It was an interesting afternoon yesterday on Capitol Hill -- it isn't every day that the Republican chair of a committee asks witnesses to explain the mechanisms of their favorite alternative voting systems. There was more talk about cumulative voting, limited voting, choice voting and proportional representation in the September 23rd hearing of the Constitution Subcommittee of the House Judiciary Committee on HR 1173 (Rep. Mel Watt's bill to allow states to use multi-seat congressional districts) than there has been for decades, if ever.
The most powerful testimony was provided by Ted Arrington (UNC-Charlotte), Nathaniel Persily (Brennan Center for Justice), Rep. Tom Campbell (R-CA) and Anita Hodgkiss (on behalf of the Civil Rights Division of the Department of Justice). Hodgkiss' statement is provided in full below, as I think it extremely important that the DOJ came out in favor of the legislation. Persily began his remarks by saying "I am honored that you have invited me to testify before this Committee concerning what might be the most important piece of election-related legislation considered by this body in 25 years." He then went on to succinctly address the key advantanges, and some possible disadvantages, of multi-seat districts. Arrington also quite cogently discussed the advantages of the bill, focusing in particular on states being able to enact limited voting and "equal allocation" cumulative voting. Rep. Campbell supported the bill and came out strongly for cumulative voting -- the system he knows best from growing up in Illinois, where it was used to elect the state assembly.
The opponents of the bill included Abigail Thernstrom, Roger Clegg and
Robinson Everett. Everett, the Duke law professor who has pursued Mel Watt's
district in the courts throughout the decade, has supported the use of
alternative systems at a local level in NC. Although he said he would support
the option for choice voting (which he called "preferential voting")
if non-partisan commissions were the ones making the decision about whether to
use it, he thought states and the DOJ would abuse the option of multi-seat
districts. You can see the full prepared testimony of all speakers at:
http://www.house.gov/judiciary/con0923.htm
You also can hear Congressman Watt and I discuss the bill on the Pacifica
Radio program "Democracy now" by going to
www.pacifica.org and then clicking on
"radio archives." We were on the September 23rd program (yesterday)
for about 20 minutes.
Below is the Department of Justice's statement in favor of HR 1173.
Prepared Statement of Anita Hodgkiss
Deputy Assistant Attorney General, Civil Rights Division
Department of Justice
To Committee on the Judiciary, Subcomm. on the Constitution
U.S. House of Representatives
Concerning H.R. 1173, States' Choice of Voting Systems Act
Presented on September 23, 1999
Mr. Chairman and Members of the Subcommittee:
My name is Anita Hodgkiss. I am a Deputy Assistant Attorney General in the Civil Rights Division at the Department of Justice.
First, I want to thank you for the opportunity to participate in today's hearing to discuss the views of the Department of Justice on H.R. 1173, the States' Choice of Voting Systems Act. The Department of Justice supports this legislation as a valuable way to give state legislatures additional flexibility in the redistricting process. However, that support absolutely depends on the bill containing the explicit requirement that any multi-member congressional districts must comply with the Voting Rights Act.
Single-member districts have long been a successful and crucial remedy for vote dilution under Section 2 of the Voting Rights Act. Indeed, single-member congressional districts have been described as a "vital, essential, and integral part of the concept of equality of representation and responsiveness of government in the Federal House of Representatives." 113 Cong. Rec. 34365 (1967)(statement of Sen. Baker). If enacted, H.R. 1173 would remove the current federal law requirement that states utilize single member Congressional districts; instead, it permits states to use other districting models, including at-large systems and multi-member districts.
Giving states greater flexibility in the redistricting process is an important objective. Redistricting is one of the most difficult and complex jobs that a state legislature ever undertakes. The process brings into play a huge number of variable criteria: the one person, one vote requirement of the U.S. Constitution; the Voting Rights Act's requirement that the votes of racial and language minorities not be diluted; the concerns of incumbent officeholders and the needs of diverse constituencies; geography and population distribution; state laws and policies that constrain the legislature's choices; and a host of other political, social, and economic interests and realities.
The post-2000 redistricting process will be further complicated by new challenges, including uncertainty caused by the Shaw line of Supreme Court cases, as well as questions about the 2000 Census itself. The legislation this subcommittee considers today would put more tools in the hands of state officials, should they choose to use them, as they engage in the very difficult task of Congressional redistricting.
While we support increasing options for state legislators, the Department of Justice's chief concern about this or any redistricting legislation is the impact it could have on our enforcement of the Voting Rights Act of 1965.
The Voting Rights Act of 1965 protects every American against racial discrimination in voting. This law also protects the voting rights of people who have limited English skills. The Voting Rights Act stands for the principle that everyone's vote is equal, and that neither race nor language should shut any person out of the political process.
Section 2 of the Voting Rights Act prohibits the use, by any state or local government, of election processes or procedures that discriminate on the basis of race, color, or membership in a language minority group. Section 2 prohibits not only voting practices or procedures that are intended to be racially discriminatory, but also those that are found to have the effect of denying minority voters an equal opportunity to elect their candidates of choice to office. See Thornburg v. Gingles, 478 U.S. 30, 47 (1986). Suits can be brought under Section 2 by either the Justice Department or a private citizen.
Section 5 of the Act is only applicable to designated states and local governments within the country, as set out in the regulations implementing the Act. It requires these designated state and local governments to get federal approval (known as "preclearance") prior to implementing any changes to their voting procedures -- anything from a change in the method of election to a change in the voting district lines. Under Section 5, a covered state, county, or local entity must demonstrate to federal authorities that the voting change in question (1) does not have a racially discriminatory purpose; and (2) will not make minority voters worse off than they were prior to the change (i.e., will not be "retrogressive").
While the text of H.R. 1173 does not limit states to any particular voting system, we are pleased that it does provide that whatever system a state adopts must comply with the Voting Rights Act. I want to stress that the Department's support of this legislation depends on that explicit requirement. It is imperative that any such districting scheme for a state's congressional delegation be designed in such a way that it does not dilute the voting strength of minority voters in the state.
Moreover, it is important to emphasize that H.R. 1173 does not undermine nor otherwise cast doubt on the validity of single-member districts as a remedy for vote dilution under Section 2 of the Voting Rights Act.
The wisdom of this bill's requirement that multi-member districts comply with the Voting Rights Act is further supported by the legislative history of the 1967 Act which H.R. 1173 amends, An Act for the relief of Doctor Ricardo Vallejo Samala and to provide for congressional redistricting, Pub. L. No. 90-196, 81 Stat. 581 (codified at 2 U.S.C. � 2c, (1997)). Congress had two reasons for enacting this requirement in 1967. First, there was concern that following the Supreme Court's one-person, one-vote decisions in Baker v. Carr, 396 U.S. 186 (1962) and Wesberry v. Sanders, 376 U.S. 1 (1964), courts may order a state's entire congressional delegation to run at-large in states where the legislature could not agree on a redistricting plan, a result many found threatening. Second, the law was intended to prevent states from using at-large elections to dilute minority voting strength. Senator Howard Baker, for example, argued that the law was necessary in order to provide representation for ethnic groups that "may have not voice at all if the election is on an at-large basis." 113 Cong. Rec. 34365 (1967). Thus, H.R. 1173 preserves the original intent of the statute it amends by permitting but not requiring states to use multi-member districts and by incorporating the requirement that multi-member districts must comply with the Voting Rights Act.
Permitting the use of multi-member districts for congressional elections does raise significant concerns about how these districts would be evaluated under the Voting Rights Act. To address those concerns, the bill appears to contemplate the use of alternative voting systems for multi-member districts. These systems would replace the traditional "winner-take-all" method of vote counting with other means, such as cumulative voting, limited voting, and preference voting (also referred to as a single transferable vote system). These methods are designed to allow fuller expression of the votes of cohesive numerical minorities of every kind, whether racial or otherwise.
The text of this legislation specifies that "each state may establish" multi-member districts for electing members of Congress. One question that has arisen with regard to multi-member districts using limited or cumulative voting at the local level is whether a court may order the use of such a system to remedy voting rights violations. The spirit and intent of this bill appears to be that state legislatures should have the option of using multi-member districts with alternative election methods that allow minority representation, and it is less clear whether such measures could be ordered by a court absent a definitive indication from the state that it favored using such a system.
The experience with multi-member districts using cumulative, limited or preference voting for local governing bodies such as school boards or county commissions has been that where a court is evaluating multi-member districts as remedies for vote dilution, it is important to examine carefully whether the limited voting, cumulative voting, or single transferrable vote system will provide minority voters an equal opportunity to elect candidates of their choice. Studies of the outcomes of cumulative voting elections adopted by jurisdictions around the country to resolve Voting Rights Act claims reveal that they have been effective in removing barriers to electoral participation. See Robert R. Brischetto & Richard L. Engstrom, Is Cumulative voting Too Complex? Evidence From Exit Polls, 27 Stetson L. Rev. 813, 816-17 & n. 25 (1998); Richard H. Pildes & Kristen A. Donoghue, Cumulative Voting in the United States, 1995 U. Chi. Legal F. 241, 272-276 (1995).
Similarly, when the Justice Department reviews multi-member or at-large districts where cumulative or limited voting is used, under Section 5 of the Voting Rights Act, we apply the non-retrogression standard by evaluating whether minority voters would have less opportunity to elect candidates of choice under the new system than they had previously.
Since 1980, the Civil Rights Division has received and evaluated more than 50 submissions of cumulative voting systems and approximately 13 of limited voting systems. Most were precleared. The Division has interposed an objection only once to a limited voting system: in 1997 the state of New York passed legislation that would have changed the method of election for members of New York City school boards from the single transferable voting system (STV) to limited voting. We concluded that a change from STV to limited voting would make minority voters in the covered counties in NYC worse off.
The Division has interposed an objection to only two cumulative voting schemes. In 1994, we objected to a submission of a cumulative voting system by the city of Morton, Texas, because the city had not adequately explained the new system to minority Hispanic voters. We subsequently precleared the cumulative voting system when it was accompanied by an adequate voter education program. In 1995, we objected to a submission of cumulative voting from the city of Andrews, Texas. In this case, the cumulative voting system being adopted also included numbered posts, which appeared to us to defeat the purpose of using cumulative voting. We ultimately consented on other grounds to the use of the system as proposed by the city.
The lesson to be drawn from our experience with Section 5 review of limited and cumulative voting systems for local governing bodies is that a careful examination must be made of all the circumstances of a proposed election system to determine whether it will afford minority voters an equal opportunity to participate in the election process. A system that fails to include sufficient community outreach to educate voters about the new election method, or, as in New York, makes it more difficult for minority-supported candidates to be elected, is likely to be retrogressive and therefore a violation of Section 5 of the Voting Rights Act.
In addition, if this bill were enacted, legislatures and possibly courts would be required to examine whether the use of an alternative voting system is necessary in order for a multi-member districting scheme to be consistent with Section 2 of the Voting Rights Act, which applies throughout the country and requires that the voting strength of minority voters not be diluted. A multi-member district by itself, without the use of an alternative election method, is dilutive where an alternative election method could be devised that would allow a politically cohesive minority population to elect candidates of choice.
Finally, I also want to note that under this bill, states covered by the preclearance provisions of Section 5 of the Voting Rights Act will continue to have the burden of demonstrating, either to the Attorney General or to the D.C. District court, that their proposed Congressional redistricting plans were not enacted with a purpose to discriminate against minority voters as well as showing they will not have the effect of making minority voters worse off under the retrogression standard I mentioned earlier.
We take seriously our administrative review and enforcement responsibilities under the Voting Rights Act. The continued vitality of the Act, and repeated Congressional affirmations of its importance, are indispensable bulwarks against racial discrimination in voting across the nation.
Again, thank you for this opportunity to share our views. I will be happy to answer any questions the members of the Subcommittee may have.