Part Two: Authority And Standards For
ìThe Way Outî
Authority of Courts to Adopt 
Alternative Electoral Schemes

By Steven J. Mulroy
There is no federal constitutional or statutory provision banning the use of cumulative, limited, or preference voting schemes, or barring the adoption of such schemes by federal courts.[1] The constitutionality of these schemes has been upheld by a number of courts.[2] Federal courts may approve such alternatives to single-member districts as remedies in cases brought under Section 2 of the Voting Rights Act.[3] Indeed, federal courts may be required to adopt such alternative systems to reconcile dilution remedies with the jurisdictions' policy choices.[4]  

General sources of authority. This authority may be found in the extensive reach of the statutory language itself, along with its legislative history.[5] Amended Section 2 itself is designed to ensure that protected minority groups enjoy equal opportunity to ìparticipate in the political process and to elect candidates of choice,î a broad aim. [6] Similarly, the Voting Rights Act protects the right ìto vote,î which the statute defines broadly to include ìall action necessary to make a vote effective in any ... election, including, but not limited to, registration... and having such ballot counted properly[7] The legislative history also indicates a broad reach. The House Report on the 1982 amendments stated that Section 2 ìis not limited to districting or at-large voting.î[8] The broad reach of the Act supports a broad view of permissible remedies. 

This authority can also be found in federal courts' general equitable powers[9] which are particularly broad when confronted with a violation of the right to vote. After finding a Voting Rights Act violation, district courts must first give the jurisdiction the opportunity to devise an acceptable remedial plan.[10] If the jurisdiction fails to respond with a legally acceptable remedy, the responsibility falls on the district court to exercise its discretion in fashioning a "near optimal" plan.[11] Under the Voting Rights Act, the district court then has the broad discretionary authority necessary to fulfill its obligation to provide a full and complete remedy to the underlying violation.[12] After a finding of illegal vote dilution, therefore, a federal courts' remedial authority is open-ended: any remedial option which is not prohibited by federal law, including alternative electoral systems, are viable options if they would serve to fully remedy the dilution. 

Judicial Treatment Of Alternative Systems. A number of courts have commented favorably on the use of these alternatives to single-member districts as voting rights remedies. Notably, Judge Hatchett of the Eleventh Circuit has praised cumulative voting as a potential remedy in judicial election cases.[13] Despite such favorable comments, until recently courts had only adopted such systems by consent decree. A (short-lived) breakthrough occurred in McGhee v. Granville County,[14] a Section 2 challenge to the traditional at-large system for electing county commissioners in Granville County, North Carolina. After stipulating to liability, the county proposed a single-member district remedial plan which would have provided for one ìsafeî black-majority district and a second bare-majority district out of seven total districts.[15] Because blacks would control at most 28% of the seats under such a plan despite constituting over 40% of the population, the district court rejected this remedy as inadequate and imposed a modified version of plaintiffsí remedial proposal, a limited voting system.[16]  

The Fourth Circuit reversed and remanded, ruling that the district court should have deferred to the countyís remedial choice because, contrary to the district courtís findings, the districting plan was a ìcompleteî remedy of the Section 2 violation.[17] The court made clear its view that once the jurisdiction submits a legally acceptable plan, the remedial inquiry ends.[18] It expressly disclaimed any intent to rule generally that limited voting schemes were unavailable as remedies, concluding that ìthe specific issue here is not the validity vel non of the [limited voting plan], but the prior adequacy of the Countyís plan.î[19]  

By its terms, McGheeís holding does not foreclose the imposition of an alternative electoral scheme as a remedy where the defendant jurisdiction had not previously proposed a different, legally adequate remedy. However, the opinion does contain some language casting doubt on such a remedial course. Citing Gingles and the language of the Voting Rights Act, the court articulated three general principles. First, a strict proportional representation standard, such as that used by the district court, may not be used in assessing the adequacy of a remedial plan. Second, the appropriate remedy is to the specific practice challenged by plaintiffs, not some other practice ìnot actually challenged by the claim as made.î Since the language of the complaint challenged the ìat-large electoral method,î the court continued, a district remedy was appropriate. Finally, the court stated that the electoral practice ìnecessarily challengedî in a Section 2 vote dilution claim is the ìdistricting systemî which allegedly ìsubmergesî minority voting strength.[20]  

While this third point may be read to say that dilution cases by their very nature are limited to districting remedies, there are several reasons to give this suggestion little weight. First, given the courtís disclaimer of any ruling on the legitimacy of limited voting schemes, and the existence of an alternative ground (the rejection of a right to proportional representation) more closely tied to the district courtís opinion, it seems to be dicta. Second, the general suggestion (that vote dilution lawsuits inherently challenge only the at-large nature, thereby precluding an alternative remedy within an at-large framework) seems inconsistent with the courtís emphasis on the exact wording of the complaint. If dilution lawsuits inherently called only for single-member district remedies, the wording of individual complaints would be irrelevant. Finally and most importantly, the Fourth Circuitís later opinion in Cane v. Worcester County supports a narrower reading of McGhee

Cane involved a Section 2 challenge to the traditional at-large election method for county commission in Worcester County, Maryland. After a bench trial and liability finding, [21] the district court imposed a cumulative voting system as a remedy. [22] On appeal, the Fourth Circuit affirmed on liability and reversed and remanded on remedy.[23] Regarding remedy, the defendants had argued that McGhee stripped district courts in the Fourth Circuit of any authority to impose an alternative electoral system in a Section 2 case. Though the Fourth Circuit cited McGhee several times in its opinion, it did not endorse this interpretation of McGhee. Responding to the defendantsí argument, the court quoted Justice Thomasí directly contradictory statement in his Holder v. Hall concurrence.[24] It then held that it was unnecessary to outline generally whether cumulative voting could be ordered as a remedy, because under the ìspecific facts and circumstances presented here,î the district court abused its discretion in ordering cumulative voting into effect.[25] This was so, the court reasoned, because the lower court had ignored the countyís stated policy preference for residency districts, which ensured that there would be at least one representative from each area within the county; this preference argued for a districting remedy.[26] Further, the court held, the district court had simply not given the county a sufficient opportunity to devise a remedy in the remedial proceedings below.[27]  

More recently, another district court imposed cumulative voting in Cousin v. Sundquist, [28] producing the only court-imposed cumulative voting plan in existence today. Cousin involved a Section 2 challenge to the at-large method of electing judges in Hamilton County, Tennessee. After finding liability based on all the Gingles preconditions and an assessment of the Senate factors, [29] the court ordered into effect a cumulative voting plan in a separate remedy opinion. The court ruled that although it used a hypothetical district system as a ìbenchmarkî for judging liability (and assessing the ability to meet the compactness prong), the court was not restricted to a district remedy. [30] Comparing districting and cumulative voting as remedial alternatives, the court noted that the former had these disadvantages: districts were susceptible to ìcapture by narrow local interestsî; the votes of minority citizens outside the minority district are ìeffectively nullified,î providing only ìvirtual representationî; district boundaries would have to be periodically adjusted by the court to account for population shifts; and race-conscious districting raised Shaw concerns. [31] Most important, the state attorney general had issued an opinion stating that districting of judicial offices would violate the state constitution. Cumulative voting, by contrast, presented none of these concerns.[32] Although the state law conflict presents a unique circumstance which may have driven the courtís decision, the other districting disadvantages noted by the court apply generally to vote dilution cases. Some, like the Shaw and ìvirtual representationî concerns, are powerful arguments for alternative remedies in the post-Shaw era. 

Where courts have criticized one or more of these alternative schemes, the criticism has often been a fact-specific one directed toward their appropriateness as a remedy for the particular voting rights violation alleged. For example, in LULAC v. Clements, [33] a vote dilution case challenging the method of electing state court judges in Texas, the Fifth Circuit rejected limited and cumulative voting as proposed remedies, reasoning that because plaintiffs had challenged the at-large feature of the current system (and asked for single-member districts as remedies), the court would not consider remedies which retained the very at-large feature attacked by plaintiffs.[34] In the en banc opinions in Nipper v. Smith [35] and SCLC v. Sessions,[36] Eleventh Circuit Chief Judge Tjoflat made very specific criticisms of cumulative voting as a remedy in judicial election cases.[37] In LULAC, Nipper, and Sessions, moreover, the criticisms may very well have been attributable simply to the courts' consistent overall hostility to Voting Rights Act liability in the judicial elections context. This evident hostility may have motivated the courts involved to reject any proposed voting scheme which, if found to be an appropriate remedy, would necessitate a finding of liability.[38] B. Gingles and the "Preference" For Single-Member Districts  

Districts as ìpreferredî remedy. An oft-repeated principle in voting rights cases is that single-member districts are "strongly preferred" to at-large plans for court-ordered, as opposed to court-ratified, remedies.[39] That rule has on several occasions been invoked as a reason to reject remedial alternatives such as limited voting.[40] But that general rule applies to standard, "winner-take-all" at-large systems because of their dilutive effect. Indeed, every such case reciting this familiar remedial rule involved such a "traditional," "winner-take-all" at-large system. The rule lacks force with respect to at-large schemes (such as cumulative voting schemes) designed to enhance minority political opportunity.[41] The Court in Chapman acknowledged that federal courts had discretion to adopt at-large remedies to address problems of underrepresentation, and listed the jurisdiction's own policy preferences as a relevant factor in this decision.[42]  

The Gingles compactness requirement. The principle that single-member districts are the presumptive remedy for voÄ‚wÚ¾ ä ÊE finds support in the first Gingles precondition of geographic compactness. By requiring plaintiffs to show they are numerous and compact enough to draw a single-member district as a threshold matter in order to find liability, Gingles arguably implies that the universe of Section 2 remedies is limited to single-member districts. Indeed, the Court notes that single-member district systems are "generally the appropriate standard against which to measure minority group potential to elect because it is the smallest political unit from which representatives are elected."[43]  

In explaining the requirement, however, the Court repeatedly emphasized its narrow focus on the traditional form of at-large system, which was the method of election at issue in that case. The Court explained that under a traditional at-large system, the ability to draw a compact majority-minority district was necessary to demonstrate a ìpotential to electî candidates of choice.[44] The clear rationale of the requirement is the "if-then" assertion made by the Court: if the first prong is not met, no remedy is possible.

[1] See LULAC v. Clements, 986 F.2d 728, 814-815 (5th Cir. 1993), rev'd on other grounds, 999 F.2d 831 (5th Cir. 1993) (en banc); United States v. Marengo County Comm'n, 731 F.2d 1546, 1560 (11th Cir. 1984); Dillard v. Town of Louisville, 730 F. Supp. 1546, 1548 (M.D. Ala. 1990); Dillard v. Chilton County Bd. of Educ., 699 F. Supp. 870, 875 (M.D. Ala. 1988); Cousin v. Sundquist, supra, slip op. at 8-9; Holder v. Hall, 512 U.S. 874, 896-899, 908-913 (1994) (Thomas, J., concurring).

The en banc opinion in LULAC rejected the utility of cumulative voting to remedy the precise claim at issue. 999 F.2d at 875-876. However, it did not reject the appellate panelís underlying notion that courts are empowered to order such remedies in voting cases.

[2] See, .e.g., Cintron-Garcia v. Romero-Barcelo, 671 F.2d 1, 6 (1st Cir. 1982) (limited voting scheme for election of Commonwealth representative is ìreasonableî and facilitates minority representation); Orloski v. Davis, 564 F. Supp. 526 (M.D. Pa. 1983) (limited voting for Commonwealth Court); Hechinger v. Martin, 411 F. Supp. 650 (D.D.C. 1976) (three-judge court) (upholding limited voting scheme for D.C. city council elections); LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1972) (three-judge court) (limited voting for school boards ); Kaelin v. Warden, 334 F. Supp. 602, 605 (E.D. Pa. 1971) (limited voting does not violate equal protection clause as long as each voter casts the same number of votes); Blaikie v. Power, 13 N.Y.2d 134, 243 N.Y.S.2d 185 (1963), appeal dismissed, 375 U.S. 439 (1964) (limited voting for New York City Council).

[3] See, for example, Judge Myron Thompson's decisions approving cumulative voting remedies as settlements to several of the related Dillard cases brought under the Voting Rights Act: Dillard v. Chilton County, supra, 699 F. Supp. at 875; Dillard v. City of Centre, No. 87-T-1174-N (M.D. Ala. 1988) (unpublished opinion); Dillard v. City of Guin, No. 87-T-1225-N (M.D. Ala. 1988) (unpublished opinion); Dillard v. Town of Myrtleswood, No. 87-T-1263-N (M.D. Ala. 1988) (unpublished opinion). The Dillard litigation also resulted in court-approved settlements providing for limited voting schemes. See, e.g., Dillard v. Town of Cuba, 708 F. Supp. 1244 (M.D. Ala. 1988) (approving limited voting scheme for Towns of Cuba and Waldo); id. at 1246 n.3 (noting its previous approval of limited voting schemes in eleven different cases). See also Cousin v. Sundquist, supra, slip op. at 8-9 (E.D. Tenn. July 3, 1996) (ordering cumulative voting scheme as remedy for Section 2 violation).

[4] LULAC, supra, 986 F.2d at 814-815.

[5] See Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 Va. L. Rev. 1413, 1496-1497 (1991).

[6] 42 U.S.C. ß 1973(b).

[7] 42 U.S.C. ß 1973l(c) (emphasis added).

[8] H.R. Rep. No. 227, 97th Cong., 1st Sess. 31 (1982).

[9] See United States v. Paradise, 480 U.S. 149, 183-184 (1987) (discussing the breadth and flexibility of a federal court's equitable discretion regarding remedies), citing Louisiana v. United States, 380 U.S. 145, 154 (1965) (federal courts are empowered to, and required to, do whatever is necessary to cure the voting rights violation); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U .S. 1, 15 (1971); Fullilove v. Klutznick, 448 U.S. 448, 508 (1980).

[10] Lawyer v. United States, 117 S.Ct. 1925, 1937 (1997), citing Wise v. Lipscomb, 437 U.S. 535, 540 (1978); White v. Weiser, 412 U.S. 783,794-795 (1973).

[11] Chapman v. Meier, 420 U.S. 1, 27 (1975).

[12] See S. Rep. No. 97-417, 97th Cong., 2nd Sess. 31 (1982), reprinted in 1982 U.S.C.C.A.N. 208 ("The court should exercise its traditional equitable powers to fashion the relief so that it completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice") (emphasis added).

[13] See SCLC v. Sessions, 56 F.3d 1281, 1313 (11th Cir. 1995) (Hatchett, dissenting); see also Marshall v. Edwards, 582 F.2d 927, 936 n.9 (5th Cir. 1978) (noting prevalence of ìproportional representationî systems abroad, acknowledging use of ìHare systemî in the United States, and quoting approvingly from John Stuart Millís endorsement of proportional representation systems); Latino Political Action Committee, Inc. v. City of Boston, 609 F. Supp. 739, 744 (D. Mass. 1985) (describing limited votingís beneficial effect on minority voters, and relying on use of limited voting in present system to reject vote dilution claim).

[14] 860 F.2d 110 (4th Cir. 1988).

[15] Id.

[16] Id. at 114.

[17] Id. at 115.

[18] Id. at 115, 118. This is an uncontroversial proposition, in line with definitive Supreme Court authority on the subject. See, e.g., Lawyer v. United States, 117 S.Ct. 1925, 1937 (1997), citing Wise v. Lipscomb, 437 U.S. 535, 540 (1978).

[19] Id. at 120.

[20] Id. at 117-118. The court was apparently using ìdistricting systemî to refer to the use of at-large elections, multimember districts, or single-member district configurations, but not to the particular voting mechanisms allowed (such as traditional winner-take-all rules versus alternative schemes).

[21] 840 F. Supp. 1081 (D.Md. 1994).

[22] 847 F. Supp. 369 (D.Md. 1994).

[23] Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994), cert. denied, 115 S.Ct. 1097 (1995).

[24] 35 F.3d at 927, quoting Holder v. Hall, 512 U.S. 87, 910-912 (1994) (Thomas, J., concurring) (ìnothing 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").

[25] Id. at 927.

[26] Id. at 928.

[27] Id. On remand, the district court rejected the plaintiffsí two proposed single-member district alternatives, each featuring a single black-majority district, imposing instead a ìmixedî plan using the defendantís proposed single-member district system (which had one black ìinfluenceî district but no black-majority district) for primary elections and cumulative voting for general elections. Cane v. Worcester County, 874 F. Supp. 687 (D.Md. 1995). After a cross-appeal, the Fourth Circuit vacated the district courtís judgment and ordered one of the plaintiffsí single-member district plans into effect. Cane v. Worcester County, 59 F.3d 165 (4th Cir. 1995) (referenced in ìTable Of Decisions Without Reported Opinionsî). Since neither side argued for cumulative voting on this second round of appeal, the court did not discuss the cumulative voting issue. Cane v. Worcester County, 1995 WL 371008 (4th Cir. 1995) (unpublished opinion).

[28] No. 1:90-CV-339 (E.D. Tenn., July 3, 1996 (unpublished opinion).

[29] See Cousin v. McWherter, 904 F. Supp. 686 (E.D. Tenn. 1995). The court expressly found that plaintiffs had met the compactness prong of Gingles. Id. at 688.

[30] Cousin v. Sundquist, supra, slip op. at 8-9, citing SCLC v. Sessions, 56 F.3d 1281, 1302 (11th Cir. 1995) (Hatchett, dissenting) (the illustrative ìbenchmarkî used to measure vote dilution during the liability analysis need not be identical to the remedy ultimately implemented).

[31] Id. at 9-12. The court also noted several other disadvantages peculiar to judicial elections which are outside the scope of this article.

[32] Id. at 11-12.

[33] 999 F.2d 831 (5th Cir. 1993) (en banc).

[34] Id. at 876. See also McGhee v. Granville County, 860 F.2d 110, 117-188 (4th Cir. 1988) (rejecting limited voting remedy on similar grounds), discussed supra.

[35] 39 F.3d 1494 (11th Cir. 1994).

<>[36] 56 F.3d 1281 (11th Cir. 1995).

[37] Sessions, 56 F.3d at 1296 n.24 (cumulative voting elections will disrupt collegiality among judges and discourage qualified attorneys from running for judicial office); Nipper, 39 F.3d at 1546 (same).

While these assertions serve to cabin the circuit courtsí criticisms of cumulative voting to the judicial election context, I believe them to be misguided. Indeed, because these same courts have emphasized the substantial state interest in keeping ìlinkageî between elected judgesí jurisdictions and electoral territories (see Sessions, 56 F.3d at 1296-1297; Nipper, 39 F.3d at 1542-1544; LULAC, 999 F.2d at 869), alternative systems are particularly appropriate in the judicial election context by virtue of their at-large nature. See Robert McDuff, Judicial Elections and the Voting Rights Act, 37 Loyola L. Rev. 932, 988-989 (1993).

[38] See Nipper v. Smith, F.3d 1494 at 1541-1547 (opinion of Judge Tjoflat) (finding Gingles preconditions and Senate factors met regarding liability, but rejecting claim because of unavailability of a remedy consistent with important state policies peculiar to judicial elections); id. at 1547 (concurring opinion of Judge Edmondson) (agreeing that liability cannot be found due to unique judicial election concerns foreclosing the availability of any appropriate remedy).

The same analysis may apply to two district court opinions rejecting limited voting as a relief in judicial election cases. See Clark v. Roemer, 777 F. Supp. 445 (M.D. La. 1990); Martin v. Mabus, 700 F. Supp. 327 (S.D. Miss. 1988). Although these opinions contain broad criticisms of limited voting rooted in suspicion of its seeming exotic nature, see Clark, 777 F. Supp. at 447, and Martin, 700 F. Supp. at 327, 336, the cases also contain more fact-specific grounds for the rejection, including both explicit recognition of the unique aspects of judicial election cases (777 F. Supp. at 467) and state law restrictions (id. and 700 F. Supp. at 327).

[39] Growe v. Emison, 507 U.S. 25, 39 (1993); Connor v. Finch, 431 U.S. 407, 415 (1977); Chapman v. Meier, supra, 420 U.S. at 17-18.

[40] See, e.g., Martin v. Mabus, supra, 700 F. Supp. at 336.

[41] Explaining the development of the rule favoring single-member district remedies when ordered by federal courts, the Supreme Court stated:

Criticism of multimember districts is rooted in their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party ...

420 U.S. at 16 n.10 (emphasis added), quoting Whitcomb v. Chavis, 403 U.S. 124, 158-159 (1971).

Similarly, the Court in Growe v. Emison states that at-large plans ìgenerally pose greater threats to minority-voter participation ... than do single-member districts ó which is why we have strongly preferred single-member districtsî for federal court-ordered remedies. 507 U.S. at 39 (emphasis added).

[42] Chapman, 420 U.S. at 16 n.10, 17; see also LULAC, supra, 986 F.2d at 814 (court may be required to adopt alternatives to single-member districts if the jurisdiction has strong policy in favor of retaining at-large feature).

[43] Thornburg v. Gingles,, 478 U.S. at 50 n.17 (emphasis added).

Despite its centrality in vote dilution litigation, the concept of ìcompactnessî as a districting criterion has no place in federal law outside the Gingles/Shaw context. The Constitution does not make compactness a requirement for any election district, Shaw I, 509 U.S. at 646, citing Gaffney v. Cummings, 412 U.S. 735, 752 n.18 (1973), and there is no federal statutory requirement of compactness in congressional districts (or state or local districts, for that matter). See Wood v. Broom, 287 U.S. 1 (1932) (interpreting the federal Reapportionment Act of 1929 to repeal compactness requirement); Richard H. Pildes & Richard G. Niemi, Expressive Harms, ìBizarre Districts,î and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 527 n.139 (1993) (discussing Wood v. Broom and the lack of a compactness requirement).

[44] 478 U.S. at 50 n.17. See also Growe v. Emison, 507 U.S. 25, 39 (1993) (first Gingles precondition necessary to ìestablish that the minority has the potential to elect a representative of its choiceî) (emphasis added).