Date Printed: 02/05/2009

JTS Box Number: 1FES 52

Tab Number: 10

Document Title: NATIONAL CIVIC REVIEW: THE VOTING RIGHTS ACT AT THIRTY Document Date: 1995

Document Country: USA

Document Language: ENG

1FES 1D: EL00754 ~I~I ~I~ ~I~ * 5 6 DFA-AA * WHEN REFORMED LOCAL GOVERNMENT DOESN'T WORK CINCINNATI CITIZENS DEFEND THE SYSTEM

...... -VIEW

THE C1

; CONTENTS ______..... V.. OL,.UM __ E.. 84'''' ... NU... M iii
BE_R4 FALL-WINTER 1995

CHRISTOPHER T. GATES THE VOTING RIGHTS ACT Publisher DAVID LAMPE AT THIRTY Editor EDITORIAL BOARD Long considered the most successful civil rights refonn Itgislation o/the 19605, the Voting Rights Act Jaceson CHARLES K. BENS uncertain future as it enters its fourth decade. The principal Restoring Confidence assault involves challenges to outcome-based enforcement of BARRY CHECKOWAY the Act intended to ensure minority representation in addition Healthy Communities to electoral access. DAVID CHRISLIP Community Leadership PERRY DAVIS SYMPOSIUM Economic Development 287 ELECTION SYSTEMS AND WILLIAM R. DODGE REPRESENTATIVE DEMOCRACY Strategic Planning By Joseph F. Zimmerman LEONARD j. DUHL Healthy Communities An overoiewofthe key prouisionsojthe Act and major amendments (1970, 1975 and 1982), with PAUL D. EPSTEIN discussion of landmark judicial opinions and their Government Performance impact on enforcement. SUZANNE PASS Government Performance 310 TENUOUS INTERPRETATION: JOHN GUNYOU SECTIONS 2 AND 5 OF THE Public Finance VOTING RIGHTS ACT HARRYHATRY By Olethia Davis Innovative Service Delivery A discussion of the general pattern of vacilla­ ROBERTA MILLER tion on the part of the Supreme Court in its interpre­ Community Leadership tation of the key enforcement provisions of the Act, CARL M. MOORE leading toward the conclusion that there never has Community Leadership been any clear consensus on the extension of voting rights. ROBRlCHlE Proportional Representation 323 SHA W, MILLER AND THE EDWARD T. ROGOWSKY DISTRICTING THICKET Community Problem Solving By Richard 1. Engstrom jAMESH.SVARA Recent Supreme Court decisions involving Governmental Structure majon' ty-minority electoral districts have in troduced KENNETH THOMSON new uncertainty into the political boundary-draw­ Citizen Participation ing process, particularly with regard to the relative ALLAN WALLIS importance applied to such factors as geography, Metro and Regional Governance incumbency, political ajfifintion, etlmicity, and race. JOSEPH ZIMMERMAN News in REVIEW 337 CUMULATIVE VOTING AS A REMEDY IN VOTING RIGHTS MARKETING/PRODUCTION CASES BRANDI ABEYTA By Edward Still and Pamela Karlan Circulation While majority-minority districts are bitterly RENEE CASTILLO litigated in the courts, a "quiet revolution" is taking Business Manager place in jurisdictions across the nation employing the KATHLEEN DEC alternntive system of cumulative voting. Production Supervisor PHYLLIS THOMAS Cover Illustration NATIONAL ISSN 0027-9013 (~CREVIEW

CORRESPONDENTS . GEORGE BARBOUR 347 CUMULATIVE VOTING AS AN Innovative Service Delivery ALTERNATIVE TO DlSTRICTlNG: SHEILA BLAIR AN EXIT SURVEY OF SIXTEEN Community Leader.;hlp TEXAS COMMUNITIES J. WILliAM BRESLIN By Robert Brischetto Conflict Management and Coosensus Citizms participating in cumulative voting SUSAN CARPENTER elections gm.... lly agree tIlL systtm is fair, pmnit­ Community Problem Solving j ling all groups an opportunity to elect TeprtsDltIl­ Wu.ilAM CIRONE tives of their choice. No electoral reform, however, Citizen Partidpation can take tIlL plaa of effrctivt! rot.,. education and SARADAVlES mobilizAtion. Community Leadenhlp DOUGLAS C. EADIE 355 WHY WOMEN SHOULD BE Strategic Planning and Management INCLUDED IN THE NORMAN N. GILL . VOTING RIGHTS ACT Midwest By Wilma Rule DOUGLAS HENTON HIls the success of the Voting Rights Act in Community Problem Solving mlarging tIlL numb.,. oj minority elected officials be.. matcllLd in tIlL aTtll offemale representation? JAMES E. JARRETT Innovative Service Delivery Are women fundamentally dislldvantaged by our electoral structures, systmlS and prodias? If so, is MICHAEL MALONEY thLre a legal remedy? Neighborhood Innovations LOUIS MASOTI1' Metro Trends NON-SYMPOSIUM SIMON MILES Canada 369 WHATDOYOUDOWHEN JOHN NILES REFORMED GOVERNMENT Government Performance DOESN'T WORK? WJLUAM POrAPCHUK By Gerald E. Newfarmer Conflict Management and Consensus A recent campaign to abandon coundl-man­ IIMSEROICA a~ govmnnmt in Cincinnati, Ohio dmumstrate5 Rural Developments thot the democratically tlected city council remains NAnONAL OVlC REVIEW (ISSN 0021-9013) is published ~by the Irq to presmring and maintaining the vigor oftIlL the National Clvic League Prat•• division af the National Civic leaF. council-managtr plan. When councils fail to lead as Inc:. Second class. posaae paid at Denver, CO. Editorial, mllrketing, busineu,andtultillmmtciJ6caltl44SMarketStreet,.Suite300,Omver,CO a group, they open the door to potmtially disastrous 80202·1728; (303) 571-4343. ~C 1995 National Civic: tzague,lnc. rmredits. Pull information on IUblaipiion and membu&hip rates pmvtdeC:I 0l'I re­ quest. US. and Canadian bWc rate {l1br.u'ie$ ancffndjvid'uala) USS30 pH year (lour issues p).us index, IUpplred with lint iuur of the auC'CeltCling volume year). eopies of single blues, S8. Orders 01 five or men mpies­ $5 ..d>. POSTMASTER: Send address changeS: to: NATIONAL CIVIC REVIEW. DEPARTMENTS 1445 Markrt Street, Suite 300, Denver. CO 80202·112B. CHANGES OF ADDRESS: Prior to moving. please notify Brandi Abeyta. NAll0NAL OVIC REVIEW. 1«5 Marl(~f5trftt.. Suite 300, Denver, CO 377 NEWS IN REvIEw S0202-1'728. Allow six weeb for processing. Edited by Joseph F. Zimmerman INDEXED in Public Affaits Wonnation Service. ABC POL SCI, and 800lc D.C.-area residents and businesses rate air Review Indell:, Miaofi1m available from University Mkrofilms. 300 North Zeeb Road, Ann Arbor ,Ml4ll1 06. Back-issues and bOund volumes .vallab~ pollution as number eme regional problem; Ameri­ from William S. Hem &; Co.. 1285 M&in Strftt. Buffalo, NY 14209. Full text .v&ilablelntheelec:tronicven1onsoftheSodalSdmcelndex.H.W.Wtlson cans move frequently in and out of poverty; rail Co., 950University Ave:nw!, Bronx. NY IG&51.andin CD-ROM from EBSCO shipping may be experiencing a resurgence. ~~uasr::~~~~?~::;r:ota~~~~~~U~~ Company,3801 Eut Florida Avenue, Suite 200, Denver, ~O 80210. 1HE NATIONAL OVIC 1.EAGUE, founded in 1894 as the National Mw'lic:ipallngue.advocates a new dvic astenda tocreate communities that work (or everyone. The Lear.e is a 5C!1(c)(3) nonprofit, nonpartisan educationalauociationofindiVldualsandorganizations.lLaguemembers ~R tave acceu to the Information and services ~ to imE~ mmmu­ ni~ life. ~r~p~information. am.-tact June Angole, (303) 571--4343.

FALL-WINTER 1995.281 Featured Authors

ROBERT BRISCHETTO ("Cumulative Vot­ Fresno and San Jose, California. He is founder, ing as an Alternative to Districting") is a chariman and chief executive officer of Man­ sociologist in Lakehills, Texas. His article is agement Partners, Inc., Cincinnati, Ohio. based On a study conducted by the HispaniC Research Center of the University of Texas at WIlMA RULE ("Why Women Should Be San Antonio with support from the Murray Included in the Voting Rights Act") is an and Agnes Seasongood Good Government adjunct professor of Political Science at the Foundation of Cincinnati, Ohio, The Center University of Nevada at Reno. The figures for Voting and Democracy, San Antonio at­ appearing in her article were first published torney Jose Garza, the Poverty and Race Re­ in WihnaRule, "Women's Underrepresenta­ search Action Council, and the Mexican tion and Electoral Systems," PS: Political American Legal DefenseandEducationFund. Science and Politics, December 1994, pp. 689- The project co-investigator was Richard L. 692. The author expresses her gratitude to Engstrom, professor of Political Science at the Judith Baer for supplying her book, Equality University of New Orleans. Under the Constitution, and Gayle Binion for her helpful comments. OLETHIA DAVIS ("Tenuous Interpretation: Sections 2 and 5 of the Voting Rights Act") is EDWARD SmL ("Cumulative Voting as a an assistant professor of Political Science at Remedy in Voting Rights Cases") is a voting Southern University, Baton Rouge, Louisi­ rights attorney practicing in Birmingham, ana. Alabama. PAMELA KARLAN is a professor of Law at the University of Virginia, Charlot­ RICHARD L. ENGSTROM ("Shaw, Miller, tesville, Virginia. and the Districting Thicket") is a research professor of Political Science at the Universi­ JOSEPH F. ZIMMERMAN ("Electoral Sys­ ty of New Orleans, New Orleans, Louisiana. tems and Representative Democracy: Re­ flections on the Voting Rights Act") is a pro­ GERALD E. NEWFARMER ("What Do You fessor of Political Science at the State Univer­ Do When Reformed Government Doesn't sity of New York at Albany and a member of . Work? The Cincinnati Experience") is the the editorial board of the NATIONAL CMC past city manager of Cincinnati, Ohio, and REviEw. c-R

282' FALL-WINTER 1995 NATIONAL CIVIC REVIEW PuBLISHER'S _____""_' "" ___ _ -NOTE

he National Civic League has long the Voting Rights Act and its various taken the position that self-educa­ amendments (1970, 1975 and 1982). Ttion on political issues and regular That the Act is now under serious participation in elections constitute mini­ review (many would call it an attack) is mal compliance with the responsibilities partly an indication of its extraordinary of citizenship in a democracy. The richer success; but the ease with which the civil rewards of citizenship, we have con­ rights gains of the last three decades have sistently stated, flow from such activities been threatened in recent years should as public and community service through be a cause for concern among Americans organized groups, neighborhood activ­ committed to a pluralistic democratic ism, volunteering, and serving in public process. office. Until 1965, however, that funda­ mental act of citizenship - exercising n observance of the 30th anniversary the franchise - was routinely denied to of the passage of the Voting Rights millions of Americans on the basis of I Act, this issue of the NATIONAL CIVIC race. REVIEW acknowledges the changed cli­ When the Voting Rights Act was mate of voting rights in the United States, passed in 1965, only two African-Ameri­ analyzes the implications of recent Su­ cans were serving as state legislators or preme Court opinions involving the Act, members of Congress in the Southern and suggests future steps for the elec­ United States; by 1990, that number had toral empowerment movement. risen to 160. The increase has been simi­ Throughout, our authors have been in­ larly drama tic at the local level. The formed by the notion that the fullest exer­ ability of minorities of every background cise of citizenship will not be realized to participate meaningfully in the elec­ when the most basic act of citizenship has toral process is principally the result of little or no practical effect.

Christopher T. Gates Publisher

NATIONAL CIVIC REVIEW FALL-WINTER 1995 • 283 EDITOR'S.======COMMENT

ften hailed as the most effective tually assure the election of minority can­ and successful piece of civil rights didates violates the equal protection Olegislation of the 1960s, the Vot­ clause of the Fourteenth Amendment. ing Rights Act has figured centrally in the Thus, as the Voting Rights Act enters its extension of full citizenship to racial, eth­ fourth decade, its future is by no means nic and foreign language minorities in secure, and the hard-won electoral em­ the United States. powerment gains of racial and ethnic Signed by President Lyndon B. minorities seems seriously imperiled. The Johnson in August of 1965, the Act incor­ symposium articles appearing in this is­ porates permanent provisions that apply sue of the NATIONAL ClVIC REvIEW examine to the entire nation and temporaryprovi­ this emerging controversy, serving as a sions affecting specific jurisdictions, prin­ supplement to the National Civic cipally the Southern states of the former League's Voting Rights Act in Local Gov­ Confederacy and their political subdivi­ ernance Project. Funded by the Ford sions. The widespread use of literacy Foundation, that project will produce a tests, the poll tax and other discrimina­ Voting Rights Act compliance handbook tory practices and devices in these states for local government officials, to be re­ and localities necessitated a nationalsta t­ leased in late 1995. ute to ensure and enforce the right to vote Joseph F. Zimmerman of the State of black citizens, as guaranteed by the University of New York at Albany, a Fifteenth Amendment to the U.S. Consti­ frequent contributor to theNATIONALClVIC tution. As initially framed, the Voting REvIEW, opens the symposium section of. Rights Act, in essence, assured the right this issue with a chronicle of the history of eligible citizens to register to vote and of suffrage laws in the United States. participate in federal, state and local elec­ Tracing the gradual extension of voting tions. Through judicial interpretation rights from property-owning males to and various amendments, the scope of virtually universal suffrage, Zimmerman the Act has gradually come to protect the sets the stage for the passage of the Vot­ right to representation itself, albeit not ing Rights Act and explains its key provi­ necessarily in proportion to a protected sions. Referencing key recent Supreme minority's presence in the population. Court decisions, he also hints at the fu­ While the right to register and vote ture of single-member districts as the may no longer stimulate great contro­ standard remedy in voting rights litiga­ versy, the guarantee of representation tion. Zimmerman concludes with an as­ has, in recent years, become the object of sessment of the prospects of alternative several legal challenges brought on be­ electoral systems, such as proportional half of majority-group voters. Indeed, representation, for ensuring equitable the plaintiffs in Shaw v. Reno (1993) and representation without "segregating" Miller v. Johnson (1995) claimed that the voters. imposition of district boundaries that vir- Olethia Davis of Southern Univer-

284 • FALL-WINTER 1995 NATIONAL ClVIC RmnEW sity (Baton Rouge, Louisiana) focuses on ers (i.e., a tendency to prefer white candi­ Sections 2 and 5 of the Voting Rights Act, dates over minority candidates) and pro­ which contain the principal enforcement tects the electoral interests of minorities provisions of the statute. Observing that in that hostile context. But what rem­ the gradual extension of the Act's scope edies may be introduced where minori­ to ensure representative electoral out­ ties can neither succeed in electing candi­ comes has been by no means uniform dates of their choice nor constitute a ma­ and linear, Davis argues that there is no jority in a single-member district? Still clear consensus among the Supreme and Karlan offer up the increasingly at­ Court's current members regarding vot­ tractive alternative of cumulative voting, ingrights. Moreover, with congressional using Worcester County, Maryland - action needed to clarify the ambiguity where this electoral scheme was recently recently introduced by the Court, she imposed by a district court judge in a predicts a dismal future for the electoral voting rights lawsuit - as a point of empowerment movement. departure. Expanding upon the theme of am­ Robert Brischetto of the University biguity, Richard Engstrom of the Univer­ of Texas at San Antonio strengthens the sity of New Orleans characterizes the arguments advanced by Still and Karlan current legal environment in which leg­ with an analysis of election results and islative districts must be drawn as a dense exit-poll survey data from 16 local juris­ and confusing "thicket." Introducing the dictions in Texas utilizing cumulative traditional criteria of electoral boundary voting. According to Brischetto, citizens drawing, Engstrom underscores that participating in cumulative voting elec­ while the Supreme Court has rejected tions generally agree the system is fair, race as a principal guide in defining leg­ permitting all groups an opportunity to islative districts, it has failed to elevate elect representatives of their choice. But any others to primary status. Districting no electoral reform, he warns, can take in today's volatile racial and political cli­ the place of effective voter education and mate is, and likely will remain, an almost mobilization. impossible task, with jurisdictions at­ What group of Americans enjoys tempting to hit a constantly moving tar­ the least equitable representation in U.S. get. governing institutions? Wilma Rule of Unlike other federal civil rights the University of Nevada at Reno de­ laws, the Voting Rights Act protects mi­ clares unequivocally that women of all norities without mandating non-discrimi­ races and ethnicities face the greatest dis­ natory behavior on the part of the major­ crimination in the American winner-take­ ity population. That is, according to vot­ all system. Backing up her claim with ing rights experts Edward Still and longitudinal data from federal and state Pamela Karlan, the Act assumes discrimi­ elections - as well as the record of other natory behavior on the part of white vot- nations that don't use single-member dis~

NATIONALcnnCRffinEW FALL·WINrER 1995.285 ..

THE VOTING RIGHTS AT THIRTY

tricts - Rule urges a movement to se­ reformers, Newfarmer emphasizes the cure full protection of women in the Vot­ fundamental, custodial role of the elected ing Rights Act. Redress of this long­ city council in ensuring the success of neglected oversight, she insists, must be council-manager government. When accompanied by reforms in electoral councils pursue multiple p'ersonal agen­ structure and campaign-finance laws that das and neglect city-wide interests and favor incumbents, most of whom are concerns, they do harm to both local gov­ male. ernance and the council-manager plan.

n an article unrelated to this voting he feature and symposium articles rights symposium, Gerald New­ introduced above are followed by I farmer, immediate-past city manager Ta News in REvIEW department con­ of Cincinnati, Ohio, discusses a recent tributed by Joseph Zimmerman. Special unsuccessful attempt to abandon the thanks go to Joseph Zimmerman, both council-manager plan in that city. Laud­ for his written contributions to this issue ing the citizens of Cincinnati for their of the NATIONAL CMC REVIEW and his ongoing commitment to the crowning thoughtful assistance in assembling the achievement of Progressive municipal other symposium articles.

~i1~ David Lampe Editor

286. FALL·WINTER 1995 NATIONALCMC~ THE VOTING RIGHTS ACT AT THIRTY

. ELECTION SYSTEMS AND REPRESENTATIVE DEMOCRACY REFLECTIONS ON THE VOTING RIGHTS ACT OF 1965 The Voting Rights Act, as orginally conceived and through its various amenaments, has proved an extraordinarily effective tool for eliminating the most egregious barriers to, ana abuses of, minorities' rights to register and vote. But access to the process and guaranteed representation are two jimdamentally different concepts. Repeated recent legal challenge to the single-member district remedy should occasion a fresh look at means of reforming representative government. JOSEPH F. ZIMMERMAN

emocratic theory is premised of minority groups. The Voting Rights upon representative law-making Act of 1965 as amended was designed to D bodies, yet members of many of remedy discrimination in electoral sys­ these bodies have been elected by sys­ tems and practices against blacks and tems that exclude or dilute the votes cast members of four" foreign language mi­ by members of certain racial and ethnic norities." groups. Constructing an electoral sys­ The Actis a permanent statute that tem that will produce fair representation also contains temporary, nationally sus­ is a difficult task, and must commence pensive provisions applicable to states with the removal oflegal impediments to and! or their political subdivisions if cer­ voting and replacement of electoral sys­ tain conditions (known informally as tems that discriminate against members "triggers") are present. The" trigger pro-

NATIONAL CMC REVIEW FALL-WINTER 1995 • 287 THE VOTING RIGHTS ACT AT THIRTY

REFLECTIONS ON THE VOTING RIGHTS ACT visions" originally were limited to six 1792 and 1798, respectively.' In 1809, Southern states and were designed to Maryland passed a statute granting man­ protect the voting rights of only blacks. hood suffrage without property-owning Today, these provisions apply to many or taxpaying qualifications. jurisdictions outside the South because In 1821, New York enfranchised all of amendments enacted in 1975, which white male residents of one year who extend the Act's reach to jurisdictions had paid taxes and served in the State where voter participation is low and the Militia, and all others who had lived in concentration of "protected" minorities the state for three years.' New York, high. . however, retained property qualifications This article presents 1) a historical for blacks. Thereafter, the movement for overview of the gradual liberalization of full manhood suffrage made rapid suffrage laws in the United States, 2) progress, and by 1860 property-owning describes the Voting Rights Act's major requirements had disappeared and tax­ provisions and their interpretation by payer prerequisites were negligible. the United States Supreme Court, and 3) Before white manhood suffrage examines the single-member district sys­ became a nationwide reality, however, a tem, which has been promoted by imple­ reaction set in. Alarmed at the rapid mentation of the Act, vis-a-vis alterna­ increase in the number of illiterate immi­ tive electoral systems. grants, particularly Irish immigrants, Connecticut in 1855 and Massachusetts historical review of suffrage re­ in 1857 amended their constitutions to quirements will help explain why require that all voters be able to read.' A Congress decided in 1965 to en­ act a statute guaranteeing the voting BLACK SUFFRAGE rights of blacks. When the United States Few blacks were enfranchised prior to Constitution was ratified in 1788, voting the Civil War. Maine, Massachusetts, in states was confined to male property New Hampshire, Rhode Island, and Ver­ owners or taxpayers. All other persons mont had granted suffrage to blacks, and - women, blacks (most were slaves), in New York a black could vote if he indentured servants, and Native Ameri­ possessed a freehold. The original North cans -lacked the right to vote. Carolina Constitution permitted free Vermont was the first state to pro­ blacks who met other requirements to vide for universal male suffrage for those vote, but it was amended in 1835 to pro­ of "quiet and peaceable behavior. "I A vide that "no free Negro, free Mulatto, or year later, the new State of Kentucky free person of mixed blood, descended allowed suffrage for men who met a two­ from Negro ancestors to the fourth gen­ year residency requirement.' New eration inclusive ... shall vote for mem­ Hampshire and Georgia abolished their bers of the Senate or House of Com­ constitutional taxpaying requirements in mons."6

288 • FALL-WINTER 1995 NATIONAL CIVIC REVIEW · . ~'-: -,,/ .' l,-;'.'" .• ~t.: •••.•.• ~~~-: ...;">o "

THE VOTING RIGHTS ACT AT THIRTY

Immediately after the Civil War, Act that guaranteed the voting rights of the movement to extend the franchise to white citizens and provided for punish­ blacks gathered momentum and led to ment of persons interfering with the vot­ two amendments to the United States ing rights of whites, holding that the Constitution. The Fourteenth Amend- Fifteenth Amendment authorized Con­ ment, ratified in 1868, provides that a gress to protect only the voting rights of state's representation in the U.s. House black citizens.9 This opinion remains in of Representatives could be reduced in effect today. The most important re­ the proportion that the state denied the maining sections of the two statutes were suffrage of male citizens 21 years of age repealed by Congress in 1894, thereby or older. The Fifteenth Amendment, rati- freeing states of direct supervision of elec­ fied in 1870, prohibits the United States tions by federal officials for 63 years. or any state from denying suffrage on With Southern states in the control account of race, color or previous condi- of whites by 1890, their state constitu­ tion of servitude. tions and statutes were amended to ex- In 1870, Congress enacted a stat- dude most blacks from the franchise. For ute, based on the Fifteenth Amendment, example, Southern state legislatures re­ makiIlg private or public obstruction of vived the taxpayer qualification requir­ the right to vote in an election a misde- ing a person to present poll tax receipts, meanor punishable by imprisonment of sometimes for many years, before a per­ one month to one year.' The law was son would be allowed to vote in an elec­ amended the following year to authorize tion, lengthened the residency require­ federal oversight of the election of United ments to debar transient blacks, and in­ States Representatives in ------troduced the literacy test to any local government with Blacks effectively assure the ability of voters a population exceeding were exdudedfrom to read or at least "under- 20,000 "whenever ... there stand" the Constitution. To shall be two citizens thereof the nominating preserve the suffrage of il- who ... shall make known process In literate whites, Southerners in writing, to the Judge of invented the notorious the Circuit Court of the Southern states by "grandfather clause," United States for the Circuit the "white which permitted the per- wherein such city or town primary," which manent registration of all shall be, their desire to have persons who had served in said registration, or said debarred them from the the United States Army election, or both, guarded voting in the or the Confederate Army, and scrutinized."· or were descendents of vet- The United States Su- Democratic party's erans. The dause was de- preme Court in 1875 invali- primary elections. dared unconstitutional by dated sections of the 1870 the United States Supreme

NATIONAL CMe REVIEW FALL-WINTER 1995.289 THE VOTING RIGHTS ACT AT THIRTY

REFLECTIONS ON THE VOTING RIGHTS ACT

Court in 1915. 10 The Court Literacy tests ... preexisting right to vote in in 1939 struck down state muniCipal elections by re­ procedural obstacles to vot­ remained in use in moving them from the city's ing. many states, and limits." Blacks effectively blacks in some areas Public opinion against the were excluded from the treatment of blacks as sec­ nomina ting process in were not permitted ond -class citizens was Southern states by the to register and vote growing, especially after the "white primary," which end of World War II in 1945. debarred them from voting for candidates for Reacting to this sentiment, in the Democratic party's state and local Congress in 1957 enacted a primary elections. The ex- government offices. statute authorizing the At­ clusionary device was in- torney General to ini tia te validated in 1944 when the legal action on behalf of Supreme Court declared this type of pri­ blacks denied the opportunity to register mary unconstitutional, holding that a and vote, and established the United state could not cast its election laws in States Commission on Civil Rights, with such a fashion as to allow a private orga­ authority to investigate and report on nization, in this case a political party, to devices and procedures employed by practice racial discrimination in elec­ state and local governments in a dis­ tions.l1 Southern states, except Texas, criminatory manner against blacks.14 The continued to use the literacy test as a Civil Rights Act of 1960 mandated that condition for voting, and several South­ states retain federal election records for ern states had long residency require­ 22 months, authorized the Attorney Gen­ ments to disenfranchise blacks, who eral to inspect such records, and enabled moved more frequently than whites. In the District Court to order registration of 1949, the U.S. Supreme Court invalidated blacks who were victims of a pattern of discriminatory application of voting voting discrimination and appoint vot­ tests.l2 ing referees empowered to register vot­ The racial gerrymander also was ers. l5 Title I of the Civil Rights Act of 1964 employed by state legislatures to reduce forbids election officials to apply regis­ the voting power of black citizens. The tration tests or standards to applicants most egregious racial gerrymander was different from the ones administered to drawn by the Alabama State Legislature persons previously registered. The Act for Tuskegee, home of the famous black also established a rebuttable presump­ university. In 1960, the U.S. Supreme tion ofliteracy for registrants with a sixth­ Court struck down this gerrymander, grade, English-speaking school educa­ which had produced a strangely shaped, tion, and expedited procedures for judi­ irregular district with lines drawn around cial resolution of voting rights cases. l6 houses to exclude black voters from their In 1964, the 24th Amendment, abol-

290' FALL-WINTIR 1995 NATIONAL ClVlC REVIEW THE VOTING RIGHTS ACT AT THIRTY

ishing the poll tax as a condition for vot­ 50 percent of persons of voting age were ing in federal elections, was ratified. Only registered to vote on November 1, 1964 eightblacks had been elected to the United or that less than 50 percent of persons of States House of Representatives by that voting age exercised the franchise in the date, several of them during the Recon­ 1964 presidential election. I9 A "test or struction Period immediately following device" is defined as one involving lit­ the Civil War. Literacy tests, however, eracy, morals, character, educational remained in use in many states, and blacks achievement, or knowledge of a speci­ in some areas were not permitted to reg­ fied subject. ister and vote for candidates for state and Available evidence suggests that local government offices. the factors incorporated as triggers delib­ eratelywere formulated to exclude Texas. THE VOTING RIGHTS ACT OF 1965 Senator James B. Allen of Alabama main­ In reaction to the growing civil rights tained "it was first determined which movement in the early 1960s and actions states the law should be made applicable of many Southern states preventing nu­ to, and then they proceeded to find the merous blacks from exercising the fran­ formula that would end up with those chise, Congress in 1965 passed the Vot­ states being covered."20 He added: ing Rights Act to protect blacks' Fifteenth Amendment voting rights.!' President by using the 50 percent voting in the Lyndon B. Johnson proposed that the Act election factor, that would have in­ cluded the State of Texas. The Presi­ contain a ten-year sunset clause, but a dent of the United States being a resi­ five-year clause was adopted as a com­ dent of Texas, ... it was thought inad­ promise for the preclearance and other visable to include Texas in that for­ temporary provisions in order to per­ mula. So they added a second circum­ suade a sufficient number of senators to stance, that is, that they must have a vote for cloture to end a filibuster." Cer­ device that would hinder registration; namely the literacy test. And, the tain provisions of the Act, as amended, double factor ... is what took Texas out apply to all states and local governments, from under it, because they did not and other provisions apply only to states have the literacy test. 21 and political subdivisions meeting the trigger conditions. Section 4 stipulates The temporary provisions of the Act cov­ that the Act automatically applies to any ered Alabama, Georgia, Louisiana, Mis­ state or political subdivision of a state if sissippi, South Carolina, and Virginia, as the Attorney General of the United States well as counties in Alaska, Arizona, Ha­ determines that as of November 1, 1964, waii, Idaho, and North Carolina. Texas a test or device had been employed to was brought under the temporary provi­ abridge the right of citizens to vote, and sions of the Act by the 1975 amendments. the Director of the United States Bureau Section 2 of the original Act is a of the Census determines that less than statutory restatement of the Fifteenth

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Amendment's prohibition of the denial stitutional guarantees in these state and or abridgment of the right to vote based local governments. on "race, color, or previous condition of servitude. " THE AMENDMENTS Congress in effect imposed a fed­ The trigger dates were expanded by the eral "Dillon's Rule" on state and local 1970 amendments to the Act to include governments subject to Section 5 of the November 1, 1968 and the 1968 presiden­ Act, in that such jurisdictions may not tial election; the 1975 amendments added change their electoral practices as they November 1, 1972 and the 1972 presiden­ existed on November 1 of the year during tial election. which the prerequisite factors were met The 1970 amendments suspended without first obtaining either the prior all voting tests and devices, including approval of the Attorney General, acting literacy tests, throughout the nation until as an administrative surrogate of the August 6, 1975, and the 1975 amend­ court, or a declaratory judgment from ments made the suspension permanent.23 the District Court of the District of Co­ The 1970 amendments also authorize the lumbia. Actions implicating Section 5 Attorney General to seek a preliminary include changing the location of a polling or permanent injunction to prevent a state place, changing the existing voting sys­ or local government from enacting or tem, transforming an elective office into administering a test or device in viola­ 2 an appointive one, annexation, or legis­ tion of the Act's provisions. • lative redistricting, unless it is pursuant The 1975 amendments broadened to a United States court order to correct the coverage of the Act to include "lan­ an unconstitutional elec­ ------guage minorities," defined toral system." The The preclearance as "persons who are Ameri­ preclearance requirement canlndian, Asian American, also applies to several ac­ requirement also Alaskan Natives, or of Span- tivities of political parties, applies to several ish heritage," and cited the such as conduct of primary activities of political Fourteenth and Fifteenth elections and selection of Amendments as the consti­ party officials and delegates parties, such as tutional authority for the to party conventions. Ad­ conduct of primary Act.25 The language-minor- ditionally, the Act directs ity triggers, providing for the United States District elections and mandatory coverage of a Court to authorize appoint­ selection of party governmental unit by the . __ ment by the United States officials and Act, are activated if in ex- Civil Service Commission cess of five percent of the (now the Office of Person­ delegates to party citizens of voting age in a nel Management) of federal conventions. state or political subdivision examiners to enforce con- are members of one lan-

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guage minority group as of November 1, cel out or minimize the voting strength of 1972 arid less than 50 percent of all citi­ racial groups."" zens of voting age participated in the The viability of this broad inter­ presidential election of 1972. The trig­ pretation of the Act, which protected gers also are activated if in excess of five black voters without proof of deliberate percent of the citizens of voting age in a or explicit desire to discriminate on the state or political subdivision are mem­ part of the jurisdiction, was weakened by bers of one language minority group and subsequent Supreme Court decisions the illiteracy rate of the group exceeds holding that proof of discrimination in the national illiteracy rate. The definition violation of the Fourteenth Amendment's of a test or device was expanded to in­ equal protection clause requires the es­ clude the use of only English election tablishment of "subjective intent. "28 In materials or ballots in a jurisdiction where 1980, the Court majority inMobile v. Bolden a language minority constituted more rejected the argument that voting rights than five percent of the voting-age popu­ discrimination should be determined by lation. In such jurisdictions, bilingual a "results" test instead of an "intent" test, ballots and election materials must be as well as what the Court labeled the provided if the group's literacy rate is theory behind the former test. The Court lower than the national average. opined that such a theory" appears to be The 1975 amendments also ex­ that every political group or at least that tended the preclearance and other tem­ every such group that is in the minority porary requirements for seven years. A has a federal constitutional right to elect total of 263,410 proposed changes were candidates in proportion to its numbers . submitted to the Attorney General ... The Equal Protection Clause does not through 1994, who interposed an objec­ require proportional representation as tion to 2,995." The preclearance require­ an imperative of political organization. "29 ment currently applies to all or part of 16 This decision generated consider­ states. able debate, and induced Congress in A jurisdiction's discriminatory in­ 1982 to amend Section 2 of the Act to tent may not always be apparent, since it incorporate a "results" test providing that may have maintained a racially neutral "The extent to which members of a pro­ electoral system that was designed to or tected class have been elected to office in had the effect of diluting or eliminating the state or political subdivision is one the voting strength of a racial minority. circumstance which may be considered." In White v. Regester, the U.S. Supreme Congress, however, added the proviso Court in 1973 held that the use of multi­ "that nothing in this section establishes a member districts in a state legislative right to have members elected in num­ reapportionment plan would violate the bers equal to their proportion in the popu­ equal protection clause of the Fourteenth lation."JO Amendment if "used invidiously to can- The 1982 amendments also modi-

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REFLECTIONS ON THE VOTING RIGHTS ACT fied the preclearance provisions of the the results standards of Section 2 of the Act, directed Congress to reconsider these Act. provisions in 1997, stipulated the provi­ sions would expire in 2007, extended the COURT INTERPRETATION language minority provisions until Au­ The constitutionality of the Actwas chal­ gust 6, 1992, stipulated that no covered lenged on the grounds that Congress jurisdiction may provide voting materi­ encroached on the powers reserved to als only in English prior to August 6, the states by the United States Constitu­ 2007, and guarantees a voter in need of tion (Tenth Amendment), since many of voting assistance because"of blindness, its key provisions were targeted at one disability, or inability to read or write region of the nation. Rejecting these ar­ may be given assistance by a person of guments, the United States Supreme the voter's choice, other than the voter's Court in 1966 ruled that "the sections of employer or agent of that employer or the Act which are properly before us are officer or agent of the voter's union."3l an appropriate means of carrying out Congress' constitutional responsibilities BAIL-OUT PROVISIONS and are consonant with all other provi­ Section 4( a) of the Act contains "bail-out" sions of the Constitution."" provisions to end the special coverage In 1968, the Court held in Allen v. resulting from the triggers. A state or State Board of Elections that it was the local government subject to coverage intent of Congress that the Act be given because of the racial provisions of the "the broadest possible scope" to reach 1965 Act and amendments of 1970 and "any state enactment which altered the 1975 may file suit for a declaratory judg­ election law of a covered state in even a ment in the United States District Court minorway."35 In 1973, the Court justified for the District of Columbia and offer its 1968 decision by maintaining: proof that it has not discriminated against the voting rights of the protected group Had Congress disagreed with the for ten years, or establish "that any such interpretation of § 5 in Allen, it had violations were trivial, were promptly ample opportunity to amend the stat­ ute. After extensive deliberations in corrected, and were not repeated."32 1970 on bills to amend the Voting Rights In practice, it is difficult for state Act, during which the Allen case was and local governments covered by the repeatedly discussed, the Act was ex­ original Act to use the bail-out provi­ tended for five years, without substan· sions successfully. Virginia attempted to tive modifications of § 5.36 obtain such exemption, but its suit for a declaratory judgement was rejected by Neither annexation per se nor at­ the United States Supreme Court in 1975.33 large elections per se have been declared If a jurisdiction is successful in bailing unconstitutional by the courts. The Vot­ out, it remains subject to litigation under ing Rights Act of 1965, however, added a

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federal dimension to annexation proceed­ was limited before annexation and "the ings in several states, particularly South­ right to suffrage can be der:ied by a debase.me~t or dilution of the weight ern states, as the U.s. Supreme Court of a clhzen s vote Just as effectively as observed in its 1971 opinion in Perkins v. by wholly prohibiting the free exercise Matthews.>' The case involved annex­ of the franchise." Moreover, § 5 was ation of territory by the City of Canton, deSigned to cover changes having a Mississippi, and a 1965 determination by potenhal for racial discrimination in Attorney General Nicholas B. Katzenbach voting, and such potential inheres in a change in composition of the elector­ that Mississippi and its political subdivi­ ate affected by an annexation. 40 sions were covered by the Act.38 In 1969, the special three-judge District Court for This decision resulted in a sharp the Southern District of Mississippi dis­ decline in annexations by large Southern solved a temporary injunction against cities, which have relatively broad state the holding of city elections issued by a constitutional and/or statutory author­ federal judge, and dismissed a complaint ity to annex territory. Subsequently, sev­ on the ground that "the Black voters still erallarge cities have sought the approval had a majority of not less than 600 after of the Attorney General to annex terri­ the expansions were effected."39 A total tory. Today, most Southern annexations of 82 black voters and 331 white voters are small in terms of the size of the an­ had been added to the city by annex­ nexed territory and number of residents. ations in 1965, 1966 and 1968; no white The complexity of the issues involved voters were added to the city by the 1965 with annexation are illustrated by cases annexation. involving the cities of Richmond and Pe­ The Supreme Court overturned the tersburg, Virginia. decision of the three-judge District Court: The first Richmond case. The 1970 ... changing boundary lines by annex- annexation of territory by Richmond in- ations which enlarge the City's num- creased the city's population and real ber of eligible voters also con_s_t_itu_te_s __--..:p_r_o~p_e_rty..:...._tax base by 19 percent and 23 the change. of a "standard, percent, respectively, but practice, or procedure with respect to votmg." Clearly, Today ' most was contested as violating revision of boundary lines Southern the Voting Rights Act of has an effect on voting in 1965. A group of black two ways: (1) by including annexations are plaintiffs objected to the certain voters within the small in terms oif the annexation and contended City and leaving others out- . side, it determines who may size of the annexed It was designed to dilute vote in the municipal elec- black voting strength in a tion and who may not; (2) it territory and city with a council elected dilutes the weight of the vot- number of residents. at large, thereby violating ers to whom the franchise their rights under the Four-

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REFLECTIONS ON THE VOTING RIGHTS ACT teenth and Fifteenth Amendments and The Petersburg case. In a similar Section 5 of the Voting Rights Act. Ninety­ case, the Supreme Court in 1973 affirmed seven percent of the residents of the an­ a decision of the District Court for the nexed area were white. Fifty percent of District of Columbia denying Petersburg the Richmond's pre-annexation popula­ the right to annex 14 square miles of land tion of 202,359 was black in 1970. This in Dinwiddie and Prince George Coun­ proportion was lowered to 42 percent, as ties, because the boundary extension the annexation added 45,705 whites and would increase the proportion of white 1,557 blacks to the city's population, in­ population from 45 to 54 percent in a city creasing the totals to 143,857 whites and that elected its council members at-large, 105,764 blacks. thereby discriminating against black vot­ The United States District Court ers by diluting their votes." for the Eastern District of Virginia ruled The annexation ordinance, effec­ in favor of the plaintiffs: "the Fourteenth tive on December 31,1971, was adopted Amendment forbids a deprivation of unanimously in 1967by the five-member one's vote by reason of race - this Court city council. Two members, including interprets thatto mean dilution as well. "4l the one who had introduced the ordi­ Declaring that de-annexation would be nance, were black. The three-member impractical because the city had appro­ district court found that the purpose of priated millions of dollars for improve­ the annexation was to expand the city's men ts in the annexed area, the court or­ growth and tax base, and there was no dered that the city be divided into two evidence that the annexation had a racial districts for purposes of new motive. The court, however, found that councilmanic elections." According to the city had"a long history of racial seg­ the plan, seven council members would regation and discrimination."" be elected from the district comprising Conceding "that an at-large sys­ most of the pre-annexation territory of tem of electing city councilmen has many the city, and two members would be advantages over the ward system," the elected from the annexed area and a small court ruled the annexation could be ap­ part of the city's pre-annexation terri­ proved only if the city substituted ward tory. elections for at-large election of the coun­ The District Court's decision was cil, which had been expanded from five reversed by the United States Court of to seven members by the 1972 Virginia Appeals for the Fourth Circuit, which Legislature." held that "for perfectly valid reasons The second Richmond case. Rich­ Richmond's elected representatives had mond in 1972 sought court approval for sought annexation since 1966."43 The its 1970 annexation, since the Attorney U.5. Supreme Court denied a petition for General twice refused to give approval writ of certiorari, thereby upholding the for the annexation. The city council was decision of the Court of Appeals." elected at large in 1970 with voters from

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the annexed area in Chesterfield County a distinction between the Petersburg and participating; only one black councilman Richmond cases: was elected. According to the three-judge District Court for the District of Colum- Petersburg was correctly decided. On bia, "it is conceded here that Richmond the facts here presented, the annex- conducted these elections illegally in vio- ation of an area with a white majority, I f combined with at-large councilmanic ation 0 Section 5. It did not, prior to elections and racial voting, created or diluting by annexation the votes of the enhanced the power of the white ma- citizens residing within the ------jority to exclude Negroes old Richmond boundaries, ... the Court totally from participation obtain the approval of the indicated it was no in the governing of the city Attorney General or a de- through membership on longer concerned the city council. We agreed, c I aratory judgment from however, that the conse- this Court that this dilution that the pre- quence would be satisfac- did not have the purpose annexation black torily obviated if at-large and would not have the ef- elections were replaced by feet of abridging the right to vote would be a ward system of choosing vote on account of race or didi ute ,provided councilmenWe can not .... accept the po- color. Richmond has held I sition that such a single- no councilmanic elections backs were member ward system since 1970; the illegally represented 'fairly" would neverHleless have electedCityCouncilcontin-. ., the effect of denying or ues to serve at this time."" In a City s governing abridging the right to vote bodyfiollowing because Negroes would During the four-year pe- constitute a lesser propor- riod, three members of the annexation. tion of the population after nine-member council re- the annexation than before, signed and their replacements were co- and given racial bloc voting, would opted by the council. have fewer seats on the city counci!." Subsequent to the annexation, the city substituted a single-member district This decision constitutes a signifi­ system for the at-large system. The Dis­ cant departure from the Perkins decision trict Court concluded that the change in because the Court indicated it was no electoral system was "discriminatory in longer concerned that the pre-armexation purpose and effect and thus violative of black vote would be diluted, provided Section 5's substantive standards as well blacks were represented "fairly" in a city's as the section's procedural command that governing body following annexation. prior approval be obtained from the At­ New elections, held on March 1, 1977, torney General or this Court."" resulted in the selection of five blacks The Supreme Court in 1975 re­ and four whites as members of the city versed the lower court decision and made council.

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While annexation may be viewed can not cast an effective vote without as an "indirect" form of racial gerryman­ being able to comprehend fully the regis­ dering, since annexation may have as its tration and election forms and the ballot purpose and its effect the dilution of the itself."" The decision was affirmed by voting rights of blacks living within the the United States Supreme Court.53 pre-annexation boundaries of the city, New York filed a complaint in the the Supreme Court in 1976 and 1977 was District Court for the District of Colum­ faced with the question of whether a bia seeking a declaratory judgment ex­ "reverse racial gerryman­ empting the counties from der" -one that deliberately ... annexation may be coverage by the Act. With created a "safe" black dis­ the approval of the United trict - was constitutional. viewed as an States Department of Jus­ The Hasidic Jews "indirect" form of tice, the court granted the case. Although the Voting racial judgment. Denied leave to Rights Act was designed to intervene in the case, the end voting discrimination gerrymandering, National Association for in the Southern states, the since annexation the Advancement of Col­ Attorney General in 1970 ored People (NAACP) un­ made a determination that may have as its successfully appealed the New York State had main­ purpose and its effect denial to the U.S. Supreme tained a test or device on the dilution of the Court. However, on re­ November 1, 1968, as de­ mand the NAACP's motion fined by Section 4(c) of the voting rights of was granted.54 Act as amended. Moreover, blacks living within The NAACP, after re­ the Director of the Bureau the pre-annexation opening the declaratory of the Census determined judgment action, obtained that Bronx, Kings (Brook­ boundaries of the an order from the District lyn) and New York (Man­ city ... Court for the District of Co­ hattan) Counties were sub­ lumbia holding that the ject to Sections 4 and 5 of the Act, as amended in 1970, Act, since fewer than 50 percent of the applied to congreSSional and state legis­ residents of voting age cast a ballot in the lative districts in Manhattan, Brooklyn 1968 presidential election and a literacy and the Bronx, and the decision was af­ test had been used in the counties prior to firmed by the Supreme Court.55 These 1970.51 The specific reasons for applying judgments necessitated a special session the Actwere the 1970 amendments chang­ of the New York State Legislature, which ing the trigger date to 1968, and the fact on May 29, 1974 redrew congressional that ballots were printed only in English. and state legislative district lines drawn The District Court for the Southern Dis­ in 1972.56 Although the 1974 redistricting trict of New York ruled that "plaintiffs did not change the number of state senate

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and assembly districts with non-white the Attorney General emphasized that it voting majorities, it did increase the non­ was not his function "to dictate to the white majority percentage in two senate State of New York specific actions, steps, districts and two assembly districts, and or lines with respect to its own redistrict­ decreased the non-white majority per­ ing plan. "60 centage in one senate district and two The District Court dismissed the assembly districts. complaint of the Hasidic Jews on the Objections to several of the new grounds that the petitioners were not district lines were advanced by represen­ disenfranchised and that race could be tatives of Brooklyn's Hasidic Jews, who considered in redistricting in order to argued that the new assembly districts correct previous racial discrimination."l divided the Hasidic community and The Court of Appeals affirmed the Dis­ made it the victim of a racial gerryman­ trict Court's decision by reasoning tha t der, thereby diluting the value of their the redistricting did not under-represent votes in violation of the equal protection whites, who composed 65 percent of the clause of the Fourteenth Amendment to population, since approximately 70 per­ the United States Constitution.57 The cent of the state assembly and senate Hasidic community, which had been able districts in Brooklyn would have white to elect one of its members to the state majorities. "2 assembly, also challenged the assump­ The Court of Appeals was con­ tion that only black legislators can repre­ vinced that it would be an impossible sent the interests of blacks. In response to task for a legislature to reapportion itself questioning in the District Court, Execu­ if "a state must in a reapportionment tive Director Richard S. Scolaro of the draw lines so as to preserve ethnic com­ State Legislative Committee that drew muni ty unity. "63 the district lines stated that the United The Supreme Court heard oral ar­ States Justice Department's insistence on guments in United Jewish Organizations of a proportion of black voters of 65 percent Williamsburgv. Wilson on October 6,1976. was the "sole reason" why the Hasidic Justice White asked Nathan Lewin, the community was split between two as­ plaintiffs' attorney, a question relative to sembly districts.58 the establishment of legislative districts On July 1, 1974, the Attorney Gen­ with a specified percentage of blacks to eral approved the new districts and dis­ help them elect members of their own missed the objections of Hasidic Jews race. Chief Justice Warren E. Burger in­ and Irish, Italian and Polish groups on terjected and inquired whether this ac­ the ground that the Voting Rights Act tion "would have the unfortunate effect was designed to prohibit voting discrimi­ to cut against the whole effort to achieve nation on the basis of race, not ethnic an integrated society?"" After Mr. Lewin origin or religious beliefs." In carrying responded in the affirmative, the Chief out his duties under Section 5 of the Act, Justice added that "it does more than

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REFLECTIONS ON THE VOTING RIGHTS ACT that. It pushes people to move into ceptance of the 65 percent "non-white" blocks" where others of the same race majority as the magic percentage needed live. 65 to ensure that the voting rights of "non­ On March 1, 1977, the Court, by a whites" are not abridged. The Court seven-to-onevote, upheld the lower court presented state and local governments ruling that the 1974 redistricting was con­ with a difficult choice between concen­ stitutional, and ruled that the Act "was trating members of a protected minority itself broadly remedial," and the use of into a single district until they constitute racial considerations in drawing district 65 percent of the population and spread­ lines often would be necessary." The ing them out among two or more districts Court specifically opined that "neither to permit them to exercise a "balance of the Fourteenth nor the Fifteenth Amend­ power." ment mandates any per se rule against Evidence is lacking that white vot­ using racial factors in districting and ap­ ers and black voters form respective ho­ portionment."'7 mogeneous entities for voting purposes. Many observers were disturbed by Interestingly, many of the Puerto Rican the Court's opinion because it appeared voters in the Williamsburg district were to overturn its 1960 decision in Gomillion described as "non-whites," and the as­ v. Lightfoot, which invalidated racial ger­ sumption apparently was made that rymandering. Justice Frankel of the Dis­ blacks and Puerto Ricans have identical trict Court of the Southern District of interests. Nevertheless, this decision pro­ New York, sitting by designation on the vided a powerful incentive for the adop­ Court of Appeals for the Second Circuit, tion of single-member districts appor­ in his dissent offered penetrating insight tioned solely on the basis of race. into the nature of the case: The subject of racial gerrymander­ ing remains a contentious one. The Su­ The case is one where no preexisting preme Court in Shaw v. Reno in 1993 wrong was shown of such a character remanded a case involving a North Caro­ as to justify, or render congruent, a lina "serpentine" congressional district, presumptively odious concept of ra­ n which stretched 160 miles cial iJ critical mass as the principle for the fashioning along Interstate 85, for a of electoral districts. In­ Evidence is lacking determination of whether deed, it is a case where no that white voters and the obvious racial gerry­ official is willing to accept, mander violated the equal let alone to claim, responsi­ black voters form bility for the requirement of protection clause of the 65 [percent] or over non­ respective Fourteenth Amendment. white" homogeneous entities Writing for the majority, Justice Sandra Day The Court also was for voting purposes. O'Connor opined: faulted for its uncritical ac-

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Racial classifications ... re­ cant number of voters inforce the belief, held by ... a 1967 within a particular district." too many for too much of The majority announced the our history, that individu­ congressional act als should be judged on the mandates the use of Court would employ"strict color of their skin. Racial scrutiny" in future voting gerrymandering, even for single-member rights cases to determine remedial purposes, may districts to elect whether districts were tai­ balkanize us into compet­ lored narrowly to achieve a ing racial factions; it threat­ members of the U.S. ens to carry us further from compelling state interest. the goal of a political sys­ House of The Kennedy opinion was tem in which race no longer Representatives. particularly critical of the matters .... ~ role of the United States Department of Justice and Building upon its 1993votingrights rejected the State of Georgia's argument decision, the Supreme Court announced that the plan was enacted to comply with its 5-t0-4 opinion in Miller v. Johnson on the demands of the Department. The June 29, 1995, which invalidated the Department's performance, the Court boundary lines of Georgia's 11 th con­ concluded, "raises a serious constitutional gressional district because race was the question" and is "unsupportable." predominant factor in drawing them.'o Writing for the majority, Justice Anthony SUMMARY AND CONCI.USION Kennedy opined that race can not be "the The Voting Rights Act has succeeded in predominant factor motivating the removing insidious barriers to voting by legislature's decision to place a signifi- blacks and foreign language minorities,

ALTERNATIVES TO SINGLE-MEMBER DISTRICT VOTING RIGHTS REMEDIES

ssuming that the U.S. Supreme tives. Court will not sanction racial U.S. Representative Cynthia gerrymanders in the future, McKinney, whose district was invalidated blacks and language minori­ in the Georgia case, announced on the ties still can be guaranteed di­ same day as the Court's announcement that rect representation through multi-member she would introduce a bill repealing the districts employing the single transferable single-member district requirement for U.S. vote form af proportional representation, House seats. The Miller v. Johnson decision cumulative voting or limited voting. Cur­ and its implications are examined in greater rently, a 1967 congressional act mandates detail by Richard l. Engstrom elsewhere in the use af single-member districts to elect this issue of the NATIONAL CiVIC REVIEW. members of the U.S. House of Representa- continued ..

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REFLECTIONS ON THE VOTING RIGHTS ACT but has resulted in the re­ ... there are voting however, will not necessar­ medial employment of the ily increase dramatically the single-member district sys­ systems that can election of minorities to of­ tem, which constitutes a sig­ help minority fice. There are barriers to nificant source of current groups obtain direct election other than the elec­ political and legal contro­ toral system, many of which versy. Proportional repre­ representation inhere to the advantages of sentation, limited voting while avoiding incumbency. Incumbents and cumulative voting can in large jurisdictions have promote the election of mi­ racial or "language staff who spend part of their nori ty candidates without minority" time promoting the re-elec­ encouraging segregation. gerrymanders. tion of their employers. In The ideal system for candi­ addition, elected officers date-based election in the attract media attention by United States is the single-transferable presenting speeches and attending vari­ vote form of PR, which permits simulta­ ous public functions. They also may neous representation of general and par­ communicate with voters in their dis­ ticular interests as candidates must build tricts through newsletters printed and jurisdiction-wide coalitions in order to posted at government expense, and may win election to office. make public service announcements Merely changing electoral systems, which reinforce their name recognition.

The original thrust of the Voting Rights ing at-large electoral plan over an imposed Act was to enlranch ise el ig ible black voters system of single-member districts. On the by removing obstacles to their registration other hand, should black plaintiffs fail to and participation in the electoral process. establish their complaint convincingly in A second thrust (the results test), sought to court, their perceived injury will continue. guarantee representation of blacks and Thus, in this hypothetical example, the legal "language minorities" in approximate pro­ process will inevitably disappoint one of the portion to their respective voting strength, protected classes of voters. Moreover, the principally through the introduction of single­ recent wave of voting rights litigation has member districts as noted in the accompa­ introduced a new wrinkle: The introduction nying article. In multi-cultural jurisdictions, of single-member districts primarily in re­ however, this conventional legal remedy sponse to racial considerations may be has the potential to frustrate the wishes of challenged on the basis that it violates the voters where, for example, a large His­ equal protection rights of majority voters. panic minority that identifies more with the Fortunately, there are voting systems white majority than the other principal mi­ that can help minority groups obtain direct nority group, blacks, may prefer the exist- representation while avoiding racial or "Ion-

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The most critical barrier to the effective NOTES challenge of an incumbent elected offi­ 'Vermont Constitution 0/1791, Chap. II, § cial often is lack of funds to mount a 21. major campaign. Records filed with elec­ tion officials in the various states reveal 'Kentucky Constitution 0/1792, Art. ill, § 1. that incumbents, with few exceptions, possess a vastly superior ability to raise 3New Hampshire Constitution 0/1784, Part funds.74 Second, Arts. 13 and 27 (1792) and Geor­ The task for reformers today is to gia Constitution 0/1798, Art. IV, § 1. measure the quality of representation pro­ duced by various electoral systems and 4New York Constitution 0/1821, Art. II, § 1. evaluate them in terms of the following criteria: effectiveness of ballots cast, maxi­ 'Massachusetts Constitution 0/1780, Art. mization of voter participation, repre­ XX of Articles of Amendments. sentation of competing interests, maxi­ mization of citizen access to elected deci­ 'North Carolina Constitution 0/1776, Art. I sion makers, equity in interest group of Amendments, § 3. members' representation, and legitimacy of the legislative body. '16 Stat. 140 (1870).

816 Stat. 433 (1871).

guage minority" gerrymanders. Propor­ paper ballots. Winners are determined by tional representation (PR) and two semi­ a quota based upon the following formula: proportional systems -limited voting and cumulative voting - curren~y are used by Q = (Number of Valid Votes) + many local governments in the United States. (Number of Seats to Be Filled + 1) + 1 Proportional representation. Under the single-transferable vote (STY) form of Thus, the quota in an election where 100,000 PR, each political party or group voting as valid ballots are cast to elect a nine-member o bloc will receive representation in direct city council would be: proportion to its percentage of the number of votes cast. STY is employed in city 100,000/(9 + 1) + 1 = 10,001 council and school board elections in Cam­ bridge, Massachusetts and New York City First-choice ballots are sorted by hand Community School Boards elections. STY is or computer and a candidate receiving the a type of preferential voting in which each quota of votes is declared elected. Should voter expresses preferences for candidates a candidate exceed the quota, the by placing numbers next to their names on continued ..

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REFLECTIONS ON THE VOTING RIGHTS ACT

'United States v. Reese, 92 U.S. 214 (1875). "Voting Rights Extension: Hearings Before Subcommittee No.5 of the Committee on the JOGuinn v. United States, 238 U.S. 347 (1915). Judiciary, House of Representatives (Wash­ ington, D.C.: United States Government "Smith v. Allwright, 321 U.S. 649 (1944). Printing Office, 1969), Serial No.3, p. 265.

l2Schell v. Davis, 336 U.S. 933 (1949). I'Voting Rights Act of1965, 79 Stat. 437,42 U.s.c.A. § 19 (1966 Supp.). 13GomiIIion v. Lightfoot, 364 U.s. 339 (1960). 2°Extension of the Voting Rights Act of1965: I'Civii Rights Act of 1957, 71 Stat. 634, 42 Hearings Before Sub-Committee on Consti­ U.s.c.A. § 1975 (1958 Supp.). tutional Rights of the Committee of the Judi­ ciary, United States Senate (Washington, 15Civil Rights Act of 1960, 74 Stat. 86, 42 D.C.: United States Government Print­ U.s.c.A. § 1971 (1961 Supp.). ing Office, 1975), p. 24.

I'Civil Rights Act of 1964, 78 Stat. 241, 42 2lJbid. U.s.c.A. § 2000a (1965 Supp.). "See, 28 CFR § 51 (1993). 17Voting Rights Act of1965, 79 Stat. 437, 42 U.s.c.A. § 1973 (1966 Supp.). "Voting Rights Act Amendments of 1970,

surplus ballots are distributed to other can­ in New York City. In both communities, the didates according to second choices.71 system has a demonstrable record of ensur­ Following this transfer of ballots, the candi­ ing majority rule with guaranteed minority dates with the fewest number of first- and representation. In the 1989 New York City second-choice ballots are declared defeated, elections, 138 (47.9 percent) of the 288 and their ballots are transferred to second­ Community School Board members elected and third-choice candidates. A second were members of minority groups - 88 count is conducted and any candidate re­ were black, 46 were Hispanic, and four ceiving number 1 and transferred ballots were Asian. Interestingly, women for the exceeding the quota is declared elected. first time constituted a majority (54.2 per­ This process of declaring defeated the can­ cent) of the members, and fewer than one­ didate with the fewest number offirst-choice half (48.6 percent) were incumbents. votes and transfers of ballots from defeated STY has additional advantages. A candidates continues until, in the case above, popular candidate at the head of a party nine city council members are elected. column in a conventional plurality election STY is employed at large in Cam­ can carry weak or unqualified candidates bridge and on a multi-member district basis into office, an impossible result under STY.

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84 Stat. 312, 42 U.S.CA. § 1973 (1971 39 (1976) and Village of Arlington Heights Supp.) and Voting RightsActAmendments v. Metropolitan Housing Development Cor­ of 1975,89 Stat. 401, 42 U.s.CA. § 1973b poration, 429 U.s. 252 at 256 (1977). (1994). "City of Mobile v. Bolden, 446 U.s. 55 at 75 "Voting Rights Act Amendments of 1970, (1980). 84 Stat. 312, 28 U.s.CA. §§ 1391-393 (1971 Supp.). 3OVoting Rights Act Amendments of 1982, 96 Stat. 134,42 U.S.CA. § 1973(b) (1994). 25Voting Rights Act Amendments of 1975, 89 Stat. 402, 42 U.S.CA. §§ 1973a, 1973d, "Ibid., 96 Stat. 133-35,42 U.S.CA.§§ 1973b and 1973i (1976 Supp.). and 1973aa-6 (1994).

"Data supplied to author by attorney "Ibid., 96 Stat. 132,42 U.s.CA. § 1973C DavidH.Hunter, Voting Section, United (1994). States Department of Justice, 17 January 1995. "Virginia v. United States, 386 F.Supp. 1319 (1974) and Virginia v. United States "White v. Regester, 412 U.S. 755 (1973). U.S. 901 (1975).

"Washington v. Davis, 426 U.s. 229 at 238- "South Carolina v. Katzenbach, 383 U.S.

Election fraud also is reduced, since ballots ling a majority of all votes cast - are are counted centrally under dose supervi- wasted. sian. Elimination of the need for a primary Bullet or single-shot voting is com­ or preliminary election to reduce the num­ mon under at-large election systems, since ber of candidates is another advantage of an additional choice may help defeat the PR, reducing the burden placed upon voters candidate of a group. Second and subse­ and election administrators alike. Council quent choices in a PR election, however, are members become more responsive to voters examined only if the first-choice has been throughout the city, since votes have equal elected or defeated. Hence, indicating weight regardless of the precinct in which many preferences on a ballot has no effect they are cast. As a result, aggrieved con­ on the prospects of the first choice of a stituents can seek relief from all the elected group securing election. Thus, PR ensures representatives of the jurisdiction, rather that each ballot can help elect a candidate than merely one, as is typically the case with either by first choice or by transfer. In a single-member districts. Finally, where PR single-member district sy~tem, ballots cast is employed on an at-large basis, it elimi- for the losing candidates - possibly total- continued ..

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301 at 308 (1966). "[bid., pp. 238-40.

"Allen v. State Board of Elections, 393 U.s. "Holt v. Richmond, 459 F.2d 1093 at 1099 544 at 566-67 (1968). (4th Cir., 1972).

"'Georgia v. United States, 411 U.S. 526 at "Holt v. Richmond, 408 U.S. 931 (1972). 533 (1973). "CityofPetersburg, Virginiav. United States 37Perkins v. Matthews, 400 U.S. 379 (1971). et al., 354 F.supp. 1021 (1972); City of Petersburg, Virginia v. United States et al., 38 20 Federal Register9897 (August 6, 1965). 410 U.s. 962 (1973).

"Perkins v. Matthews, 301 F .supp. 565 (S.D. "City of Petersburg, Virginiav. United States Miss. 1969). et al., 354 F.supp. 1021 at 1025 (1972).

,oPerkins v. Matthews, 400 U.s. 379 at 388- "[bid. at 1027. 89 (1971). "City of Richmond v. United States, 376 "Holt v. City ofRichmond, 334 F.Supp. 228 F.supp. 1344 at 1351 (1974). at 236 (1971).

nates the distracting problem of gerryman­ council from each borough between 1963 dering and the need for periodic redistrict­ and 1985, the city also used limited nomi­ mg. nations. To date, the u.s. Justice Depart­ Limited voting. Although the single­ ment has aprroved 29 of 47 submissions member district system is a type of limited for the use 0 limited voting under the rre­ voting, the term typically is reserved for a clearonce requirements of Section 5 0 the system that allows electors to cast votes for Voting Rights Act.72 more than one condidate, but fewer votes While limited voting is superior to the than the number of seats to be filled. This single-member district system, the former makes it impossible for the party or group neither guarantees that each party or group with the plurality of votes to win a dispro­ will be represented nor prevents 0 minority portionate number of seats. from electing a majority of the members limited voting can be employed on when several strong slates of candidates an at-large or district basis, and may be divide the votes cast. The majority party employed with partisan or non-partisan also may inAuence the selection of a sympa­ ballots. When New York City used the thetic minority council member by instruct­ system to elect two members of its city ing its members to cast some votes for a

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"Ibid. at 1352. Under the ward plan, 55New York v. United States, 419 U.s. 888 blacks would have a majority of at least (1974). 64.0 percent in four wards and would constitute 40.9 percent of the population "New York Laws of 1974, Chaps. 588-91 in a fifth ward. Whites would have a and 599. majority in four wards. "Emanuel Perlmutter, "Hasidic Groups SOCity of Richmond v. United States, 422 File Suit to Bar Redistricting as 'Gerry­ U.S. 358 at 370-71 (1975). mander,'" The New York Times, 12 June 1974, p. 28. 5135 Federal Register, 12354 Guly 31, 1970) and 36 Federal Register 5809 (March 21, 58Linda Greenhouse, "Hasidic Jews are 1971). Called 'Victims of a Racial Gerrymander' at Hearing on Suit," The New York Times, "Torres v. Sachs, 381 F.Supp. 309 at 312 21 June 1974, p. 19. (1973). "Memorandum of Decision (Washington, 53Torres v. Sachs, 419 U.s. 888 (1974). D.C.: Civil Rights Division, United States Department of Justice, 1 July 1974), un­ 54NAACPv. New York, 413 U.s. 345 (1973). published.

favared minority candidate. This could Mexico. The Justice Department has ap­ encourage minority candidates to curry the proved 17 of the 1 8 Section 5 pre-clear­ favor of the majority, rather than appealing ance submissions for cumulative voting. A conscientiously to their "natural" constitu­ submission by the City of Morton, Texas enCIes. was rejected because the Department con­ Cumulative voting_ This electoral cluded it was unlikely minority vaters could system, which also may be employed on elect their candidates.73 either an at-large or multi-member district Cumulative voting does not guaran­ basis, allots each voter a number of votes tee proportional representation because equal to the number of seats to be filled. groups and parties are unable to make their Each elector may allot all votes to one members follow instructions, and may mis­ candidate, or allocate them among several calculate their voting strength. The experi­ candidates. The purpose of the system is to ence of the State of Illinois, which used guarantee representation for the largest cumulative voting to elect members of its minority party or group. Cumulative voting House of Representatives from 1870 to is used in 18 local governments, including 1970, reveals that the minority party occa- Peoria, Illinois and Alamogordo, New continued ...

NATIONAL CIVIC REVIEW FALL-WINTER 1995' 307 THE VOTING RIGHTS ACT AT THIRTY

REFLECTIONS ON THE VOTING RIGHTS ACT sionally elected two candidates from the 6OIbid. p. 17. system's three-member districts because the "United Jewish Organizations of over-confident majority party nominated Williamsburg, Incorporated v. Wilson, 377 three candidates, thereby splitting its mem­ bers' votes and enabling the minority party F.5upp. 1164 at 1165-166 (1974). to capitalize on its more reliable support. "United Jewish Organizations of Many Illinois voters considered the Williamsburg, Incorporated v. Wilson, 510 system technically complicated and confus­ F.2d 512 at 523 (1975). ing because the ballots could be marked in four different ways. Critics maintained that 63Ibid. at 521. inter-party competition was eliminated in "Lesley Oelsner, "Brooklyn's Hasidim certain districts by "sweetheart deals" and Argue Voting Rights Case Before the "horse trading" between the twa major Supreme Court," The New York Times, 7 parties, whereby they agreed to nominate a October 1976, p. 47. /ota/ of three candidates between them, 65Ibid. which deprived voters of any choice. Addi­ tionally, the two majar party incumbents "United Jewish Organizations of and the minority incumbent in several dis­ Williamsburg, Incorporated v. Carey, 430 tricts would campaign on each other's be­ half. Elsewhere in this issue of the REVIEW, Edward Still and Pamela Karlan focus their attention on cumulative voting as a remedy for violation of the Voting Rights Act in Worcester County, Maryland .•

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U.S. 144 at 156 and 159-60 (1977). nity Control in Large Cities (New York: St. Martin's Press, 1972), p. 75. "Ibid. at 161. "Steven J. Mulroy, "Limited, Cumula­ "United Jewish Organizations of tive Evidence: Divining Justice Depart­ Williamsburgv. Wilson, 510 F.2d 512 at526 ment Positions on Alternative Electoral (1975). Systems." NATIONAL CIVIC REVIEW, 84:1, Winter 1995, p. 67. 69ShawV. Reno, 113S.ct. 2816at2832 (1993). "Ibid., pp. 66-67. 7('The Miller decision has not yet been published, but may be identified by its "For additional details, see, Joseph F. case numbers: 94-631,94-797 and 94-929. Zimmerman, "Fair Representation for Minorities and Women" in Wilma Rule 71For a description of the two principal and Joseph Zimmerman, eds., United methods used to distribute surplus bal­ States Electoral Systems: Their Impact on lots under STY, see, Joseph F. Women and Minorities (Westport, Conn.: Zimmerman, The Federated City: Commu- Greenwood Press, 1992), pp. 1-11. I

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TENUOUS INTERPRETATION SECTIONS 2 AND 5 OF THE VOTING RIGHTS ACT

The Supreme Court has vacillated in its interpretation of the key enforcement provisions of the Voting Rights Act, suggesting that there never has been any clear consensus on the extension of voting rights. OLETHIA DAVIS

inority vote dilution continues 5, and whether the three-pronged test to be a hotly debated issue 30 devised by the Supreme Court in M years after passage of the Vot­ Thornburg v. Gingles is a supplement to ing Rights Act. Responsibility has fallen the 1982 revised version of Section 2 or a largely to the judiciary to determine reiteration of the legislative intent of the whether unlawful vote dilution has oc­ U.S. Senate.' curred in jurisdictions covered by Sec­ tions 2 and 5 of the Act. Yet, a review of JUDICIAL INTERPRETATION OF SECTION 5 case law reveals that the Court has been Most challenges to vote dilution have inconsistent in its interpretation of Sec­ been brought on grounds other than Sec­ tions 2 and 5. This vagueness has pro­ tion 5 because of its limited scope. Until vided ammunition for opponents of vot­ 1987, the required test of retrogression­ ing rights and intensified the debate over whether a change in electoral laws or federal civil rights guarantees. structures has a dilutionary effect - and In the context of voting rights, this proof of intentional discrimination were ..._ debate centers around such issues as the difficult and in many cases impossible to appropriate evidence required to prove prove. minority vote dilution, the types of elec­ In 1987, however, the U.s. Depart­ tion systems that might be challenged on ment of Justice adopted the language of the grounds of Section 2 and lor Section the Senate report on voting rights, which

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indicated that the legislative intent of the minority voting strength were illegal, amended Act was to incorporate the re­ even in the absence of an invidious or sults standard of Section 2 into the discriminatory intent." Likewise, in City preclearance requirement of Section 5.' of Rome v. United States, the Court ruled This interpretation is based on that por­ that annexations violated the Voting tion of Section 2 that mandates that a Rights Act.IO In Rome, the Court held that totality of circumstances must be met in the change in electoral structure "would order for jurisdictions to receive declara­ lead to a retrogression in the position of tory judgment as mandated by Section 2 racial minorities with respect to their ef­ and set forth in Section 4(f)(2).3 fective [emphasis added] exercise of the The Court in several earlier rulings electoral [process]."" expanded the scope of Section 5, thus However, in City of Richmond, Vir­ protecting the voting rights of minori­ ginia v. United States and Beer v. United ties. In Allen v. State Board of Elections, the States, the Court began to limit the scope Court required preclearance when a ju­ ofits interpretation of Section 5." In both risdiction attempted to replace elections of these cases, the Court rejected Section with appointment of officials.' The 5 voting rights claims. In contrast to its Court's opinion shifted the focus of Sec­ preclearance inclusion of a broad range tion 5 challenges from vote denial - of election procedures in Allen and Geor­ disenfranchisement - to vote dilution, gia, the Court placed limitations on the and indicated that Section 5 encompassed type of changes it considered violative of a broad range of voting practices and Section 5 in Beer and Richmond. In Beer, procedures. The Court's holding in Geor­ the Court placed weight on the retrogres­ gia v. United States reinforced its decision sion test of Section 5. In Richmond, the inAllen.s In Georgia, the Court contended Court upheld an annexation that de­ that "had Congress disagreed with the creased the percentage of blacks in the interpretations of Section 5 in Allen, it population of Richmond, Virginia. Ac­ had ample opportunity to amend the cording to the Court, "as long as the ward statute, [therefore,] we can only conclude system fairly represents the voting ... that Allen [was] correctly interpreted."· strength of the Negro community as it In Hadnott v. Amos, the Court required exists after annexation we cannot hold ... federal approval of a change in the decla­ that such an annexation is nevertheless ration deadline for independent candi­ barred bySection5. "13 Despite the Court's dates.' In Perkins v. Matthews, the Court ruling in Richmond, its focus on the required preclearance of a change in lo­ diIutive effect of a reapportionment plan cation of polling places as well as ap­ resulted in a deviation from a strict appli­ proval of a change from single-member cation of the Beer retrogression standard district to at-large elections.' In City of to a "diIutive effect" standard."" Petersburg, Virginia v. United States, the . The Court's ambiguity in Section 5 Court ruled that annexations that diluted litigation reached its peak in Presley v.

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TENUOUS INTERPRETATION

EtawahCountyCommission. 15 Not only did the voting rights complaints According to the Court, under Section 5, the case law shifts in power on local gov­ Court devise the of the Court on vote dilu­ ernmental bodies were not "intent" standard tion mostly involves allega­ covered by the preclearance in Mobile, it also tions of Section 2 violations. provisions of Section 5 un­ In 1982, Congress revised less such changes resulted distinguished the language of Section 2 in in disenfranchisement of a between an attempt to diminish the protected class. The Court possible consequences of concluded that the Voting disenfranchisement the Supreme Court's deci­ Rights Act covers only four and vote dilution. sion in City of Mobile v. types of voting changes: 1) Bolden, which placed a the manner of voting, such as switching heavy evidentiary burden of proof on the from single-member districts to at-large plaintiffs in vote-dilution litigation. I. elections; 2) candidate qualifications; 3) Congress also relied on the Supreme voter registration; and 4) creation or abo­ Court's previous decision in White v. lition of an elected office." Furthermore, Regester and the decision of the Fifth Cir­ the Court held that election changes, in cuit Court of Appeals in Zimmer v. order to be declared violative of Section McKeithen in drafting the 1982 amend­ 5, must have a direct impact on the elec­ ment.20 toral process. In Mobile, the Supreme Court em­ InPresley, Justice Stevens disagreed ployed a strict constructionist interpreta­ with the Court's interpretation of Section tion of the Fifteenth Amendment, hold­ 5. In his dissenting opinion, Stevens ing that it ensured only the right to regis­ emphasized that Presley resulted in the ter and vote, and offered no protection Court's ignoring "the broad scope of Sec­ against vote dilution. Moreover, the tion 5 coverage" established by its ruling Court concluded that the Fourteenth in Allen.17 Stevens concluded that "the Amendment did prohibit vote dilution, reallocation of decision making author­ but only in those cases where it could be ity of an elective office that is taken 1) proved that an electoral procedure had after the victory of a black candidate, and been established for racially discrimina­ 2) after the entry of a consent decree tory purposes. designed to give black voters an oppor­ Not only did the Court devise the tunity to have representation on an elec­ "intent" standard in Mobile, it also distin­ tive body [should bel covered by Section guished between disenfranchisement and 5. "18 vote dilution. According to the Court, the former prevents or discourages a THE 1982 AMENDMENT OF SECTION 2 group from voting, while the latter may As a result of problems encountered by exist even though people are permitted individuals and organizations pursuing to vote. The Court held that proof of

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intentional discrimination Section 2 originally the minority community, 3) ~as necessary to success­ a tenuous state policy un­ fully demonstrate the em­ protected only the derlying the preference for ploymentofdiscriminatory act of voting, but multi-member or at-large voting practices. This stan­ districting, and 4) existence dard placed an evidentiary Section 2 as of past discrimination that burden of proof on plain­ amended in 1982 generally precluded the ef­ tiffs in vote-dilution la~­ provided for the fective participation of mi­ suits. norities in the political pro­ The Mobile Court also right to participate cess." Additional Zimmer rejected the Zimmer test, at every level ... of factors truit may be consid­ devised by the Fifth Circuit ered by the courts are anti­ Court of Appeals in Zimmer the political process. single shot voting require- v. McKeithen, thus requir­ ments, existence of unusu­ ing plaintiffs to provide proof of invidi­ ally large districts, majority vote require­ ous or intentional discrimination in or­ ments, and omission of provisions for der to prevail in vote dilution claims. 21 In residency requirements in geographical Zimmer, the Fifth Circuit augmented the sub-districts in at-large elections. 24 Supreme Court's ruling in White by pro­ Section 2 originally protected only viding a list of guidelines to be met in the act of voting, but Section 2 as amended proving a vote-dilution claim. It is spe­ in 1982 provided for the right to partici­ cifically Section 2(b) of the amended Act pate atevery level (e.g., nomination, elec­ that contains the language of both White tion, holding political office) of the politi­ and Zimmer. Proof of a "totality of cir­ cal process. In short, the overall purpose cumstances" as outlined in Zimmer is of revising Section 2 ~as to reinstate and required to prove that"a voting qualifi­ reinforce the legislative intent of the Vot­ cation or prerequisite to voting or stan­ ing Rights Act follo~ing the Mobile deci­ dard practice, or procedure ... imposed sion. According to the Senate report, by any State or political subdivision ... "this amendment is designed to make results in a denial or abridgement of the clear that proof of discriminatory intent right of any citizen of the United States to is not required to establish a violation of vote .... "22 Section 4(£)(2) of the Act ex­ Section 2. It thereby restores the legal tended this coverage to language minori­ standards, based on the controlling Su­ ties. ,preme Court precedents, ~hich applied According to the Zimmer test, un­ to voting discrimination claims prior to constitutional dilution is proved ~hen the litigation involved inMobilev. Bolden." an aggregate of these factors occur: 1) Additionally, Congress ~as very lack of access to the process of slating much a~are of the Court's past inconsis­ candidates, 2) unresponsiveness of legis­ tency in deciding challenges to at-large lators to the particularized interests of election structures, and sought in its 1982

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TENUOUS INTERPRETATION amendments to eliminate that ambigu­ filed by black registered voters in North ity." Accordingly, Congress devised a Carolina challenging one single-member "results" standard to be utilized by the district and six multi-member districts in courts in resolving voting rights claims. the state's reapportionment plan.'! The The components of this new standard plaintiffs alleged that the plan concen­ were outlined in the Senate report. 27 In trated blacks into a majority-white multi­ effect, the results standard nullified the member district resulting in vote dilu­ intent standard devised by the Supreme tion. Relying on the Senate report fac­ Court in Mobile. tors, the District Court upheld the According to Congress, if "as a plaintiff's Section 2 claim, concluding that result of the challenged practice of struc­ the totality of circumstances were consis­ ture plaintiffs do not have an equal op­ tent with vote dilution. The court's rul­ portunity to elect candidates of their ing with respect to five of the multi­ choice, such a practice will be considered member districts was appealed by the in violation of the Act, specifically Sec­ State of North Carolina. tion 2."28 Additionally, the language of On appeal to the United States Su­ Section 2 prohibited both vote dilution preme Court, the state alleged that the and disenfranchisement. District Court incorrectly concluded that the legislative reapportionment plan vio­ THE COURT'S INTERPRETATION OF lated Section 2. The Court unanimously SECTION 2 AS AMENDED affirmed the District Court ruling in four Congress's amendment of Section 2 re­ of the five multi-member districts, but sulted in the filing of numerous lawsuits. the justices split on the evidentiary stan­ The first case to reach the U.S. Supreme dard to be applied in vote-dilution cases. Court involving allegations of a Section 2 This split resulted in the filing of four violation following the 1982 amendments separate opinions, indicating a contin­ was Thornburgv. Gingles. 29 It is important ued lack of consensus in judicial review to emphasize that prior to Gingles, the of key Voting Rights Act provisions. Court had adjudicated a case involving Despite its lack of consensus, the the subject of minority vote dilution, but ThornburgCourt devised a three-pronged the complaint in that instance was based test - the Gingles test - to detect justi­ on constitutional grounds, not the Vot­ ciable vote dilution in multi-member / at­ ing Rights Act.30 The Court ruled in large districts. This test requires plain­ Rogers v. Lodge that an at-large election tiffs alleging vote dilution to meet three system utilized by Burke County, Geor­ criteria: The protected minority must gia resulted in minority vote dilution and demonstrate that 1) it is sufficiently large was thus violative of the equal protection and geographically compact to consti­ of the laws guaranteed by the Fourteenth tu te a majority in one or more single­ Amendment. member districts, 2) it is politically cohe­ Gingles originally was a 1984 case sive and tends to vote as a bloc, and 3) the

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THE VOTING RIGHTS ACT AT TI1lRTY

majority vote sufficiently as a bloc to candidate as the chosen representative of a defeat the minority'S preferred candi­ particular racial group, not the race of the date.32 The Court ruled that the Gingles candidate, that is important.34 factors were prerequisites that must be Gingles provided clarity with re­ met to secure a determination of vote gard to the accepted definition of racial dilution. polariza.tion. The Court accepted a less Using similar reasoning as the Fifth stringent definition than that accepted Circuit in Jones and McMillan and the by the lower courts in Collins and Eleventh Circuit in Marengo and Dallas McCord." The Gingles Court accepted the County, the Gingles Court placed impor­ definition provided by the plaintiffs' ex­ tance on the degree of racial bloc voting pert witness, Dr. Bernard Grofman. Ac­ in vote-dilution cases.33 In each of these cording to Grofman, racial polarization cases, the circuit courts emphasized the is"a consistent relationship between race importance of a finding of racial polar­ of the .voter and the way in which he ization .in voting and pointed out that votes ... [or when] black voters and white Section 2 did not require a demonstration voters vote differently."36 of the existence of all of the factors in­ The Gingles Court also addressed cluded in Section 2. According to the the question of whether bivariate or mul­ courts, a showing of racial bloc voting is tivariate analysis should be utilized to a prerequisite for a vote-dilution claim. prove vote dilution. The lower courts Of significance in Gingles was the had employed both methods." The Su­ Supreme Court's distinction between le­ preme Court rejected the requirement of gally significant racial bloc voting (i.e., the multivariate analysis, or the consider­ degree of bloc voting required to prove a ation of multiple factors in proving dif­ dilution claim) and racial polarization ferential racial voting patterns. Accord­ per se. Legally significant racial bloc ing to the Court, the proper question to voting requires plaintiffs to provide evi­ ask is whether voters have divergent vot­ dence of the existence of racial polariza­ ing patterns on the basis of race, not why tion that results in the inability of minori­ they vote differently. The Court con­ ties to elect candidates of their choice. cluded that "it is the difference between In rendering a definition of legally the choices made by black and white significant racial bloc voting, the Court voters and not the reasons for the differ­ rejected the contention that proof of ra­ ences that leads to blacks having less cial bloc voting should rest on the ability opportunity to elect their candidates of of minority voters to elect minority candi­ choice."38 dates of choice. According to the Court, Despite the Gingles Court's attempt "the fact that race of voter and race of to specify criteria that must be met by candidate is often correlated is not di­ plaintiffs alleging vote dilution, its actual rectly pertinent to a Section 2 inquiry. decision in Thornburg v. Gingles resulted Under Section 2, it is the status of the innumerous unresolved questions, which

NATIONAL CIVIC REVIEW FALL-WINTER 1995.315 THE VOTING RIGHTS ACT AT lHIRTY

TENUOUS INTERPRETATION have catalyzed additional debate over judges. The Fifth Circuit concluded in voting rights.39 Some of the questions Chisom v. Roemer that Section 2 coverage posed as a result of the Gingles decision did not extend to judicial contests since include: the explicit languageof the Section - "to 1. Should the courts be interested elect representatives of choice" - did not only in the presence of ra­ ------include judges, who are not cial bloc voting, and not ex­ ... the Court's viewed as representatives.'2 planations for such differ­ fragmentation has On the other hand, the Sixth ences? Circuit held that Section 2 2. Did the three­ continued, with the did apply to the election of pronged Gingles test replace dissenters judges.43 In response to or complement the "totality these conflicting rulings, the of circumstances" test incor­ emphasizing the Supreme Court held in a porated into the amended Court's tenuousness Justice Department appeal Section 2? and disregard of of the Chisom ruling that 3. Are plaintiffs re­ Section 2 does indeed apply quired to provide evidence precedents. to judicial elections, opin­ of the presence of any of the ingthatSection2 "protected factors included in Section 2 as amended the right to vote ... without making any in 1982? distinctions or imposing any limitations 4. Since Gingles focused primarily as to which elections would fall within its on the second factor in Section 2, how purview."44 should the courts adjudicate cases in­ To a certain degree, Chisom less­ volving the other inclusive factors of Sec­ ened the evidentiary burden imposed by tion 2? the Court in Gingles. Even though the These unanswered questions resulted in Court's decision in Chisom did not over­ conflicting decisions rendered by lower rule Gingles, the factrernains that although courts.'" the plaintiffs in judicial challenges pro- vided the Court with evidence to fulfill POST-THORNBURG INTERPRETATION OF the results standard of Section 2, the SECTION 2 majority opinion of the Court focused The United States Supreme Court did not primarily on whether judges were repre­ revisit Section 2 until the early 1990s, in sentatives rather than the issue of vote cases involving challenges to judicial elec­ dilution. By centering on statutory inter­ tion structures and processes.41 These pretation of the legislative intent of Con­ lawsuits forced the Courtto provide clar­ gress in revising Section 2, the Court, in ity on its interpretation of Section 2, since effect, shifted the question in cases in­ the Fifth and Sixth Circuits differed in volving the election of judges from a their respective interpretations of the ap­ results standard proving vote dilution to plicability of Section 2 to the election of the ability of minorities to elect their pre-

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ferred candidates - an influence stan­ scious districting in Shaw v. Reno." dard. As a result, the Court opened a In Shaw, the Court was asked to Pandora's Box which eventual1y led to determine the constitutionality of the what is considered by a number of ob­ actions of the United States Department servers to be one of its most infamous of Justice in its efforts to secure minority voting rights determinations." voting rights. Shaw represented a depar­ In response to the Court's decision ture from a reliance on the Voting Rights in Chisom, many jurisdictions devised Act and the Court's own precedents, since majority-minority single-member elec­ the plaintiffs in this case were not re­ tion districts. Opponents of such dis­ quired to provide any evidentiary proof tricts challenged their constitutionality under Section 2 or in compliance wtih the by relying on the equal protection clause Gingles test to prove the existence of vote of the Fourteenth Amendment. As a dilution." The results standard was com­ result, the Court was faced with the for­ pletely ignored by the Shaw Court. midable task of interpreting and balanc­ In subsequent voting rights cases, ing the protections set out in Section 2 of the Court's fragmentation has continued, the Voting Rights Act with those pro­ with the dissenters emphasizing the vided by the Fourteenth Amendment. Court's tenuousness and disregard of The result has been an unwillingness to precedents. In the Johnson and Holder prOVide definitive and consistent rulings cases, a splintered Court narrowed the with regard to voting rights. scope of Section 2 by concluding, respec­ This ambiguity leads to a discus­ tively, that minorities in Florida were not sion of the most recent case law involv­ entitled to additional majority-minority ing vote dilution." In Growe, the Court . districts and that a grant of ultimate power rendered a decision with negative impli­ to a single white county commissioner in cations for minority voting rights. Even Georgia did not deny African-Americans though the decision was cloaked in a a voice in local government policy. 50 consideration of judicial federalism, with The Court's decision in Johnson to a the Court contending that states should certain degree mirrored its reasoning in have autonomy in reapportionment, the Voinovich, in which the Court concluded overall ruling resulted in an attack on the that the creation of majority-minority creation of majority-minority legislative districts was permissible if it did not di­ districts. This case represented the initial minish minority voting strength. The reluctance of the Court to render a deci­ Voinovich Court, however, included a sion involving its interpretation of either qualifier by opining that a case-by-case Section 2 or the Gingles standard. Then, approach should be employed to deter­ in Voinovich, a unanimous Court upheld mine the constitutionality of such dis­ the creation of black-majority voting dis­ tricts because the facts and circumstances tricts," but during the same term ques­ of each might differ. Nonetheless, Johnson tioned the constitutionality of race-con- dramatizes the unwillingnes of the Court

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TENUOUS lNTERPRIIT ATION to declare all majority-minority districts Georgia unconstitutional. The opinion unconstitutional after its controversial of the Court rested on constitutional ruling in Shaw. grounds - the Equal Protection Clause Holder provided a clear indication of the Fourteenth Amendement-rather that the members of the Court differ in than an interpretation of Section 2 of the their interpretations of Section 2 of the Voting Rights Act or the three-pronged Voting Rights Act. Justice Souter's rea­ Gingles test. The Miller Court contended soning in Johnson led to his dissention in that neither Shaw nor Miller involved vote Holder. In Johnson, Souter, writing for the dilution claims, but equal protection Court's majority, held the creation of claims, because states had employed race majority-minority districts permissible in as a basis for" segregating" voters. order to increase minority representa­ In essence, the Miller Court failed tion. However, this same reasoning was to recognize that it is impossible to com­ not applied in Holder. Three Justices pro­ ply with the mandates of Sections 2 and 5 vided separate concurring opinions. In of the Voting Rights Act without a con­ fact, Justice Thomas, in his dissenting sideration of race (in many cases race opinion, advocated judicial restraint in may be the paramount factor). The Court voting rights cases, a narrow judicial in­ has therefore made it very difficult for terpretation of the Act, and the overturn­ jurisdictions to meet the requirements of ing of Allen. the Voting Rights Act without violating Holder had been brought by black the equal protection guarantees of the plaintiffs challenging a single-member Fourteenth Amendment. county commission form of government in Bleekly, Georgia. The Court of Ap­ CONCLUSION peals for the Eleventh Circuit, finding The United States Supreme Court has that the form of government constituted been consistently vague in its interpreta­ an obstacle to minority voting and thus tion of Sections 2 and 5 of the Voting . violated Section 2, ordered Rights Act. This ambiguity an expansion of the county It is time to refocus has resulted in both plain­ commission. The Supreme tiffs and defendants in vote Court reversed the a ppel­ the voting rights dilution cases attempting to late court's decision, hold­ debate on the meet evidentiary proof re­ ing that changes to the size proper role of the quirements as the Court of the governmental body continues to devise new or organization are not cov­ judiciary in modes of interpretation, ig­ ered by the Voting Rights extending and nores precedents, and fails Act. to uniformly apply provi­ In Miller,51 the Court enforcing minority sions of the Act. declared a majority-minor­ political access. In light of the fact that the ity congressional district in Court has in many cases

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abandoned its own voting rights prece­ ation," in which attorneys and others dents, lower courts - as well as parties opposed to ensuring the full electoral involved in vote-dilution claims -lack partcipation of minorities have devised clear guidance to follow in such cases. standards and statistical interpretations In addition, the COurt'S holdings that serve the same purpose as earlier in the most recent cases have had serious barriers to voting, such as large, multi­ ramifications relative to the political gains member districts and anti-single shot of minorities. These decisions have car­ provisions. ried minority voting rights back to the It is time to refocus the voting rights second era of vote-dilution litigation, debate on the proper role of the judiciary during which the Court rendered its in extending and enforcing minority po­ Mobile decision. In fact, the Court's inter­ litical access. Such a reframing of the pretation and application of the three­ debate will require legislative involve­ pronged test in Gingles has resulted in a ment, just as it did when the Supreme return to the "intent" standard of Bolden. Court rendered its decision in Mobile. Additionally, an overwhelming However, the ultimate question is this: impact of the Court's tenuousness on the Will a conservatively oriented legislative issue of voting rights constitutes what branch place limitations on a conserva­ this author refers to as "vote dilutig- tivecourt6 NOTES 'Thornburg v. Gingles, 478 U.S. 30 (1986). tion, prerequisite, standard, practice, or procedure does not have the purpose 2H.R. Rep. Ser. No.9, 99th Cong., 2d Sess. and will not have the effect of denying or 11 (1986). See also, 28 CP.R. Section abridging the right to vote on account of 51.55. The amended Section 5 reads: race, color, or membership in a language "(a) Section 5 of the Voting Rights minority group, or Act of 1965 as amended, 42 U.S.C 1973c (2) It has been submitted to the (1988), prohibits the enforcement in any Attorney General and the Attorney Gen­ jurisdiction covered by Section 4(b) of the eral has interposed no objection within a Act, 42 U.S.C 1973b(b), of any voting 60-day period following submission. qualification or prerequisite of voting or (b) In order to make clear the re­ standard, practice, or procedure with re­ sponsibilities of the Attorney General spect to voting different from that in force under Section 5 and the interpretation of or effect on the date used to determine the Attorney General of the responsibil­ coverage, until either: ity imposed on other under this Section, (1) A declaratory judgment is ob­ the procedures in this part have been tained from the U.S. District Court for the established to govern the administration District of Columbia that such qualifica- . of Section 5."

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'Section 4(£)(2) reads: "This standard was developed by the "(2) To assist the court in deter­ Court in Petersburg and first applied in mining whether to issue a declaratory Richmond. judgrnent under this subsection, the plain­ tiff shall present evidence of minority ISPresley v. Etowah County Commission, participation, including evidence of the 112 S.Ct. at 820 (1992). Presley involved levels of minority group registration and separate challenges by black commission­ voting, changes in such levels over time, ers of Etowah and Russell Counties, Ala­ and disparities between minority-group bama. These commissioners filed a single and non-minority-group participation." complaint alleging that the restructuring See also, 28 C.F.R Section 51.2. of the county corrurusions resulted in ra­ cial discrimination in violation of the U.S. 'Allen v. State Boarti of Elections, 393 U.S. Constitution, civil rights statutes, court 544 (1969). orders, and Section 5 of the Voting Rights Act. SGeorgia v. United States, 411 U.s. 526 (1973). I·Presley v. Etowah County Commission, 112 S.Ct. at 828. ·Georgia v. United States, 411 U.s. at 534. 17Presley v. Etowah County Commission, 'Hadnott v. Amos, 394 U.S. at 358 (1969). 112 S.Ct. at 836.

8Perkins v. Matthews, 400 U.s. at 379 (1971). 18Presley v. Etowah County Commission, 112 S.Ct. at 839. 9Petersburgv. United States, 410 U.S. at 962 (1973). 19Voting Rights Act of1982, 96 Stat. 131,42 U.S.c.A. Section 1973. lOCity of Rome v. United States, 446 U.S. at 156 (1980). "'White v. Regester, 412 U.S. 755 (1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th llCity of Rome v. United States, 446 U.s. at Cir.1973). 156. 21Zimmer v, McKeithen, 485 F.2d 1297 (5th "City of Richmond v. United States, 422 Cir.1973). U.S. at 358 (1975); Beer v. United States, 425 U.S. at 130,(1976). "See, Voting Rights Act of 1982, 96 Stat. 134,42 U.s.c. Section 1973 (1988). 13City of Richmond v. United States, 422 U.S. at 371. . 23Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973).

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"Zimmer v. McKeithen, 485 F.2d 1297 (5th 35Collins v. City of Norfolk, 605 F.Supp. at Cir.1973). 377 (E.D. Va. 1984); affd 768 F.2d at 572 (4th Cir. 1985); rev'd 816 F.2d at 932 (4th >sU.S. Senate, 1982, p. 2. Cir. 1987); 679 F.Supp. (E.D. Va. 1988); 883F.2d at1232 (4thCir.1989);McCord v. "See, Senate Judiciary Report on the Ex­ City of Fort Lauderdale, 787 F.2d at 1528 tension of the Voting Rights Act, Rep. (11th Cir. 1986). No. 97-417, 97th Cong., 2d Sess., pp. 19- 27 (1982). 36Thornburg v. Gingles, 478 U.S. at 53.

27Senate Judiciary Report on the Exten­ 37Bivariate analysis was utilized in Jones, sion of the Voting Rights Act, Rep. No. Marengo County and McMillan. On the 97-417, 97th Cong.,2d Sess. at 19-27 (1982). other hand, multivariate analysis was employed in Opelika, Collins and McCord. 28House of Representatives 1981 at 29; Senate 1982b at 28, 36-37. 38Thornburg v. Gingles, 478 U.S. at 63.

29Thornburgv. Gingles,478 U.S. at30 (1986). "See, Bernard Grofman, Lisa Handley and Richard Niemi, Minority Representa­ "'Rogers v. Lodge, 458 U.s. at 613 (1982). tionand the Questfor Voting Equality (Cam­ bridge University Press, 1992). For a 31Gingles v. Edmisten, 590 F.Supp. at 345 discussion of the unresolved issues flow­ (E.D. N.C. 1984), affd sub nom Thornburg ing from the Gingles test, see, Robert v. Gingles, 478 U.S. at 30 (1986). . Heath, "Thornburg v. Gingles: TheUnre­ solved Issues," NATIONAL CMC REvIEw, 32Gingles v. Edmisten, 590 F.Supp. at 345 January-February 1990, pp. 50-71. (E.D. N.C. 1984), affd sub nom Thornburg v. Gingles, 478 U.S. at 30 (1986). 'OBuckanaga v. Sisseton Independent School District, 804 F.2d at 469 (8th Cir. 1989). 33Jones v. City ofLubbock, Texas, 727 F.2d at 364 (5thCir. 1984); U.S. v. Marengo County "See, Georgia State Board of Elections v. Commission, 731 F.2d at 1546 (11th Cir. Brooks, 498 U.S. at 916 (1990); Chisom v. 1984); McMillan v. Escambia County, 748 Roemer, 111 S.Ct. at 2354 (1991),and com­ F.2d at 1037 (5th Circ. 1984); Lee County panion cases United States v. Roemer, 111 Branch of NAACP v. City of Opelika, 748 S.Ct. at 2354 (1991) and Houston Lawyers' F.2d at 147 (11th Cir. 1984). Association v. Texas Attorney General, 501 U.S. at 419 (1991). "Gingles v. Edmisten, 590 F.Supp. at 345 (E.D. N.C. 1984), affd sub nom Thornburg "League of United Latin American Citizens v. Gingles, 478 U.S. at 30 (1986). Council No. 4434 [LULACj v. Clements,

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914 F.2d at 620 (5th Cir. 1990). "In re Voinovich et al., 114 5.Ct. at 2156 (1994). <3 Mallory v. Eyrich, 839 F.2d at 275 (6th Cir.1988). "Shaw v. Reno, 113 5.Ct. at 2816 (1993). "United States v. Roemer, 1115.Ct. at 2354 (1991). "5ee dissenting opinions of Justices "Shaw v. Reno, 113 5.Ct. at 2816 (1993). White, Blackmun, Stevens, and Souter. "Growe, Secretary of State of Minnesota v. 5{!Johnson v. DeGrandy, 114 5.Ct. at 2647 Emison, 113 5.Ct. at 1075 (1993). See also, (1994) and Holderv. Hall, 1145.Ct. at 2581 Shaw v. Reno, 1135.Ct. at2816 (1993); In re (1994). Voinovich et a/., 114 5.Ct. at 2156 (1994); Johnson v. DeGrandy, 114 5.Ct. at 2647 SIThe Miller decision has not yet been (1994); Miller et al. v. Johnson et al., No. 94- published, but may be identified by its 631,1995). case number 94-631. I

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SHAW, MILLER AND THE DISTRICTING THICKET Recent Supreme Court decisions involving majority-minority electoral districts have introduced new uncertainty into the political boundary-drawing process, particularly with regard to the relative importance applied to such factors as geography, incumbency, political affiliation, ethnicity, and race. RICHARD L. ENGSTROM ontiguity, compactness, and re­ which means the district must be "nar­ spect for both communities of in­ rowly tailored" to further a "compelling Cterest and formal political subdi­ governmental interest." Strict scrutiny is visions are districting criteria that have popularly described as "strict in theory been elevated in importance recently by but fatal in fact." the United States Supreme Court. Al­ Miller involved a challenge to the though none of these criteria is required Eleventh Congressional District in Geor­ by the federal constitution or any federal gia. The plaintiffs alleged that this major­ statute, the Court identified them in Miller ity African-American district was a "ra­ v. Johnson as "traditional, race-neutral cial gerrymander." The allegation was districting principles" that, absent ex­ not based on a claim that any racial traordinary justification, are not to be group's voting strength had been diluted "subordinated" to racial considerations by the location of the district lines, but when representational districts are con­ simply that this particular district had structed.' These traditional criteria now been deliberately constructed to have an serve, in Justice Sandra Day O'Connor's African-American majority. The Court words, as "a crucial frame of reference" found that race had indeed been "the in the evaluation of districts.' If they are predominant factor" in the design of the accorded less weight than race in the district, and that this had occurred at the design of a district, the district must sat­ expense of the traditional districting cri­ isfy the strict scrutiny standard for com­ teria.3 Strict scrutiny was therefore ap­ pliance with the Fourteenth Amendment, plied, and the district was found to be

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THE DISTRICTING THICKET fatally flawed. standards foridentifyingwhen they have Miller is the progeny of Shaw v. been "respected" and when they have Reno, a 1993 decision involving majority been "subordinated," leaves districting African-American congressional districts cartographers, litigators, advocates, and in North Carolina.' The Court held in judges in a conceptual thicket. This is Shaw that race-based districting could be already apparent in the post-Shaw deci­ challenged as a violation of the equal sions of the lower federal courts. This protection clause even though there is no ambiguity is exacerbated by the fact that allegation that the voting strength of any these traditional criteria are often in con­ racial group is adversely affected by the flict rather than in harmony. Emphasiz­ districts. Although Shaw failed to resolve ing one criterion, qUite simply, can inter­ this new type of"gerrymandering" claim, fere with implementing another. Com­ it succeeded in attracting increased at­ munities of interest, for example, may tention to the criteria for drawing dis­ not be geographically distributed in a tricts by holding that strict scrutiny will compact fashion and can be split by be required when "traditional districting county and municipal boundaries. No principles such as compactness, contigu­ agreed-upon hierarchy of these criteria ity, and respect for political subdivisions" exists to help resolve such conflicts. are disregarded in the design of districts.s Even assuming that these criteria Miller was the first application of the can be clearly defined and readily mea­ Shaw precedent by the Supreme Court. sured, and therefore capable of provid­ The principle of respecting "communi­ ing an unambiguous" frame of reference," ties defined by actual shared interests" what exactly the standard for compari­ was added to the list of traditional son will be also remains unclear. Will districting criteria in Miller.' courts compare the respect accorded these The explicit recognition of these criteria to some absolute standard, or to criteria will no doubt make them more the respect actually accorded them in the important referents for future districting past? Given that the Supreme Court has decisions. Those who design and/or acknowledged that none of these criteria adopt districting plans will not want to is constitutionally required7 it is not likely subject their product to strict scrutiny, that some absolute standard will be judi­ and therefore will be less inclined to de­ cially imposed. Nor, presumably, will viate from these criteria. This will not, the tolerance for deviations from these however, make the districting task any criteria be less because a gerrymander­ easier. It is, in contrast, likely to make ing allegation concerns race. Justice districting more difficult, because what O'Connor's statement, in her concurrence exactly these criteria entail is far from in Miller, that "certainly the standard certain. does not treat efforts to create majority­ The absence of clear definitions for minority districts less favorably than simi­ some of these criteria, as well as clear lar efforts on behalf of. other groups'"

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indicates that deviations tol­ .. .districting is, following the Shaw decision, erated in the past, for non­ and to their new role as a racial purposes, will con­ unfortunately, an "frame of reference" in the tinue to be acceptable in the activity in which post-Miller districting pro­ racial context. If that is the cess. law, then the frame of refer­ "the potential for ence will have to allow sub­ mischief in the name CONTIGUITY stantial,deviations in many of neutrality is Contiguity and compact­ states and local political ju­ ness are criteria widely in­ risdictions, for the applica­ substantial." voked in the evaluation of tion of these criteria has not districts. They are concep­ been particularly strict. Indeed, their tually distinct criteria that concern differ­ subordination to political considerations ent aspects of the geographical form of has been substantial, even when explic­ districts. Many state constitutions, stat­ itlyrequired by state constitutions or stat­ utes, and local charters require represen­ utes or by city charters. tational districts to be contiguous; far The conceptual ambiguity sur­ fewer require them to be compact." rounding these districting criteria, and Contiguity is, or at least was, the the new subordination standard, is a most straightforward of the criteria iden­ cause for serious concern. Adherence to tified by the Court. It is a simple dichoto­ these traditional principles does not ex­ mous concept. A district is either con­ tricate those responsible for districting tiguous or it is not. The test for determin­ from the "political thicket," but rather ing this is not complicated, "A contigu­ confronts them with capricious defini­ ous district is one in which a person can tions and contrasting measurements, as go from any point within the district to evident in the litigation spawned by Shaw. any other point [within the district) with­ Elevating the legal importance of these out leaving the district".12 In short, con­ criteria, without more precise guidelines tiguity requires that districts not be di­ for their application, will not bring us vided into discrete geographical parts. closer to the goal of "fair and effective The lack of confusion over what representation. "9 While these criteria may contiguity entails rarely has resulted in be facially neutral, districting is, unfortu­ controversy. The major issue concerning nately, an activity in which "the potential contiguity involves whether the ability for mischief in the name of neutrality is to travel throughout a district is a theo­ substantial. "1. retical or a literal requirement. This usu­ This article reviews the criteria ally arises when bodies of water serve to identified in the Shaw and Miller deci­ connect what are otherwise separate parts sions. Special attention will be given to o'f a district. Some contiguity provisions their treatment by the federal district require an actual transportation linkage courts in the gerrymandering litigation across any water separating parts of a

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THE DISTRICTING THICKET district, such as that in the A district should not that of compactness, treat­ New York City Charter, ing the two as if they are which specifies that "there be found to violate synonymous. A district that shall be a connection by a the contiguity is never less than 80 miles bridge, a tunnel, a tramway criterion simply wide may well be more or by regular ferry ser­ compact than one that is 80 vice."!3 Additional contro­ because it's shape feet wide at points, but it versy has arisen over violates the should not be considered whether having parts of a "more contiguous" for that district connecting only at a compactness reason as well. These are point satisfies the criterion criterion. distinct criteria that concern of contiguity. different aspects of the geo­ Until Shaw, it could be said that graphical form that districts can assume. "Contiguity is a relatively trivial require­ A district should not be found to violate ment and usually a noncontroversial the contiguity criterion simply because one."14 Lower court decisions following its shape violates the compactness crite- Shaw, however, have created confusion rion. about what "contiguity" now requires. Some judges have not been convinced COMPAClNESS that districts that meet the traditional In contrast to contiguity, the compact­ definition of contiguity satisfy this crite­ ness criterion has always been a matter of rion. In a case involving Louisiana's considerable ambiguity. It concerns the congressional districts, for example, a shape of districts, not whether they con­ federal court held that a majority Afri­ tain geographically discrete parts. Com­ can-American district that was only 80 pactness is a continuous concept. Dis­ feet wide in places complied with this tricts can be considered more or less com­ criterion, "but only hypertechnically and pact, and therefore this criterion, unlike thus cynically," and that "Such tokenism contiguity, has been the object of a great mocks the traditional criterion of conti­ variety of quantitative measurements. In gui ty. "!5 The expression "technical con­ fact, there is "no generally-accepted defi­ tiguity" has been applied to other major­ nition" of what exactly compactness en­ ity-minority districts in other post-Shaw tails, and therefore no generally-accepted decisions.!' Some courts even have be­ measure of it either.!S gun to treat contiguity as a continuous Compactness is legally required concept, as if some districts can be viewed less often than contiguity,!" and there is as "more" or "less" contiguous than oth­ far less consensus about its importance in ers.I ? the design of districts. The linkage be­ This approach to contiguity has tween the shapes districts assume and been an unfortunate development. It the quality of representation district resi­ commingles the notion of contiguity with dents receive has long been questioned.

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As candidly expressed by one set of com­ can satisfy some of the tests. The mea­ mentators: sures also vary greatly in complexity. ~e ~implest is based on the length of It is, in truth, hard to develop a district boundaries. The shorter the powerful case for the intrinsic value of length, the more compact a district is having compact districts: If the repre­ sentative lived at the center of a com­ considered to be. Other measures exam­ pact district, he or she wouldn't have ine ~e extent to which district shapes to travel anymore than absolutelynec­ deViate from some specified standard, essary to campaign door-ta-door or such as a circle or a square, or the extent meet with constituents, but other than to which a district fills the area of a poly- that, uncompactness does not seem to gon encasing it. . affect representation in any way.20 New measures have been proposed A compactness requirement is that depart from the notion of geographi­ widely touted, however, as an impedi­ cal appearances, focussing instead on the physical distances between the homes of ment to gerrymandering. It will rarely the people residing within a district. 24 A preclude gerrymandering, at least the dilutive kind, because that type of gerry­ federal court in California recently de­ parted even further from the traditional ~~eringisnotlimited to funny-shaped concern for shape and adopted the no­ districts. Indeed, a compactness rule, in some circumstances, could even serve as tion of "functional compactness," hold­ ing that "Compactness does not refer to an excuse for this type of gerrymander.21 geometric shapes but the ability of citi­ But it is at least a constraint on the way in which district lines can be drawn and zens to relate to each other and their therefore an impediment to the manipu­ . repres.entatives and the ability of repre­ sentatives to relate effectively to their lation of those lines for political advan­ constituency. "25 tage. Odd-shaped districts do stimulate The variation in approaches does suspicions of deliberate manipulation, and therefore districting is an area, as not end here, either. Just as the federal court in Louisiana commingled contigu­ Justice O'Connor observed in Shaw, "in ity with compactness, the federal court which appearances do matter."22 handling the Miller case commingled Since Shaw elevated the concern communities of interest with compact­ for compactness, lower courts have been ness. Afterreviewing several approaches confronted with a wide array of quantita­ to measuring geographical compactness, tive indicators that supposedly reveal that court chose to rely instead on a popu­ the relative compactness of districts." lation-based approach that would "re­ These measures emphasize different as­ quire an assessment of population densi­ pects of shapes, however, and therefore ties, shared history and common inter­ can and do result in conflicting conclu­ ests; essentially, whether the populations sions. Even bizarrely shaped districts roped into a particular district are close

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THE DISTRlCTlNG THICKET enough geographically, economically, ciding which ones deserve to be recog­ and culturally to justify their being held nized in the design of districts. This in a single district. "26 The Supreme Court criterion was not listed among the tradi­ affirmed both the California decision (re­ tional districting principles in Shaw, and jecting a Shaw-type claim) and the Miller therefore has not received as much atten­ decision without commenting on what tion from the lower courts as has com­ compactness actually entails. pactness. Respect for" communities de­ With this type of confusion over fined by actual shared interests" was the concept of "compactness," requiring added to the list in Miller, however, with that districts not be subordinated to a little indication of how this concept is to compactness standard will not simplify be applied. . the districting task. Districting decisions One of the principle questions in are likely to be more, not less, difficult in light of Miller is whether this criterion this context. Without some clarity con­ concerns "shared interests" among cerning this constraint, those designing people living in geographical proximity and/ or adopting districts cannot be ex­ to each other, or whether it concerns the pected to know the limitations under degree to which districts themselves are which they must work. homogeneous along some dimension or dimensions. In Miller, Justice Anthony . COMMUNTIlES OF INTEREST Kennedy said that "A State is free to Many sets of equi-populous districts can recognize communities that have a par­ usually be created, even when contiguity ticular racial makeup, provided its action is required and some type of compact­ is directed toward some common thread ness constraint is applied. Ideally, how­ of relevant interests. "28 The fact that this ever, districts should be more than arbi­ comment was immediately followed by trary aggregations of individuals. The a quote from Shaw indicatingthatitwould use of geographically based districts is be legitimate to concentrate minority premised on the notion that people who group members in a single district - reside close to one another share inter­ when they "live together in one commu­ ests. Geographical proximity is assumed nity" - suggests that the concept may to either cause, or reflect, distinct inter­ require geographic proximity.29 But when ests and policy preferences. When such Justice Kennedy concluded that the dis­ "communities of interest" exist, it is often trict at issue in Miller "tells a tale of dis­ suggested that they be maintained intact parity, not community," he was explic­ within representational districts. itly referencing "the social, political and The communities of interest stan­ economic makeup" of the district as a dard is unfortunately "probably the least whole. African-Americans in the Savan­ well defined" criterion for drawing dis­ nah area had been joined with African­ tricts. Xl Serious problems arise in identi­ Americans in metropolitan Atlanta, fying such communities, as well as de- thereby linking, according to Kennedy,

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African-Americans who Georgia had elevated lar interests shared are were "worlds apart in cul­ documented. But which ture."30 one of the venerable "shared interests" deserve This issue is central to unwritten rules of recognition in districting, the North Carolina congres­ and whether this recogni­ sional districtingcase, which redistricting - save tion extends to people who will be reviewed by the Su­ the incumbents!­ share an applicable interest premeCourtduringits 1995- to the status of an but do not reside in close 96 term. In North Carolina geographical proximity to the district court identified explicit guideline. each other, remain to be de- the state's two majority Af­ termined. This is a rican-American congressional districts as districting criterion that has never been distinctive in character, one being rural well specified, and is unlikely to be dearly and the other urban. This resulted from defined prior to the next round of redis­ the legislature's concern that districts re­ tricting following the 2000 census. flect "significant colIlIll'unities of inter­ est."3l The application of this criterion to POLITICAL SUBDIVISIONS these districts was very systematic; a The final traditional criterion on the Su­ guideline was adopted that at least 80 preme Court's list is respect for political percent of the population of one district subdivisions. Local units of government, reside outside cities with populations ex­ especially counties, have often served as ceeding 20,000, and at least 80 percent of building blocks for state legislative and the population of the other reside within congressional districts. Prior to the Su­ cities exceeding 20,000. This resulted in preme Court's adoption of the "one per­ districts that are far from compact, but son, one vote" principle, counties were which, according to the district court, even the units to which legislative seats have"substantial, relatively high degrees were apportioned in many of the states.34 of homogeneity of shared socio-economic Not dividing counties among districts, . - hence political- interests and needs unless necessary to equalize populations, among [their] citizens."32 has been a common districting con­ Justice Kennedy did state that the straint.35 Following established political "mere recitation of purported communi­ boundaries such as these is said to keep ties of interest" will not successfully in­ districts more cognizable to voters. voke this criterion.33 Simply referencing Political subdivisions are recog­ well known geographical place names nized by law, and there should be no presumably will not suffice. Identifying problem in identifying them and in de­ an area as containing people with par­ termining whether or not they have been ticular traits, such as ethnic or religious divided by representational district lines. identifications or life-style preferences, This is a simple matter of counting. There may be sufficient, provided the particu- may be arguments, however, over which

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THE DISTRICTING THICKET political subdivisions to include in the existing precinct boundaries can impede count. Counties, as noted, had been the the achievement of other, more impor­ major focus prior to Shaw and Miller, but tant districting goals, such as creating the treatment of other subdivisions could majority-minority districts, and courts be examined as well. The district court in should not allow this constraint to be a Louisiana, for example, referenced how pretext for discriminatory districting. the state's congressional districts divided Precincts can be changed relatively eas­ "major municipalities" as well as coun­ ily to accommodate more important ties.36 The list could include other units districting criteria. as well, such as school districts, other types of special districts, or townships. FRAME OF REFERENCE Where the list ends is an issue in need of Traditional race-neutral districting crite­ resolution. ria are now supposed to provide a frame Simply counting the number of of reference for evaluating Shaw- and units divided by a district or districts Miller-type gerrymandering allegations. may not be the appmpriate basis for The districting criteria discussed above evaluation, either. Whereas the court in are those that the Supreme Court has Louisiana found the splitting of munici­ explicitly recognized as falling within palitie~ to be objectionable per se, the that category. The Court made it clear in federal court in the Texas congressional Miller, however, that it did not consider districting case responded very differ­ these to be an exhaustive list of such ently. The fact that cities in Texas had principles.39 While the Court provided been divided between districts was not no indication of the other types of criteria viewed as a negative, despite the divi­ that might be employed to evaluate these sions being along racial lines. The court allegations, it did leave some of Georgia's noted instead that these divisions "gave expressed criteria off the list, perhaps the Congressmen a toe-hold in such cities indicating that these criteria are not to be and effectively doubled the cities' repre­ included. sentation in Congress."37 Other issues The Georgia legislature had include such things as "How many splits adopted districting "guidelines" that in­ are too many?" and "Is a little split from cluded, in addition to contiguity and re­ a single unit as bad as big split?"" spect for political subdivisions, the pro­ Another related issue is the respect tection of incumbent office holders. This to be accorded precinct lines. Precincts was expressed through two separate are not governmental jUrisdictions, but guidelines. One was" avoiding contests merely administrative units for elections. between incumbents," the other was "pre­ It is often argued that precincts should serving the core of existing districts," not be divided by districts, but this is which functions largely as a euphemism simply a matter of administrative conve­ for incumbent protection.·o Georgia had nience. Requiring districts to follow pre- elevated one of the venerable unwritten

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rules of redistricting' - save the incum­ districts now be held to a higher stan­ bents! -to the status of an explicit guide­ dard?" line.·1 Indeed, even the federal court in Traditional districting principles Georgia had included "protecting incum­ often have been subordinated to non­ bents" among its list of "traditional racial political goals, of course, without districting principles."" The absence of any requirement that such subordina­ this criterion in the Supreme Court's reci­ tion be justified. This is illustrated by tation of principles may reflect the fact another Supreme Court case, Gaffney v. that this criterion, while traditional, has Cummings, which involved districts for hardly been "race-neutral" in applica­ the lower house of the Connecticut state tion, given the over-representation of legislature." The parallels between whites (or Anglos) in elected offices. Gaffney and the Shaw and Miller cases are Another question concerning the striking, except the issue in Gaffney is the use of the recognized criteria as a frame deliberate manipulation of district bound­ of reference concerns, as noted above, the aries for partisan rather than racial rea­ standard for comparison. While protect­ sons. ing incumbents may not make the list of In designing Connecticut's legisla­ traditional criteria, it is not by itself an tive districts, two of the traditional crite­ impermissible districting goal,43 and has ria cited in Shaw and Miller, compactness often been a reason for deviating from and respect for political subdivisions (the the other criteria. The federal court in latter even a requirement of the Con­ Louisiana, for example, acknowledged necticut Constitution), were dearly sub­ that the compactness criterion, not re­ ordinated to a purported goal of provid­ , quired by any Louisiana law, had been ing "proportional representation." The trumped by incumbent protection con­ proportionality in this case concerned siderations in previous congressional the representation of the state's Republi­ districting schemes of that state. The can and Democratic voters. The Supreme "Old Eighth" district, which the court Court found that "The record abounds described as "certainly bi­ with evidence, and it is zarre" in shape, was admit­ While protecting frankly admitted by those tedl y "crafted for the pur­ who prepared the plan, that pose of ensuring the reelec­ incumbents may virtually every Senate and tion of Congressman Gillis not make the list of House district line was Long."" Will districts drawn with the conscious drawn to enhance the elec­ traditional criteria, intent to create a districting toral opportunities of Afri­ it is not by itself an plan that would achieve a can-Americans in Louisiana impermissible rough approximation of the therefore also be allowed to statewide political strengths be bizarre, or at least no districting goal... . of the Democratic and Re- more bizarre, or will such

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THE OiSTRICTING THICKET

While the Connecticut plan has be held to a compactness standard, of been described as "a bipartisan gerry­ any type, stating: mander,"'" it was not, in fact, the product of any bipartisan agreement. It was de­ . Compactnesshasnonecessary veloped by the Republican party's repre­ relation to the devising of districts to . ~rovide fair and effective representa­ sentative to a three-person apportion­ tion because the crucial variables are ment board, with the assistance of coun­ the residential patterns of the persons sel to the state Republican party, and was to be represented. Noncompactness vigorously opposed by the Democratic could be the only way to provide even party's representative on the board. (The minimal representation of a scattered decisive vote was provided by the third minority. 53 member of the board, who had been se­ lected by the two party appointees.) The· Another neutral districting crite­ plans were subsequently challenged by rion, respect for political subdivisions, Democratic plaintiffs as "a gigantic ger­ was also subordinated to the proportion­ rymander."" A large number of Repub­ ality goal. In this case, the criterion was lican party supporters were concentrated actually a state constitutional require­ in one geographical area of the state, and ment. The Connecticut constitution con­ therefore districts based on neutral tained a prohibition against dividing districting principles would result in towns when creating state assembly dis­ many Republican votes being wasted in tricts, and this criterion was also violated safe Republican districts. The plaintiffs more than necessary so that districts would have particular partisan configu­ argued that the architects of the plan had 54 deliberately gerrymandered the districts rations. This was also frankly acknowl­ across the state in order to offset this edged by the authors of the plan. Its chief unfavorable (for districting purposes) architect testified, "We considered keep­ geographical pattern of Republican sup­ ing the breaking of town lines within as port.50 reasonable limits as we could but where The federal district court in Con­ there were other considerations of fair­ necticut found that districts in the plan ness [proportional representation] that had "highly irregular and bizarre out­ overrode that. I did not insist the town lines be maintained exact. "55 His assis­ lines. "51 The state acknowledged the fact that districts had been made less com­ tant likewise testified: pact than otherwise necessary in order to A. I cut town lines which were achieve the desired partisan balance in my opinion necessary. among the districts. This was also Q. In order to achieve the po­ "frankly admitted by those who prepared litical balance? A. In order to achieve the bal­ the plan. "52 Indeed, in defending the ance, yes.56 distorted shapes of the districts, the state rejected the notion that districts should The subordination of these tradi-

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tional criteria in this context produced no racial gerrymandering. These criteria, adverse comment by the Supreme Court. unfortunately, are neither well defined They certainly did not constitute "a cru­ nor easily measured; moreover, they have cial frame of reference" for the Court's not all been strictly applied prior to these evaluation of these state legislative dis­ decisions. Even contiguity, which was tricts. once the clearest of the criteria, is now The districting criteria the Court clouded in ambiguity and no longer has recognized as constituting the frame readily distinguishable from compact- of reference have not been rigidly ad­ ness. hered to in the past. They have, in con­ The confusion surrounding these trast, often been subordinated to political criteria themselves, as well as the stan­ considerations. In light of Justice dards for determining when they are re­ O'Connor's comment that majority-mi­ spected and when they are subordinated, nority districts will not be held to a higher are a cause for concern. The districting standard, presumably past practices task is difficult enough without adding rather than political science texts will be this additional complexity to the process. the point of comparison. Whether devia­ The Supreme Court will review cases tions from these criteria resulting from concerning congressional districts in nondilutive racial considerations will be North Carolina and Texas during its next no less tolerable than past, or even present, term. Hopefully the Court will see the deviations due to other acceptable politi­ need to begin clarifying the components cal considerations, however, remains to and application of the new frame of refer­ be seen. While Justice O'Connor's words ence it has created. Without such clarifi­ no doubt were meant to reassure minor­ cation, redistricting in the post-Miller era ity voters that a double standard was not will indeed be, as Justice Ruth Bader being adopted, no other justice in the Ginsburg has predicted, "perilous work majority joined her in that gesture.57 for state legislatures,"SB not to mention county boards, city councils, school CONCLUSION boards, and any other person or group The Shaw and Miller decisions have made who may be responsible for structuring several districting criteria the frame of representational districts. 6 reference for adjudicating allegations of

NOTES 'The decision inMiller v. Johnson has not 'Miller, sl. op. at 1 (O'Connor, concur­ yet been published but the "slip opinion" ring). may be identified by the following case numbers: 94-631,94-797 and 94-929. 'Miller, sl. op. at 17-18.

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THE D15TRICTING THICKET

'Shaw v. Reno, 113 S.Ct. 2816 (1993). 'SHays v. State of Louisiana, 839 F. Supp. 1188, 1200 (E.D. La. 1993). SShaw, sl. op. at 15. '"Shaw v. Hunt, 861 F. Supp. 408, 468 (E.D. "Miller, sl. op. at 15. N.C. 1994) and Johnson v. Miller, 864 F. Supp. 1354, 1368 (S.D. Ga. 1994). 'Shaw, sl. op. at 15. "Shaw, at 452. See also Vera v. Richards, 8MilIer, sl. op. at 1 (O'Connor, J., concur­ 861F. Supp. 1304, 1338, 1342 (S.D. Tex. ring) (emphasis in original). 1994). It has also been suggested that" ... 'contiguity' is not an abstract or geomet­ "Reynolds v. Sims, 377 U.S. 533, 565-566 ric technical phrase. It assumes meaning (1964). when seen in combination with concepts of 'regional integrity' and 'community of 'ODavid Butler and Bruce Cain, Congres­ interest.'" DeWitt v. Wilson, 856 F. Supp. sional Redistricting: Comparative and Theo­ 1409,1414 (E.D. Cal. 1994). retical Perspectives (New York: MacMillan Publishing Co., 1992), p. 150. 18Shaw v. Hunt, at 452; see also Johnson, at 1388. "See Bernard Grofman, "Criteria for Districting: A Social Science Perspective," 19See Lyons and Jewell, "Redrawing 33 UCLA UlW Review (October 1985), pp. Council Districts," at 76. 177-183; Richard H. Pildes and Richard G. Niemi, "Expressive Harms, 'Bizarre 2°Charles Backstrom, Leonard Robins, Districts: and Voting Rights: Evaluating and Scott Eller, "Establishing a Statewide Election-District Appearances after Shaw Electoral Effects Baseline," in Bernard v. Reno," 92 Michigan UlW Review (Decem­ Grofman (ed.), Political Gerrymandering ber 1992), pp. 528-531; and W.E. Lyons and the Courts (New York: Agathon Press, and Malcolm E. Jewell, "Redrawing 1990), p.152. Council Districts in American Cities," 18 State and Local Government Review, (Spring "See David Butler and Bruce Cain, Con­ 1986), p. 76. gressional Redistricting, pp. 149-150.

12Note, "Reapportionment," 79 Harvard "Shaw, sl. op. at 15. UlW Review (April, 1966), p. 1284. "See especially Johnson,at 1388-1390,and "'N.y.c. Charter ch. 2, sec. 52(2). Vera, at 1329-1330.

"Bernard Grofman, "Criteria for 2'See generally Richard G. Niemi, Ber­ Districting," p. 84. nard Grofman, Carl Carlucci, and Tho-

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.'::, ..

mas Hofeller, "Measuring Compactness "Hays (1993), at 1201, and Hays v. State of and the Role of a Compactness Standard Louisiana, 862 F. Supp. 119, 121 (W.D. La. in a Test for Partisan and Racial Gerry­ 1994). mandering," 52 Journal of Politics, (No­ vemberl990), 1155-1181, and H.P. YOl!llg, 37Vera, at 1345; compare, however, the "Measuring the Compactness of Legisla­ same court's comments at 1334-1335, n. tive Districts," 13 Legislative Studies Quar­ 43. terly, (February 1988), 105-115. 38Backstrom, Leonard, and Robbins, "Es­ "DeWitt, at 1414. tablishing a Statewide Electoral Effects Base," at 153. "'Johnson, at 1389; see also Vera, at 1341. "Miller, sl. op. at 15. "DeWitt v. Wilson (unsigned, one-para­ graph order, issued by Supreme Court '"Miller, sl. op. at 4. on June 29, 1995, upholding California's 1992 redistricting plan). "See, for example, Royce Hanson, The Political Thicket: Reapportionment and Con­ 28Richard Morrill, "A Geographer's Per­ stitutional Democracy (Englewood Cliffs, spective," in Bernard Grofman, ed., Po­ N.J.: Prentice-Hall, Inc., 1966), p. 35. litical Gerrymanderingand the Courts (New York: Agathon Press, 1990), p. 215. "Johnson, at 1369.

29Miller, sl. op. at 18. . "See Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966) and White v. Weiser, 412 U.S. 3IlShaw v. Reno, sl. op. at 14. 783,791 (1973).

31Shaw v. Hunt, at 471. "Hays (1994), at 122.·

3'Shaw v. Hunt, at 470. "One judge on the Hays court stated that the old eighth district "has no applica­ 33Miller, sl. op. at 15, 18. tion to this case," presumably because it "was never challenged on constitutional­ "See Malcolm E. Jewell, "Constitutional ity by any court in the United States." Provisions for State Legislative Appor­ Hays (1994), at127 (Shaw,J., concurring). tionment," 8 Western Political Quarterly The main opinion in that case also men­ (June 1955), 271-279. tioned that the old eighth was "before Shaw and never challenged". Id., at 122. 3SSee Grofman, "Criteria for Districting," The grounds for such a constitutional at 177-183. challenge remain unclear, however, given

NATIONAL CIVIC REVIEW FALL-WINTER 1995' 335 THE VOTING RIGIfTS ACT AT THIRTY

THE D1STR1CTING THICKET that the only features of the district refer­ Saden and James F. Collins, Appendix at enced by the court were that it was (1) not 54-55, 100-101, 153-170, Record, Gaffney compact and (2) protected an incumbent, v. Cummings, 412 U.S. 735 (1973). neither of which violates the Constitu­ tion. See notes7 and 44, supra. 53Brief for Appellant at 51, Gaffney v. Cummings, 412 U.S. 735 (1973). 46412 U.S. 735 (1973). S4Cummings v. Meskill, at 148. "Gaffney, at 753. 5SSaden deposition, supra note 50, at 53. 48Davisv. Bandemer,478U.S.109, 154(1986) 56(:o11ins deposition, supra note 50, at 99; (O'Connor, J., concurring). see also deposition testimony at 92, 95, and 98. "Brief for Appellees at 47, Gaffney v. Cummings, 412 U.S. 735 (1973). 57Some courts have held that the "narrow tailoring" portion of the strict scrutiny "'See Richard 1. Engstrom, "The Supreme test requires a majority-minority district Court and Equipopulous Gerrymander­ to adhere as closely as possible to neutral ing: A Remaining Obstacle in the Quest districting criteria. See Vera, at 1343, and for Fair and Effective Representation," Hays (1993), at 1208-1209. In Shaw v. 1976 Arizona State University lAw Journal Hunt, however, narrow tailoring is (No.2, 1976),277,301-304. viewed as requiring only compliance with constitutionally mandated criteria. Shaw 51Cummings V. Meskill, 341 F. Supp. 139, v. Hunt, at 449-454. 147 (D. Conn. 1972). saMiller,sl. op. at 17 (Ginsburg,J., dissent­ 52See depositions of Judge George A. ing).'

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CUMULATIVE VOTING AS A REMEDY IN VOTING RIGHTS CASES While majority-minority districts are bitterly litigated in the courts, a "quiet revolution" is taking place in jurisdictions across the nation employi1'}g the ~1ternative system of cumu[atlve votmg. .

EDWARD STILL AND PAMELA KARLAN

aving found in April of 1994 that In light of the commission's abdi­ Worcester County, Maryland's cation of its responsibility, Judge Young H practice of electing its commis­ was obligated to draft a plan. After con­ sion at large violated Section 2 of the sideringproposa1s advanced by the plain­ Voting Rights Act, U.S. District Court tiffs, he adopted a plan that retains the at­ Judge Joseph H. Young offered the com­ large election system preferred by the missioners the opportunity to propose a county, but modifies the way in which plan that"completely remedies the prior individual voters cast their ballots to pro­ dilution of minority voting strength and vide all voters, regardless of race or place fully provides equal opportunity for mi­ of residence, with an absolutely equal nority citizens to participate and elect opportunity to elect the candidates of candidatesoftheirchoice.'" The Worces­ their choice. Under the circumstances of ter County Commission responded only this case, Hannis v. Cane v. Worcester with a cosmetic change that required ev­ County, Maryland,' Judge Young's deci­ ery commissioner to live in a defined sion to order the use of cumulative vot­ residency area while continuing to seek ing within the county's existing at large election at large. system represents a sensitive response to

NATIONAL CMC REVIEW FALL-WINTER 1995.337 THE VOTING RIGHTS ACT AT 1HIRTY

CUMULATIVE VOTING AS A VOTING RIGHTS REMEDY the needs of all the various litigants. terns.S Ninety-five percent of the voters knew they could cast all their votes for AT-LARGE VOTING WITIlOUT EXCLUSIONARY one candidate; a mere 13 percent found TENDENCIES the cumulative voting plan "more diffi- Cumulative voting preserves many of cult to understand" than systerns uti- the distinctive and valuable features of lized in other local elections in which at-large elections. For example, candi- they had voted. dates can live anywhere in the jurisdic- The ability of voters to "plump" tion and vote for any candidate running their votes behind a single candidate (or for office, rather than being restricted to a few candidates) dampens the winner- voting for a candidate from a designated take-all element of traditional at-large district. Thus, candidates retain the in- systernsthatenablesabloc-votingmajor- centive to compete for support through- ity to capture all the available seats even out the county and, after election, con- when substantial numbers of voters pre- tinue to represent the entire county rather fer other candidates. As Judge Young than a geographic subdivision.3 explained in his opinion, all election sys- The sole significant difference be- terns have a "threshold of exclusion" tween cumulative voting and tradi tional equal in size to the smallest possible num- at-large voting is that in a cumluative ber of minority individuals needed to voting system voters can "cumulate" their elect a candidate of their choice in a given votes - that is, cast more than one vote jurisdiction.' In a traditional at-large sys- for a candidate about whom they feel tem, the threshold of exclusion is 50 per- strongly. For example, a voter who cent; unless a group constitutes a majority strongly supports candidate Jones could of the electorate, the remainder of the cast all five of his votes for Jones. A voter electorate - by voting strategically - remains free, of course, to cast one vote canshutthatgroupoutcompletely. Simi- for each of five candidates, ------larly, within each district of precisely as in a traditional The ability of voters a single-member district at-large scheme.' to "plump" their plan, the threshold ofexclu- The suggestion that sion is again 50 percent - cumulative voting is con- votes behind a only the group that· fusing to voters is baseless. single candidate... contitutesthemajorityofthe A studyofrecently adopted electorate within the district cumulative voting plans dampens the can elect its preferred can- shows that nearly all the winner-take-all didate.' By contrast, the voters understood the element of threshold of exclusion in a proper way to cast a ballot, cumulative voting system and only a small minority traditional at-large can be described by the found the system more com- systems equation 1/(s + 1), where s plexthanotherelectionsys- equals the number of seats

338. FALL-WINTER 1995 NATIONALcnnCR8nEW THE VOTING RIGHTS ACT AT lHIRTY

to be filled in the election.8 In the case of Contrary to suggestions contained Worcester County, with a five-member in the Worcester County Commission's commission, the threshold of exclusion appeal brief, cumulative voting is not a using cumulative voting would be 16.67 novel system. Corporations, for example, percent." often use cumulative voting to elect their This substantially smaller figure boards of directors,12 and an increasing means that any politically cohesive group, number of jurisdictions have adopted regardless of who its members are or cumulative voting to remediate Voting where they live, can, by plumping their Rights Act violations." votes behind a single candidate, elect a representative of their choice. Thus, cu­ CUMULATIVE VOTING 'AND INCLUSION mulative voting modifies the traditional Cumulative voting does an excellent job at-large election plan to give minority of fostering the notion of "civic inclu­ groups a real opportunity to elect the sion." As Pamela Karlan has written: candidates they favor. lo Nonetheless,. cumulative voting does not guarantee [The Supreme Court's longstanding] proportional representation in the sense emphasis on equal political access for of setting aside seats for particular groups. all voters ... rests on a belief that the distinctive values that inclusion in gov­ Itsirnply gives a greater number of groups ernmental decision making brings a a chance to elect the candidates they pre­ sense of connectedness to the commu­ fer. nity and greater dignity; greater readi­ Thus, cumulative voting is not ness to acquiesce in governmental de­ "proportional representation." Cumula­ cisions and hence broader consent and legitimacy; and more informed, equi­ tive voting is sometimes called a "semi­ table and intelligent governmental de­ proportional" system. A recent book cision making. advocating the adoption of proportional [Civic inclusion] accepts the bed­ representation in the United States noted rockdiversityofmodemAmerican and with regard to cumulative voting and seeks to bring diverse groups into the governing circle because, quite sim­ another semi-proportional system called ply, the best way to ensure that all limited voting: points of view are taken into account is Both systems are designed to make to create decision-making bodies in it more difficult for one party to elect which all points of view are repre­ all the representatives in an election, sented by people who embody them. and both may produce more propor­ It is not enough that there are people tional results than single-member or who can only imagine. what minority at-large plurality elections. But full interests might require." representation is not guaranteed... , That is why these are called semi-pro­ Modifying an at-large system to portional and why most proponents of provide for cumulative voting often can ... [proportional representation] con­ sidered them crude systems ...."" meet the goals of civic inclusion better

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CUMULATIVE VOTING AS A VOTING RIGHTS REMEDY than single-member dis­ Geographic geographical proximity, tricts. First, empirical stud­ while cumulative voting al­ iesofrecentcumulativevot­ districting plans lows the voters themselves ing elections show that they are based on the to decide whether and when fully cure Voting Rights Act implicit geography is more impor­ violations byenablingmem­ tant than other connections bers of traditionally ex­ assumption that or common interests. Un­ cluded racial and ethnic voters have an der a modified at-large cu­ minorities to elect candi­ identity of interest mulative voting plan, alike­ dates of their choice. IS At minded group of voters en­ the same time, cumulative with their joys a chance to elect its pre­ voting avoids the necessity geographical ferred representatives re­ for deliberately drawing gardless of where its mem­ districts along racial lines, neighbors. bers live. with the signifant legal The rule of Connor v. problems that practice can incur. Cumu­ Johnson, requiring courts to adopt single­ lative voting retains the at-large prin­ member districts, is not applicable to the ciple and allows voters, rather than gov­ case of Worcester County, MarylandP ernments, to (orm "voluntary districts" Connor involved a state legislative redis­ with other, like-minded voters. I. More­ tricting plan consisting of both single­ over, unlike districting schemes, which member and multi-member districts. The are imposed on voters by outside groups U.s. District Court, in rendering its deci­ (e.g., legislatures, city councils, courts) sion' was forced to consider strong evi­ and usually last for a decade or more, dence that multi-member districts were cumulative voting elections allow voters dilutive of minority voting strength.18 By to make their affiliative decisions for imposing single-member districts as the themselves, on the occasion ofeveryregu­ presumptive standard, the court was fol­ lar election. lowing a trend in American politics, Geographic districting plans are thereby insulating itself from the charge based on the implicit assumption that that a single-member district - because voters have an identity of interest with it "allows the majority to defeat the mi­ their geographical neighbors. While nority on all fronts" - allows a court to neighbors may have a common interest pick the eventual majority of the legisla­ in whether the city repaves the street in tive body." Worcester County had em­ front of their houses or rezones the lot on ployed a county-wide election system the corner for use as a fraternity house, for a number of years and expressed a on other issues voters may have more in strong preference for continued use of an common with residents of other neigh­ at-large plan. Thus, Judge Young, in borhoods than with people who live imposing the cumulative voting plan, down the street. Districting relies on deferred to the local jurisdiction's policy

340. FALL-WINTER 1995 NATIONAL cnnc R8nEW THE VOTING RIGHTS ACT AT lHIRTY

choices. This decision followed the pre­ districts is subject to gerrymandering and cedent of preserving existing practices dilution (and sometimes inflation) of a and structures to the extent practicable, minority group's voting power. More­ making only such changes as are neces­ over, race-conscious districting some­ sary to eradicate any discriminatory fea­ times can send an unfortunate message tures.20 to voters about the salience of race in the political process." Finally, when a court AVOIDANCE OF UNDESIRABLE SIDE-EFFECTS is called upon to make the decisions about OF DISTRICT REMEDIES how to draw districts (because, as in the In Thornburg v. Gingles,'! the U.S. Su­ Worcester County Case, a defendant ju­ preme Court held that plaintiffs in racial risdiction has defaulted on its obligation vote dilution cases must usually show to provide a remedy), it often is plunged that "the minority group ... is sufficiently into a political thicket of competing, over­ large and geographically compact to con­ lapping and sensitive interests." stitute a majority in a single-member dis­ Far from accentuating racially po­ trict." The"geographically compact" larized voting, cumulative voting ame­ requirement (which is not found in the liorates its effects. The use of cumulative Voting Rights Act) make sense if the plain­ voting in the British Empire supports this tiffs' sole claim is that the use of at-large claim: elections rather than single-member dis­ trict elections dilutes their voting strength. The name "cumulative vote" ap­ But as both the Supreme Court and Con­ pears for the first time in 1853, but three years earlier the system was rec­ gress have recognized, a group's voting ommended by a committee of the Privy strength can be diluted by other practices Council for preventing the monopoly as well. For example, majority-vote re­ of colonial Legislative Councils by one quirements and numbered-post provi­ party, and was applied in the Cape sionscandiluteagroup'svotingpower.22 Colony. It continued to be used there Thus, sometimes it is the voting rules for the election of the Legislative Coun­ cil until that [body] disappeared under within an at-large system, rather than the the new constitution of the Union of at-large nature of the constituency, that South Africa in 1909, and Lord Milner dilutes the minority's voting strength. contrasted its effects most favourably Modifying the winner-take-all rules, by with those of the majority system used switching, for example, to cumulative to elect the House of Assembly (Lower House). In the Assembly, the division voting, can offer a complete remedy. Such between Dutch and British stock was modifications can provide equal electoral accentuated, for one part of the Colony opportunity while retaining the legiti­ returned only Boer representatives, the mate interests served by at-large elec­ other party only non-Boers; in the Leg­ tions (e.g., the preservation of jurisdic­ islative Council, on the contrary, the tion-wide constituencies). minority in each region had represen­ Any election plan that depends on tation.'"

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CUMULATIVE VOTING AS A VOTING RIGHTS REMEDY

The principal purpose of Section 2 ber districts, and if the only district pro­ of the Voting Rights Act is to ameliorate viding a reasonable chance for black vot­ the effects of discriminatory actions, with­ ers to elect candidates of their choice is out requiring discriminatory voters to one with a "bizarre" appearance, blacks change the way they vote: will be left without an effective remedy tocureaprovenviolationofVotingRights By contrast [to other anti-discrimi­ Act. If the Supreme Court is notto gut the nation statutes], the Voting Rights Act Voting Rights Act of all meaning and seeks to alter the consequences of ra­ power, the answer is that there must be a cial bloc voting patterns without gov­ erning the way individual voters cast way to introduce electoral opportunity their ballots; the primary conduct - without Balkanizing the population. Cu­ the racial patterns in voting - is unaf­ mulative voting is such a system. fected." Cumulative voting permits juris­ dictions to avoid race-conscious district Thus, while the employment discrimina­ drawing. Individual voters decide tion laws tell employers not to make whether, and to what extent, to be race­ choices on the basis of race, religion, etc., conscious. Furthermore, cumulativevot­ the Voting Rights Act allows the voter to ing does not freeze existing race-con­ make discriminatory decisions, but tries sciousness into place, because the system to prevent all the discriminatory conse­ does not institutionalize the divisions in quences those decisions might otherwise society by drawing a "black district," a engender. "Latino district" or a "white district." Another consideration that favors The system also does not leave voters cumulative voting and similar remedies who are in the numerical minority in a is the recent hostility of the U.S. Supreme given district feeling as if their votes do Court to the conventional single-mem­ not count. In a district that is 65 percent ber district approach to minority elec­ or more black and in which there is ra­ toral empowerment. With regard to ra­ cially polarized voting, the white minor­ cial gerrymandering, Justice Sandra Day ity is apt to feel as closed out of the O'Connor, in her majority opinion, wrote, political process as blacks felt when they "Put differently, we believe that reap­ were the minority in the multi-member / portionment is one area in which appear­ at-large plan. Single-member districts ances do matter."21 With the Supreme shift the burden of the election plan from Court taking the position that oddly a minority group in a multi-member dis­ shaped electoral districts may be consid­ trict to the new minorities in each of the ered presumptively unconstitutional, single-member districts or sub-districts. lower courts and legislative bodies are The members of the jurisdiction-wide constrained in the boundaries they may majority who are minorities in their own draw. If the only remedy for an instance districts may harbor a resentment for the of racially polarized voting is single-mem- "affirmative action" that has placed them

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THE VOTING R1GIITS ACT AT DiIRTY

"

in a powerless minority.28 By contrast, incumbents enjoy extraordinary lever­ cumulative voting allows all voters to age in self-perpetuation through ger­ vote for the candidates of their choice, rymandering. Thus, districting strategies often and makes it quite probable that most promote noncompetitive election con­ voters will cast at least some of their tests, which further reduce voter par­ votes for a candidate who actually wins, ticipation and interest.30 thereby increasing their sense of effec­ tive participation in electoral politics. By contrast, in a cumulative voting sys­ Finally, modifying at-large elec­ tem, candidates of all races hve the incen­ tions to permit cumulative voting allows tive to appeal to all voters. bi-racial coalitions to form. Racially ho­ Cumulative voting is not prohib­ mogeneous single-member districts tend ited by the so-called anti-proportional to preserve the racial divisions in society representation disclaimer of Section 2 of by making it unnecessary for candidates the Voting Rights Act. That disclaimer to appeal to any group other than their provides: own and requiring all compromises (if any) to take place at the legislative/policy­ The extent to which members of a pro­ making level, rather than among the vot­ tected class have been elected to office ing public.29 Professor Lani Guinier of in the State or political subdivision is the University of Pennsylvania School of one circumstance which may be con­ sidered: Provided, That nothing in Law offers a stinging criticism of single­ this section establishes a right to have member districts in a recent article: members of a protected class elected in numbers equal to their proportion in [Tlhe districting strategy excludes the population.3l the possibility of representation for those whose interests are not defined by, or consistent with, those in the Since cumulative voting allows the racial geographically defined district. minority the same power to elect candi­ Subdistricting simply assumes a link­ dates of their choice as the racial major­ age between interest and residence that ity, but does not guarantee the racial is not necessarily as fixed as racial seg­ make-up of the governmental body, there regation patterns might otherwise sug­ gest .... is no violation of the proviso. It was [D)istricting decisions may simply added to the text of the 1982 Voting Rights reflect the arbitrary preferences of in­ Act amendments bill to counter any ten­ cumbent politicians who prefer packed, dency to establish a quota system in elec- . safe districts to ensure their reelection. tions; that is, requirements that the re­ Indeed, districting battles are often sults of an election be invalidated if a pitched between incumbents fighting to retain their seats, without regard to certain percentage of protected minori­ issues of voter representation. Because ties failed to win office. As the Senate the choice of districts is so arbitrary, Judiciary Committee noted:

NATIONAL CIVIC REVIEW FALL-WINTER 1995.343 TIiE VOTING RIGHTS ACT AT lHIRTY

CUMULATIVE VOTING AS A VOTING RIGHTS REMEDY

This disclaimer is entirely consis­ CONCLUSION tent with the above mentioned Su­ Cumulative voting is a promising alter­ preme Court and Court of Appeals native to both traditional at-large elec­ precedents, which contain similar state­ ments regarding the absence of any tions, with their tendency to exclude mi­ righttoproportionalrepresentation. It nority groups from the political process, puts to rest any concerns that have and single-member district systems, with been voiced about racial quotas." their fragmentation of the electorate and requirement that courts or politicians al­ As noted above, cumulative voting does locate voters among constituencies. not guarantee who will win; black voters Moreover, as in WorcesterCounty,Mary­ may form a coalition with another group land, cumulative voting offers courts a and choose a non-black; or black voters tool for striking an appropriate balance may split into warring ideological camps. between the interests of the plaintiffs in In either case, cumulative voting allows remedying racial vote dilution, and those them more opportunity to elect a candi­ of the county, in retaining the benefits of date of their choice than does a winner­ at-large elections and a city-wide con­ take-all system such as the at-large and stituency. single-member district plans.

NOTES 'S. Rep. No. 97-417, p. 31 (1982). Single-Member Districts," Western Politi­ cal Quarterly, March 1990, pp. 191-199. 'Hannis W. Cane, Jr. v. Worcester County, Maryland, 35 F.3d at 921 (1994). 'Pamela Karlan, "Maps and Misreadings: The Role of Geographic Compactness in "For general information on cumulative Racial Vote Dilution Litigation," Harvard voting, see, Richard L. Engstrom, Delbert Civil Rights-Civil Liberties Law Review, Vol. A. Taebel and Richard L. Cole, "Cumula­ 24 (1989), p. 222; Edward Still, "Alterna­ tive Voting as a Remedy for Minority tives to Single-Member Districts," in Vote Dilution: The Case of Alamogordo, Chandler Davidson, ed., Minority Vote New Mexico," Journal of Law and Politics, Dilution (Washington, D.C.: Howard Vol. 5 (1989), pp. 469-497. University Press, 1984), pp. 253-258. 'Other combinations also are possible. A voter who was part of a coalition, for 'The threshold of exclusion assumes that example, might cast three votes for can­ all voters are voting strategically; that is, didate Smith and two for candidate Wil­ that every group of voters is trying to son. maximize its share of the seats. If the majority group does not vote strategi­ 'Richard L. Cole, Delbert A. Taebel and cally, a minority group may be able to Richard L. Engstrom, "Alternatives to win a seat even if its numerical strength

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lies below the threshold. For example, precleared under Section 5 the use of black candidates for the Chilton County, cumulative voting in 18 Texas jurisdic­ Alabama Commission were able to win tions during the last two years, including in a cumulative voting system even counties and school districts. though blacks had less than the thresh­ old of exclusion because the white major­ "Karlan, "Maps and Misreadings," p. 180 ity spread its votes among more than andn.27. seven candidates. 15Richard 1. Engstrom et al., "Cumula­ "Karlan, "Maps and Misreadings," p. 222. tive Voting as a Remedy ... "; Richard 1. Engstrom and Charles Barrilleaux, "Na­ 9'fhere are five available seats. Hence, the tive Americans and Cumulative Voting: formula for the threshold of exclUsion in The Sisseton-Wahpeton Sioux," Social Worcester County is 1/(1 + 5), or 1/6. Science Quarterly, June 1991, p. 338; and Still, "Cumulative and Limited Voting in to"Minority" is not a euphemism for Alabama," in Wilma Rule and Joseph F. "black." 1n a cumulative system, a mi­ Zimmerman, eds., United States Electoral nority group might consist of a politi­ Systems: Their Impact on Minorities and cally cohesive black community, but it Women (Westport, Conn.: Greenwood can also consist of any group that is less Press, 1992), pp. 183-196. than a majority of the relevant voting population, such as Republicans, people I'Karlan, "Maps and Misreadings," p. 226 who feel strongly about environmental andn.24. issues, or advocates of a single-payer health care plan. 17'We agree that when district courts are forced to fashion apportionment plans, llDouglas J. Amy, Real Choices/New Voices: single-member districts are preferable to The Case for Proportional Representation large multi-member districts as a general Elections in the United States (New York: matter." Connorv. Johnson,402 U.S. at690 Columbia University Press, 1993), p.186. (1971).

"See the American Bar Association's 18Frank Parker, in Black Votes Count: Po­ "Model Business Corporation Act," §33. litical Empowerment in Mississippi After See also, Lani Guinier, "The Triumph of 1965 (Chapel Hill: University ofNorth Caro­ Tokenism: The Voting Rights Act and lina Press, 1990) writes, "The lawyers for the Theory of Black Electoral Success," the [Connorv. Johnson) plaintiffs had made Michigan Law Review, Vol. 89 (1991), pp. a strong case that multi-member districts 1077, 1139 n. 298. in Hind County [MissiSSippi) were ra­ cially discriminatory .... [T)he Supreme "The Justice Department has also Court could order single-member dis-

NATIONAL CMC REVIEW FALL-WINTER 1995' 345 TIlE VOTING RIGHTS ACT AT THIRTY

CUMULAJJ\1E VOTING AS A VUONG RIGHTS REMEDY tricts without departing from its repeat­ (London: Harcourt Brace, 1955), pp. 79- edly expressed position that multi-mem­ 80. ber districts are not per se unconstitu­ ''T. Alexander Aleinikof and Samuel tional or from the line of precedent reject­ Issacharoff, "Race and Redistricting: ing the Fourteenth Amendment chal­ Drawing Constitutional Lines after Shaw lenges to such districts." (p. 14) v. Reno," Michigan Law Review, Vol. 92 19Kilgarlin v. Hill, 386 U.S.120at 126 (1967), (1993), pp. 588, 634. Douglas, J. concurring. See also, Robert 'llShaw v. Reno, 113· S.Ct. 2816 at 2817 G. Dixon, Jr., Democratic Representation: (1993). Reapportionment in Law and Politics (New York: Oxford University Press, 1968). "See, "Affirmative Action and Electoral Reform," Yale Law Journal, Vol. 90 (1981), ,oAs the Supreme Court noted in another pp. 1811, 1828-1829. con text, "[Wjhenever a covered jurisdic­ tion submits a proposal reflecting the "See, United Jewish Organizations v. Carey, policy choices of the elected representa­ 430 U.s. 134 at 172-173 (1977). Justice tives of the people - no matter what Brennan, in his concurring opinion, wrote constraints have limited the choices that racially safe districts may frustrate avaiable to them - the preclearance re­ "potentially successful effort at coalition quirement of the Voting Rights Act is building across racial lines." See also, applicable." McDaniel v. Sanchez, 452 Guinier, The Triumph ofTokenism, pp. 1139 U.s. 139 at 153 (1981). n. 30, 1148 n. 331, and accompanying "Thornburg v. Gingles, 478 U.s. 30 at 48 text. (1986). . "'Lani Guinier, "No Two Seats: The Elu­ "See, for example, City of Rome v. United sive Quest for Political Equality," Vir­ States, 446 U.S. 156 at 183-184 (1980) and ginia Law Review, Vol. 77 (1991), pp.1413, S.Rep. No. 97-417, p. 28 (1982). 1451-1452 and 1454-1455. "See, for example, Shaw v. Reno, 113 S.Ct. 2816 at 2827 (1993). "Voting Rights Act Amendments of 1982, 96 Stat. 134,42 U.s.c. §1973 (1988). "See, Connor v. Johnson, 402 U.s. 690 (1971), which requires courts to avoid the "S.Rep. No. 97-417, p. 31 (1982), citing inherently political considerations that Whitcomb v. Chavis, 403 U.S. 124 (1971); decisions about multi-member constitu­ White v. Regester, 412 U.S. 755 (1973); encies would raise. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) en bane, affirmed on other 2SEnid Lakeman and James D. Lambert, grounds sub nomine East Carroll Parish Voting in Democracies: A Study of the School District Board v. Marshall, 424 U.S. Majority and Proportional Electoral Systems 636 (1976). I

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CUMULATIVE VOTING AS AN ALTERNATIVE TO DISTRICTING AN EXIT SURVEY OF SIXTEEN TEXAS COMMUNITIES Citizens participating in cumulative voting elections generally agree the system is fair, permitting all groups an opportunity to elect representatives of their choice. No electoral reform, however, can take the place of effective voter education and mobifization. ROBERT BRiSCHETTO

ast June, when the U.s. Supreme for remedial purposes, may Balkanize us Court declared a black-majority .into competing racial factions; it threat­ Lcongressional district in Georgia ens to carry us further from the goal of a illegally drawn to segregate voters on the political system in which race no longer basis of race, three decades of progress matters ... ," under the Voting Rights Act seemed to For voting rights advocates, Shaw begin unraveling. InMillerv./ohnson, the and Miller were bitter pills to take. For high Court ruled that drawing electoral almost three decades, they had been district lines chiefly on the basis of race drawing districts chiefly on the basis of can be presumed unconstitutional, ab­ race in order to level the playing field and sent some compelling state interest. allow minorities an opportunity to elect The decision was presaged in 1993 candidates of their own choice. Indeed, in Shaw v. Reno, when the Court called the creation of majority-minority districts into question a "bizarre shaped" district largely explains why there are 40 Afri­ and warned that "Racial classifications can-Americans and 17 Latinos in the U.s. with respect to voting carry particular House of Representatives today. Some dangers. Racial gerrymandering, even analysts predict that as many as a dozen

NATIONALcnnCRffinFW FALL·WINTER 1995 • 347 THE VOTING RIGIITS ACT AT THIRTY

AN ALTERNATIVE TO DISTRICIlNG of those seats may be invalidated by fed­ tions about how well our democracy eral rulings forcing the states to redraw works and how we choose our elected their congressional maps with less atten­ officials. The United States is one of only tion to race. a few modern democracies that have not In the wake of these Supreme Court adopted some form of proportional rep­ decisions, voting rights advocates are resentation. As Birmingham civil rights seeking solutions that would provide attorney Edward Still puts it: "Surely better representation for minorities with­ anymajoritarian system that can leave 49 out resorting to racial gerrymandering. percent of the people ... with nothing to Some have turned to voting systems that show for having gone to the polls except approximate the outcomes of single­ a patriotic feeling is not the answer." member districts in multi-seat elections: cumulative voting, limited voting and THE CUMULATIVE VOTING the single transferable vote form of pro­ ANSWER portionalrepresentation. Representative Cumulative voting is one of several modi­ Cynthia McKinney, the Georgia congress­ fied at-large electoral systems that might woman who stands to lose her district be used to approximate proportional rep­ because of the Court's June ruling, has resentation in a multi-member elective proposed a change in the 1967 law re­ body. Each voter is allowed as many quiring single-member districts for con­ votes as seats to be filled in a given elec­ gressional elections. The proposed tion. In that way, it is the same as simple amendments would allow states to adopt at-large systems. However, under cu­ alternative methods of voting within mulative voting, a voter may distribute multi-member districts that would be fair votes among candidates in any combina­ to minorities and other voting groups. tion, even concentrating all votes on a Such alternatives were offered earlier by single candidate. University of Pennsylvania law profes­ The system is not new to the Ameri­ sorLaniGuinier. In 1993,Guinier'snomi­ can political scene. From 1870 to 1980, nation to become Assistant Attorney lllinois elected members of its general General for Civil Rights was withdrawn assembly by means of cumulative vot­ by President Clinton in part because of ing. Each legislative district had three her "radical" ideas promoting voting representatives and a voter could cast schemes that would achieve proportional one vote for each of three candidates, one representation. After Shaw and Miller, and one-half votes for each of two candi­ the ideas of the "quota queen" - as she dates, or three votes for one candidate. was labeled by politicians and pundits Cumulative voting also has been used alike - are looking more constitutional. for decades to elect members of many The search for alternatives to corporate boards of directors. Moreover, districting has engendered a long-over­ . during the past decade, some three dozen due national debate on more basic ques- local jurisdictions innlinois, New Mexico,

348 • FALL-WINTER 1995 NATIONALCnnc~w THE VOTING RIGHTS ACT AT TI-lIRTY

'~', ' :'!. :

South Dakota, and Alabama have lots, how well they understood the new adopted cumulative voting as a remedy system of voting and how they evaluated for minority vote dilution. A federal it. The Atlanta Independent School Dis­ judge last year was the first to order cu­ trict, located in East Texas about 25 miles mulativevoting in a case against Worces­ from Texarkana, held the only election in ter County, Maryland (Cane v. Worcester which a black candidate was running County). under cumulative voting. The Atlanta ISD survey of 569 voters, a cooperative CUMULATIVE VOTING effort by experts for the plaintiffs and IN TEXAS defendants, was conducted by the politi­ Since 1991, at least two dozen small cities cal science department at Texarkana Col­ and school districts in the Texas Pan­ lege. handle and the Permian Basin have settled The study reported in this article Voting Rights Act lawsuits via cumula­ analyzes the exit polls of 4,184 voters in tive voting, most of them brought on the 16 jurisdictions in which minorities behalf of the League of United Latin ran for office under cumulative voting on American Citizens (LULAC). On May 6, May6. The study addresses several ques­ 1995,26 small cities and school districts tions: in Texas held elections under cumulative 1. Was there racially polarized vot­ voting, most for the first time, and all in ing? Were there clear differences be­ response to litigation. This event pro­ tween minority and Anglo voters in their vided a rare opportunity for a researcher preferred candidates? Didminoritiesvote to test the effectiveness of that system. In as a bloc? 16 of these jurisdictions, minority candi­ 2. Did cumulative voting work to dates were competing against Anglos; in elect minority-preferred candidates? If ten jurisdictions, minorities did not file not, why not? candidacies. ------3. Did voters understand Fifteen of the 16 juris­ The search for cumulative voting? dictions studied had Latino alternatives to 4. Did voters accept cu­ candidates on the ballot. The mulative voting? Hispanic Research Center at districting has the University of Texas at engendered a long­ RACIALLY POLARIZED San Antonio conducted exit VOTING polls in these cities and overdue national Knowing whether voters school districts. Bilingual debate on more basic polarize along racial lines is teams of pollsters visited questions about how pivotal in voting rights these jurisdictions with bi­ cases, since in the absence lingual questionnaires, gath­ well our democracy of polarization there can be ering data from 3,615 voters works .... no claim of minority vote on how they cast their bal- dilution.

NATIONALcnnCR8nEW FALL-WINTER 1995.349 THE VOTING RIGHTS ACT AT THIRTY

AN ALTERNATIVE TO DISTRICTING

In the Atlanta lSD, white and black were the top choices of Latino voters and voters could not have been more polar­ ranked last among Anglo voters. ized in their choices of candidates. Veloria Nanze came in last among white voters, THE THRESHOLD OF EXCLUSION but first among African-American vot­ In the worst case scenario of totally polar­ ers. Fewer than three percent of white ized voters, one can predict the outcome voters cast even one oftheir four votes for for a racial or ethnic group under cumu­ Nanze, while she received 94 percent of lative voting by simply calculating the all votes cast by blacks. "threshold of exclusion": the proportion The same general pattern of polar­ of votes that any group of voters must ization between Anglos and Latinos was exceed in order to elect a candidate of its found in the jurisdictions with Latino choice, regardless of how the rest of the candidates, but was less severe. With the voters cast their ballots. It is calculated exception of two cases, Latino candidates by one divided by one more than the

Cumulative Voting Election Outcomes in Texas Jurisdictions with Minority Candidates, May 6, 1995

Rank of Minority 'ilJJdidilb:'sl bll' Total Minority Anglo Positions Exclusion "'Minority Minority Candidates ValetS Voten Elected Threshold Voten Elected? Minorities Won: Atlanta ISO 5 1 5 4 20% 31% Yes Anton 8 1 5 3 25 30 Yes Morton 4 1.2 3,4 3 25 26 Yes,one MortonlSD 7 1.2 6.7 3 25 23 Yes, one Roscoe 8 1 6 5 17 17 Yes Rotan 8 1.2 7,8 5 17 32 Yes, two Rotan ISD 5 1 5 3 25 25 Yes Yorktown 2 1 2 2 33 43 Yes Olton 6 1 6 2 33 22 Yes

Minorities Lost: Andrews ISO 7 1 6 3 25% 8 No Denver City ISO 5 2 4 2 33 4 No Dumas ISO 7 2 6 2 33 2 No Earth 6 1.4 5.6 3 25 16 No Friona 6 1 S 3 25 12 No Friona ISD 6 1 6 2 33 7 No Stamford ISD 5 1 4 3 25 7 No

"Minority" refers to African-Americans in the case of Atlanta ISO, where Latinos are fewer than one-half of one percent of the voters. In the other 15 jurisdictions, "minority" refers to Latinos, since blacks are only 1.2 percent of the voters.

350. FALL-WINIER 1995 NATlONAL CMC REVIEW THE VOTING RIGIITS ACT ATTIURTY

, .

number of seats to be filled (1/[1 + nj). precisely as expected in polarized com­ With four seats up in the 1995 At­ munities. In each of the seven jurisdic­ lanta School Board election, the thresh­ tions where Latino candidates lost, there old of exclusion was 1/(1 + 4), or 20 were not enough Latino voters to rise percent. That meant that, even if Veloria above the threshold of exclusion. For Nanze did not receive a single white example, in the Denver City school dis­ vote, she could win as long as black vot­ trict, Latinos were 36 percent of the total ers comprised one more than at least 20 population, but only 15 percent of regis­ percent of the total voters and concen­ tered voters and four percent of the vot­ trated their votes on her. ers in the May 6 election. Since two seats Blacks comprised 21 percent of the were open in that election, the threshold voting-age population in the Atlanta ISO of exclusion was set at 33 percent, notlow in 1990 and 31 percent in 1995, which enough for Latino voters to elect their means that voter turnout among blacks preferred candidate. in this election apparently was much In hindsight, all seven losses could higher than among whites. In next year's have been avoided by lowering the election, when three school board seats threshold of exclusion or raising the level will become available, the threshold of of minority participation in the election, exclusion will be 25 percent, and it is or both. The thresholds could have been likely that blacks will elect another repre­ reduced by agreement between the par­ sentative. ties designing the cumulative voting sys­ tem, realizing that the more seats up in an THE REsuLTS UNDER election, the lower the threshold. Since CUMULATIVE VOTING school boards in Texas typically have In the case of the Atlanta ISD,cumulative seven members, if all seats were up at voting worked as it should have for black once, the threshold would be 1/ (1 +7) or voters seeking to elect one candidate. 12.5 percent. The African-American community not only elected their candidate with almost THE KEY ROLE OF no white support, but they voted together, COMMUNITY ORGANIZING placing almost all their votes on Nanze, Raising the level of voter participation who came in a close second among five through voter registration and educa­ candidates in a race that elected the top tion, minority candidate recruitment and four choices. get-out-the-vote efforts is a key winning In the 15 contests involving Latino strategy under cumulative voting. In the candidates, on first glance the results Atlanta ISO, blacks launched door-to­ seemed mixed: eight wins and seven door voter education and get-out-the­ losses. A closer examination of the con­ vote drives in black neighborhoods. In tests involving Latinos, however, reveals the City of Morton, the Morton ISO, that cumulative voting worked almost Roscoe, the Rotan ISO, and the City of

NATIONAL~C~W FALL-WINTER 1995' 351 THE VOTING R1GIITS ACT AT TIiIRTY

AN ALTERNATIVE TO OISTRICJJNG

Rotan, the Southwest Voter Registration Is CUMULATIVE VOTING UNDERSTOOD AND Education Project provided training in AccEPTED? voter mobilization undercumulativevot­ Ten of the 16 jurisdictions in this study ing. In Yorktown, where Concerned Citi­ held elections under cumulative voting zens for Voting had begun mobilizing for the first time; five for only the second under their first cumulative voting elec­ time. Beyond documenting the success tion in 1992, a Latino was running as an of minority candidates, this study sought incumbent. to determine how voters responded to In stark contrast, where Latino can­ the cumulative voting system. Did they didates lost, minority voter understand the new voting participation was low. The .. .for a group or system? How do both average turnout rate among party to win under Anglo and minority voters Latinos registered to vote in perceive cumulative vot­ the seven jurisdictions in cumulative voting in ing? which Latino candidates a highly polarized Since all 16 jurisdictions lost was one-half the turn­ political contest ... had been sued for minority out rate of non-Latino vot- vote dilution, it is likely that ers. may requzre Anglo voters harbored Finally, for a group planning to limit the much resentment at being or party to win under cu­ forced to adopt a settlement mulative voting in a highly number of minority over which they had little polarized political contest, candidates so as not or no control. Yet, the exit they must vote together as a to split their strength poll found greater under­ group. This may require standing and acceptance of planning to limit the num­ as a bloc. cumulative voting than ber of minority candidates might be expected. More so as not to split their strength as a bloc. than nine in ten voters of each ethnic Placing all of one's votes on a single group knew they could concentrate all candidate, or "plumping," is a practice their votes on a single candidate. Asked that may enable minority voters to con­ to compare cumulative voting with pre­ centrate the strength of their groups' vote vious election systems, more respondents and improve their chances of electing at said that cumulative voting was easier least one candidate of their choice. Afri­ than said it was more difficult. can-American voters in the Atlanta ISO There were large ethnic differences planned their effort very carefully in only in evaluations of cumulative voting with a few weeks by agreeing to field only one regard to difficulty. More than twice as candidate and by conducting strong voter many minority as Anglo voters felt cu­ outreach. The exit poll found that 90 mulative voting was easier compared to percent of blacks in the Atlanta ISO other elections in which they had voted; "plumped" their votes for Veloria Nanze. even so, fewer than two in ten Anglos

352. FALL-WINTER 1995 NATlONAL ClVIC REVlEW THE VOTING RIGHTS ACT AT THlRn'

found this election system In a racially lative voting, one must cal­ more difficult than previ­ culate the relative size of ous voting methods. polarized context, the minority electorate. This Cumulative voting, ... the traditional proportion determines moreover, was not rejected winner-take-all, at­ what "threshold of exclu­ by the majority of Anglovot­ sion" is needed. For Latino ers. The poll revealed large elections communities, voting-age slightly more agreement effectively precluded population figures gener­ than disagreement among ally will not be an accurate Anglos with the statement: minority groups measure of the size of the "The voting system used from electing potential Latino vote; a bet­ today gives everyone a fair ter indicator is the count of chance to elect officials of candidates of their Spanish surnames on the list their choice." Almost nine choice. of registered voters for the in ten blacks and eight in jurisdiction. ten Latinos agreed that it was a fair sys­ • After determining the effective tem. However, there were a number of size of the minority voting bloc, the num­ Anglos - 24 percent - who strongly ber of seats to be filled in anyone election disagreed with that statement. is crucial to determining a minority group's ability to elect its preferred can­ RECOMMENDATIONS didate or candidates. If the seats are too This study demonstrates that cumula­ widely dispersed over several elections, tive voting in Texas has resulted in more the chance that a minority group can diverse city councils and school boards. elect a candidate of its choice will be In a racially polarized context - as was diminished. found in all cities and school districts • If the size of the minority voting studied - the traditional winner-take­ group is large enough to elect, the group all, at-large elections effectively pre­ must act strategically regarding the num­ cluded minority groups from electing ber of candidates to field in a given elec­ candidates of their choice. In those cases tion. Control of candidacies is more cru­ where cumulative voting did not result cial in cumulative voting than in other in minority victories, it was not that the modified at-large systems, such as lim­ method of election did not work, but that ited voting and proportional representa­ it was not applied correctly (that is, to the tion, because intra-minority competition greatest advantage of minorities). The can result in minority losses. results of the May 6 elections provide • Cleariy, cumulative voting is not some lessons for those considering the a minority set-aside program. The ability adoption of cumulative voting: of minority voters to elect candidates of • Before fashioning an alternative their choice depends on voter education to single-member districts such as cumu- and solidarity in allocating multiple votes

NATIONALCnnc~w FALL-WINTER 1995.353 THE VOTING RIGHTS ACT AT THIRTY

AN ALTERNATIVE TO DISTRlCTING in a manner that will not disperse voting still out on whether cumulative voting strength. If there is insufficient local should be preferred over single-member mobilization of the minority vote, minor­ districts to solve the problem of minority ity candidates are not likely to win. vote dilution . • All of the Texas jurisdictions that Perhaps the answer may be found have adopted cumulative voting are by returning to a different question, the small. The Atlanta ISD was the only basic philosophical debate over the kind jurisdiction with more than 2,000 voters. of democracy we want in the United A modified at-large election system was States. Is it to be a strictly majoritarian viewed by election administrators as a system,or should we recognize the demo­ desirable alternative to carving their small cratic principle that the majority has a communities into even smaller single­ right to make policy decisions, but a sig­ member districts. Nonetheless, this lim­ nificant minority also has a right to be ited field experiment does not clearly represented in any decision-making demonstrate whether single-member dis­ body? Under cumulative voting, if any tricts would work as well or better in group - racial, gender, country club, larger communities. "bubbas," the militia - is sufficiently large to meet the threshold and votes as a CONCLUSION bloc, it can elect a candidate of its choice. In view of all the local conditions that Maybe that's why the system is so con­ must be considered when choosing the troversial, even among civil rights advo­ type of voting system that best fits the cates. needs of a specific community, the jury is D

354 • FALL-WINTER 1995 NATIONAL CMC REVIEW THE VOTING RIGHTS ACT AT THIRTY ','

WHY WOMEN SHOULD BE INCLUDED IN THE VOTING RIGHTS ACT It is time to correct the ongoing injustice of the under­ representation of women in governmg institutions at all levels, perpetrated Vy the strenuous promotion of sin.tle-member . dzstricts. Without an appropriate remedr' the full promise of the 14th and 19th Amendments wil not be realized.

• WILMA RULE

s long as there is social bias to­ . natoryvoterscan deny female candidates ward minorities and deprivation the margin they need to secure election. A of their rights to vote and elect Female voters have had no de facto right representatives of their choice, the Vot­ to elect representatives of their choice; ing Rights Act will remain a democratic female candidates were denied, in real­ and moral imperative. However, its cov­ ity, the right to be elected. erage should be extended to that one-half The 1964 Civil Rights Act prohibits of the population that is most deprived of gender discrimination in employment. voting rights and least represented in But scant, or no attention has been given elective government: women. Their to enacting a comparable law prOhibiting omission from the Voting Rights Act, as gender discrimination against minority amended in 1982, should be corrected to and non-minority women alike in elec­ eliminate this injustice. tions to public office. The 1964 Civil The 19th Amendment gave women Rights Act may be viewed as congres­ the right to vote. But under the prevail­ sional enforcement of equal employment ing system, where a majority of votes are rights for women under the 14th Amend­ needed, even a small number of discrimi- ment to the United States Constitution.

NATIONALcnnC~W FALL·WINTER 1995 • 355 ~VOTINGruGKffiACTAT~RIT

INCLUDING WOMEN IN THE VOTING RIGHTS ACT

The Voting Rights Act as ... the Voting Rights toral arrangements which amended in 1982 also could could be offered as remedies have enforced the 14th and act does not apply under the revised Voting 19th Amendments by en­ to women Rights Act. The fourth sec­ suring equal political rights tion presents authoritative for women. The critical Sec­ specifically, for they research that backs up the tion 2 of the amended Act are not defined as a claim that women's under­ applies to women as well as protected class in representation is due largely to minority men. The sec­ to election procedures. tion stipulates that a viola­ the Act today. tion of the Act may occur if WOMEN's ELECTION, 1992-94 members of a protected class of citizens The extent of female representation in "have less opportunity than other mem­ Congress more than ten years after the bers of the electorate to participate in the Voting Rights Act was last amended in political process and to elect representa­ 1982 remains extremely limited. Counter tives of their choice." However, the Vot­ to common perceptions, the "year of the ing Rights act does not apply to women woman" in 1992 was empty reality. Men's specifically, for they are not defined as a representation in the U.s. House of Rep­ protected class in the Act today. resentatives in 1992-94 declined six per­ This article first presents the un­ cent in ten years to a low, 89 percent male der-representation of minority and non­ oligopoly. In the U.s. Senate, men had 94 minority women elected in the "year of percent of the seats, compared to 98 per­ the woman" (1992) at the national, state cent in 1982. African-American, Hispanic and local levels of government. This and other minority and non-minority factual material is set forth because, as women remain a small, under-repre­ Section 2 of the Voting Rights Act pro­ sented group with little power in Con­ vides, the extent to which members of a gress to enact laws for the benefit of protected class have been elected to of­ women and children. With few excep­ fice in the past is one circumstance that tions, such as the Violence Against can be considered in determiningwhether Women Act, little of their agenda was a group's voting rights have been vio­ enacted. It would be surprising if more lated. of it had, given that women made up Next, weexarnine the damage done only 11 percent of the Congress, a ratio of to women's voting rights by the U.S. one woman to every nine men. Senate Judiciary Committee's 1982 Vot­ Figure 1 shows the ethnic and gen­ ing Rights Act report, the Courts and the der representation and representation/ U.S. Justice Department in their promo­ population ratios for the U.S. House of tion of single-member district elections. Representatives in 1992, the best-everyear The third section offers three non-racially for the election offemale candidates. Non­ and non-gender-based alternative elec- minority men and African-American

356 • FALL-WINIER 1995 NATIONAL CMC REVIEW TIlE VOTING RIGHTS ACT AT TIilRTY , .

men, who constitute about 45 percent of population. Latino men are under~rep­ the U.S. population, are over-represented resented among the three groups ofmem­ by 111 percent and 22 percent, respec­ bers of the House of Representatives by tively, in terms of their share of the U.S. approximately 22 percent.

Figure 1 U.S. House of Representatives, 1993 Ethnic and Gender Percentages and Representation/Population Ratios (N=435)

2.11 • Representation/Population Ratio 1.22 ~ Percent in U.S. House .78

.33

.20 6.9% 1.5 3.7% 2.1% .7~1 'II IZI ~ ~ Latina Anglo Black Latino Black Anglo Women Women Women Men Men Men

Representation/population ratio example: Anglo women are 38.82 percent of the national population (in 1991). Dividing their population share into their share ofU.5. House members (7.8 percent) yields a ratio of .20, one-fifth of parity, which should be 1.00. In 1993, Asian women constituted .2 percent of U.S. House members, with a representation/population ratio of .13; Asian men held .7 percent of U.S. House seats, with a representation/population ratio of .48.

Sources: Center for the American Woman in Politics, Eagleton Institute, Rutgers University; Joint Center for Economic and Political Studies; National Association of Latino Elected and AppOinted Officials; and United States Bureau of the Census, Statistical Abstract of the United States: 1993 (Washington, D.C.: United States Government Printing Office, 1993), p. 22.

NATIONAL CMC REVIEW FALL-WINTER 1995 • 357 THE VOTING RIGHTS ACT AT TIIIRTY

INCLUDING WOMEN IN THE VOTING RIGHTS ACT

The differences between the fig­ overten times their representation/ popu­ ures for men and women are tremen­ lation ratio. Finally, while African-Ameri­ dous. While Hispanic men lack about can women are the best of the three un­ one-fifth of the representation one would der-represented women's groups, they expect given their share of the popula­ have only about one-fourth of black men's tion, Hispanic women are under-repre­ representation. Indeed, as three scholars' sented by 99 percent. For non-minority - Darcy, Hadley and Kirksey - have women, under-representation is 80 per­ noted, the under-representation of blacks cent, while their male counterparts have is an under-representation of female Af-

Table 1 Population Proportions and Ethnic and Gender Representation in the 50 State Senates, 1992-1994

Share of Share of Number of Ratio of Population (%) State Senate State Senate Men to Women Seats (%) Seats

Latina Women 3.7 .4 7 Latino Men 3.7 1.9 38 5.43:1

Non-Minority Women 41.2 15.4 305 Non-Minority Men 39.5 76.2 1,511 4.95:1

African-American Women 6.2 1.5 29 African-American Men 5.6 4.7 94 3.24:1

Totals/ Average 99.9' 100.1' 1,984 54:1 Ratio

'Does not total 100 percent due to rounding

Note: Non-minority figures were computed from the total number of female and male legislators minus the numbers Latino and African-American legislators. The number of Asian and Pacific Islander state senators was not available. Sources: National Association of Latino Elected and Appointed Officials; Joint Center for Economic and Political Studies; Center for the American Woman in Politics, Eagleton lnstitute, Rutgers University; and United States Bureau of the Census, Statistical Abstract of the United States: 1990 (Washington, D.C.: United States Government Printing Office, 1990), pp. 14,16.

358· FALL-WIN1ER 1995 NATIONAL ClVlC REVIEW THE VOTING RIGHTS ACT AT TIflRTY

rican Americans.! The same is true for Figure 2 shows the 107 percent Hispanics. over-representationofnon-minoritymen. Female candidates did not run for All others are under-represented by as U.S. Representative in 325 (75 percent) of much as 50 to 90 percent over what might the House races in 1992. In that unusual be expected if their representation were election year there were twice the open proportional to their population. Latina seats, but female candidates were not women are the most severely under-rep­ elected in 75 percent of them.' resented, followed by African-American Women's representation in the women and non-minority women. Fig­ state legislatures is extremely important, ure 2 also indicates that Latino male leg­ not only for state governance, but be­ islators are under-represented. The fig­ cause legislative experience - especially ure again demonstrates the need for the as state senator - is often an unwritten continuance of the Voting Rights Act as but necessary qualification for election to amended in 1982 to protect male minori­ the U.S. House. Table 1 reveals the small ties, and argues for an amendment to number of minority women in 1992 who protect women of all ethnic backgrounds. held the critically important position of The latter were only 32 percent of state state senator. legislative candidates in 1992. In the 50 states, where Latinos con­ In 1988,amongmunicipalitieswith stitute about eight percent of the popula­ populations of 50,000 and larger with tion, and approximately 33 percent in minority proportions of five percent or New Mexico, California and Texas, there more, Latinas were not elected to 85 per­ were only seven female state senators in cent of city councils, and black women 1992. There were three in New Mexico, and non-minority women lacked repre­ two in New York, and one each in Texas sentation on 67 percent and 23 percent and Washington State. There are 38 male of city councils, respectively. Black, Latino state senators, with the largest Latino and non-minority men were concentration in New Mexico, where they elected about four times as often as Afri­ outnumber their female colleagues by can-American women, Latina women 13-to-one. and non-minority women in those larger When we examine male-female . cities. state senate ratios for non-minority and African-American women, their denial When we look at 1993 figures for of full political participation rights in small, medium and large municipalities, these significant legislative bodies is quite the ratio is closer, about three-to-one be­ clear. The ratio of the 1,511 non-minority tween men and women. The under-rep­ male state senators to the 305 non-minor­ resentation of African-Americans and ity female senators is almost five-to-one, Latinos at the city council level is due to while African-Americans' ratio is some­ the under-representation of black and what closer between the genders. Latina women. .

NATIONAL CIVIC REVIEW FALL-WINTER 1995.359 THE VOTING RIGHTS ACT AT lHIRTY

INCLUDING WOMEN IN THE VOTING RIGHTS ACT

VRA ENFoRCEMENT DAMAGES CHANCES OF same requirements in majority black or WOMEN'S ELECTION Latino districts would discriminate If only the Senate Judiciary Committee in against women of each group, as well as 1982 and the COurts thereafter could have women in non-minority districts. The . perceived the lopsided gender differences Senate report, relying on past court deci­ in elective office along with the ethnic sions regarding multi-member districts, ones, there would be more opportunity also identified "unusually large districts" today for female participation in the po­ as potentially discriminatory against mi­ litical process. norities. Again, this finding disregarded The Judiciary Committee in 1982 the effects of such structures and proce­ correctly understood how majority vote dures on women .. requirements in at-large elections dis­ The U.S. Supreme Court in criminated against minorities,' but the Thornburg v. Gingles (1986) reviewed the all-male Committee failed to see that these Senate report and put forth the condi-

Figure 2 U.S. State Legislatures, 1993 Ethnic and Gender Percentages and RepresentationIPopulation Ratios 2.07

• Representation/Population Ratio

~ Percent in U.s. State Legislatures

.54 .45

.31 .34 17.1%

.09 3.0% .4;; I 2'~1 L6~1 ~ ~ Latina Black Latino Anglo Black Anglo Women Women Men Women Men Men

Note: The number of Asian/Pacific Islander legislators was not available. The figure for Anglo men was derived by subtracting the number of female, black and Latino male legislators from the total number of legislators in 1993. See Figure 1 for an explanation of the representation/ population ratio and list of sources. .

360 • FALL·WINTER 1995 NATIONAL CMC REVIEW THE VOTING RIGHTS ACT AT TIilRTY

\ ,:

tions under which a single­ tice Department's enforce­ member district system may By changing to mentpatterns also had posi­ be ordered by a Court as a single-member from tive implications for South­ remedy for a violation of the multi-member ern Republicans, as several Voting Rights Act. Subse­ lily-white districts were quently, any jurisdiction­ districts I the drawn alongside new ma­ from a school board to a con­ probability that jority-blackdistricts.s How­ gressional house district - minority and non­ ever, there was little that had a sizable minority thought of either the gen­ exhibiting geographic com­ minority women der consequences of these pactness and political cohe­ would secure actions or alternative elec­ siveness and where the ma­ toral systems that would be jority was able to defeat the election to judicial fair to all. In 1988, only minority's preferred candi­ posts was reduced seven percent of full-time date was open to challenge. substantially ... elected judges in the United Single-member districts States were women, while constituted the usual rem- African-American and edy until Shaw v. Reno (1993), when the Latinos remained largely unrepresented. 6 Supreme Court remanded to the District By changing to single-member from Court for re-examination a majority-mi­ multi-member districts, the probability nority district of "irregular" shape. that minority and non-minority women The U.S. Justice Department, which would secure election to judicial posts is charged with pre-clearing proposed was reduced substantially while that of changes in election law in jurisdictions . minority men was greatly increased. covered by the Voting Rights Act, as­ sumeda particularly activist enforcement FAIR ELECTION ALTERNATIVES role following the 1990 Census. In 1991, If women were included in the Voting the Department supported the plaintiffs Rights Act, election procedures would be who argued successfully before the U.S. needed to ensure equal opportunity for Supreme Court that the Voting Rights female voters and candidates as well as Act applies to the election of judges.' minority men. A new Senate report ex­ Supported by a six-to-three vote in favor plaining women's inclusion in the Act of this application, the Justice Depart­ could list Single-member districts as pos­ ment stated that it would redouble its sibly discriminatory and recommend efforts to ensure that all election proce­ such alternative election methods as the dures conform with the Voting Rights following three: cumulative voting, the Act. That meant the introduction of single transferable vote (STY) system of single-member districts, with all their proportional representation (PR), and the positive effects on minority men and their list system of PR with a preference vote deleterious effects on women. The Jus- option, which is used in most European

NATIONALcnnCR8nEW FALL-WINTER 1995' 361 THE VOTING RIGHTS ACT AT 1HIRTY

INCLUDING WOMEN IN TIlE VOTING RIGHTS ACT nations. The single transferable vote form Any of the above could prove a of PR is used in Cambridge, Massachu­ successful remedy in jurisdictions whose setts to elect its city council and school single-member districts have restricted board, and to elect New York City Com­ the political opportunity of female candi­ munity School Boards. This system also dates. Cumulative voting is offered by is used by the Republic of Ireland to elect Lani Guinier and others as an alternative its parliament and local councils (see Jo­ to single-member districts. In cumula- . seph Zimmerman's article in this issue of tiveelections, the voter has as many votes the NATIONAL CIVIC REvIEw). as there are seats to be filled. The voter The list form of proportional rep­ may distribute these votes in any way resentation might also be considered as a desired - for example, two votes each to remedy for deprivation of voting rights. two candidates and three to a third in a It is the most widely used election system seven-member district, or all seven to a at every level of government among 27 single candidate: This system works long-standing democracies. The list sys­ well for non-minority women, but mi­ tem is the most issue-oriented of the four norities must take care not to split their election methods presented here, and it votes among too many candidates. ensures fair representation to individual

Figure 3 Example of Marked (K) PR List Election Ballot

VOTER MAY VOTE FOR UP TO 12 CANDIDATES 1 2 3 4 5 Business Environment Black Rights Independents Women's Progress List List List Health List List

All All All All All

Can. 1~ Can.1~ Can.1~ Can. 1 )C Can. 1 K Can.2~ Can.2~ Can.2~ Can. 2_ Can. 2_ Can. 3_ Can.3~ Can.3~ Can. 3_ Can. 3_ Can. 4_ Can.4~ Can. 4_ Can. 4_ Can. 4_ Can.5_ Can. 5- Can. 5_ Can. 5_ Can.5~

Note: A variation of this system as used in some cOWltries would require voters to select candidates from one list only.

362. FALL·WINlER 1995 NATIONALClVIC~W THE VOTING RIGHlS ACT AT lHIRTY

women and minority men. Slates oflike­ risk defeat when they nominate female minded citizens, whether local environ­ candidates. mental groups or political parties, nomi­ Figure 4 reveals that the United nate lists of candidates to appear on the States ranks 17th among 27 democracies ballot. A preference law or rule in most in the percentage of women serVing in countries employing this system allows national legislatures. Of the first ten voters to choose particular candidates on rankings, eight have the optimal election the list or vote for the entire list. The features described above (i.e., party list, number of representatives elected from where voters may select entire slates of each list equals the proportion of the total candidates or vote for individual candi­ votes received by the list. For example, a dates). Along with women, minority and list receiving one-third of the votes would majority men are well represented. be allocated four seats on a 12-member The argument that culture explains governing body, with the top-four candi­ the difference in women's election to na­ dates on the list being selected. Figure 3 tional legislatures has been disproved. presents an example of a marked ballot Different election systems in the same using the list system of proportional rep­ national culture produce significantly resentation. different results in the election of female candidates. In Australia, Japan and Ger­ AUTHORITATIVE REsEARCH ON WOMEN AND many, PR and single-member or very ELECTORAL SYSTEMS small districts are used for electing dif­ Nations employing PR with large num­ ferent legislative bodies or for election of bers of representatives apportioned per members to the same body (as in Ger­ parliamentary district have more female many). PR balloting, compared to single­ candidates and a greater percentage of member district balloting, resulted in female parliamentarians elected. Re­ three times as many female legislators in search shows that PR is the number one Australia, ten times as many in Japan, predictor of women's national legislative and over double the proportions in Ger­ election when it is tested against other many in the 1987-1993 elections." political and socio-economic variables." Throughout the 1980s, scholars Where voters may select individual can­ have documented that more women were didates on a party's slate, the number of elected to state legislatures where there women also is enhanced greatly. Voters were multi-member districts or a mixed may select female candidates as several system of multi-member and single­ of their representatives, not as the only member districts. It was further docu­ one. Political parties, always conscious of mented in the early 1990s that African­ the need to broaden their appeal, thus American women were more likely than have an incentive to place women on their non-minority women to be elected in respective lists. In U.S.-stylesingle-mem­ multi-member districts.'o Although the ber district elections, however, parties data for Latina legislators are too few to

NATIONAL CMC REVIEW FALL·WINTER 1995.363 THE VOTING RIGHTS ACT AT THIRTY

INCLUDING WOMEN IN THE VOTING RIGHTS ACT

Figure 4 National Legislatures in Long-Established Democracies Percentage of Women in 27 Single or Lower Houses

1 Finland 39.0 2 Norway 35.8 3 Sweden 33.5 4 Denmark 33.0 5 Netherlands 29.3 6 Iceland 23.8 7 Austria 21.3 8 Germany 20.5 9 Switzerland 17.5 10 New Zealand' 16.5

11 Spain 16.0 12 Trinidad/Tobago' 13.5 13 Luxembourg 13.3 14 Canada' 13.2 15 Costa Rica 12.3 16 Ireland 12.1 17 United States' 10.8 18 Venezuela 10.0 Average: 16.0% 19 Belgium 9.+ Median: 13.2% Range: 2.3-39.0% 20 United Kingdom' 9.2 21 Australia' 8.2 22 Italy 8.1 23 Portugal 7.6 24 France' 6.1 25 Greece 5.3 26 Barbados' 3.6_- 27 Japan 2.3 - 'Indicates the eight nations that elect a single representative from each national district by a reqUired majority or plurality vote. The remainder includes 17 nations with the party list form of proportional representation; Ireland, with the single transferable vote form of PR; and Japan, with the single non-transferable vote form of PR. Source: Distribution of Seats Between Men and Women in National Parliaments (Geneva: Inter­ Parliamentary Union, 1993).

364 • FALL-WINTER 1995 NATIONAL CMC REVIEW THE VOTING RIGHTS ACT AT THIRTY

Figure 5 States with Multi-Member and Single-Member Assembly (Lower House) Districts Average Percentage of Female Legislators, 1987

Multi-Member States (N=15(-) .::.2_1...:..8°_Yo______.... I ,

Single-Member States (N=35)12.4%

r--"I------.,

Note: The multi-member states in 1987 were Alaska, Arizona, Georgia, Idaho, Indiana, Maryland, New Hampshire, New Jersey, North Carolina, North Dakota, South Dakota, Vermont, Washington, West Virginia, and Wyoming. (Nebraska is the only state with a unicameral legislature, and its female proportion was included in the average for the other 34 states using Single-member districts to elect their lower houses.)

Source: Center for the American Woman in Politics, Eagleton Institute, Rutgers Univer­ sity, New Brunswick, New Jersey. permit comparison, there is no reason to states. In 1982, female legislators in believe that their patterns differ substan­ Florida, Hawaii and lllinois averaged tially from those of women from other about 20 percent above the national mean. groups. After the switch, the growth in female States that switched tosingle-mem­ representation in these states gradually ber districts from multi-member districts declined, and proportions dwindled to between 1960 and 1980 experienced a below the national average pace by 1992. decline in female legislators relative to The proportions for female state legisla­ the national average. As the 1980s tors in 1987, when the process of decline opened, there were still about double the was well underway, are presented in Fig­ proportion of female legislators in states ure5. with multi-member districts as in states Alaska, Georgia, Indiana, and with single-member districts. However, Wyoming changed to single-member dis­ as pressure increased to adopt single­ tricts in the 1990s. We may expect de­ member districts, Florida, Hawaii and clines in women's legislative growth in lllinois did so. Certainly, the need to these states relative to the national aver­ conform to the standards of the Voting age - just as we have observed else­ Rights Act influenced lawmakers and where during the past 20 years. 11 In tum, other influential leaders in these three a smaller increase in women's election to

NATIONAL CMC REVIEW FALL-WINTER 1995.365 THE VOTING RIGHTS ACT AT TIflRTY

INCLUDING WOMEN IN THE VOTING RIGHTS ACT

Congress during the 1990s by is both anecdotal and dated, may well be in the offing; the Hobbled the it nonetheless indicates that main increases likely will single-member while at-large districts pro­ occur in the less populated district electoral vide election opportunities states where campaign costs for women, they may harm are lower, as opposed to the system, women are the election chances of I big campaign money states. out-numbered nine- Latino men. ' Moreover, it Another barrier to leg­ to-one in Congress, appears that during the islative election of both Afri­ 1990s - with the increased can-American and non-mi­ and generally four­ efforts on the part of nority women is the runoff to-one in state and women's organizations to primary, employed in ten elect more of their gender Southern states, which re­ local legislatures. -women are securing elec- quires a majority vote for the tion in larger numbers to nomination of a candidate, thus discrimi­ citycounci1swithat-largevotingschemes. nating against women and minority men Meanwhile, minority men in at-large mu­ in non-minority districts. The runoff is a nicipalities continue to be denied elec­ barrier that only a few manage to pass in toral opportunity, or are being elected in order to face the other party's candidate smaller numbers than one would expect in the general election." It is likely that given their share of the population.ls Southern majority rules for primaries, combined with single-member districts, CONCLUSION are the most significant reason for Women, whether minority or non-mi­ women's differential political opportu­ nority, are the most under-represented nity in that region. citizens in the United States. They should The same generalization aboutelec­ be included in the Voting Rights Act as a tion systems applies to local governments protected class, since over 50 percent of where women have greater opportunity the U.S. population has been denied an for political participation in multi-mem­ opportunity to fully participate in the berdistricts. There were five multi-mem­ political process, to elect candidates of ber district municipalities in a 1988 study their choice, and to enact legislation of . of 315 medium and large cities. African­ concern to them. Hobbled by the single­ American female council members member district electoral system, women reached 87 percent of parity relative to are out-numbered nine-to-one in Con­ their proportion in the population in the gress, and generally four-to-one in state multi-member district municipalities, and local legislatures. It is time to correct while black male council members this injustice and fulfill the promise of the reached 97 percent of parity in those ju­ 14th and 19th Amendments to give risdictions.13 . women equal rights for voting and elec­ AI though most local-level research tion to public office. c"k

366 • FALL·WlN1ER 1995 NATIONALCIV1C~W · THE VOTING RIGHTS ACT AT lHIRTY

NOTES IR Darcy, Charles D. Hadley and Jason F. it Works," Voting Rights Review, Spring Kirksey, "Election Systems and the Rep­ 1995, pp. 10-12. resentation of Black Women in State Leg­ islatures," Women & Politics, Vol. 13 (1993), 'See, Pippa Norris, "Women's Legisla­ pp.73-90. tive Participation in Western Europe," Western European Politics, October 1985, 'Gary C. Jacobsen, "Congress: Unusual pp. 90-91, and Wilma Rule, "Electoral Year, Unusual Election," in Michael Systems, Contextual Factors, and Nelson, ed., The Elections of 1992 (Wash­ Women's Opportunity for Election to ington' D.C.: CQ Press, 1993), pp. 168 Parliament in Twenty-Three Democra­ and 173. . cies," Western Political Quarterly, Septem­ ber 1987, pp. 477-498. "See, Bernard Grofman, Lisa Handley and Richard G. Niemi, Minority Representa­ "Wilma Rule, "Women's Underrepresen­ tion and the Quest for Voting Equality (New tation and Electoral Systems," PS: Politi­ York: Cambridge University Press, 1992), cal Science and Politics, December 1994, pp.40-60. pp. 690-691.

'Linda Greenhouse, "Court, ~3, Applies l"Wilma Rule, "Multimember Legislative Voting Rights Act to Judicial Races," The Districts, Minority and Anglo Women's New York Times, 21 June 1991, pp. AI, A9. and Men's Recruitment Opportunities," in Rule and Zimmerman, eds., United 'Michael Barone and Grant Ujifusa, The States Electoral Systems, pp. 57-72, and Almanac of American Politics (Washing­ Darcy Hadley and Kirksey, "Election ton, D.C.: National Journal, 1993). See, Systems and the Representation of Black for example, "Florida," pp. 275-276. Women," 73-90.

"Richard L. Engstrom, "Alternative Elec­ IIR. Darcy, Susan Welch and Janet Clark, toral Systems: Solving the Minority Vote Women, Elections and Representation (Lin­ Dilution Problem," in Wilma Rule and coln: University of Nebraska Press, 1994), Joseph F. Zimmerman, eds., United States pp.160-168. Electoral Systems: Their Impact on Women and Minorities (Westport, Conn.: Green­ 12See, Rule, "Multimember Legislative wood Press, 1992), p. 129. Districts .... "

'Jason F. Kirksey, Richard L. Engstrom "'Susan Welch and Rebecca Herrick, "The and Edward Still, "Alternate Voting: How Impact of At-Large Elections on the Rep-

NATIONAL CMC REVIEW FALL·WINTER 1995. 367 THE VOTING RIGHTS ACT AT THIRTY

INCLUDING WOMEN IN THE VOTING RIGHTS ACT resentationofMinority Women," in Rule 'SSee, Richard L. Engstrom and Michael and Zimmerman, eds., United States Elec­ MacDonald, "Enhancing Factors in At­ toral Systems ... , p. 158. Large Plurality and Majority Systems: A Reconsideration," Electoral Studies, Vol. "Welch and Herrick, p. 158. 12 (1993), pp. 312-401. I

368 • FALL-WINTER 1995 NATIONAL CMC REVIEW FEATURE

WHAT DO YOU DO WHEN REFORMED GOVERNMENT DOESN'T WORK? THE CINCINNATI EXPERIENCE

A recent campaign to abandon council-manager government in Cincinnati, OhlO demonstrates that the democratically elected city council remains the key to preserving and maintaining the vigor of the council-manager plan. When councils fail to lead as a group, they open the door to potentially disastrous remedies.

GERALD E. NEWFARMER

incinnati, Ohio: a city routinely the ballot in a city with Cincinnati's his­ associated with quality local gov­ tory of good government was cause for Cernment, and an early leader in grave concern among those who favor the Progressive reform movement. How the council-manager plan as the epitome could it be that its political workings had of progressive, reformed local govern­ become so dysfunctional as to inspire a ment. serious proposal to switch back to pre­ reform conditions by reinstituting a THE BACKGROUND mayor-council structure? On August30, Cincinnati enjoys a long tradition of good 1995, the citizens of Cincinnati votedona government. In 1926, after decades of proposal to change the structUre of their political bossism, a citizens group known city government from the council-man­ as the Charter Committee decided ager plan to the strong mayor plan. That enough was enough. They drafted a new such a proposal would even make it to city charter adopting the council-man-

NATIONAL CMC REVIEW FALL·WINfER 1995.369 FEATIJRE

WHEN REFORMED GOVERNMENT DoESN'T WORK

ager form of local government to rid the run directly for the office of mayor or city of its strong mayor form of govern­ against any individual member of coun­ ment. Its adoption marked the beginning cil. Thus, there is no individual electoral of a 70-year period during which Cincin­ accountability. If an incumbent mayor or nati was widely recognized as having council member performs poorly, it is clean, good government. not possible to challenge that person di­ Under the city charter, the nine­ rectly. One can only run for the council at member city council appoints and su­ large. . . pervises the professional city manager, Unlike many cities in America who serves as the chief executive of the without enthusiastic leadership from the municipal corporation. The entire coun­ business community, Cincinnati has al­ cil is elected every two years in a single ways enjoyed the active engagement of election, at-large and without primaries, private sector leaders in civic affairs. The ostensibly on a non-partisan basis. Any­ Cincinnati Business Committee provided one interested in serving on council can the impetus for reform of the city's main­ run; the nine candidates receiving the tenance of its public works infrastructure most votes are elected and the top vote­ (led by John Smale, then CEO of Procter getter among them is elected mayor. and Gamble) and of the public schools While the mayor is the presiding officer (led by Clem Buenger, then CEO of Fifth of the council - and is regarded as the Third Bank), two major areas of concern political leader of the city - the mayor regarding the quality of government ser­ has no more power on the council than vices. But in spite of its effectiveness in any of the other eight members. prOViding leadership to achieve these Although the ballot is non-parti­ reforms, the business community does san, elections in Cincinnati are thoroughly not have meaningful representation on "partisan." Both the Democrats and the the city council. Republicans run slates of candidates for Another significant political fea­ citycouncil,asdoestheCharterCommit­ ture is that Cincinnati is located within a tee.! For years the council has had repre­ media marketofl.7 million people. Given sentativesof all three groups, although in its size, politicians must become known recent years the representation of the to the public through media attention Charter Committee has declined to a (wholesale politics), rather than through single member. In recent years, council the one-on-one contact that is character­ , seats are held by full-time politicians­ istic of a small community (retail poli­ persons whose primary occupation is tics). Under normal circumstances, this elective office. means politicians must vie for media at­ The Cincinnati political scene has tention by providing leadership in re­ some other important features. Since the solving issues; when every member of mayor and members of the council are council must compete in a field race with elected in a field race, it is not possible to every other member of council for elec-

370. FALL·WINTER 1995 NATIONAL CIVIC REVIEW " . {' ,~

FEATURE

t./:''''I' '., , tion every two years, the ... Cincinnati has change on the ballot. competition for media at­ The ballot proposal pro­ tention is severe. always enjoyed the vided for significant When this competi­ active engagement changes to the existing tion is coupled with an in­ of private sector structure. The mayor and tensely partisan framework, all council members would the result is council meet­ leaders in civic be elected for four-year, ings that have, as their pri­ affairs. rather than two-year terms, mary defining characteris­ with the mayor directly tic, competition among members for the elected and the nine-member council political edge and public notice. The city elected at large, The mayor, rather than council is charitably described as "frac­ the city manager, would be the chief ex­ tious"; council meetings may be unchari­ ecutive, but would appoint a city man­ tably - but accurately - described as ager who would serve at his pleasure, political food fights, The mayor would no longer sit as a mem­ berofcouncil, and would have veto power STEWARDING REFoRM over the council's legislative acts subject In recent years, recognition that the city to a six-vote override, Except for its power council needed reform became so wide­ to appoint and oversee the city manager, spread as to constitute a community con­ the council retained all of its legislative sensus. A Charter Review Committee was authority. In short, what was proposed launched by the heads of the three politi­ was the classic mayor-council form of cal parties in July of 1994, chaired by Dr. government. HenryWinkler, President-Emeritus of the The Charter Review Committee University of Cincinnati. The Charter Re­ finally submitted its package of propos­ view Committee met frequently over the als to the council for consideration on ensuing ten months, but had difficulty May 9. It called for the mayor to be as­ agreeing on proposals to report out, since signed limited additional power to lead it was just as divided as the partisan the city council, and for the direct elec­ environment that had created it. tion of the mayor by majority vote (the On April 28, while the Charter Re­ CBC proposal required only a plurality). view Committee was still trying to de­ The Committee's proposal agreed with velop a consensus, the two leading CEOs the CBC proposal that the council mem­ of Cincinnati's largest businesses held a bers should serve four-year, staggered press conference. Reflecting the leader­ terms, but differed in that it proposed ship of the 26 top Cincinnati-area compa­ repeal of the recently adopted concept of nies, the Cincinnati Business Committee term !imi ts. (CBC), they announced the business As the campaign battle lines were community's intention to circulate initia­ forming, Mayor Roxanne Qualls an­ tive petitions to place a proposed charter nounced another proposal to circulate

NATIONAL CMC REVIEW FALL-WINTER 1995.371 FEATURE

WHEN REFORMED GOVERNMENT DoESN'T WORK petitions and place an alter­ .. .it was time to end to the proposal included the native plan on the ballot.' Democratic Party, the Char­ The Qualls proposal re­ the fractiousness at ter Committee, the AFL­ tained the council-manager city hall by CIO, League of Women form, but strengthened the reorganizing to give Voters, and the city's Afri­ ability of the mayor to lead can-American and women's the city council by giving administrative and organizations. Only the Re­ the mayor the power to des­ executive powers to a publican Party and the ignate the vice mayor and Charnber of Commerce took the chairs of council com­ strong, directly­ positions in support of the mittees. Her proposal, like elected - and CBC proposal. the CBC initiative, length­ presumably more The proponents argued ened council terms to four that it was time to end the years and retained the con­ accountable - fractiousness at city hall by ceptoftermlimits, a reform mayor. reorganizing to give admin­ adopted by the voters in istrative and executive pow­ 1991. But unlike both the CBC and Char­ ers to a strong, directly-elected - and ter Committee proposals, Qualls's plan presumably more accountable - mayor. curiously would not stagger the terms of As the Cincinnati Enquirer editorialized council members. The Cincinnati Post in support of the proposal: quickly announced its editorial support for the Mayor's approach, excepting the The system is broken. City council is a failure to stagger council terms, of which, dysfunctional regional joke, in deep denial. The best argument for change the Post said interestingly, "This, we fear, is council itself: Given two years to would perpetuate the backbiting and non­ come up with its own Charter reforms stop search for media attention.'" ... city council dumped the issue on a committee [and) failed to agree on any It THE CAMPAIGN proposals .... has been a sorry spec­ tacle.' On June 7, after having been presented with the successful initiative petition, the Proponents reasoned that the cur­ city council called a special election (as rent system lacks the accountability that required by law), which it scheduled for a directly elected mayor affords. The "Ex­ August 30, 1995.' ecutive Mayor" would be able to func­ Though the city's many political tion unfettered by council interference. factions could not agree on an alternative Council's role would be further limited to the existing system - or even the by the mayor's power to veto council CBC's strong mayor proposal - they acts. Again, from the Enquirer editorial: could agree that the latter, designated by the Board of Elections as Issue One, was Take a look at what we have: Chronic not the solution. The coalition opposed bickering has crippled the mayor; nine

372 • FALL·WINTER 1995 NATIONAL CMC REVIEW , . , '[ . ~,~.. :~: ~ .

FEATIJRE

council members act like pretender the structure of local government, They presidents; there is no single voice of pointed out that the city manager in the leadership. A veto will let the mayor Issue One proposal was one in title only set the agenda that the voters have chosen. There will be one leader who is and no longer retained the characteris­ clearly accountable ... " tics of a recognized council-manager gov­ ernment. As former Dallas City Man- Opponents, on the other hand, ar- ager Jan Hart noted, Issue One "" ,fixes gued that the Issue One cure was worse the executive branch which is not bro- than the disease. It would remove the ken, but does not fix the legislative branch, mayor from the city council and the pro- which is."7 fessional city manager from the chief ex- In their election eve recommenda- ecutive role, Since the problem with the tionstovoters, the city's two newspapers current system was a fractious, ineffec- voiced different opinions, with the Cin- tive city council, removal of the mayor cinnati Enquirer editorializing in favor of from membership on the council, they Issue One, and the Cincinnati Post against, argued, would weaken ------On Wednesday, August 30, rather than strengthen the Opponents, on the as Cincinnatians went to the . legislative body. Opponents other hand, argued polls, the County Board of aIsowarned that shifting the Elections was predicting a executive responsibility that the Issue One low, 20 percent voter turn- from a professional man- cure was worse than out for the single-issue spe- ager to a political leader the disease, cialelection. When the polls would be sure to result in a had closed, however, an un- politicized city work force, expected 26 percent of the The defining moment of the cam- city's registered voters had voted to re- paign came on August 19, less than two soundingly defeat Issue One, with a 64 weeks before the election, when the Cin- percent vote against the proposaL cinnati Post reported the campaign con­ tribution filings on record with the ANALYSIS AND IMPLICATIONS FOR Hamilton County Board ofElections, The GOOD GOVERNMENT Post revealed that $254,682 (later to be Issue One failed primarily for two rea­ increased to $270,000) had been donated sons, as acknowledged editorially by the to finance the Issue One campaign, all Enquirer a few days after the election,8 It from Cincinnati corporations in the CBC. was perceived as a power grab by big­ Shortly thereafter, with the spon­ money business interests and it went too sorship of the International City / County far by eliminating the council-manager Management Association (ICMA), sev­ form of government, a system that eral current and former city managers Cincinnatians hold in high regard. The visited Cincinnati to participate in a extreme, over-reaching character of Is­ League of Women Voters seminar about sue One had managed to turn a two-to-

NATIONAL CMC REVIEW FALL-WINTER 1995 • 373 FEATIJRE

WHEN REFORMED GOVERNMENT DoESN'T WORK one margin in favor of direct election of above. It is too bad that this attempt at the mayor into a two-to-one defeat in reform was undertaken without more four short months" advance consultation about the probable The success of the campaign consequences. against the proposal was due to the abil- The council-manager form of gov­ ity of the opponents to coalesce in oppo- ernment does have an Achilles heel that sition, in spite of their inability to agree this Cincinnati experience demonstrates: on an alternative to the CBC --~------the dysfunctional citycoun- proposal. In the "retail poli- The poorly-crafted cil. City councils work to- ties" of a special election, gether poorly when the par- with its limited turnout, proposal reflected a tiSarl or personal self-inter- only those who really care senous ests of individual politicians about an issue wUl make . d d' if become the principal deter- the effort to go to the polls. mlsun erstan mg 0 minants of behavior. The Since the majority of the the role of the usual early symptoms of Cincinnati electorate, those legislature in local this malady are council in the middle, would not members engaging in staff- tum out to vote, the expen- government structure bashing (being critical of sive media campaign ap- and gave opponents their own employees), or proach, or "wholesale poli- numerous routinely denigrating each tics," was largely wasted. other in their desperate at- The one-on-one, get-out- opportunities to tempts to secure a political the-vote effort was predict- criticize Issue One. advanta~. ably decisive. As in Cincinnati, the elec- There were other fac- tion system itself can con- tors that led to the failure of the business tribute to the problem, whereeverycoun­ community's effort to reform Cincinnati cil member is pitted against every other' citygovernment.Thepoorly-craftedpro- member of council in political competi- posal reflected a serious misunderstand- tion. The "9_X,"'O at-large, election sys- ing of the role of the legislature in local tern, with its absence of individual ac- government structure and gave oppo- countability for elected officials, guaran­ nents numerous opportunities to criti- tees political bickering and fractiousness. cize Issue One. Indeed, perhaps one of As noted by the Cincinnati Post, this cir­ the more unfortunate results of the elec- cumstance is exacerbated in a media- tion is that it has been widely interpreted driven political environment, where poli- asarejectionofthebusinesscommunity's ticians must scramble for media atten- involvement in the politics of the city. tion. Cincinnati has benefited in a way that When the council is successful in most cities would envy from an active, enacting policy for the municipal corpo­ involved business community, as noted ration and supporting its professional

374 • FALL-WINTER 1995 NATIONAL CIVIC REVIEW FEATURE

staff in executing that policy, the council­ knowledge that six votes could not be manager form of government works well. obtained on a divided council to submit As in everything, success starts at the top, the Charter Review Committee's recom­ in this case, the council. But if the legisla­ mendations to the voters. tive body becomes dysfunctional, the so­ lution must be to introduce a source of 3CincinnatiPost, "Sensible Reformat City discipline within the legislative body, and Hall," 9 June 1995. that can only be done by empowering the mayor to provide leadership for the council. 'Given the basic nature of the political Thatis the point that was misunderstood battle being waged, it was not surprising by this most recent effort by the business that a second front of the battle was in the community to provide reform leadership courts. There were a number of suits in Cincinnati. . filed, but the most significant were over the date of the election, the council's min­ CONCLUSION isterial responsibility to submit the pro­ The structure of local government and posal for a vote, and the number of signa­ the power assigned to its leaders is im­ tures required for a valid initiative peti­ portant, but it is also important that it be tion. Those battles went up and down the operated well by people of ability and Ohio judicial system during the months goodwill. In addressing the needs for preceding the election, with no net effect structural change, the part that is broken on the political process or outcome. should be the part that gets fixed. With­ out detracting from professional man­ 'Cincinnati Enquirer, "Issue 1: Yes," 29 agement, a source of strength in thecoun­ August 1995 (editorial). cil-manager plan, it is possible to em­ power the mayor to provide leadership "Ibid. to the city council. Then, together, city leaders can work to make city govern­ 7Cincinnati Post, "Managers: Issue 1 fixes ment successful, on behalf of the citizens what isn't broken," 24 August 1995. they serve. Q ·Cincinnati Enquirer, "Try again," 3 Sep­ tember 1995 (editorial). NOTES 'Cincinnati Enquirer, "CEOs start drive 'The Charter Committee disdains being for direct vote on mayor," 29 April 1995. referred to as a "party," but within the The news story stated: "Announcement partisan context of Cincinnati politics is ... comes on the heels of an independent generally regarded as the third party, in Enquirer poll that reflects strong dissat­ addition to the Democrats and Republi­ isfaction among Cincinnati residents cans. about the system of electing mayors and 'This move appeared to be taken with the council, in general. Sixty-eight percent

NATIONAL OVlC REVIEW FALL-WINTER 1995. 375 FEATURE

WHEN REFORMED GOVERNMENT DoESN'T WORK said the city should switch to direct elec­ dubbed "9-X" because voters mark their tion of the mayor." ballots with an X next to the nine indi­ Issue One was defeated, of course, viduals they wish to serve on the council. with 64 percent of the vote. Under the current plan, the council mem­ ber receiving the most votes in the at­ IOCincinnati's at-large election system is large field is declared mayor: I

376. FALL-WINfER 1995 NATIONAL cnnc REVlEW NEWSW~ ______~~~~~~ _ REVIEW JOSEPH F. ZIMMERMAN, EDITOR

research provides an in­ of Washington-area busi­ D.C.-AREA C.O.G.: depth understanding of the ness representatives believe AIR POLLUTION general public's awareness air pollution has a negative TOPS CAPITOL'S of clean air, and will be effect on economic develop­ ENVIRONMENTAL used to develop a clean air ment. WOES public education program. • Sixty-two percent Air pollution is the Other key findings of business representatives metropolitan Washington, reported by Dr. Max Larsen, are convinced it is their D.C. region's number one Gallup executive vice civic responsibility or the environmental concern, president, include: "right thing to do" to tilke according to a poll released • Ninety-two percent action to reduce air pollu­ by the Metropolitan of area residents say they tion. Washington Council of would be willing to take • District residents Governments. personal actions to reduce (58 percent) are more likely Nearly 40 percent of air pollution. to rate air pollution as a residents and 42 percent of • Seventy-seven serious problem than their businesses in the metro­ percent cite driving their counterparts in suburban politan area rank air cars as their contribution to Maryland (41 percent) and pollution as their top air pollution. Twelve northern Virginia (39 environmental concern. percent said they do noth­ percent). Moreover, nearly three­ ing to contribute to air • Residents of the fourths of residents and pollution. region's suburban areas are businesses see air pollution • Nearly one-half of more likely to contribute to as a major health concern. all residents want their the air-quality problem These results and employers to become through their automobile others regarding the causes involved in actions to clean use and use of gasoline­ of and responsibility for air the air, agreeing that powered lawn equipment. pollution were key findings employers should alert . The results from the from a survey of 1,000 area them of upcoming "bad air Baltimore survey were very residents and 257 employ­ days." Similarly, one-half similar to those of the ers conducted by the of businesses said they Washington area. Gallup Organization. would be very willing to "That's why we need Gallup also interviewed share information with real regional cooperation in 700 residents and 241 employees on bad air days. this effort," said Paul businesses in the Baltimore • Eighty-five percent Farragut, BMC executive region as part of a multi­ of Washington-area resi­ director. "We all share the regional effort mounted by dents recognize the Air same air - weather pat­ a joint task force of the Quality Index (AQl), terns shift pollution from Metropolitan Washington released daily throughout south to north, west to east, Air Quality Committee the summer by the Metro­ drifting all along the (MW AQC) and the Trans­ politan Washington COG, corridor from Richmond to portation Planning Board and 39 percent have taken Philadelphia. (TPB), working with the some action as a result of "And we share Baltimore Metropolitan AQI ozone alerts. commuting patterns as Council (BMC). The • Forty-nine percent well. By joining together,

NATIONAL~C~ FALL-WINTER 1995.377 ,-

NEWS IN REVIEW

we are maximizing our Improvement Program of Shea, the report's author. impact," Farragut said. Maryland, Virginia and the "We can deal with the static Ozone is the Wash- District of Columbia. and dynamic aspects of ington area's worst air- -Zimmerman poverty," she added. pollution problem. 11 is an Principal findings invisible but serious lung REPORT DETAILS presented in the report irritant that is especially FREQUENT include: harmful to children, the MOVEMENT IN AND • One-half of all elderly and those with lung OUT OF POVERTY poverty spells lasted longer diseases. The Washington For large numbers of than four months and 13. area is classified as a people, poverty is charac- percent lasted longer than "serious non-attainment terized by continuous two years. area" and does not meet changes in duration, • One in five chil- federal health standards for intensity and frequency, dren were poor in an ozone. Under the Clean Air according to a Census average month of 1990, Act it is required to reduce Bureau report. compared with 10.5 percent pollution and meet stan- Substantially more of non-elderly adults and dards by 1999. persons were poor for two 9.4 percent of the elderly. The Metropolitan or more months than in an • African-Americans Washington Air Quality average month, showing were three times as likely as Committee (MWAQC) is considerable movement in whites to be poor in an responsible for preparing and out of poverty, the average month. Hispanics the region's air-quality report states. had a poverty rate interme- plans and recommends The report, The diate between whites and strategies to control Dynamics of Economic WeI/- African-Americans during ground-level ozone. Being: Poverty, 1990-1992, 1990. MWAQC was formed presents data from the • Despite much under the authority of the Survey of Income and higher rates of poverty governors of Maryland and Program Participation among African-Americans Virginia, and the mayor of (SlPP) and examines the and Hispanics, the majority the District of Columbia. incidence of poverty of poor persons were white, The committee is composed experienced by a panel of regardless of the measure of elected officials and key persons at a point in time used. Whites constituted 67 governmental staff from and over the 32-month percent of the poverty area state and local govern- period spanning October, population in an average ments. The Transportation 1989 and August, 1992. month in 1990, 70 percent Planning Board is respon- "By examining of those who were poor for sible for developing trans- poverty in this manner, we two or more months, and portation plans for the can distinguish between 56 percent of the long-term region, ensuring that they short- and long-term poor in 1990. contribute to the improve- poverty as well as measure • Persons in families ment of regional air quality. the movement into and out headed by women were Funding for the project is of poverty for the same much more likely to be being made available persons for the life of the poor, and for longer through the Transportation study," explained Martina periods, than persons in

378. FALL-WINTER 1995 NATIONAL cnnc RffinFW ·,

married-couple families. length of time that persons for Midwesterners. For example, over 35 received housing assistance Not surprisingly, the percent of persons in was 15.6 months for those poor participate in means­ families headed by women beginning assistance during tested public assistance were poor in an average the 1990-92 period, signifi­ programs to a far greater month of 1990, compared cantly longer than assis­ extent than the non-poor. with seven percent of tance on Medicaid (10.6 During 1990, the average persons in married-couple months), cash welfare such monthly participation rate families. Median poverty as Aid to Families with for persons living in periods for persons in Dependent Children (10.4 poverty was 53 percent, female-headed families months), and Food Stamps contrasted with five percent lasted 6.5 months compared (8.8 months). of the non-poor. to 3.8 months for persons in The report reveals Persons in female­ married-couple families. that during an average headed households were • About 2.9 percent month in 1990, 61 percent six times as likely as of persons who were not of participants in major persons in married-couple poor in 1990 became poor assistance programs were families to have partici­ in 1991, and 21.2 percent of white, 34 percent were pated in a major assistance poor persons in 1990 African-American, and 18 program during an average escaped poverty in 1991. percent were of HispaniC month in 1990. About 21 According to the origin (who may be of any percent of those aged 18 report, about 28.5 million race). At the same time, years or older who had no persons participated in only eight percent of the high school degree received major, means-tested gov­ white population partici­ assistance, compared to ernment programs during pated in means-tested eight percent of those who an average month in 1990, programs, while over 32 were high school graduates. and the average increased percent of the African­ Children were more likely to 30.9 million in 1991. The American population and than adults or the elderly to number of persons who 25 percent of the Hispanic receive major program participated for at least one population received such assistance, with about 19 month during the year was assistance. percent of children partici­ significantly higher, nearly In terms of the pating, compared with 12 36 million in 1990 and 38 nation's regiOns, Southem~ percent of non-elderly million in 1991. ers were the most likely adults. Of the assistance assistance program partici­ The means-tested programs considered in the pants during the study government programs for report, the Medicaid and period. About 17 percent of which participation rates Food Stamp programs had persons living in the South were tracked for this study the highest monthly partici­ participated in means­ include Aid to Families pation in 1990, at 19.1 and tested government pro­ with Dependent Children 17.1 million persons, grams for at least one (AFDC), General Assis­ respectively. month in 1990, compared tance, Supplemental The Dynamics of with 14 percent each for Security Income (55!), Economic Well-Being also Westerners and those in the public or subsidized rental points out that the median Northeast, and 13 percent housing, Medicaid, and the

FALL-WINTER 1995·379 NATIONAL~C~ NEWS IN REVIEW

Special Supplemental Food intermodal system to Railroad Terminal Study Program for Women, compete in the expanding (MIRTS), a public-private Infants and Children (WIC), national and global partnership composed of among others. Participa- economy. representatives from the tion in such non-means- The recommendation four organizations. MIRTS, tested programs as Social to identify potential sites which will conduct the site Security and Veterans for a new terminal has been research, will look for a site Benefits was not included endorsed by the Burlington of about 165 acres. Ideally, in the study. Northern Railroad, CP the site would have a large The Survey on Railroad System, the buffer area around it. Income and Program Minnesota Department of Other considerations Participation is a longitudi- Transportation, and the include a convenient and nal survey that collects Metropolitan Council. Last cost effective location for information on the eco- year, the four organizations shippers, with good high- nomic well-being of per- commissioned a joint study way and rail access. The sons, families and house- of future growth in shipper site would be shared by any holds. As with all surveys, demand for container railroad choosing to pro- the data in this study are (intermodal) transportation, vide intermodal service in subject to sampling vari- then compared the demand the region. ability and other sources of with the capacity of the MIRTS expects to error. region's two existing expand its membership so -Zimmerman intermodal facilities. additional railroads, According to the truckers and shippers will RAIL SHIPPING study, the region will need be involved in the siting REGAINS to double its current process. The expanded PROMINENCE capacity to move shipments MIRTS group will also The Twin cities through intermodal termi- develop a governance metropolitan area in nals by the year 2012. arrangement and financing Minnesota must locate a Currently, Burlington plan for the proposed site for a new truck-to-train Northern operates a hub facility. These activities, terminal facility to accom- center in the Midway area and the siting, are projected modate the expected of St. Paul, and CP Rail to be completed within 12 growth in lIintermodaI" System has a facility in to 18 months. At that time, freight transportation. The Northeast Minneapolis. the parties will decide intermodal share of the The study concludes that whether to proceed further. inter-city market is growing the Northeast Minneapolis -Zimmerman because it is a highly site, with modest expan- efficient means of shipping sion, will be able to handle JOSEPH F. ZIMMERMAN trailer and containerized expected growth to the year is a professor of Political freight over long distances. 2012. Science at the State Univer- It is expected to capture The forecasts were sity of New York at Albany. one-fourth of the national developed by R.L. Banks, a transport market by 1996. national consulting firm, in The region's businesses consultation wi!h !he depend on an efficient Minnesota Intermodal ~R

380 • FALL-WINTER 1995 NATIONAL OVIC REVIEW .' '. OFFICERS Chairman: John W. Gardner, , Stanford University, Stanford, CA Vice Chair: Robert C. Bobb, City Manager, Richmond, VA Treasurer: Albert C. Gonzales, Denver, CO Secretary: Joan Hammond, Snohomish County Auditor's Office, Everett, WA President: Christopher T. Gates, Denver, CO t\ CCJltlU)' of Vice President: Gloria Rubio-Cortes, C("",n""ily lJuiltli,,],; Denver, CO

DIRECTORS Don Benninghoven, League of California John B. Olsen, Pittsburgh, PA Cities, Sacramento, CA Mark Pisano, Southern California Association John Claypool, Greater Philadelphia First, of Governments, Los Angeles, CA Philadelphia, P A Janis Purdy, Citizens League of Greater Hubert Guest, Neighborhood Reinvestment Cleveland, Cleveland, OH Corporation, Washington, DC Juan Sepulveda, The Common Enterprise, Dr. John Stuart Hall, Arizona State San Antonio, TX University, Phoenix, AZ Carrie Thornhill, The D.C. Agenda Project, Dr. Lenneal J. Henderson, Jr., University Washington, DC of Baltimore, Baltimore, MD Arturo Vargas, NALEO Educational Fund, Dr. Theodore Hershberg, University of Los Angeles, CA Pennsylvania, Philadelphia, PA David Vidal, Council on Foreign Relations, James Howard, Gallagher & Kennedy, NewYork,NY Phoenix,AZ Dr. Henry R. Winkler, University of Anna Faith Jones, Boston Foundation, Cincinnati, Cincinnati, OH Boston,MA . Linda J. Wong, RLA, Los Angeles, CA Hon. Daniel Kemmis, Mayor, Missoula, MT James E. Kunde, Coalition to Improve HONORARY LIFE DIRECTORS Managemen t in State and Local Terrell Blodgett, Austin, TX Government, Arlington, TX Henry G. Cisneros, Washington, DC Liane Levetan, Chief Executive Officer, James L. Hetland, Jr., Minneapolis, MN DeKaib County, GA George Latimer, Washington, DC Heather McLeod, Who Cares Journal, Han. Cecil Morgan, New Orleans, LA Washington, DC Carl H. Pforzheimer, Jr., Stuart, FL Sylvester Murray, Cleveland State Han. Terry Sanford, Durham, NC University, Cleveland, OH Hon. William W. Scranton, Scranton, P A Betty Jane Narver, University of Han. William F. Winter, Jackson, MS Washington, Seattle, WA Hon. Wilson W. Wyatt, Sr.; Louisville, KY r

NATIONAL CIVIC LEAGUE COUNCIL OF ADVISORS

David A1bnan, The Murray and Agnes SeasonJ

Richard H. Bradley, International Downtown Elizabeth Hollander, Government Assistance Project, Association, Washington, OC DePaul University, Chicago,lL

Laura Calderon, Partnership for Hope, Tim Honey, City Manager, Boulder, CO San Antonio, T.X Sonia Jams, George Washington University, William N. Cassell.. Jr., Dobbs Ferry, NY Washington, OC Camille Cates Bamett, Research Triangle Institute, Kathryn Johnson, The Healthcare Forum, Research Triangle Park, NC San Francisco, CA

Betty Chafin Rash, Public Affairs Consultant, John Kirlin, University of Southern California, Charlotte, NC Sacramento, CA Shelby Chodos, Commonwealth Capital Partners, Gail Levin, Longboat Key, FL New York, NY Donald Mcintyre, County Sanitation District of Orange Hon. John C. Crowley, Pasadena, CA County, Fountain Valley, CA William E. Davis, Advisory Commission on Robert Morris, Waste Management, Inc., Irvine, CA Intergovernmental Relations, Washington, OC Robert H. Muller, J.P. Morgan Securities, Inc., Dr. Leonard J. DuhL International Healthy Cities New York, NY Foundation, Oakland, CA James G. Nussbaum, Denver, CO James R. Ellis, Washington State Convention and Trade Center, Seattle, WA Neal R. Peirce, Washington Post Writers Group, Washington, OC John Epling, National Association of Regional Councils, Washington, DC Bruce I. Petrie, Sr., Graydon, Head and Ritchey, Cincinnati, OH Dr. Amitai Etzioni, George Washington University, Washington, OC Hon. William F. Quinn, Goodsill, Quinn and Slife!, Honolulu, HI Richard CD. Fleming, St. Louis Regional Commerce and Growth AssociatiOn, St. Louis, MO Robert H. Rawson, Jr., Jones, Day, Reavis &: Pogue, Cleveland, OH R. SeoH Fosler, National Academy of Public Administration, Washington, DC Michelle Santiago, Washington, OC

Ted Gaebler, The Gaebler Group, San Rafael, CA Counci1person B. Marion Tasco, Philadelphia, PA George H. Gallul" Jr., The George H. Gallup Ted Tedesco, American Airlines, Fort Worth, TX International Institute, Princeton, NJ David I. Wells, ILGWU, New York, NY Sandra Can, American Institute of Architects (Philadelphia Chapter), Philadelphia, PA HarryWest,AtlantaRegionaICommission,Atlanta,GA James O. Gibson, The Urban Institute, Washington, DC Jack D. Wickware, Orinda, CA Peter Goldberg, Family Service America Inc., Ralph Widner, Civic Network Television, Milwaukee, WI Alexandria, VA Paul J. Greeley, Jr., American Chamber of Commerce Fay H. Williams, Indianapolis, IN Executives, Alexandria, VA Lyle Wray, The Citizens League, Minneapolis, MN Collaborative Leadership: How Citizens and Civic Leaders Can Make a Difference DAVID D. CHRISLIP

CARL E. LARSON

by David Chris lip and Carl E. Larson

Working together to solve community problems today requires a profound shift in our conception of how change is created, and an equally profound shift in our conception of leadership. Chrislip and Larson explain how to confront difficult issues, engage frus­ trated and angry citizens, and generate the civic will to break through legislative and bureaucratic gridlock. Copyright © 1994 Jossey-Bass, 192 pp. $24.95

To order, send a check or money order for $24.95 plus $3.25 (shipping and handling) to: National Civic League Press 1445 Market Street, Suite 300 Denver, Colorado 80202-1728

Credit Card Customers Call: 1-800-223-6004 he National Civic League gratefully acknowledges Sup­ porters of the 101st National Conference on Governance T ~ C and Tribute Dinner, October 6-7, 1995, Denver, Colorado: 3 (I) ­ e Brownstein, Hyatt, Farber and Strickland El Pomar Foundation The Piton Foundation Denver Urban Renewal Authority AT&T

King Soopers , e. Microtech-Tel, Inc.

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Second Oass Postage Paid ~NATIONAL at Denver, CO (~~REVIEW 1445 MARKET STREET, SUITE 300 DENVER, CO 80202-1728 U.S.A.

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