A Motion to Intervene in Cincinnati

Edward Still

Cincinnati's History with PR
        Cincinnati used the choice voting form of proportional representation (PR) to elect its city council from 1924 to 1955. Since PR's 1957 repeal, the city has used the winner-take-all, at-large method of election called "9X" because voters can place X's on the ballot for up to nine candidates to show their choices. In 1988 and 1991, pro-PR activists sought to amend the city charter to restore choice voting (preference voting); both initiatives received about 75% of the black vote, but were defeated by 55%-45%.
        In March 1992, a group of black residents sued the city in federal court (Clarke v Cincinnati), claiming that the 9X voting system violates the federal Voting Rights Act of 1965 by abridging the voting rights of black citizens and that the city first adopted and has since maintained the 9X system for the discriminatory purpose of diluting the voting strength of Cincinnati's black electorate. The Clarke plaintiffs asked the court to require the city to adopt a fairer system of election and specifically asked for single-member districts.

A Race-Based Repeal in 1957
        On the issue of the discriminatory motive in the adoption of the 9X system, the plaintiffs presented evidence that there had been a whispering campaign against PR in the 1957 repeal campaign, which had been successful where four previous referendum efforts had failed. Theodore Berry, a black member of the city council at the time, was considered very likely to receive the highest number of first preference votes in the next city council election and, if so, might have become the presiding officer of the council and the ceremonial mayor (administrative power was held by an appointed council manager). The whispering campaign played on the growing racial fears of the time and asked whether Cincinnati wanted a black mayor.
        Although the population of Cincinnati was 20% or less black while PR was used, blacks received continuous representation the last 16 years PR was used, including several years with two black members of council. Blacks on average had a nearly proportionate share of legislative power during this period.

Intervention for PR as a Remedy
        After the adoption of the 9X system, however, no blacks were elected to the council for six years (the council members serve two year terms). Furthermore, even while the black percentage of the city's population had grown steadily to its current 38% -- double the percentage when PR was used -- no more than two blacks had ever been elected to council until the 1993 election (when three black candidates won). In several elections, only one black won office, and in 1975 no blacks were elected.
        The Clarke plaintiffs presented the testimony of Dr. Richard Engstrom, a political scientist and noted expert on election analysis, concerning the 1985-1991 elections. Dr. Engstrom testified that while the top nine choices of the black electorate were usually well-mixed between blacks and whites, the white electorate never included more than one black among its top nine choices. In every election the black who was the choice of the white was elected. The only black elected to the council who evaded the "veto" of the white voters was Tyrone Yates in 1991. Dr. Engstrom concluded that the 9X system prevented black voters from electing candidates of their choice.
        The case was tried, on the liability issue only, in May 1993 before United States District Judge Herman Weber. At the close of the liability trial, the Berry intervenors, a group of African-American and Asian-American voters led by Theodore Berry (who finally had become mayor in the 1970s) moved to intervene in the case for the limited purpose of proposing a return to the choice voting form of PR if Judge Weber ruled that the 9X system was discriminatory. The author of this article was one of several attorneys representing the Berry intervenors. The intervention effort was supported primarily by local contributions gathered by The Center for Voting and Democracy.

Liability Cases Loses, Goes to Court of Appeals
        Judge Weber issued his opinion in July and ruled in favor of the city. On the issue of intentional discrimination, Judge Weber held that the 1957 repeal campaign indeed was infected with racial scare tactics, but "the city" was not responsible for this campaign. (Judge Weber's definition of "the city" in this finding ignores the fact that the people of Cincinnati are part of the city government when they adopt a Charter amendment.) In addition, he found that "the repeal of PR can be attributed to objective factors such as low voter turnout at a special election; the deficiencies of PR; and partisan political interests."
        On the issue of the white "veto," Judge Weber looked at the evidence differently than Dr. Engstrom. While Dr. Engstrom had emphasized that black candidates could not get elected without white support, Judge Weber found that in the 1981-91 council elections, 40 of 54 (74%) of the preferred black and white candidates of the black electorate were elected to the council. Judge Weber ignored the fact that the blacks' preferred candidates who lost were mostly black.
        Since there was no trial on the issue of the remedy, the Berry intervenors could not present their evidence showing the superiority of PR to both the 9X system and single-member districts. The Clarke plaintiffs have taken an appeal, however, and the U. S. Court of Appeals for the Sixth Circuit should hear and decide the case during 1994. If the Sixth Circuit overturns Judge Weber's decision, the Berry intervenors will have another opportunity to present their remedy to the Court.

        Edward Still is a Birmingham, Alabama attorney who specializes in voting rights cases. He is a member of the Board of Directors of The Center for Voting and Democracy.

        "While finding a right to a preference voting [eg. choice voting or single transferable vote] proportional representation electoral system in the Equal Protection Clause of the Fourteenth Amendment may seem to some an interpretational stretch, it is no more unusual than the Court's finding, twenty-nine years ago, that the same language mandates a one-person, one-vote approach.
        "Unlike the one-person, one-vote standard, however, proportional representation would provide an equally manageable principle for judicial application, but one which would resist devolution into mechanistic application. The scope of the Equal Protection Clause has expanded exponentially since the Founders first implemented the current winner-take-all, plurality rule system; a contemporary re-examination of this structure may reveal that the requirements of fair representation demand something else -- namely, preference voting proportional representation."
Mary Inman, "C.P.R. (Change Through Proportional
Representation): Resuscitating a Federal Electoral
University of Pennsylvania Law Review,
May 1993

        "The time has come to take seriously the argument that the Constitution requires admitting the principle of proportional representation into the electoral systems of state and local government."
John Low-Beer, "The Constitutional Imperative of
Proportional Representation," Yale Law Journal,
November 1984


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