The way out: A legal standard for imposing alternative electoral systems as voting rights remedies

Harvard Civil Rights-Civil Liberties Law Review

Volumn 33, Issue 2, 1998, Pages

  Mulroy, Steven J ^a  

^a United States Department of Justice   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11544323364     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (248)

1. By "alternative electoral systems," I mean cumulative voting, limited voting, and preference voting (also known as the "single transferable vote"). These systems provide more opportunity for the electoral viability of voting minorities than the traditional, "winner-take-all" at-large method of election, but do not involve the use of single-member districts. Each such system features elections held jurisdiction-wide, without carving the jurisdiction into subdistricts. However, unlike the traditional at-large system, these three "alternative" systems employ special voting rules designed to enhance the abilities of minority voting blocs to obtain representation. See Edward Still, Alternatives to Single-Member Districts, in MINORITY VOTE DILUTION 249 (Chandler Davidson ed., 1989). For an explanation of the workings of these alternative systems, see infra Part I.A.3.
2. See Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135, 1137 (1993); Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413 (1991) [hereinafter Guinier. No Two Seats]; Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077 (1991) [hereinafter Guinier, The Triumph of Tokenism].
3. See Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135, 1137 (1993); Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413 (1991) [hereinafter Guinier. No Two Seats]; Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077 (1991) [hereinafter Guinier, The Triumph of Tokenism].
4. See Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135, 1137 (1993); Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413 (1991) [hereinafter Guinier. No Two Seats]; Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077 (1991) [hereinafter Guinier, The Triumph of Tokenism].
5. See Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135, 1137 (1993); Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413 (1991) [hereinafter Guinier. No Two Seats]; Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077 (1991) [hereinafter Guinier, The Triumph of Tokenism].
6. See Lani Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135, 1137 (1993); Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413 (1991) [hereinafter Guinier. No Two Seats]; Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077 (1991) [hereinafter Guinier, The Triumph of Tokenism].
7. See, e.g., David Kaplan, Alternative Election Methods: A Fix for a Besieged System?, CONG. Q., Apr. 2, 1994, at 812-13; Better Politics from an Old Idea. CHI. TRIB., May 30, 1995. at 12; Steven Hill, Lessons on the Mechanics of Democracy, L.A. TIMES, Feb. 15, 1996. at 9.
8. See, e.g., David Kaplan, Alternative Election Methods: A Fix for a Besieged System?, CONG. Q., Apr. 2, 1994, at 812-13; Better Politics from an Old Idea. CHI. TRIB., May 30, 1995. at 12; Steven Hill, Lessons on the Mechanics of Democracy, L.A. TIMES, Feb. 15, 1996. at 9.
9. See, e.g., David Kaplan, Alternative Election Methods: A Fix for a Besieged System?, CONG. Q., Apr. 2, 1994, at 812-13; Better Politics from an Old Idea. CHI. TRIB., May 30, 1995. at 12; Steven Hill, Lessons on the Mechanics of Democracy, L.A. TIMES, Feb. 15, 1996. at 9.
10. See Abrams v. Johnson, 117 S. Ct. 1925 (1997); Shaw v. Hunt, 116 S. Ct. 1894 Harvard Civil Rights-Civil Liberties Law Review [Vol. 33 (1996); Bush v. Vera. 116 S. Ct. 1941 (1996): Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993).
11. "Single-member districts," the traditional voting rights remedy, carve a jurisdiction into geographic boundaries within which a single representative is elected by the voters within that geographic area to represent that area. They contrast with "multimember districts," geographic areas from which more than one representative is elected, and "at-large systems," in which no districts are used, and voters from all over the jurisdiction may vote for multiple representatives. See discussion infra Part I.A.
12. See, e.g., John Anderson, Go Back to the Drawing Board to Make More Votes Count. CHRISTIAN SCI. MONITOR, Jan. 12, 1996, at 18; Peter Applebome, Guinier Ideas, Once Seen as Odd, Now Get Serious Study, N.Y. TIMES, Apr. 3, 1994, at 9A; William Raspberry, The Balkanization of America, WASH. POST, July 7, 1995, at A21; A Route to Fairer Voting, USA TODAY, June 30, 1995, at 12A.
13. See, e.g., John Anderson, Go Back to the Drawing Board to Make More Votes Count. CHRISTIAN SCI. MONITOR, Jan. 12, 1996, at 18; Peter Applebome, Guinier Ideas, Once Seen as Odd, Now Get Serious Study, N.Y. TIMES, Apr. 3, 1994, at 9A; William Raspberry, The Balkanization of America, WASH. POST, July 7, 1995, at A21; A Route to Fairer Voting, USA TODAY, June 30, 1995, at 12A.
14. See, e.g., John Anderson, Go Back to the Drawing Board to Make More Votes Count. CHRISTIAN SCI. MONITOR, Jan. 12, 1996, at 18; Peter Applebome, Guinier Ideas, Once Seen as Odd, Now Get Serious Study, N.Y. TIMES, Apr. 3, 1994, at 9A; William Raspberry, The Balkanization of America, WASH. POST, July 7, 1995, at A21; A Route to Fairer Voting, USA TODAY, June 30, 1995, at 12A.
15. See, e.g., John Anderson, Go Back to the Drawing Board to Make More Votes Count. CHRISTIAN SCI. MONITOR, Jan. 12, 1996, at 18; Peter Applebome, Guinier Ideas, Once Seen as Odd, Now Get Serious Study, N.Y. TIMES, Apr. 3, 1994, at 9A; William Raspberry, The Balkanization of America, WASH. POST, July 7, 1995, at A21; A Route to Fairer Voting, USA TODAY, June 30, 1995, at 12A.
16. See, e.g., Holder v. Hall, 512 U.S. 874, 910-12 (1994) (Thomas, J., concurring) ("[N]othing 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 § 2 . . . ."); SCLC v. Sessions, 56 F.3d 1281, 1313 (11th Cir. 1995) (Hatchett, J., dissenting) (praising cumulative voting as possible method for electing local judges); T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH, L. REV. 588, 628 (finding "ironic" that Shaw may force reconsideration of Guinier's ideas); Richard Engstrom et al., One Person, Seven Votes: The Cumulative Voting Experience in Chilton County, Alabama, in AFFIRMATIVE ACTION AND REPRESENTATION: SHAW v. RENO AND THE FUTURE OF VOTING RIGHTS (Anthony A. Peacock ed., 1997) (advocating renewed exploration of cumulative voting systems in light of Shaw).
17. See, e.g., Holder v. Hall, 512 U.S. 874, 910-12 (1994) (Thomas, J., concurring) ("[N]othing 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 § 2 . . . ."); SCLC v. Sessions, 56 F.3d 1281, 1313 (11th Cir. 1995) (Hatchett, J., dissenting) (praising cumulative voting as possible method for electing local judges); T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH, L. REV. 588, 628 (finding "ironic" that Shaw may force reconsideration of Guinier's ideas); Richard Engstrom et al., One Person, Seven Votes: The Cumulative Voting Experience in Chilton County, Alabama, in AFFIRMATIVE ACTION AND REPRESENTATION: SHAW v. RENO AND THE FUTURE OF VOTING RIGHTS (Anthony A. Peacock ed., 1997) (advocating renewed exploration of cumulative voting systems in light of Shaw).
18. See Cousin v. Sundquist, No. 1:90-CV-339, slip op. at 8-9 (E.D. Tenn. July 3, 1996), appeal docketed. No. 96-6028 (6th Cir. Jan. 30, 1998) (granting stay of district court's order). Numerous jurisdictions have adopted alternative electoral remedies as Voting Rights Act remedies, but almost always as the product of settlement negotiations between the parties (as opposed to a court-ordered remedy imposed over the objection of the defendant jurisdiction). In the two other cases imposing an alternative electoral remedy outside the settlement context, the Fourth Circuit vacated the remedial orders on fact-specific grounds. See Cane v. Worcester County, 35 F.3d 921, 927-28 (4th Cir. 1994), cert. denied, 513 U.S. 1148 (1995); McGhee v. Granville County, 860 F.2d 110, 117-18 (4th Cir. 1988). Such a fate likely awaits the cumulative voting remedy in Sundquist. See Cousin v. Sundquist, No. 96-6028 at 2 (6th Cir. Jan. 30, 1998) (noting that cumulative voting remedy, which was not requested by the plaintiffs, was not "under active consideration"). Nonetheless, such a recent imposition of an alternative remedy by a federal court is significant.
19. See Cleveland County Ass'n for Gov't by the People v. Cleveland County Bd. of Comm'rs, 965 F. Supp. 72, 79-80 (D.D.C. 1997). rev'd on other grounds, 1998 WL 210591 (D.D.C. May 1, 1998).
20. See, e.g., Shawn Fremstad, State Judicial Elections and the Voting Rights Act: Defining the Proper Remedial Scheme, 76 MINN. L. REV. 101, 114, 115 n. 77 (1991); Pamela Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation. 24 HARV. C.R.-C.L. L. REV. 173 (1989): Robert McDuff. Judicial Elections & the Voting Rights Act. 38 LOY, L. REV. 931 (1993); Edward Still, Voluntary Constituencies: Modified At-Large Voting as a Remedy for Minority Vote Dilution in Judicial Elections. 9 YALE L. & POL. REV. 354 (1991); Note, Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 YALE L.J. 144 (1982).
21. See, e.g., Shawn Fremstad, State Judicial Elections and the Voting Rights Act: Defining the Proper Remedial Scheme, 76 MINN. L. REV. 101, 114, 115 n. 77 (1991); Pamela Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation. 24 HARV. C.R.-C.L. L. REV. 173 (1989): Robert McDuff. Judicial Elections & the Voting Rights Act. 38 LOY, L. REV. 931 (1993); Edward Still, Voluntary Constituencies: Modified At-Large Voting as a Remedy for Minority Vote Dilution in Judicial Elections. 9 YALE L. & POL. REV. 354 (1991); Note, Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 YALE L.J. 144 (1982).
22. See, e.g., Shawn Fremstad, State Judicial Elections and the Voting Rights Act: Defining the Proper Remedial Scheme, 76 MINN. L. REV. 101, 114, 115 n. 77 (1991); Pamela Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation. 24 HARV. C.R.-C.L. L. REV. 173 (1989): Robert McDuff. Judicial Elections & the Voting Rights Act. 38 LOY, L. REV. 931 (1993); Edward Still, Voluntary Constituencies: Modified At-Large Voting as a Remedy for Minority Vote Dilution in Judicial Elections. 9 YALE L. & POL. REV. 354 (1991); Note, Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 YALE L.J. 144 (1982).
23. See, e.g., Shawn Fremstad, State Judicial Elections and the Voting Rights Act: Defining the Proper Remedial Scheme, 76 MINN. L. REV. 101, 114, 115 n. 77 (1991); Pamela Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation. 24 HARV. C.R.-C.L. L. REV. 173 (1989): Robert McDuff. Judicial Elections & the Voting Rights Act. 38 LOY, L. REV. 931 (1993); Edward Still, Voluntary Constituencies: Modified At-Large Voting as a Remedy for Minority Vote Dilution in Judicial Elections. 9 YALE L. & POL. REV. 354 (1991); Note, Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 YALE L.J. 144 (1982).
24. See, e.g., Shawn Fremstad, State Judicial Elections and the Voting Rights Act: Defining the Proper Remedial Scheme, 76 MINN. L. REV. 101, 114, 115 n. 77 (1991); Pamela Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation. 24 HARV. C.R.-C.L. L. REV. 173 (1989): Robert McDuff. Judicial Elections & the Voting Rights Act. 38 LOY, L. REV. 931 (1993); Edward Still, Voluntary Constituencies: Modified At-Large Voting as a Remedy for Minority Vote Dilution in Judicial Elections. 9 YALE L. & POL. REV. 354 (1991); Note, Alternative Voting Systems as Remedies for Unlawful At-Large Systems, 92 YALE L.J. 144 (1982).
25. See, e.g., Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution. 21 STETSON L. REV. 743, 750 (1992); Bernard Grofman & Arend Lijphart, Introduction to Part II. in REPRESENTATION AND REDISTRICTING ISSUES 103-04 (Bernard Grofman et al. eds., 1984): Delbert A. Taebel et al., Alternative Electoral Systems as Remedies for Minority Vote Dilution. 11 HAMLINE J. PUB. L. & POL. 19 (1990); Leon Weaver, Semi-Proportional and Proportional Representation Systems in the United States, in CHOOSING AN ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES 191 (Arend Lijphart & Bernard Grofman eds., 1984); Joseph Zimmerman, The Federal Voting Rights Act & Alternative Electoral Systems, 19 WM. & MARY L. REV. 621 (1978).
26. See, e.g., Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution. 21 STETSON L. REV. 743, 750 (1992); Bernard Grofman & Arend Lijphart, Introduction to Part II. in REPRESENTATION AND REDISTRICTING ISSUES 103-04 (Bernard Grofman et al. eds., 1984): Delbert A. Taebel et al., Alternative Electoral Systems as Remedies for Minority Vote Dilution. 11 HAMLINE J. PUB. L. & POL. 19 (1990); Leon Weaver, Semi-Proportional and Proportional Representation Systems in the United States, in CHOOSING AN ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES 191 (Arend Lijphart & Bernard Grofman eds., 1984); Joseph Zimmerman, The Federal Voting Rights Act & Alternative Electoral Systems, 19 WM. & MARY L. REV. 621 (1978).
27. See, e.g., Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution. 21 STETSON L. REV. 743, 750 (1992); Bernard Grofman & Arend Lijphart, Introduction to Part II. in REPRESENTATION AND REDISTRICTING ISSUES 103-04 (Bernard Grofman et al. eds., 1984): Delbert A. Taebel et al., Alternative Electoral Systems as Remedies for Minority Vote Dilution. 11 HAMLINE J. PUB. L. & POL. 19 (1990); Leon Weaver, Semi-Proportional and Proportional Representation Systems in the United States, in CHOOSING AN ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES 191 (Arend Lijphart & Bernard Grofman eds., 1984); Joseph Zimmerman, The Federal Voting Rights Act & Alternative Electoral Systems, 19 WM. & MARY L. REV. 621 (1978).
28. See, e.g., Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution. 21 STETSON L. REV. 743, 750 (1992); Bernard Grofman & Arend Lijphart, Introduction to Part II. in REPRESENTATION AND REDISTRICTING ISSUES 103-04 (Bernard Grofman et al. eds., 1984): Delbert A. Taebel et al., Alternative Electoral Systems as Remedies for Minority Vote Dilution. 11 HAMLINE J. PUB. L. & POL. 19 (1990); Leon Weaver, Semi-Proportional and Proportional Representation Systems in the United States, in CHOOSING AN ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES 191 (Arend Lijphart & Bernard Grofman eds., 1984); Joseph Zimmerman, The Federal Voting Rights Act & Alternative Electoral Systems, 19 WM. & MARY L. REV. 621 (1978).
29. See, e.g., Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution. 21 STETSON L. REV. 743, 750 (1992); Bernard Grofman & Arend Lijphart, Introduction to Part II. in REPRESENTATION AND REDISTRICTING ISSUES 103-04 (Bernard Grofman et al. eds., 1984): Delbert A. Taebel et al., Alternative Electoral Systems as Remedies for Minority Vote Dilution. 11 HAMLINE J. PUB. L. & POL. 19 (1990); Leon Weaver, Semi-Proportional and Proportional Representation Systems in the United States, in CHOOSING AN ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES 191 (Arend Lijphart & Bernard Grofman eds., 1984); Joseph Zimmerman, The Federal Voting Rights Act & Alternative Electoral Systems, 19 WM. & MARY L. REV. 621 (1978).
30. Although the legal arguments advanced in Part II would apply to statewide as well as local electoral systems, I envision them being implemented initially at the local level only. This would fit the pattern of the original "vote dilution" cases under the Voting Rights Act, see infra Part I.B, and that of the cases to date that have dealt with alternative electoral systems. See, e.g., Cousin, No. 1:90-CV-399, at 8-9 (granting stay of district court's order) (discussed infra Part II.A.2). Alternative electoral systems are not a remedial option at the congressional level because seats for the United States House of Representatives must be elected from single-member districts. See 2 U.S.C. § 2(c) (1994). A bill currently pending in Congress would change that, however. See H.R. 3068, 105th Cong. (1998) ("the Voters' Choice Act"). Historically, from the late 18th century through 1967, a number of states elected representatives at large or from multi-seat districts. See Kenneth C. Martis, Districts, in THE ENCYCLOPEDIA OF THE UNITED STATES CONGRESS 651, 652-53 (Donald C. Bacon et al. eds., 1995). Indeed, except for a 10-year period starting in 1842, there was never any requirement that House of Representative seats be filled through single-member district elections prior to 1967. See id. Similarly, the legal standard I propose would apply both to challenges to districting systems as well as to at-large electoral schemes - indeed, to any voting case where the remedy sought is an alternative electoral system. For reasons of analytical simplicity and brevity, however, this Article focuses primarily on challenges to at-large schemes. See infra Part II.F.
31. See Still, supra note 1, at 249; Heywood T. Sanders, The Government of American Cities: Continuity and Change in Structure, 1982 MUN. Y.B. 178, 179-80.
32. In some vote dilution cases, courts use "at-large" and "multimember" interchangeably to contrast with "single-member districts." See, e.g., Thornburg v. Gingles, 478 U.S. 30, 50 n.17 (1986).
33. Residency districts should not be confused with single-member districts. A residency district places geographic constraints only on candidates: a voter residing in one district can still cast a vote to fill a seat for another district. Single-member districts place direct geographic constraints on both voters and candidates.
34. An example can illustrate these variations on the traditional at-large election. Assume that fifteen candidates are on the ballot in an election to fill five seats on a city council in a traditional at-large election. Several options exist. First, all fifteen candidates can be placed on one plenary list on the ballot, and voters can cast one vote for each of their five preferred candidates, with the top five vote-getters taking office. Second, under a "numbered post" variation, the seats would be numbered 1-5. and candidates would be required to declare a candidacy for one of these five "numbered posts." creating five "mini-elections" in which, say, three candidates each vie for the top vote for Seat 1, for Seat 2, and so on. Rather than a plenary list of candidates, each group of three candidates would be placed on the ballot beneath the corresponding seat number. Voters would still be able to cast five votes (one for each seat to be filled) but would be required to vote for one candidate from within each of the five separate lists. Third, the jurisdiction could be carved into "residency districts" 1-5. The rules would require a candidate living in Residency District 1 to declare candidacy for Seat 1, and so on. This variation would again divide the election into five mini-elections, still allowing voters from all over the jurisdiction to cast votes for all five seats, one for a candidate located beneath each Residency District listing on the ballot. Finally, under either the "numbered post" or "residency district" variation, if a winning candidate in each mini-election is required to have a majority of the votes cast for that seat, then the jurisdiction might have to stage a runoff election between the top two vote-getters if none of the three candidates vying for a seat got over 50% of the vote.
35. See Rogers v. Lodge, 458 U.S. 613, 616 (1982): Chapman v. Meier, 420 U.S. 1, 17-18 (1975).
36. See City of Port Arthur v. United States, 459 U.S. 159, 167 (1983) (discussing majority vote requirements); City of Rome v. United States, 446 U.S. 156, 184 n.19 (1980) (discussing numbered posts), reh'g denied. 447 U.S. 916 (1980); Dillard v. Crenshaw County, 640 F. Supp. 1347, 1357 (M.D. Ala. 1986); U.S. COMM'N ON CIVIL RIGHTS, TEN YEARS AFTER; UNFULFILLED GOALS (1981) (analyzing staggered terms).
37. This situation occurred in Granville County, North Carolina, site of a vote dilution lawsuit under the Voting Rights Act. See McGhee v. Granville County, 860 F.2d 110 (4th Cir. 1988). Despite the fact that a number of black residents had run for election to the county's governing body, the county had never elected a black candidate. See id. at 113.
38. See Thornburg v. Gingles, 478 U.S. 30 (1986) (affirming lower court ruling providing for single-member district remedy in Voting Rights Act challenge to North Carolina multimember state legislative districts).
39. See Reynolds v. Sims, 377 U.S. 533, 559 (1964).
40. See CENTER FOR VOTING AND DEMOCRACY, VOTING & DEMOCRACY REPORT, i (1995).
41. European-style, party-based proportional representation systems are sufficiently outside the American experience to fall beyond the scope of this Article.
42. For a fuller discussion of these systems and the philosophies behind them, see REIN TAAGEPERA & MATTHEW SOBERG SHUGART, SEATS AND VOTES: THE EFFECTS AND DETERMINANTS OF ELECTORAL SYSTEMS (1989).
43. This Article focuses on the use of alternative systems to replace a dilutive, traditional at-large system. However, the legal analysis also applies to attempts to replace a dilutive, district-based system. See discussion infra Part II.F.
44. The "threshold of exclusion" formulas make conservative assumptions about the voting behavior of the majority bloc. It assumes majority bloc voters cast all of their available ballots, they cast them all for candidates belonging to the majority bloc, and they divide up their votes evenly among a number of majority bloc candidates equal to the number of seats to be filled.
45. See Still, supra note 1, at 253.
46. Id.
47. See Cleveland County Ass'n for Gov't by the People v. Cleveland County Bd. of Comm'rs, 965 F. Supp. 72, 79 & n.9 (D.D.C. 1997) (describing use in three county and two municipal elected bodies in North Carolina), rev'd on other grounds. 1998 WL 210591 (D.D.C. May 1, 1998); Dillard v. Baldwin County Bd. of Educ., 686 F. Supp. 1459, 1460 (M.D. Ala. 1988) (describing the numerous Alabama counties and municipalities subject to the Dillard litigation and tracing the litigation's history); DOUGLAS AMY, REAL CHOICES, NEW VOICES 217, 233 (1993) (noting use in a "few cities and counties" in Connecticut and Pennsylvania).
48. See Still, supra note 1, at 254. This can be seen by choosing a constant integer of, for example, three or more for the number of seats to be filled and calculating the threshold using "1," "2," "3," etc. for the number of votes each voter has.
49. See id. at 254; Engstrom, supra note 11, at 758.
50. See Note, supra note 10, at 153 n.40.
51. The ability of voters to cast more than one vote is not a violation of the "one person, one vote" constitutional principle because each voter is entitled to the same number of votes. See Reynolds v. Sims, 377 U.S. 533, 559 (1964) (explaining that the gravamen of the principle is that "one man's vote . . . is to be worth as much as another's") (quoting Wesberry v. Sanders, 376 U.S. 1, 14 (1964)); see also Lani Guinier, The Triumph of Tokenism, supra note 2, at 1148 n.332.
52. See Robert Brischetto & Richard Engstrom, Cumulative Voting and Latino Representation: Exit Surveys in Fifteen Different Texas Communities, 78 Soc. Sci. Q. 973 (1997) (describing the uses of cumulative voting in Texas by at least 15 municipalities and 26 school boards since 1991); Richard Engstrom et al., Limited and Cumulative Voting in Alabama: An Assessment After Two Rounds of Elections, 6 NAT'L POL. SCI. REV. 180, 185 (1997) (describing the use of cumulative voting in Alabama in four municipalities in addition to the county commission and school board of a separate county since 1988); Engstrom, supra note 11, at 757 (describing use in Alabama and Peoria). In a 1996 referendum, voters suspended the use of cumulative voting in Alamogordo, effective the following year.
53. See Robert Brischetto & Richard Engstrom, Cumulative Voting and Latino Representation: Exit Surveys in Fifteen Different Texas Communities, 78 Soc. Sci. Q. 973 (1997) (describing the uses of cumulative voting in Texas by at least 15 municipalities and 26 school boards since 1991); Richard Engstrom et al., Limited and Cumulative Voting in Alabama: An Assessment After Two Rounds of Elections, 6 NAT'L POL. SCI. REV. 180, 185 (1997) (describing the use of cumulative voting in Alabama in four municipalities in addition to the county commission and school board of a separate county since 1988); Engstrom, supra note 11, at 757 (describing use in Alabama and Peoria). In a 1996 referendum, voters suspended the use of cumulative voting in Alamogordo, effective the following year.
54. See AMY, supra note 29, at 186. Illinois used a slightly different form of cumulative voting, allowing a voter to cast one vote per candidate up to three votes and allotting an equal share of the total number of votes each voter casts to the candidates selected. For example, if a voter places an "X" next to only two candidates, each candidate gets 1.5 votes (3/2); if the voter places an "X" next to only one candidate, the candidate would get three votes.
55. See Engstrom, supra note 11, at 751; Still, supra note 1, at 256. This formula applies in the usual case where the number of votes each voter casts equals the number of seats to be filled.
56. This can be seen by using a fixed number for "# of seats to be filled" in both formulas, and plugging in increasing integers for "# of votes each voter has."
57. Preference voting is sometimes referred to as the "single transferable vote" or as the "Hare system," which is a particular methodology for counting preference vote ballots. See Still, supra note 1, at 259.
58. See AMY, supra note 29, at 18.
59. See id. at 18, 137-38; Engstrom, supra note 11, at 766-67.
60. See Engstrom, supra note 11, at 766-67.
61. This minimum is calculated by dividing the total number of votes cast by the number of seats to be filled plus one, and then adding one. This is the so-called "Droop quota." See Still, supra note 1, at 259. Thus, where voters vote to fill three seats, the minimum is one more than 1/4 of the overall vote; where four seats are available, it is one more than 1/5 of the vote, and so on.
62. See id. at 258-61. For more detailed explanations of the counting process, see AMY, supra note 29, at 230-31 & Appendix C; Engstrom, supra note 11, at 765-69. Engstrom provides a diagram that is particularly helpful.
63. See Still, supra note 1, at 260; Note, supra note 10, at 150-51.
64. See Still, supra note 1, at 260.
65. See id.
66. See AMY, supra note 29, at 137-38; ENID LEKMAN, HOW DEMOCRACIES VOTE, 231-69, 284-86 (1971).
67. See Campbell v. Board of Educ., 310 F. Supp. 94 (S.D.N.Y. 1970); McSweeney v. City of Cambridge, 665 N.E.2d 11 (Mass. 1996); Moore v. Election Comm'rs, 35 N.E.2d 222 (Mass. 1941); Reutener v. City of Cleveland, 141 N.E. 27 (Ohio 1923).
68. The Act bars voting-related discrimination against persons on account of race, color, national origin, and membership in a "language minority group." See 42 U.S.C. §§ 1973, 1973b(f) (1994). The Act defines a "language minority group" to include Asian Americans, Hispanics, Native Americans, and Alaskan Natives. See 42 U.S.C. § 1973l(c) (1994). I often refer to "blacks" as victims of vote dilution in this Article; these references should be taken to refer to all minority groups covered under Section 2.
69. The first such Supreme Court decision was Allen v. State Bd. of Elections, 393 U.S. 544, 548, 566-69 (1969), which adopted a broad, inclusive definition of the phrase "standard, practice or procedure with respect to voting" in a case involving the analogous provisions of Section 5 of the Act, 42 U.S.C. § 1973c (1994).
70. 446 U.S. 55 (1980).
71. 42 U.S.C. § 1973(b) (1994).
72. The 1982 amendments reinstated the pre-Bolden "results test" used by the courts in White v. Regester, 412 U.S. 755 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd sub nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976) (per curiam).
73. The Senate Judiciary Committee majority report on the Act lists the following factors, focused on the particular defendant State or political subdivision: (1) the history of official discrimination affecting the right to vote; (2) the degree to which voting was racially polarized; (3) the use of other dilutive voting procedures such as majority vote requirements; (4) any denial of minority candidate access to candidate slating processes; (5) socioeconomic disparities on the part of the minority group members; (6) racial appeals in campaigns; (7) the degree of minority candidate electoral success; (8) the degree of responsiveness on the part of elected officials to the concerns of the minority group; and (9) the extent to which the policy underlying the challenged practice or procedure is tenuous. See S. REP. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 205-07.
74. 478 U.S. 30 (1986). The Supreme Court has noted the open-ended nature of the pre-Gingles "results test." See, e.g., Johnson v. DeGrandy, 513 U.S. 804, 1010 (1994) (the Gingles test "provided some structure to" the "totality of [the] circumstances" test).
75. Although Gingles dealt with a challenge to multimember districts (i.e., districts from which several representatives are elected), lower courts have applied the Gingles analysis to vote dilution challenges to single-member districting schemes as well. The Court eventually clarified that this was the correct approach. See Growe v. Emison, 507 U.S. 25. 40-42 (1993).
76. Gingles, 478 U.S. at 48-52. The Court used "submergence" to refer to a claim that a multimember (or at-large) system "dilutes [minority] votes by submerging them in a white majority." Id. at 46.
77. See id. at 50-51. The first of these preconditions is often referred to simply as "compactness," and the second and third can be considered together as proof of "racial bloc voting." See id., at 55; Teague v. Attala County, 92 F.3d 283, 287 (5th Cir. 1996) (making the same point, citing Gingles). The terms "racial bloc voting" and "racially polarized voting" are synonymous. See Gingles, 478 U.S. at 52 n.18.
78. See Gingles, 478 U.S. at 43-52. Although recent Supreme Court decisions have cast doubt on some aspects of prior vote dilution jurisprudence, the Court continues to endorse the Gingles framework for assessing Section 2 vote dilution claims. See, e.g., Abrams v. Johnson, 117 S. Ct. 1925, 1935-36 (1997).
79. See Gingles, 478 U.S. at 55-70.
80. See, e.g., Clark v. Calhoun County, 21 F.3d 92, 97 (5th Cir. 1994) (noting that it will be "only the very unusual case" in which plaintiffs establish the Gingles preconditions but fail to establish liability under the totality of the circumstances (quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3d Cir. 1993))); see also United States v. Dallas County Comm'n, 739 F.2d 1529, 1535 (11th Cir. 1984) (noting that proof of racial bloc voting "will ordinarily be the keystone of a dilution case" (quoting United States v. Marengo County, 731 F.2d 1546, 1566 (11th Cir. 1984), cert, denied, 469 U.S 976 (1984))).
81. 512 U.S. 874 (1994).
82. Id. at 880 (Kennedy, J., plurality opinion); see also id. at 887 (O'Connor, J., concurring).
83. See id. at 888 (O'Connor, J., concurring).
84. See id. at 881-85 (Kennedy, J., plurality opinion).
85. See Growe v. Emison, 507 U.S. 25, 40 (1993); Connor v. Finch, 431 U.S. 407, 415 (1977).
86. See, e.g., Dillard v. Baldwin County Bd. of Educ., 686 F. Supp. 1459, 1461-62 (M.D. Ala. 1988) (tracing the history of the Dillard series of Section 2 cases in Alabama, many of which parties resolved through consent decrees establishing alternative electoral systems); Vega v. City of Alamogordo, No. 86-0061-C (D.N.M. Dec. 31, 1986) (ordering cumulative voting into effect for Alamogordo, N.M.).
87. The sole contemporaneous exception was short-lived: a federal district court's nonsettlement adoption of limited voting was overturned by the Fourth Circuit on fact specific grounds. See McGhee v. Granville County, 860 F.2d 110, 117-18 (4th Cir. 1988). A later attempt at imposing cumulative voting as a nonsettlement remedy met with a similar fate. See Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994), cert, denied. 513 U.S. 1148 (1995). A recent case, also involving a court-imposed cumulative voting remedy. produced the only nonsettlement alternative remedy still in effect. See Cousin v. Sundquist. No. 1:90-CV-339, slip op. at 8-9 (E.D. Tenn. July 3, 1996) (imposing cumulative voting remedy where defendant, after finding of liability, took no position on remedy), appeal docketed, No. 96-6028 (6th Cir. Jan. 30, 1998) (granting stay of district court's order). See infra Part II.A.
88. Shaw v. Reno, 509 U.S. 630 (1993) [hereinafter Shaw I].
89. W. at 657-58.
90. Id. at 650-53.
91. Id. at 649-50.
92. Id. at 647.
93. Id. at 648.
94. Id. at 657.
95. See id. at 657-58.
96. 515 U.S. 900 (1995).
97. See id. at 915-16.
98. Id. at 916.
99. See id. at 911-12. These two rationales have also been described in terms of the "stigmatic" and "representational" harms, respectively, which racial gerrymandering supposedly fosters. See United States v. Hays, 515 U.S. 737, 744 (1995).
100. See Bush v. Vera, 116 S. Ct. 1941 (1996) (affirming district court order invalidating Texas congressional districts); Shaw v. Hunt. 517 U.S. 899 (1996) [hereinafter Shaw II] (reversing three-judge court ruling upholding original Shaw district in North Carolina); see also Abrams v. Johnson, 117 S. Ct. 1925 (1997) (upholding Georgia district court's rejection of minority remedial districts on Shaw grounds). To date, only one Supreme Court opinion has upheld a minority district against a Shaw challenge. See Lawyer v. Department of Justice, 117 S. Ct. 2186 (1997) (affirming lower court ruling upholding Florida Senate district). However, the Supreme Court has on several occasions summarily affirmed lower court opinions upholding districts against such challenges. See King v. Illinois Bd. of Elections, 118 S. Ct. 877 (1998), summarily aff'g King v. State Bd. of Elections, 979 F. Supp. 619 (N.D. III. 1997) (three-judge court); Dewitt v. Wilson, 515 U.S. 1170 (1995), summarily aff'g 856 F. Supp. 1409 (E.D. Cal. 1994) (three-judge court); see also Meadows v. Moon, 117 S. Ct. 2501 (1997), summarily aff'g 952 F. Supp. 1141 (E.D. Va. 1997) (three-judge court) (affirming invalidation of district).
101. Shaw II, 116 S. Ct. at 1905-06.
102. See id. at 1961.
103. This dilemma is similar to the one faced by entities engaging in affirmative action programs who may be torn between compliance with federal anti-discrimination statutes and the prohibitions of the Constitution. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 291 (1986) (O'Connor, J., concurring in part and concurring in the judgment) (state actors should not be "trapped between the competing hazards of liability" by the imposition of unattainable requirements under the rubric of strict scrutiny). The dilemma is more acute in the districting context, however, in that states may and do routinely consider race in drawing lines, consistent with federal law and without triggering strict scrutiny (as long as they do so consistently with traditional districting principles). The openly acknowledged use of race as a decisional factor in other contexts-employment, education, and awarding government contracts, for example - would immediately violate federal discrimination law or (in the case of an affirmative action plan) trigger strict scrutiny.
104. Of course, another way out of the dilemma would be the invalidation of Section 2's "results test" under the Constitution. Although the Supreme Court has affirmed the constitutionality of Voting Rights Act provisions aimed at "discriminatory impact," see Fullilove v. Klutznick, 448 U.S. 448, 477 (1980), the Supreme Court has never had occasion to rule specifically on the constitutionality of Section 2's results test. See Bush v. Vera, 116 S. Ct. 1941, 1968 (1996) (O'Connor, J., concurring). Instead, it has assumed its constitutionality and applied its terms on numerous occasions, and lower courts have unanimously affirmed its validity. See id. (citing cases and affirming that Section 2 compliance is a valid compelling state interest justifying a racial gerrymander under Shaw). For reasons outside the scope of this Article, I believe such an invalidation would be unwarranted.
105. See Engstrom, supra note 11, at 758-60. In 6 of the 14 municipalities, the black candidates ran uncontested. See id.
106. See id.
107. See id. See also Karlan, supra note 10, at 227-29 (summarizing results in first round of limited voting elections in local jurisdictions in North Carolina and Alabama).
108. See Engstrom, supra note 11, at 752-57.
109. See AMY, supra note 29, at 138.
110. See id.
111. See id. at 144-48, and sources cited therein.
112. See Cleveland County Assoc. for Gov't by The People v. Cleveland County Bd. of Comm'rs. 965 F. Supp. 72 (D.D.C. 1997).
113. Id. at 80.
114. See id.
115. See Shaw v. Reno, 509 U.S. 630, 642-45, 649-51, 657 (1993) (referring repeatedly to the centrality of "classifications" in the rationale for the new Shaw cause of action).
116. In Bush v. Vera. 116 S. Ct. 1941 (1996), seven of the nine Supreme Court justices indicated that the intentional creation of a minority district would not, by itself, necessarily trigger strict scrutiny. See id. at 1951 (opinion of O'Connor. J., joined by Rehnquist, C.J. and Kennedy, J.): id. at 1977 (Stevens, J., dissenting, joined by Ginsburg & Breyer, JJ.); id. at 2011 (Souter, J., dissenting, joined by Ginsburg & Breyer, JJ.); see also Lawyer v. Department of Justice, 117 S. Ct. 2186. 2194-95 (1997) (upholding district court's refusal to apply strict scrutiny to a Florida Senate minority district that was clearly race-conscious in nature, because its characteristics were in line with those of other House and Senate districts in the state).
117. See Bush, 116 S. Ct. at 1949.
118. United States v. Hays, 515 U.S. 737, 744 (1995) (quoting Shaw I, 509 U.S. at 643). Of course, the imposition of a remedial alternative electoral scheme, as the result of a Section 2 suit, a voluntary adoption by a diversity-minded governing body, or otherwise may "incite racial hostility" in those who would oppose any diversity-oriented reform as illegitimate "special favors" for minorities. But this potential objection exists for all types of remedial voting plans, including districting plans which would be upheld under Shaw.
119. See Hays, 515 U.S. at 744.
120. Id. (quoting Shaw I, 509 U.S. at 648).
121. See. e.g., Nicholas R. Miller, Pluralism and Social Choice, 77 AM. POL. SCI. REV. 734, 743 (1983); see also Karlan, supra note 10, at 230-31 (discussing "fragmentation" criticisms and responses thereto); Lani Guinier, No Two Seats, supra note 2, at 1489-94 (1991) (same).
122. See. e.g., Nicholas R. Miller, Pluralism and Social Choice, 77 AM. POL. SCI. REV. 734, 743 (1983); see also Karlan, supra note 10, at 230-31 (discussing "fragmentation" criticisms and responses thereto); Lani Guinier, No Two Seats, supra note 2, at 1489-94 (1991) (same).
123. Karlan, supra note 10, at 231.
124. See, e.g., Abrams v. Johnson, 117 S. Ct. 1925, 1936 (1997) (upholding district court's finding of no racially polarized voting, based in part on white crossover levels ranging from 22% to 38% and black crossover levels 20% to 23%).
125. Guinier, No Two Seats, supra note 2, at 1490.
126. See Karlan, supra note 10, at 173, 231 n.244 (arguing that there is no evidence to show that "continuing to use election systems that totally shut out minorities does anything more than mask whatever bloc voting occurs; it certainly does nothing to reduce racial tension"). Defenders of New York City's historical preference voting system made this same argument, discussing studies showing ethnic voting to account for less than 30% of voting behavior under preference voting, and noting electoral results showing voters crossing ethnic lines due to partisan loyalty. See Belle Zeller & Hugh A. Bone. The Repeal of Proportional Representation In New York City - Ten Years In Retrospect, 42 AM. POL. SCI. REV. 1127, 1139-42 (1948).
127. See Guinier, No Two Seats, supra note 2, at 1490-91.
128. See id.; Karlan, supra note 10, at 231 n.244; Note, supra note 10, at 154.
129. See Robert A. Burnham, Reform. Politics, and Race in Cincinnati: Proportional Representation and the City Charter Committee, 1924-1959, 23 J. URB. HIST. 131, 138-40, 142-45 (1997) (describing black coalitions, first with Democrats, then with Republicans, under preference vote system in 1920s and 1930s); Zeller & Bone, supra note 106, at 1138 (describing multiracial coalition backing proportional representation in New York in the 1940s, as well as voter support crossing over ethnic lines); cf. Karlan. supra note 10, at 246-47 (noting that supermajority requirement on Mobile City Council "has distinctly improved political interaction between whites and blacks in Mobile").
130. AMY, supra note 29, at 166. A similar criticism made, one not confined to the racial/ethnic context, is that alternative systems promote the election of "fringe" candidates. See id. at 174-76. A common example is a candidate representing the Ku Klux Klan. However, the election of such candidates depends entirely on how low the threshold of exclusion is under the particular electoral system. In countries like Israel, where the threshold was only one percent until recently, a number of nonmainstream parties considered to be radical obtained a significant share of seats. See id. at 170. Such problems are generally not considered (o have been significant in Germany, which uses an across-the-board threshold of five percent for all national elections. See id. at 170, 229. Presumably, there is some level at which a candidate's share of the vote is sufficiently high (say, 10, 20, or 30%) that he or she must be viewed as representing a significant part of the polity and therefore as deserving of recognition. In the local jurisdictions to which this legal theory would most likely be applied, the number of seats involved would be small enough so that the threshold of exclusion would be significantly higher than that used in either Israel or Germany: thresholds would usually be over 10% (i.e., with 9 seats or below), and often over 20% (4 or below). See Karlan, supra note 10, at 216 n.182 (citing 1980s sources to show that average number of city council seats is 6.5; county seats rarely more than 12 and often as low as 3); Letters from John Miller, Statistician, National League of Cities (June and July 1997) (on file with author) (containing 1990s data showing that in cities with "pure" at-large systems, the average number of city council seats is 6). There is no evidence that where alternative systems have been tried in the United States, there has been any marked increase in the number of candidates considered "radical" or "extremist." Even where the number of seats is numerous enough to establish an uncomfortably low threshold of exclusion from the "fringe candidate" standpoint, courts and local governing bodies can simply fashion the system to raise the threshold to a comfortable level. This can be done most simply by using staggered terms to reduce the number of seats up for election in any given electoral contest. Alternative methods abound, however, the threshold can be raised by requiring an across-the-board minimum percentage of the vote to elect a candidate, as in Germany; by carving up the jurisdiction into multimember districts, each of which elects its multiple representatives using a proportional system, as in Japan; or by designating a certain number of seats to be elected from single-member districts, thus lowering the number of at-large seats, as in both Germany and Japan. See AMY, supra note 29, at 229 (describing German system); Reform to Spell Major Changes, JAPAN TIMES, Mar. 11, 1994, at 3 (describing Japan's system). Mixed single-member/cumulative systems are in modern use in the United States as well: Peoria and Alamogordo are examples.
131. REIN TAAGEPERA & MATTHEW SHUGART, SEATS AND VOTES: THE EFFECTS AND DETERMINANTS OF ELECTORAL SYSTEMS 63 (1989).
132. See AMY, supra note 29, at 165; see id. at 166 (quoting former Cambridge, Massachusetts school committee member as saying that "[proportional representation] is the reason Cambridge didn't burn during the years of demonstrations, the reason desegregation of the schools was achieved without any significant disruption").
133. See Cane v. Worcester County, 847 F. Supp. 369, 372-73 (D. Md. 1994); Guinier, No Two Seats, supra note 2, at 1491.
134. See Guinier, The Triumph of Tokenism, supra note 2, at 1148-49, n.331; Karlan, supra note 10, at 231 n.244.
135. See Darren Rosenblum, Geographically Sexual?: Advancing Lesbian and Gay Interests Through Proportional Representation, 31 HARV. C.R.-C.L. L. REV. 119 (1996) (arguing for use of proportional representation to advance gay and lesbian voting concerns).
136. See Engstrom, supra note 7, at 285. As another example, a form of limited voting is used in the District of Columbia to prevent electoral sweeps by Democrats in City Council elections.
137. By articulating this particular advantage of alternative systems over minority districts. I do not mean to suggest a wholesale rejection of the latter, which I consider to be preferable to dilutive at-large systems. Nor do 1 suggest an endorsement of the Shaw line of cases, which I believe to have been wrongly decided (for reasons outside the scope of this Article).
138. See Cane, 847 F. Supp. at 373; Guinier, The Triumph of Tokenism, supra note 2, at 1141 n.304 (describing evolution of crossracial "self-defined voluntary constituencies").
139. For cumulative voting, see, e.g., Buckanaga v. Sisseton Indep. Sch. Dist. No. 54-5, No. 84-1025 (D.S.D. 1988); Dillard v. Chilton County Bd. of Educ., 699 F. Supp. 870 (M.D. Ala. 1988); Banks v. Peoria, No. 87-2371 (C.D. Ill. 1987). For limited voting, see, e.g., Hall v. Kennedy, No. 88-117-Civ-3 (E.D.N.C. 1989); United States v. Sampson County, No. 88-121-Civ-3 (E.D.N.C. 1989); Dillard v. Town of Cuba, 708 F. Supp. 1244 (M.D. Ala. 1988); United States v. City Council of Augusta, No. CV 187-004 (S.D. Ga. July 22, 1988).
140. See cases cited supra note 67. The judgment in that case - Cousin v. Sundquist - has been stayed on appeal.
141. See Holder v. Hall, 512 U.S. 874, 896-99, 908-13 (1994) (Thomas, J., concurring); LULAC v. Clements, 986 F.2d 728, 814-15 (5th Cir. 1993), rev'd on other grounds, 999 F.2d 831 (5th Cir. 1993) (en bane); United States v. Marengo County Comm'n, 731 F.2d 1546, 1560 (11th Cir. 1984); Cousin v. Sundquist, No. 1:90-CV-399, slip op. at 8-9 (E.D. Tenn. July 3, 1996), appeal docketed, No. 96-6028 (6th Cir. Jan. 30, 1998) (granting stay of district court's order); 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). The en banc opinion in LULAC rejected the utility of cumulative voting to remedy the precise claim at issue. See LULAC, 999 F.2d at 875-76. However, it did not reject the appellate panel's underlying notion that courts are empowered to order such remedies in voting cases.
142. See, e.g., Cintron-Garcia v. Romero-Barcelo, 671 F.2d 1, 6 (1st Cir. 1982) (finding that limited voting scheme for election of Commonwealth representative is "reasonable" 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) (holding that limited voting does not violate Equal Protection Clause as long as each voter casts the same number of votes); Blaikie v. Power, 193 N.E.2d 55 (N. Y. 1963), appeal dismissed, 375 U.S. 439 (1964) (limited voting for New York City Council).
143. 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. Baldwin County Bd. of Educ., 686 F. Supp. 1459, 1460 (M.D. Ala. 1988) (describing history of the Dillard litigation). The Dillard litigation also resulted in court-approved settlements providing for limited voting schemes. See, e.g., Town of Cuba, 708 F. Supp. at 1244 (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).
144. See LULAC, 986 F.2d at 814-15.
145. See Guinier, No Two Seats, supra note 2, at 1496-97.
146. 42 U.S.C. § 1973(b) (1994).
147. 42 U.S.C. § 1973(c) (1994) (emphasis added).
148. H.R. REP. No. 97-227, at 31 (1981).
149. See United States v. Paradise, 480 U.S. 149, 183-84 (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 and required to do whatever is necessary to cure the voting rights violation. See Fullilove v. Klutznick, 448 U.S. 448, 508 (1980) (Powell, J., concurring); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971); Louisiana, 380 U.S. at 154.
150. See Lawyer v. Department of Justice, 117 S. Ct. 2186, 2192-94 (1997) (citing Wise v. Lipscomb, 437 U.S. 535, 540 (1978)); White v. Weiser, 412 U.S. 783, 794-95 (1973).
151. See Wise, 437 U.S. at 540.
152. See S. REP. No. 97-417, at 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).
153. See supra note 119.
154. See SCLC v. Sessions, 56 F.3d 1281, 1313-15 (11th Cir. 1995) (Hatchett, J., dissenting); see also Marshall v. Edwards, 582 F.2d 927, 935 n.9 (5th Cir. 1978) (noting prevalence of "proportional representation" systems abroad, acknowledging use of "Hare system" in the United States, and quoting approvingly from John Stuart Mill's endorsement of proportional representation systems): Latino Political Action Comm., Inc. v. City of Boston, 609 F. Supp. 739, 744 (D. Mass. 1985) (describing the beneficial effect of limited voting on minority voters and relying on use of limited voting in the present system to reject vote dilution claim).
155. 860 F.2d 110 (4th Cir. 1988).
156. See id. at 113.
157. See id. at 114.
158. Id. at 115.
159. See id. at 115, 118. This is an uncontroversial proposition, in line with definitive Supreme Court authority on the subject. See, e.g., Lawyer v. Department of Justice, 117 S. Ct. 2186, 2192-94 (1997).
160. McGhee, 860 F.2d at 120.
161. See id. at 118.
162. Id.
163. See id.
164. Id. at 117. The court was apparently using "districting system" 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).
165. 840 F. Supp. 1081 (D. Md. 1994).
166. 847 F. Supp. 369 (D. Md. 1994).
167. See Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994), cert, denied, 115 S.Ct. 1097 (1995).
168. See id. at 927-28 (quoting Holder v. Hall, 512 U.S. 87, 910-12 (1994) (Thomas, J., concurring) ("[N]othing 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 § 2.")). Justice Thomas's concurrence in Holder v. Hall argues for a much more narrow view of the Voting Rights Act, which would foreclose consideration of any sort of remedy for minority vote dilution. However, his opinion acknowledges that the Act is generally viewed to have broader remedial goals, suggests that alternative electoral systems are better vehicles for achieving those goals than single-member districts, and concludes that there is no federal law barring the use of such systems as remedies for federal courts.
169. See Cane, 35 F.3d, at 928.
170. See id.
171. See id. at 929. On remand, the district court rejected the plaintiffs' two proposed single-member district alternatives, each featuring a single black-majority district, imposing instead a "mixed" plan using the defendant's proposed single-member district system (which had one black "influence" district but no black-majority district) for primary elections and cumulative voting for general elections. See Cane v. Worcester County, 874 F. Supp. 687 (D. Md. 1994). After a cross-appeal, the Fourth Circuit vacated the district court's judgment and ordered one of the plaintiffs' single-member district plans into effect. See Cane v. Worcester County, 59 F.3d 165 (4th Cir. 1994) (referenced in "Table Of Decisions Without Reported Opinions"). Since neither side argued for cumulative voting on this second round of appeal, the court did not discuss the cumulative voting issue.
172. No. 1:90-CV-339. slip op. at 8-9 (F.D. Tenn. July 3, 1996), appeal docketed. No. 96-6028 (6th Cir. Jan. 30, 1998) (granting stay of district court's order).
173. See Cousin v. McWherter, 904 F. Supp. 686 (E.D. Tenn. 1995). The court expressly found that plaintiffs had met the compactness prong of Cingles. See id. at 688.
174. Sundquist, No. 1:90-CV-339. slip op. at 8-9 (citing SCLC v. Sessions. 56 F.3d 1281, 1302 (11th Cir. 1995) (Hatchett, J., dissenting)) (declaring that the illustrative "benchmark" used to measure vote dilution during the liability analysis need not be identical to the remedy ultimately implemented).
175. Id. at 9-12. The court also noted several other disadvantages peculiar to judicial elections which are outside the scope of this Article.
176. See id. at 11-12.
177. 999 F.2d 831 (5th Cir. 1993) (en banc).
178. See id. at 876. See also McGhee v. Granville County, 860 F.2d 110, 117-18 (4th Cir. 1988) (rejecting limited voting remedy on similar grounds); discussion supra note 67.
179. 39 F.3d 1494 (11th Cir. 1994).
180. 56 F.3d 1281 (11th Cir. 1995).
181. See id. at 1296 n.24 (suggesting that cumulative voting elections will disrupt collegiality among judges and discourage qualified attorneys from running for judicial office); Nipper, 39 F.3d at 1546. While these assertions serve to cabin the circuit courts' criticisms of cumulative voting to the judicial election context, I believe them to be misguided. Because these same courts have emphasized the substantial state interest in keeping "linkage" between elected judges' jurisdictions and electoral territories, see SCLC v. Sessions, 56 F.3d 1281, 1296-97 (11th Cir. 1995);
182. See Nipper, 39 F.3d at 1541-47 (Tjoflat, J.) (finding Cingles 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 (Edmondson, J., concurring) (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, the cases also contain more fact-specific grounds for the rejection. See Clark, 777 F. Supp. at 467 (recognizing explicitly the unique aspects of judicial election cases and state law restrictions). See also Martin, 700 F. Supp. at 327.
183. See Chapman v. Meier, 420 U.S. 1, 17-18 (1975). See also Growe v. Emison, 507 U.S. 25, 39 (1993); Connor v. Finch, 431 U.S. 407, 415 (1977).
184. See, e.g., Martin, 700 F. Supp. at 336.
185. Chapman, 420 U.S. at 16 n. 10 (emphasis added) (quoting Whitcomb v. Chavis, 403 U.S. 124, 158-59 (1971) (stating that at-large plans "generally pose greater threats to minority-voter participation . . . than do single-member districts - which is why we have strongly preferred single-member districts" for federal court-ordered remedies) (emphasis added). See also Growe, 507 U.S. at 39.
186. See Chapman, 420 U.S. at 16 n.10, 17; see also LULAC v. Clements, 986 F.2d 728, 814 (5th Cir. 1993) (holding that court may be required to adopt alternatives to single-member districts if the jurisdiction has strong policy in favor of retaining at-large feature).
187. Thornburg v. Gingles, 478 U.S. 39, 50 n.17 (1986) (emphasis added).
188. Id. at 50 n.17. See also Growe, 507 U.S. at 40 (1993) (noting that the first Gingles precondition is necessary to "establish that the minority has the potential to elect a representative of its own choice") (emphasis added).
189. Immediately after stating the first precondition, the Court elaborates that unless it is satisfied, "the multimember form of the district cannot be responsible for minority voters' inability to elect its (sic) candidates." Gingles, 478 U.S. at 50 (emphasis in original). See also id. at 50-51 n.17 (reasoning that if condition not met, plaintiffs could not elect candidates "in the absence of the multimember electoral structure," and "the at-large district cannot be blamed for the defeat of minority-supported candidates").
190. 56 F.3d 1281 (11th Cir. 1995) (en bane).
191. Id. at 1302 (Hatchett, J., dissenting) (citing Holder v. Hall, 512 U.S. 874, 880-81 (1994) (Kennedy, J., plurality opinion), 886-88 (O'Connor, J., concurring) and Gingles, 478 U.S. at 88 (1986) (O'Connor, J., concurring)).
192. See Cousin v. Sundquist, No. 1:90-CV-339, slip op. at 8-9 (E.D. Tenn., July 3, 1996), appeal docketed, No. 96-6028 (6th Cir. Jan. 30, 1998) (granting stay of district court's order), discussed, supra text accompanying notes 152-156.
193. However, in comparison with a "traditional" districting plan, an alternative remedy would increase the number of minority group members whose vote dilution is actually remedied. As a matter of demographic necessity, districting plans almost always leave some members of the minority group outside the remedial minority districts. See. e.g., Gomez v. City of Watsonville, 863 F.2d 1407, 1414 (9th Cir. 1988) (noting that under remedial plan approved by the appellate court, approximately 60% of the city's Hispanics would live outside the two Hispanic remedial districts). This failure to remove the vote dilution of all victims in the jurisdiction, accepted (correctly) as a flaw inherent in districting remedies, see Campos v. City of Bay town, 840 F.2d 1240, 1244 (5th Cir. 1988) (citing Gingles, 478 U.S. at 50). does not occur with respect to alternative remedies. See Aleinikoff & Issacharoff, supra note 7, at 601, 626-33 (discussing inevitable use in districting plans, but not alternative plans, of "filler people" who cannot elect preferred candidates); Note, supra note 10 (discussing notion of "virtual representation" inherent in district systems).
194. 478 U.S. at 50 n.17 (second emphasis added).
195. Despite its centrality in vote dilution litigation, the concept of "compactness" 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, see Shaw v. Reno, 509 U.S. 630, 646 (1993) (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, "Bizarre Districts." 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). Compactness was only legally required for congressional districts from 1901 through 1929. Kenneth C. Martis, Districts, in THE ENCYCLOPEDIA OF THE UNITED STATES CONGRESS 652-53 (Donald C. Bacon et al. eds., 1995).
196. Despite its centrality in vote dilution litigation, the concept of "compactness" 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, see Shaw v. Reno, 509 U.S. 630, 646 (1993) (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, "Bizarre Districts." 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). Compactness was only legally required for congressional districts from 1901 through 1929. Kenneth C. Martis, Districts, in THE ENCYCLOPEDIA OF THE UNITED STATES CONGRESS 652-53 (Donald C. Bacon et al. eds., 1995).
197. Similarly, although the Supreme Court has never ruled on the question of whether plaintiffs may seek so-called "influence districts" with minority percentages below 50%, it has recognized that if such claims are viable, the first Gingles prong (which requires districts to be both compact and majority-minority in population) would be modified for such cases. See Voinovich v. Quilter. 507 U.S. 146, 154, 158 (1993). Some lower courts have already modified the first Gingles prong in this manner. See Garza v. County of Los Angeles, 918 F.2d 763, 769 (9th Cir. 1990) (allowing influence district claim where challenged system adopted or maintained with discriminatory purpose); Armour v. Ohio, 775 F. Supp. 1044 (N.D. Ohio 1991) (allowing influence claim): Turner v. Arkansas, 784 F, Supp. 553, 568 (E.D. Ark. 1991) (same), aff'd, 504 U.S. 952 (1992). But see McNeil v. Springfield Park Dist., 851 F.2d 937, 942 (7th Cir. 1988) (disallowing influence claim).
198. 512 U.S. 874 (1994).
199. Id. at 888 (O'Connor. J., concurring).
200. See id. at 880-81.
201. See Harvell v. Blytheville Sch. Dist. #5, 71 F.3d 1382 (8th Cir. 1995) (en banc) (holding that majority vote runoff requirement violated Section 2); Whitfield v. Democratic Party, 890 F.2d 1423 (8th Cir. 1989) (same); Muhammad v. City of Memphis, No. 88-2899-TUV (W.D. Tenn. Jan. 30, 1997) (same); cf. Butts v. City of New York, 779 F.2d 141, 148 (2d Cir. 1985) (acknowledging 40%-minimum requirement's potential dilutive effect for multimember offices, but rejecting challenge to runoff requirement as applied to single-member offices). The circuit courts in Whitfield and Butts discussed the Gingles "results test" using a "totality of the circumstances" analysis, but without reference to the compactness criterion. In Harvell, the circuit court noted in passing that the compactness prong could be met, but did not at all indicate that the failure to meet this (inapplicable) Gingles prong would have been outcome-determinative.
202. See, e.g., S. REP. No. 97-417, at 6 (1982) reprinted in 1982 U.S.C.C.A.N. 177, 183 (listing "majority runoffs" and "other sophisticated rules" as part of "a broad array of dilution schemes"); S. REP. No. 97-417 at 10, 22, 29-30, reprinted in 1982 U.S.C.C.A.N. at 187, 199-200, 206-08 (providing further references to the dilutive impact of these electoral practices); H.R. REP. No. 97-227, at 18 (1981) (identifying "discriminatory elements of the elections process such as at-large elections . . . majority vote run-off requirements, numbered posts, staggered terms" as practices that "individually or in combination result in inhibiting or diluting minority political participation and voting strength") (emphasis added); id. at 31 (asserting that Section 2 is "not limited to districting or at-large voting").
203. 478 U.S. at 56; see also Muhammad, No. 88-2899-TUV (W.D. Tenn. Jan. 30, 1997). Section 2 also authorizes challenges to voter registration procedures, which by their nature do not involve district remedies. See. e.g., Operation PUSH v. Allain, 674 F. Supp. 1245, 1262-63 (N.D. Miss. 1987). These challenges are properly viewed as "disfranchisement" rather than "dilution" cases. None of the Gingles preconditions would apply to these cases, although the Senate factors would still be relevant.
204. 446 U.S. 156 (1980). reh'g denied, 447 U.S. 916 (1980).
205. 459 U.S. 159, 167 (1982).
206. Section 5 of the Act, the "preclearance" provision, applies to certain "covered" jurisdictions with a history of voting discrimination. See 42 U.S.C. § 1973b(4)(b) (1994). Any change in voting procedures must be affirmatively precleared as nondiscriminatory in purpose and effect, either by the Attorney General or the District Court for the District of Columbia. See 42 U.S.C. § 1973c (1994).
207. Compare 42 U.S.C. § 1973(a) (Section 2) (1994) with 42 U.S.C. § 1973c (Section 5) (1994). However, in Holder v. Hall, 512 U.S. 874 (1994), Justice Kennedy listed reasons for interpreting Section 2 and Section 5 differently for certain purposes. His main point was that there is an obvious "benchmark" (i.e., the status quo ante) for Section 5, given that Section's purpose to ensure that no change in the status quo be "precleared" if it makes matters worse for minorities (i.e., if it constitutes impermissible "retrogression"). Id. at 883-84; see also Reno v. Bossier Parish School Bd., 117 S. Ct. 1491, 1498 (1997) (stating that, unlike Section 2, the purpose of Section 5 is to prevent retrogression). Kennedy's distinction does not apply to Section 2 challenges to particular voting rules, such as majority vote requirements, where a clear benchmark exists; indeed, as noted above, Kennedy specifically mentioned such a challenge as an example of a Section 2 case having a nonarbitrary benchmark. See Holder, 512 U.S. at 880-81 (using example of challenge to "anti-single-shot voting rule").
208. In a different era, the viability of such Section 2 claims would be clear based on the authority cited above. Recently, however, the Supreme Court has shown a marked skepticism toward voting rights advocacy. This skepticism may extend to a profound discomfort with the notion of federal supervision of state and local elections on behalf of minorities. Although it is impossible to predict with confidence what the Supreme Court will do. Justices O'Connor and Kennedy, whose opinions in Holder suggest an acceptance of a compactness-free "benchmark," would be the likely "swing votes" on this issue.
209. Thornberg v. Gingles, 478 U.S. 39, 50 n. 17.
210. See id.; see also Butts v. City of New York, 779 F.2d 141, 149 n.5 (2d Cir. 1985); Brief for the United States as Amicus Curiae at 15, Whitfield v. Clinton, 498 U.S. 1126 (1991) (No. 90-383).
211. See Karlan, supra note 10, at 199-213 (criticizing Gingles's compactness requirement); J. Gerald Hebert & Allan Lichtman, A General Theory of Vote Dilution, 6 LA RAZA L.J. 1 (1993) (arguing for a more flexible "potential to elect" standard in districting cases over a mechanical requirement that an illustrative district be more than 50% in minority population, and detailing a statistical method for applying this more flexible standard).
212. Of course, the legal standard I endorse would still use the second and third Gingles preconditions. See, e.g., Gingles, 478 U.S. at 52-77 (discussing this methodology in detail).
213. The degree to which the notion of "compactness" truly is objective and quantifiable is open to question. See infra Pan II.D.3.
214. 42 U.S.C. § 1973(b) (1994).
215. Courts have recognized this potentially unbridled discretion. See McGhee v. Granville County, 860 F.2d 110, 116-17 (4th Cir. 1988) (discussing need for principled limit on Section 2 liability); McNeil v. Springfield Park Dist., 851 F.2d 937, 947 (7th Cir. 1988) (same), cert, denied, 490 U.S. 1031 (1989).
216. See Still, supra note I, at 254.
217. M. at 260.
218. This number is fixed and not subject to change by virtue of the Section 2 litigation. In Holder v. Hall, 512 U.S. 874 (1994). the Supreme Court held that the size of a governing body is not subject to a Section 2 challenge precisely because such a challenge would remove a principled limit on Section 2 liability. See id. at 885 (Kennedy, J., plurality opinion); id. at 891 (O'Connor, J., concurring).
219. See, e.g., Houston v. Lafayette County, 56 F.3d 606, 611 (5th Cir. 1995); Cane v. Worcester County, 35 F.3d 921, 926-27 n.6 (4th Cir. 1994); Jeffers v. Clinton, 730 F. Supp. 196, 207 (E.D. Ark. 1989), aff'd, 498 U.S. 1019 (1991).
220. See, e.g., Dillard v. Baldwin County Bd. of Educ., 686 F. Supp. 1459, 1465-66 (M.D. Ala. 1988).
221. Hays v. Louisiana, No. CV-92-1522S (W.D. La. 1994) (three-judge court), trial transcript July 22, 1994, at 43-44 (testimony of Sen. Armand Brinkhaus).
222. See pildes & Niemi, supra note 175, at 553-59; Richard G. Niemi et al., Measuring Compactness and the Role of a Compactness Standard in a Test for Partisan and Racial Gerrymandering, 52 J. POL. 1155, 1155-74 (1990); Peyton H. Young, Measuring the Compactness of Legislative Districts, 13 LEGIS. STUD. Q. 105-15 (1988). The latter article is particularly helpful in explaining the large number of competing compactness measures, and their potential to yield inconsistent and counterintuitive results.
223. See pildes & Niemi, supra note 175, at 553-59; Richard G. Niemi et al., Measuring Compactness and the Role of a Compactness Standard in a Test for Partisan and Racial Gerrymandering, 52 J. POL. 1155, 1155-74 (1990); Peyton H. Young, Measuring the Compactness of Legislative Districts, 13 LEGIS. STUD. Q. 105-15 (1988). The latter article is particularly helpful in explaining the large number of competing compactness measures, and their potential to yield inconsistent and counterintuitive results.
224. See Hebert & Lichtman, supra note 190, at 9-15; Karlan, supra note 10, at 203-06.
225. See Hebert & Lichtman, supra note 190, at 9-15.
226. See id. at 11-12. Courts have recognized the need for a "supermajority" remedial district under particular factual circumstances, even in the post-Shaw era. See, e.g., Abrams v. Johnson, 117 S. Ct. 1925, 1937 (1997) (upholding district court finding that black district must be at least 55% black in registered voters, if possible, because mere 50%-black district was not sufficiently likely to elect black voters' candidate of choice).
227. See Briscnetto & Engstrom, supra note 34, at tbl.4.
228. 42 U.S.C. § 1973(b) (1994) (emphasis added).
229. See, e.g., McGhee v. Granville County, 860 F.2d 110, 117-18 (4th Cir. 1988).
230. See Johnson v. DeGrandy, 512 U.S. 997, 1014 n.11 (1994). The "proportion" referenced in the Dole proviso should be distinguished further from the number of minority districts in proportion to the minority group's population percentage.
231. See id. at 1013 n.11, 1017-18 (holding that neither proportionality nor lack of proportionality was dispositive because courts must always employ standard Gingles "totality of the circumstances" analysis and that such a result was consistent with the Dole proviso).
232. This calculation is based on the self-reporting data collected in the National League of Cities' survey of city governments (city council size and election method), along with U.S. Census data (minority voting population percentages). The NLC database contains at least 85% of the municipalities listed in the Census as having more than 10,000 persons. See Letters from John Miller, supra note 110. The threshold of exclusion was compared to the percentage of the largest minority group. The calculation does not include Puerto Rican cities, for which minority percentage data is unavailable.
233. The percentage of "eligible" cities may change somewhat if cities with "mixed" at-large/district systems are considered. They were excluded for simplicity and ease of calculation and also to avoid the issue of whether the proper "n" for the threshold of exclusion is the total number of seats (if the plaintiff seeks to switch to a "pure" at-large system) or merely the number of seats currently elected at large. If the latter, the percentage is likely to drop; if the former, it is likely to remain about the same or rise somewhat. The percentage is likely to rise more significantly if the minority percentage of two or more statutorily protected groups were to be combined. Where all minority groups in the same "pure" at-large cities over 10,000 are combined, the percentage of cities meeting the threshold rises to 36%. However, Section 2 plaintiffs cannot assume that minority groups can be aggregated in this manner. See, e.g., Campos v. City of Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988) (before different minority groups in jurisdiction can be aggregated, plaintiff bears burden of showing that the groups vote together cohesively).
234. The arbitrariness is no less disturbing in a hypothetical County C where blacks constitute 36% of the population, but are dispersed into a checkerboard pattern. While one might suppose that blacks' geographical integration suggests political integration, the example assumes that the second and third Gingles preconditions (racial bloc voting) and Senate factors (including historical voting discrimination as well as racial disparities in political participation and socioeconomic status) are met. Where these conditions exist, no minority group, no matter how residentially integrated, can be said to be politically integrated.
235. See DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE UNDERCLASS (1993); Arnold R. Hirsch, With or Without Jim Crow: Black Residential Segregation in the United States, in URBAN POLICY IN TWENTIETH CENTURY AMERICA (Arnold R. Hirsch & Raymond A. Mohl eds., 1993).
236. See DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE UNDERCLASS (1993); Arnold R. Hirsch, With or Without Jim Crow: Black Residential Segregation in the United States, in URBAN POLICY IN TWENTIETH CENTURY AMERICA (Arnold R. Hirsch & Raymond A. Mohl eds., 1993).
237. Courts generally use voting age population in determining whether Section 2 plaintiffs have met the first Gingles precondition. See Solomon v. Liberty County, 899 F.2d 1012, 1018 (11th Cir. 1990) (en banc), cert, denied, 498 U.S. 1023 (1991); McNeil v. Springfield Park Dist., 851 F.2d 937, 944-45 (7th Cir. 1988). But see Garza v. Los Angeles County, 918 F.2d 763, 774-76 (9th Cir. 1990) (use of total population may be sufficient). Empirically, a racial or ethnic minority group's percentage share of the voting age population is often lower than its share of the total population. See DeGrandy v. Wetherell, 815 F. Supp. 1550, 1563-64 (N.D. Fla. 1992). A related but distinct line of authority discussed the need, at the remedial phase of a vote dilution case, for a voting age supermajority in remedial minority districts. See United Jewish Orgs. v. Carey, 430 U.S. 144, 152 (1977): Ketchum v. Byrne. 740 F.2d 1398, 1413 (7th Cir. 1984), cert, denied, 471 U.S. 1135 (1985).
238. I qualify "seats to be filled" with "in a single election" to account for the use of staggered terms. To illustrate, if an eight-member city council employed staggered terms, with four seats to be filled in every biennial election, "n" would equal four. If a nine-member council staggered terms so that five seats were open in one election and four seats in the next, then "n" should equal five (instead of four). I choose the higher "n" (and thus the lower, more accessible threshold of exclusion) because the relevant test is a minority group's potential to elect at least one member of the governing body. Under existing law, there is no requirement that the minority group be able to prevail in every election. As a practical matter, of course, a Section 2 plaintiff likely would challenge the use of staggered terms as well. In that case, the appropriate "n" would seem to be the total number of seats.
239. This is the figure contemplated as a comparison for the threshold of exclusion. See Engstrom, supra note 11 at 758 (citing Douglas Rae et al., Thresholds of Representation and Thresholds of Exclusion: An Analytic Note on Electoral Systems, 3 COMP. POL. STUD. 479 (1971)); Still, supra note 1 at 256, 260.
240. Ecological regression analysis is a statistical method for evaluating the correlation between two variables. In voting cases, the percentage of the vote received by the minority candidate in each voting precinct is "regressed" onto the minority percentage of the voting precincts. Using well-established statistical formulae, the results are analyzed to see how strong a correlation exists between the two variables. Correlation values below a certain level indicate an insufficient relationship between a voter's race and voting behavior, which would be fatal to a Section 2 claim. See Thornberg v. Gingles, 478 U.S. 39, 52-53; Bernard Grofman, The Use of Ecological Regression to Estimate Racial Bloc Voting, 27 U.S.FL. REV. 593 (1993).
241. See BERNARD GROFMAN ET AL., MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY 85-88, 146-47 nn.1-12 (1992).
242. Where plaintiffs show racial disparities in both political participation rates and socioeconomic factors, a causal link between them is presumed. See LULAC v. Clements, 999 F.2d 831, 866-67 (5th Cir. 1993) (en banc). In amending Section 2, Congress presumed that both of these disparities were tied to historical discrimination.
243. Telephone Interview with Dr. Richard Engstrom, Professor of Political Science, University of New Orleans (Sept. 1, 1997).
244. See supra Part II.B.
245. The exact statistical analyses to be used in making such a showing is a significant methodological question that is beyond the scope of this Article.]
246. 512 U.S. 997, 1017 (1994). See also id. at 1012-13 (describing tougher legal question that arises when Section 2 plaintiff's claim is "not total submergence, but partial submergence; not the chance for some electoral success in place of none, but the chance for more success in place of some").
247. The Court overturned a finding of dilution based on Florida's failure to draw 11 Hispanic House districts instead of 9. See id. at 1002, 1022.
248. W. at 1025-26 (O'Connor, J., concurring).