University of Chicago Legal Forum Volume 1995 | Issue 1 Article 10 Cumulative Voting in the United States Richard H. Pildes [email protected] Kristen A. Donoghue [email protected] Follow this and additional works at: http://chicagounbound.uchicago.edu/uclf Recommended Citation Pildes, Richard H. and Donoghue, Kristen A. () "Cumulative Voting in the United States," University of Chicago Legal Forum: Vol. 1995: Iss. 1, Article 10. Available at: http://chicagounbound.uchicago.edu/uclf/vol1995/iss1/10 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Cumulative Voting in the United States Richard H. Pildest and Kristen A. Donoghuett Recent Supreme Court decisions involving North Carolina and Georgia cast substantial (if ambiguous) doubt on the contin- ued constitutionality of race-conscious districting.1 For the previ- ous fifteen years, since the passage of the significant 1982 Amendments to the Voting Rights Act ("VRA"), 2 race-conscious districting has emerged as the principal tool for ensuring black political representation in circumstances in which voting is polarized along racial lines. Now, however, the Court has de- clared that strict constitutional scrutiny must be applied whenev- er race is "the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district."3 The precise scope of this enigmatic rule4 will remain uncertain until the Court decides future cases, but the rule undoubtedly puts the intentional creation of black- majority election districts on the defensive. If continued pursuit of minority political representation is going to remain a goal of public policy, the time to consider alternatives other than race- conscious districting has arrived. The most promising alternatives do away not just with race- conscious districting, but with territorial districting altogether. t Professor of Law, University of Michigan Law School. tt J.D., University of Michigan Law School, 1995. This paper was presented at the Annual Meetings of the American Geographers Association (1995) and the American Political Science Association (1995). We are grateful to all the people in Chilton County, Alabama who gave so freely of their time and provided us with all the information that we requested. We also thank Adam Berinsky for outstanding assistance in performing the statistical analyses reported in this Article. In addition, we thank the University of Texas Law School for administra- tive support provided during a visit there. The research reported here was generously supported by the University of Michigan Cook Fund. For helpful comments, we thank Samuel Issacharoff, David Lublin, and Robert Richie; for research assistance, Jeff Gitchel. Shaw v Reno, 113 S Ct 2816 (1993); Miller v Johnson, 115 S Ct 2475 (1995). 2 Pub L No 97-205, 96 Stat 131 (1982), codified at 42 USC § 1973 (1988). 3 Johnson, 115 S Ct at 2488. For an argument that this rule is unintelligible in theory and unimplementable in practice, see Richard Pildes, Principled Limitations on Racial Redistricting (forthcoming 1996)(on file with Richard Pildes at the University of Michigan Law School). 242 THE UNIVERSITY OF CHICAGO LEGAL FORUM [1995: Such alternative voting systems include cumulative voting, limited voting, and preference (or single-transferable) voting. These alternative voting systems may sound like the exotic mus- ings of academic theorists,5 but such alternatives to territorial districts have long been used in other democratic countries.6 Even within the United States, these alternative voting systems are quietly but increasingly coming into use, primarily at the local government level. The purpose of this Article is to provide detailed quantitative and qualitative information, from one of the longest running experiments with cumulative voting in the United States, on the experience of cumulative voting in actual practice. In Chilton County, Alabama, cumulative voting has been in use since 1988 to elect members of the County's principal political bodies, the County Commission and the Board of Education. The academic literature is now filled with abstract arguments about the com- parative merits and disadvantages of different voting systems, particularly the choice between territorial districts and alterna- tive voting systems.7 Rather than continuing this abstract de- bate, it seems more valuable to assess these theoretical positions pragmatically, by exploring the actual record of alternative voting in practice. We conducted extensive field interviews with governmental, partisan, and media figures centrally involved in local politics in Chilton County. In addition, we analyzed available election- return data since 1988 to determine the extent of racially polar- ized voting and what differences, if any, the switch to cumulative ' For works in recent years advocating alternative voting systems to remedy viola- tions of the VRA, see note 52. ' The most thorough studies of voting systems in other democratic countries, with an emphasis on the contrast between Anglo-American style majority-rule systems and European proportional-representation systems, can be found in the work of Arend Liphart. See Arend Lijphart, Electoral Systems and Party Systems: A Study of Twenty- Seven Democracies 1945-1990 (Oxford University Press, 1994); Bernard Grofman and Arend Lijphart, eds, Electoral Laws and Their Political Consequences (Agathon Press, 1986); Arend Lijphart, Democracies:Patterns of Majoritarianand Consensus Government in Twenty-One Countries (Yale University Press, 1984). ' See, for example, Douglas W. Rae, The Political Consequences of Electoral Laws 69- 125 (Yale University Press, 2d ed 1971)(comparing proportional representation and non- proportional representation voting systems generally and identifying thirteen "differential propositions" and seven "similarity propositions" between the systems). For recent schol- arly advocacy of alternative voting systems for the United States, which responds to some of the criticisms of such systems, see Douglas J. Amy, Real Choices/New Voices: The Case for ProportionalRepresentation Elections in the United States (Columbia University Press, 1993). 241] CUMULATIVE VOTING voting has made. We briefly summarize our findings at the outset: while not all the predicted benefits of cumulative voting have occurred in Chilton County thus far, neither have the worst fears been realized. In general, our study confirms that the es- sentials of cumulative voting are working out largely as theorists have predicted ex ante. Cumulative voting turns out not to be without cultural and political costs, which we identify as precise- ly as we can. But those costs do not appear substantial. Any voting system, including the status quo of territorial districting, has costs as well as advantages; indeed, the VRA itself is a re- sponse to certain costs of territorial districting. The choice of voting systems is necessarily pragmatic: on balance, which sys- tem, best, if nonetheless imperfectly, serves the relevant goals of American democracy. The data we report here should make for more informed choices between three of the most important op- tions currently dominating political practice and public debate: territorial districts, race-based districting, and alternative voting systems such as cumulative voting. I. THREE MEANS TOWARD MINORITY POLITICAL REPRESENTATION We begin with the assumption that in the context of Ameri- can history and politics, some significant degree of representation of minorities in American political bodies, particularly blacks,' is important for any of several reasons. Many people who otherwise disagree about other aspects of contemporary civil-rights policy are likely to accept this basic starting point in thinking about contemporary American democracy. Just as with police depart- ments and juries, legislative bodies-the quintessential public institutions-might be considered more legitimate, more effective, To avoid making already complex linguistic and political problems even more intractable, this Article is written in terms of the effects of the VRA and cumulative voting on black voters rather than on minority voters in general. In Chilton County, blacks are the only relevant minority group, within the terms of the VRA, present in demographically significant numbers. Hence, this Article focuses exclusively on black vot- ers. Although blacks were the principal focus of the VRA when originally enacted in 1965, since 1975 the Act also has been used to protect Asian-Americans, Native Americans, Alaskan natives, and persons of Spanish heritage. 42 USC §§ 1973(a), 1973b (f)(2) (1988). One of the defects of current public civil-rights discourse and policy-making is the tenden- cy to generalize the distinct positions and experiences of different minority groups into a universal minority experience. Relevant differentiations are important, if often neglected, to the scope and justifications of different policies. See, for example, Samuel Issacharoff, Groups and the Right to Vote (forthcoming in Emory Law Journal (1995)). For this reason, this Article is narrowly focused on black political representation and does not address issues of minority representation in general except where the text specifically so indicates.