Carolina),
on other grounds, 142 F.3d 468 (D.C. Cir. 1998);
Dillard v. Baldwin County Bd. of Educ., 686 F. Supp. 1459, 1460
(M.D. Ala. 1988) (describing the numerous Alabama counties and
municipalities subject to the Dillard
litigation, and tracing the litigation's history); Amy,
Real Choices, New Voices, supra
note 42 at 217, 232 (noting use in a "few cities and counties" in
Connecticut and Pennsylvania).
[46] See
Note, Remedies for Unlawful At-Large Systems, 92 Yale L. J. 144, 153 n.40
(1982) (hereinafter ěAlternative
Voting Systemsî).
[47] The ability of voters to cast more than one
vote is not a violation of the "one person, one vote"
constitutional principle because each voter is entitled to the same
number of votes. See
Reynolds v. Sims, 377 U.S. 533, 559 (1964) (explaining that gravamen
of the principle is that "one man's vote ... is to be worth as
much as another's");
also Orloski v. Davis, 564 F. Supp. 526, 530 (M.D. Pa. 1983)
(upholding limited voting scheme over one person, one vote
objections); Lo Frisco v. Schaffer, 341 F. Supp. 743, 748 (D. Conn.)
(same), aff'd, 409 U.S. 972
(1972); Kaelin v. Warden, 334 F. Supp. 602, 605 (E.D. Pa. 1971)
(same). also Lani
Guinier, The Triumph Of
Tokenism: The Voting Rights Act and the Theory of Black Electoral
Success, 89 Mich. L. Rev. 1088, 1148 n.332 (1991), and sources cited
therein (explaining why these voting systems are consistent with the
one person, one vote principle).
[48] See
Robert Brischetto & Richard Engstrom,
Voting And Latino Representation: Exit Surveys In Fifteen Different
Texas Communities, 78 Social
Science Quarterly
Voting And Latino Representation: Exit Surveys In Fifteen Different
Texas Communities, 78 973 (1997) (describing uses in Texas by at
least 15 municipalities and 26 school boards since 1991); Richard
Engstrom, et al., Limited And
Cumulative Voting In Alabama: An Assessment After Two Rounds Of
Elections, 6 National
Political Science Review 180, 185 (1997) (describing Alabama
uses in four municipalities plus the county commission and school
board of a separate county since 1988); Richard Engstrom, Modified
Multi-Seat Election Systems, supra note 42, at 757 (1992)
(describing use in Peoria since 1991).
[49] Amy, Real Choices, New Voices, supra note 42, at 186.
[50] Preference voting is sometimes referred to as
the "single transferrable vote"; or as the "Hare
system," which is a particular methodology for counting
preference vote ballots. Most recently, it has been called ěchoice
voting.î
[51] This minimum is calculated by dividing the
total number of votes cast by { (# of seats to be filled) + 1}, and
then adding one. This is the so-called ěDroop quota.î Still, supra,
at 259. Thus, where three seats are to be filled, the minimum is one
more than 1/4 of the overall vote; where four seats are available, it
is one more than 1/5 of the vote; and so on.
[52] See
Still, Alternatives To Single-Member Districts, supra note 42, at 258-261.
Good explanations of the counting process can be found in Amy, supra note 42, at 230-231
& Appendix C; and Engstrom, Modified Multi-Seat Election Systems, supra note 42, at 765-769.
Engstrom provides a diagram that is particularly helpful.
[53] See
Amy, supra note 42, at 18.
[54] See id.
at 18, 137-138; Engstrom,
Multi-Seat Election Systems, supra,
note 42 at 766-767.
[55] See Engstrom, Modified Multi-Seat Election Systems, supra note 42, at 766-767.
These cities adopted preference voting at various points from 1915
through 1950, and continued using it for periods varying from several
years to several decades. See
Leon Weaver, Rise, Decline,
and Resurrection of Proportional Representation in Local Governments
in the United States, in Electoral Laws and Their
Political Consequences 139, 139-141 (B. Grofman & A.
Lijphart eds., 1986); see also Robert A. Burnham, Reform,
Politics, And Race In Cincinnati: Proportional Representation And The
City Charter Committee, 1924-1959,
23 Journal Of Urban History 131, 132 (1997) (describing history
of use in Ohio cities). New York City used preference voting to elect
its City Council from 1936 to 1947. See
Belle Zeller & Hugh A. Bone,
Repeal Of Proportional Representation In New York City Ten Years In
Retrospect, American
Political Science Review [41] See, e.g., Richard L. Engstrom,
Multi-Seat Election Systems as Remedies for Minority Vote Dilution in Modified
Alternatives to Single-Member Districts,supra note 42, at 249, 253. 1127, 1127-1133 (1948). Repeal of
preference voting in these cities often came as a result of public
hostility to the election of blacks (as in Cincinnati) or Communists
(as in New York). See
Burnham, supra, at 153
(noting role of racial antagonism in repeal of PR in Cincinnati);
Richard Engstrom, Cincinnatiís
1988 Proportional Representation Initiative, 9 Electoral
Studies 217, 219-222 (1990) (same); Zeller & Bone, supra,
at 1133 (noting role of fear of Communism in New York repeal); Amy, supra note 42, at 173
(same).
[56] For limited voting, the threshold of exclusion formula is:
(# of votes each voter has) / {(# of votes each
voter has) + (# of seats to be filled)}.
Still, supra note 42, at 254; Engstrom, Modified Multi-Seat Systems, supra
note 42, at 743, 758. Thus, if 5 seats are up for election, and each
voter has 4 votes, the threshold is 4/(4+5) = 4/9 = 44% of the vote.
Mathematically, the threshold is lower (and thus more accessible to
minority voters) where the number of seats each voter has is limited
to one. See Still, supra note 42,
at 254. This can be seen by holding (# of seats to be filled) constant
and plugging in increasing integers for (# of votes each voter has).
[57] Still, supra note 42, at 256.
[58] See infra Part II.D.1; also
Mulroy, supra note 8, at 36-38 (discussing the effectiveness such
systems have had in electing minority-preferred candidates).
[59] See Mulroy, supra note 8, at 38-51.
[60] See notes 3 and 4, supra.
[61] See for
example, Judge Myron Thompsonís decisions approving cumulative voting
remedies as settlements to several of the related
Dillard cases brought under the Voting Rights Act. Dillard v.
Baldwin County Bd. of Educ., 686 F. Supp. 1459, 1460 (M.D. Ala. 1988)
(describing history of the Dillard
litigation).
Part Two, Authority And Standards For
ěThe Way Outî
Authority of Courts to Adopt |
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