Justice Department Positions on Alternative Electoral Schemes
Steven J. Mulroy
The aborted nomination of Lani Guinier as Assistant Attorney General for Civil Rights triggered a public "discovery" of the issue of modified at-large voting schemes as voting rights remedies and an examination of the Department of Justice's policies regarding these alternatives to traditional electoral methods. This "discovery" was belated, however; the Department had been approving or using such alternatives as voting rights remedies since the Reagan administration.
The Department of Justice has never explicitly stated a policy regarding the appropriateness of these electoral schemes, except to say that they may be appropriate in certain circumstances to correct the problem of under-representation of minorities. However, an examination of the Department's administrative preclearance determinations, and the position taken during litigation, reveals certain patterns in Department treatment of these issues.
Two recent decisions were particularly noteworthy: an administrative objection to a cumulative voting plan due to insufficient voter education and an acknowledgment in an amicus brief that cumulative voting is a permissible remedial option to violations of the Voting Rights Act.
Beginning in 1985, 52 jurisdictions submitted electoral plans incorporating either limited or cumulative voting to the Department of Justice for preclearance under Section 5 of the Voting Rights Act. Of these 52 jurisdictions, 47 have received final determinations from the Justice Department; the other five were pending at the time this article was written. Where determinations have been made, all of the limited voting submissions, and all but one of the cumulative voting submissions, have been precleared.
Twenty-nine of these 47 submissions involved limited rather than cumulative voting: 17 from Alabama, 10 from North Carolina, 1 from Georgia and 1 from Texas. All of the limited voting submissions submitted to the Department have been precleared.
Many of these electoral arrangements arose as settlements of vote dilution lawsuits brought against the jurisdiction under Section 2 of the Voting Rights Act, 42 U.S.C. 1973. For example, a limited voting plan was adopted by a number of Alabama municipalities as part of the Section 2 remedial plan in Dillard v. Baldwin County Board of Education (1988).
While the 29 limited voting submissions for the most part involved straightforward use of limited voting where all seats were elected at large, at least 4 involved mixed at-large/single-member district systems in which limited voting was used to fill the at-large seats. The jurisdictions involved were the Board of Commissioners and Board of Education for Bladen County, North Carolina, precleared in 1988; the City of Augusta, Georgia, also precleared in 1988; and the Robeson County, North Carolina School District, which received preclearance in 1991. One additional submission, from the Board of Commissioners for Martin County, North Carolina, involved a jurisdiction subdivided into multi-member districts, each of which used limited voting.
Some, but not all, of these submissions involved jurisdictions where it was possible to draw minority-majority single-member districts. The uniform preclearance of these plans apparently reflects a recognition on the part of the Justice Department that the adoption of limited voting systems is an ameliorative voting change from the standpoint of minority electoral opportunity--at least as compared with traditional, "winner-take-all" at-large voting systems.
Cumulative voting plans were involved in at least 18 Section 5 submissions: 6 from Alabama, and 12 from Texas. All of the Alabama submissions involved electoral systems where all seats were filled at-large with cumulative voting, and were precleared in 1988. The Texas submissions were more recent; almost all occurred within the last year. The earliest, a 1989 preclearance obtained by the Lockhart Independent School District in Caldwell County, Texas, involved a mixed at-large/single-member district system in which cumulative voting was used to fill the at-large seats. The remaining Texas submissions involved "pure" at-large systems.
With one exception, these cumulative voting submissions were precleared. As with limited voting, the Department's overall disposition of these submissions is consistent with the general recognition that compared to the traditional at-large system, cumulative voting schemes represent an enhancement of minority electoral opportunity.
To date, the only Section 5 objection to cumulative or limited voting schemes is the 1994 objection interposed to the cumulative voting plan for City Council elections in Morton in Cochran County, Texas. That city has a five-member City Council elected under a traditional at-large system by plurality vote to staggered terms. The city is 44% Hispanic and 7% black in voting age population.
The minority population has suffered from a history of racial and ethnic discrimination resulting in depressed education, registration and turnout levels. Because voting is polarized along racial and ethnic lines, these disparities in political mobilization hamper minority electoral success; no minority person has ever served as a council member.
The city council began to consider changing its at-large method of election after private voting rights litigation was filed under Section 2. The plaintiffs proposed two remedial alternatives: (1) a single-member district plan with three Hispanic-majority districts; and (2) a cumulative voting system. In order to obtain a quick resolution to the pending Section 2 suit, the city council selected the cumulative voting plan.
However, the lower level of education, political organization, registration, and turnout among minority members in Morton called into question whether minority voters could elect candidates of choice under a cumulative voting scheme. The Cochran County school board used cumulative voting (after obtaining preclearance), with little recent success for minority candidates; two Hispanic candidates ran and lost in 1994.
A program to educate voters regarding the new voting system, a common feature in other such consent decrees adopted to settle voting rights suits in Texas in recent years, was absent from the city's submitted consent decree. The Department of Justice's investigation revealed that Morton's city council chose cumulative voting over single-member districts without making serious efforts to solicit the views of the minority community, to investigate whether the minority community had a complete understanding of the cumulative voting system, or to provide bilingual education to the minority community regarding the new system. Based on these factors, the Attorney General objected on September 12, 1994.
This objection -- which subsequently was lifted -- does not necessarily indicate any trend toward increasing skepticism of this electoral scheme. There were a number of aggravating factors present in Morton that will not all be present in all situations:
ï First, the jurisdiction rejected a viable districting scheme that fairly reflected minority voting strength. The ameliorative nature of cumulative and limited voting is obviously clearer compared to traditional at-large systems than when compared to remedial districting schemes.
ï Second, the Morton submission suffered from great disparities in education, English proficiency, and political organization between minority and Anglo residents of the city, and an utter lack of effort on the part of the city to ensure that minority residents adequately understood the proposed new system.
The objection reflected an appreciation of the reality that cumulative and limited voting are of little help to traditionally underrepresented minorities where those minorities cannot plausibly be expected to appreciate the need for strategic voting. It also reflects the reality that under Section 5, it is the jurisdiction's burden to ensure that the minority community has sufficient information to gain such an appreciation.
In the end, the Department did pre-clear a revised cumulative voting plan in Morton with provisions for community education. In May 1995 elections Latino candidates were successful in elections for the Morton City Council and Morton Independent School District board.
The United States has in several instances settled voting rights litigation to which it was a party through settlement agreements providing for some use of limited voting. These settlements were all entered into by the United States and other parties and approved by the presiding court as a consent decree. The presence of the Department of Justice as a signatory to such settlement agreements is another reflection of the Justice Department's attitude toward limited voting.
The first such instance occurred in 1988 in litigation involving the Board of Commissioners and Board of Education for Bladen County (NC). In United States v. Bladen County Board of Education, the settlement agreement provided that three of the nine school board members would be elected at-large using limited voting, with each voter having only one vote to cast for the at-large members.
Similarly, in United States v. City of Augusta, Georgia, the consent decree provided that three of thirteen council members would be elected at-large using limited voting, with each voter having two at-large votes. Both of these settlements increased the total number of elected officials to allow for a sufficient number of district-elected members to be mixed with members elected through limited voting.
In United States v. Sampson County, North Carolina, the Justice Department arranged through consent decree for the entire seven-member school board to be elected to staggered terms (4 elected in one election, the remaining three at the next election) using limited voting, with each voter having only one vote. Most recently, in United States v. Anson County Board of Education, the consent decree established a system in which two of the nine school board members would be elected at-large using limited voting, with each voter having one at-large vote.
All of these consent decrees entered into by the United States, of course, involved jurisdictions adopting these remedies by agreement rather than by court order (though courts did subsequently approve the agreements). The United States has never sought cumulative or limited voting as a court-imposed remedy in its voting rights litigation.
The closest it has come to doing this was in papers recently filed in State of Georgia v. Reno, a pending action brought by the State of Georgia challenging the Justice Department's Section 5 objection to Georgia's traditional at-large method of electing state superior court judges.
In that case, the sole issue was whether Georgia could meet its burden of proving that its method of election deserved preclearance under Section 5. The question of the proper remedy if the Department's objection were upheld was not before the court. As a result, the United States did not take a position on what the best remedial electoral system would be.
However, to rebut Georgia's argument that all alternative systems had negative consequences for the administration of justice by the superior courts, the Department suggested that cumulative and limited voting were valid options among many from which the State could choose to remedy its voting rights violation. (See State of Georgia v. Reno, supra, Reply Brief Of The United States, 14-16.)
In support of this position, the United States submitted into evidence an expert report which discussed cumulative and limited voting. That report concluded that these alternative systems "are certainly no less democratic, and arguably more so, than the other multi-seat election systems currently employed in this country." The report of the United States' expert, Richard Engstrom, further stated that "[t]hese systems, while somewhat unfamiliar to American voters today, do not create difficult demands on voters."
In the Georgia judges case, it was presumed that any remedies would be voluntarily adopted by the State of Georgia in the event it failed in its effort to obtain judicial preclearance. The litigation did not really present the United States with the need or opportunity to comment directly on the appropriateness of cumulative or limited voting as remedies imposed by court order on a jurisdiction despite that jurisdiction's opposition.
That opportunity came recently as a result of private litigation against Worcester County, Maryland: Cane v. Worcester County, Maryland, a Section 2 challenge to the traditional at-large electoral system used by the Worcester County Commission.
At the time of the litigation, Worcester County had five members elected through a traditional at-large system, four of whom were elected from residency districts. Though the county is 19.2% black in voting age population, no black had ever been elected to the Commission. The private plaintiffs offered two remedial alternatives: a single-member district plan with one black-majority district, and a cumulative voting plan.
Defendants disputed the issue of their liability under Section 2 on a number of grounds, but the district court found for plaintiffs on liability. At a post-trial remedial hearing, plaintiffs expressed a preference for the cumulative voting plan, and defendants declined to state a preference between the two. The district court imposed a cumulative voting plan, making Cane the first time in history that a court has imposed such a remedy without the consent of the jurisdiction. Defendants appealed.
On appeal, the Fourth Circuit Court of Appeals provided for an accelerated briefing schedule. The United States filed an amicus curiae brief supporting plaintiffs. However, the brief addressed liability issues only. The remedial issue was addressed only in a footnote. The footnote explained that:
Time constraints have prevented the United States from addressing other issues. We note, [however,] that plaintiffs' remedial proposals -- its single member district and the cumulative voting proposal -- are within the range of remedial options for a proven violation of Section 2.
While falling short of an unequivocal endorsement of cumulative and limited voting remedies, the positions taken by the Justice Department in these two cases makes clear the Department's recognition that cumulative and limited voting can be acceptable court-imposed remedies to voting rights litigation under the proper circumstances. Unfortunately, a better understanding of the Justice Department's position regarding what the proper circumstances are for such remedies must be left for future cases.
The Department of Justice's policy toward cumulative and limited voting has not been exhaustively or explicitly stated, and will necessarily develop further as the issue is raised in future litigation and Section 5 submissions. Some things are clear, however.
ï First, where adopted with the consent of the jurisdiction, the United States views these systems favorably in the vast majority of cases.
ï Second, these remedies are viewed more favorably as compared to traditional at-large systems; when competing against districting schemes designed to fairly reflect minority voting strength, the analysis becomes more complex.
ï Third, and most important, consideration of any proposed implementation of such remedies must involve an analysis of the political sophistication of the local minority community and the likelihood of that community employing the necessary strategic voting. Where these factors are lacking, the cumulative and limited vote remedies will be viewed, understandably, as ineffective.
Steven J. Mulroy has been a trial attorney in the U.S. Department of Justice voting section since 1991. He does not write on behalf of the Department of Justice, and opinions and analysis in this article are solely his own.
ï Alex Willingham: Bobby Agee, who is the black county commissioner in Chilton County, Alabama, which uses cumulative voting, told us just a few days ago that he manages to run his campaign on about $500, whereas some of the whites who are running are spending thousands of dollars campaigning for county commission seats.
But he is able to do it because he is essentially targeting his votes. He is doing what you ordinarily associate with what merchants do: They're going to go to a direct mail campaign, they're going to target the people they want to get to who are going to buy their product. He does that because he knows the voters who are likely to vote for him are black voters. He is able to get to them in an efficient way and doesn't waste his money.
Alex Willingham teaches courses in U.S. politics and the civil rights movement at Williams College and serves on the Board of Directors of the Highlander Center. He provided expert testimony in Shaw v. Hunt and Holder v. Hall.
ï Jamin Raskin (moderator): We have an interesting local example of this. Indeed, because in the District of Columbia the local is the federal, Congress is implicated. Congress, in enacting the Home Rule Charter for the District of Columbia in 1973, said that of the four at-large council seats in the District of Columbia, two had to be set aside for people who were not of the majority party. So the Democrats control every ward council seat, two at-large seats, and then the other two have gone either to independents, Republicans or the D.C. Statehood Party.
Jamin Raskin is a professor and associate dean at the Washington College of Law at the American University, where he also serves as Co-Director of the Law and Government Program. He has litigated and written widely in the field of voting rights and many other issues.
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