Shaw v. Reno and New Election Systems
Jason Kirksey, Richard Engstrom and Edward Still
"The time has come to contemplate
more innovative means of ensuring minority representation in democratic
institutions," observed the federal district court that invalidated Georgia's
majority-black 11th Congressional District in August 1994. That decision followed in the
wake of Shaw v. Reno, in which the U.S. Supreme Court held that majority minority
districts that are "extremely irregular" in appearance will be strictly
scrutinized to determine whether they are racial gerrymanders.
While the full impact of the courts' elevated concern for appearances is not yet known, the decisions highlight the need to look beyond geographically-based districts as the method by which to elect representatives. Single-member districts with winner-take-all plurality or majority rules are not the only democratic method by which representatives can be elected. Indeed, most of the world's democracies have eschewed that type of arrangement.
Other types of democratic electoral systems can provide comparable or even better electoral opportunities for minority groups, especially when a group's voters are somewhat dispersed residentially.
The dilution of the voting strength of a politically cohesive minority group should not be tolerated simply because the group's voters cannot form the majority in an election district that is nicely shaped. The dilution of such a group's vote is a choice, not an inevitability. A variety of democratic election systems that do not depend on residential patterns can provide cohesive groups with an opportunity to elect candidates of their choice.
These systems are not limited to the much maligned (at least in this country) party list proportional representation arrangements, nor are they systems that in any way guarantee particular election results. They are, to the contrary, election systems that provide nothing more than opportunities to elect candidates of choice, all within the fundamental "one person, one vote" rule of American democracy.
One such election system is cumulative voting. A cumulative voting system can be employed with or without geographical districts. When used in conjunction with districts, however, the districts do not need to be majority minority in order to provide electoral opportunities to minority groups, even those whose voters may be dispersed. There is no need, therefore, to manipulate district lines for that purpose.
The critical feature of the districts in a cumulative voting system is that they be multi-member -- i.e., more than a single representative must be elected from them. Under the cumulative system, the larger the number of representatives to be elected in a district at any one time, the smaller the proportion of the district's voters the minority group can comprise and still have an opportunity to elect a candidate of its choice.
Cumulative voting allows voters in a multi-seat, multi-vote election to cast more than a single vote for any particular candidate of their choice. It offers voters with an intense preference for a particular candidate or candidates an opportunity to express that intensity through their ballot. They can, in short, distinguish their level of support among candidates through their votes.
In a three-seat, three-vote election, for example, a voter may cast one vote apiece for three different candidates, or cast two votes for one candidate and one vote for another, or if the outcome they most desire is that one particular candidate be elected, cast all three of their votes for that candidate.
By providing voters with the option to cumulate their votes, voters who prefer one candidate over all the others are no longer forced to either "single-shot" vote-i.e, cast one vote for that candidate and withhold all of their other votes-or cast their remaining votes for candidates competing with their preferred choice. Rather than partially disfranchise themselves, voters can "plump" all or some of their votes on their most preferred candidate under this system. Winning candidates are determined by a simple plurality rule; in the three-seat contest, for example, the top three candidates win.
In a multi-seat election, whether at-large or by district, the cumulative options provide a minority of voters an opportunity to concentrate their support for a candidate or candidates more effectively than they can under the more traditional voting rules used in this country. This makes it much less likely that their votes will be diluted by submerging them in those of the majority. In short, with cumulative voting, minority group voters do not have to be made into majorities of voters in order to elect a candidate or candidates of their choice. The need to manipulate district lines, therefore, is largely, if not completely, eliminated.
|Agee was clearly the most preferred candidate among the African American voters, and the ability to express the intensity of their preference was critical to his electoral success.|
The Chilton County Experience
Minority voters have elected candidates of choice using cumulative voting on a number of occasions. Further illustration is provided by the November 1992 election for the seven seats on the Chilton County Commission in Alabama.
Chilton County adopted cumulative voting in 1988 as part of the settlement of a vote dilution lawsuit brought against its previous election system. According to the 1990 Census, African Americans constitute only 9.9% of the county's voting age population. No African American had been elected to the county commission this century until the first cumulative voting election, held in 1988. That commissioner, Bobby Agee, was reelected the second cumulative voting election in 1992.
An exit poll taken during the November 1992 general election in Chilton County reveals that Agee's reelection was a function of African American voters taking advantage of their option to cumulate votes on his behalf. Given the small percentage of African Americans in the county, the exit poll deliberately over-sampled African American voters. A total of 702 voters, of whom 142 (20.3%) were African American, reported how they cast their votes in this commission election.
With the exception of Agee, the percentage of vote received by each of the candidates in the poll was within two percentage points of the percentage they received in the actual vote. Agee did better in the poll than in the actual count; whereas he finished second among the fourteen candidates in the actual vote, with 9.69% of the votes cast, he finished first in the exit poll with 15.73%. This no doubt reflects the over-sampling of African American voters. If the vote is adjusted to reflect the over-sampling, Agee's percentage drops to 10.47%, very close to his actual percentage.
Despite being one of the seven Democratic candidates in the general election, Agee received very little support from the county's non-African American voters. Among the non-African American voters in the exit poll (97.0% of whom identified themselves as white), Agee finished twelfth -- ahead of the only other African American candidate, also a Democratic nominee, and one white Republican candidate. Only 13.4% of these voters cast even a single vote for Agee.
Agee was by far the choice of the African American voters, however. He received a vote from 67.1% of the African Americans who reported their vote in the exit poll, and 85.4% of these voters said they cast all seven of their votes for him. On average Agee received 6.28 votes from each of his African American supporters. (The other African American candidate received at least one vote from 32.9% of the African American voters, and 78.7% of these voters cast all seven of their votes for the candidate.) Agee was clearly the most preferred candidate among the African American voters, and the ability to express the intensity of their preference was critical to his electoral success.
The Chilton County experience with cumulative voting is not unique. African American voters in other settings have also been able to elect candidates of their choice through this system, as have Hispanic and Native American voters. As these experiences demonstrate, the representation of politically cohesive minority groups do not have to be dependent on where the group's voters happen to live.
A new shape threshold for election districts, if that is what Shaw requires, should not be allowed to become a convenient excuse for systematically diluting the votes of minority voters. If majority minority districts that are sufficiently attractive to the courts cannot be created, then other types of democratic election systems that do not have dilutive consequences, like cumulative voting, should be adopted.
Jason F. Kirksey is a Ph.D. candidate in the Department of Political Science at the University of New Orleans, where voting rights expert Richard L. Engstrom is a research professor. Edward Still is a civil rights attorney in Birmingham, Alabama. This article first appeared in the Voting Rights Review of the Southern Regional Council, which can be contacted at: 134 Peachtree Street, Suite 1900, Atlanta, GA 30303.
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