Justin Levitt Speaks on Alternative Voting Systems and Redistricting Consequences of Incarceration

December 10, 2009

  Hot Voting Rights Topics for Municipalities:

Pre-litigation Use of Alternative Voting Systems and
Redistricting Consequences of Incarceration

Justin Levitt, Counsel

Brennan Center for Justice at NYU School of Law 

December 10, 2009*

Download PowerPoint

 

Thank you for the opportunity to occupy a bit of your lunch time.  My name is Justin Levitt, and I am an attorney at the Brennan Center for Justice at NYU School of Law.  The Brennan Center is a non-partisan organization that unites scholars and advocates in pursuit of a vision of inclusive and effective democracy.  The Center’s Democracy Program promotes policy that eliminates barriers to full and equal political participation and that fosters responsive and responsible governance.  

In particular, the Brennan Center has been at the forefront of research on redistricting procedures.  We have extensively studied redistricting practices nationwide, analyzed both successful and unsuccessful attempts at redistricting reform, and produced materials to educate legislators and the public at large about the benefits and consequences of various redistricting methods.  We have testified with respect to proposed redistricting legislation, and assisted advocates and elected officials in drafting such legislation.  In addition, we have participated as amici curiae in many of the major cases addressing the use of redistricting for partisan gain or at the expense of minority voters.

In this capacity, we have studied not only the mainstream of redistricting — the meat and potatoes of the menu — but also many of the intriguing efforts cropping up at the margins.  I would like to talk to you about two of those topics today, to season lunch with a bit of food for thought about alternatives and options that may be useful to you in the upcoming redistricting cycle. 

Alternative voting systems

The first of those topics is actually an alternative to redistricting entirely: a way for local jurisdictions to promote minority voting opportunities and to comply with the requirements of the Voting Rights Act, without drawing district lines. 

At-large districts

At present, many municipalities, school boards, and similar government bodies — perhaps including those that you represent — conduct elections using an at-large system.  In a basic incarnation, for example, if a city elects five councilmembers at the same time, each eligible resident would be able to cast one vote for each of five seats, across the city.            

As you know, there are some reasons to favor at-large voting.  It can foster elected officials who are able to speak for and are accountable to the political unit as a whole, and not merely to one geographic subdivision.  It can broaden the pool for candidates, with no contender deterred from running for office because of residence in the wrong district.  And most notably, it avoids the central redistricting problem: accommodating multiple competing interests in drawing lines that allocate political power once per decade, by placing resident voters into predetermined groups.

However, at-large districts can also suppress minority voices within a jurisdiction.  When each resident is able to cast one vote for each of five seats, across the city, cohesive majority voting blocs reliably win every single seat.  Even when cohesive minorities represent 30, 40, or 49.9% of a city’s voting population, the at-large structure described above will reliably deliver all five legislative seats to the city majority.

For racial and language minorities, the federal Voting Rights Act protects against this sort of vote dilution.  Much of the rest of the day is devoted to the nuances of Voting Rights Act liability, and I do not want to repeat what you have already heard or preempt what awaits after lunch.  I’ll emphasize only that the Voting Rights Act prohibits electoral structures diluting the voting power of minorities who might otherwise have an opportunity to elect their representatives of choice.  For municipalities with a sizable minority population and polarized voting along racial lines, the default means to provide such electoral opportunities within a city’s legislative structure, and the default means to comply with the Voting Rights Act, is to divide the municipality into districts.  With districts drawn specifically to provide effective electoral opportunities to racial minorities, a cohesive minority group with 30, 40, or 49.9% of the population will no longer find itself shut out of the city council.

Districts, however, are not the only means to provide racial and language minorities with effective electoral opportunities.  In some circumstances — and it is important that it is only true in some circumstances — a municipality may be able to maintain an at-large district, and instead change its voting rule, in order to ensure that minority votes are not diluted.  Jurisdictions across the country are discovering, or rediscovering, these sorts of alternative voting systems to provide for minority voters.[I] 

I would like to briefly sketch three of the principal alternative voting systems that you may wish to consider, as you look to ensure minority voting opportunities in the next decade.  In the right environment, each is able to empower protected minority groups, and create the means for such groups to meaningfully participate in the election process.

Cumulative voting

The first alternative method, cumulative voting, is a practice well known in corporate elections.[ii]  Many American corporations use this mechanism to ensure a voice for minority shareholders, and it can bring similar salutary effects to a municipal election. 

Both cumulative voting and traditional voting in an at-large election allow voters to cast as many votes as there are seats up for election, and in both cases the candidates with the most votes win.  But while traditional voting in an at-large election gives each elector one vote per seat, cumulative voting allows citizens to cast multiple votes for a given candidate for a given seat.  So, returning to our example jurisdiction with five seats up for election, a traditional voting structure would allow a citizen to cast at most one vote for each of the five seats.  A cumulative voting structure would give our voter five votes to allocate as she wished.  She could choose to vote once for five different candidates, but she might also cast all five of her votes for the same candidate, or allocate three votes to one candidate and two to another.  (A variant asks the voter to choose her desired number of candidates, and her total votes are equally allocated among the candidates chosen; a voter choosing two candidates in the example above would effectively give 2.5 votes to each.)[iii]  The winning candidates are determined by a simple plurality, with the top overall vote-getters winning office.  So in our example election for five seats, the candidates with the five highest vote totals will win the election.

Cumulative voting allows for minority opportunities because it enables a voting bloc to concentrate its votes effectively.  Imagine a cohesive and polarized minority group comprising 30% of our city’s voting population.  Their votes are completely diluted in a traditional at-large voting structure.  In a cumulative voting system, however, if members of the minority group coalesce around one candidate, and each minority voter casts all five of her votes for that candidate, the group would be able to ensure that its candidate of choice receives at least 30% of the overall vote.  And with at least 30% of the overall vote, the minority’s candidate of choice would be guaranteed a seat on the five-member council.

 Limited voting

A second alternative voting system is known as limited voting.  In a limited voting system, each voter casts fewer votes than the number of seats up for election.  For example, in our city council election with five seats, each voter might be entitled to vote for only two candidates.  As with cumulative voting, the candidates with the most votes win. 

Limited voting makes it more difficult for the jurisdiction’s majorities to win all of the available seats, and therefore allows cohesive minority groups to coalesce behind certain candidates to gain seats in the legislature.  For example, if our minority group with 30% of a city’s voting population coalesces behind the same candidate with one of its two limited votes, that candidate will be guaranteed a seat on the five-member council.  The more that voters are limited in the number of votes they may cast, the greater the chances that minority populations will be able to win a seat.

 Ranked choice voting

 The third alternative voting system that I will mention today is ranked choice voting, also known as preference voting, or the single transferable vote.  Variants of this system are used by several of the major sports leagues to select MVPs, and by the Academy of Motion Picture Arts and Sciences — the Academy of “I’d like to thank the Academy” — to choose Oscar winners.[iv]  In a ranked choice voting system, each voter ranks the candidates that she supports: next to the names on the ballot, voters indicate their top choices, in order of preference.  That is, a voter ranks her most preferred candidate as #1, her next choice as #2, and so on. 

Determining the winning candidates in a ranked choice system takes a bit more math than the other systems I’ve described.  There are several possible algorithms, each aimed at ensuring that as few votes as possible are “wasted.”  Consider one formula, at work in our example city, with five seats for the city council, and 3000 voters total.  The winners are calculated based on an operative threshold of 501 — the number will change, based on the total number of seats and total number of votes.[v]  First, look to the first choices; any candidate clearing the 501-vote threshold wins a seat on the council.  Next, take the “surplus” votes, above the 501-vote threshold, for each of these winning candidates, and transfer those votes proportionally to the second-choice candidates on each voter’s ballot; again, any candidate clearing the 501-vote threshold wins a seat.  If there are still seats remaining, eliminate the candidate with the fewest votes, and again transfer that candidate’s votes proportionally to the second-choice candidates on each voter’s ballot.  The process continues until enough candidates clear the threshold to fill all five seats.[vi]

From the election official’s perspective, the algorithm for counting votes in a ranked choice voting system is admittedly less intuitive than for more traditional systems.  Yet this algorithm is relatively straightforward to implement in practice.  And from the voter’s perspective, the math is far less important: voters need only rank their preferred candidates in order.[vii]  In a ranked choice voting system, as with the others above, if minority groups rank their preferred candidate or candidates toward the top of the pack, those candidates will also be awarded seats on the legislative body.

 Evaluating the propriety of alternative voting systems

Each of the alternative voting systems above has the potential to translate minority preferences to seats on the governing legislative body, without the need to draw district lines dividing a city into pockets.[viii]  Indeed, particularly if a minority population is well-integrated geographically, or if two or more minority populations with distinct voting preferences live side by side, or if there are small pockets of minority voters spread in non-compact fashion throughout the city, it may be quite difficult to draw district lines that achieve equitable minority voting power.  District lines are also usually stable over the course of a decade, making it difficult to reflect rapid demographic change in the minority population. In such situations, alternative voting rules in an at-large election may promote minority preferences in ways that are both more effective and more legally secure than districts.[ix]

That said, alternative voting systems work well only in certain circumstances, and it is as important to consider their limitations as it is to consider their advantages.  First, each of these alternative voting systems will likely be less familiar to voters than the ballots to which they are accustomed.  This novelty need not represent an insuperable obstacle: the concepts are straightforward, particularly for limited voting (“vote for two”) or ranked choice voting (“rank your choices, 1 to 5”), and recent exit poll studies have found no reason to believe that either minority voters or less educated voters were confused even by cumulative voting, which is slightly more complicated to explain.[x]  Still, in order to ensure that voters are not confused by the change, a city would be wise to undertake a concerted educational effort when switching systems.[xi]

Alternative voting systems are also differently impacted by variations in turnout than are districts.  Often, districts can be drawn with an eye to past turnout, compensating for low historical turnout by drawing districts in which eligible minority voters comprise a substantial supermajority.  The benefit of such an approach is that it provides a safeguard for minority populations’ ability to achieve representation if turnout continues to be depressed; the downside is that minority voting power may actually be diluted by such supermajorities if turnout substantially improves, with minority voters over-“packed” into hyperconcentrated districts.  Alternative voting systems in at-large districts have neither the benefits nor the detriments above.  That is, if turnout falls below a certain level, minority populations may not be able to elect their preferred candidates, and so alternative voting systems may not be appropriate where there is reason to believe that minority turnout will remain especially low even when minority populations would otherwise be able to control a seat.  In jurisdictions where minority turnout can be expected to be moderate to large, however, alternative systems have the capacity to more efficiently distribute minority votes, and thereby to increase their voting power.

It is easiest to demonstrate these turnout effects with numerical examples.  Before assessing turnout, though, we need to establish the effective level of control over the outcome of an election.  In a districted system, the effective level of control is clear: if a cohesively voting population exceeds fifty percent within any given district, it will be able to win that district’s seat.  It is possible for a group to win seats at lower rates, of course, if the opposition is split between two or more candidates.  The fifty percent threshold is simply an expression of the threshold at which a win can be guaranteed, under the “worst-case” circumstances for the group in question. 

It is similarly possible to calculate the threshold level of control — known as the “threshold of inclusion” — for a group to be guaranteed a seat in an alternative-vote system, using a similar “worst-case scenario” analysis.  These calculations assume voters are both perfectly cohesive within their own group, and that they are perfectly strategic: that is, they assume that the opposition does not unnecessarily split their voting power.  Below is a chart of the “threshold of inclusion” for different numbers of legislative seats, under each of the alternative systems discussed above.  This means, for example, that if our example city with five city council seats chose to run its elections with cumulative voting, 16.7 percent of the population could band together and ensure that its chosen candidate would win a seat on the council, even if the opposition was perfectly cohesive and perfectly strategic.[xii]  To determine the threshold for winning two seats in a cumulative voting system, double the number: 33.3 percent of the population could vote strategically to win two seats on the five-seat council.[xiii] 


Threshold of inclusion[xiv]

 

Seats

Cumulative Voting &

Ranked Choice Voting

Limited Voting

1 vote

2 votes

3 votes

 

 

 

 

 

2

33.3

33.3

-

-

3

25.0

25.0

40.0

-

4

20.0

20.0

33.3

42.9

5

16.7

16.7

28.6

37.5

6

14.3

14.3

25.0

33.3

7

12.5

12.5

22.2

30.0

8

11.1

11.1

20.0

27.3

9

10.0

10.0

18.2

25.0

 

Now let us apply this threshold to an example involving a minority population, to see how turnout affects the math.  Assume that, in a perfectly polarized environment, 1000 voters of our 3000-voter jurisdiction are cohesive and strategic minority citizens, preparing for the city council election with five seats.  Depending on housing patterns, it might be possible to draw three districts aimed at providing minorities an opportunity to elect candidates of choice.  With each of the five districts holding 600 voters, it might be possible to draw the district lines such that three of these districts held 333 minority voters apiece.  If each minority voter turned out at the same rate as their white counterparts, the minority voters would reliably control three seats of the five.  However, if minority turnout were 80% of the white turnout, the minority group would reliably lose each of the five seats. 

In order to accommodate these sorts of turnout concerns, opportunity districts are often drawn with a supermajority of minority voters.  Let’s assume, then, that our jurisdiction draws two opportunity districts with 400 minority voters each.  Even if minority turnout were just over 50% of the white turnout, minorities would reliably control at least two of the five seats.  But these supermajorities limit the potential upside for the minority group as well.  If minority turnout were equal to the white turnout, minorities would still control only two of the five seats.  And if the white majority were less than perfectly strategic, dividing their vote among multiple candidates in the other districts, minorities would still likely control only two of the five seats.

Now turn to the alternative voting systems discussed above, and assume that a ranked choice or preference voting structure is in place.  No district lines are necessary — the election takes place over the entire 3000-voter jurisdiction.  If minority voters turn out at the same rate as their white counterparts, they would reliably control at least two of the five seats.  Under lower minority turnout, the alternative systems fare less well: if minority turnout were 50% of the white turnout, minorities would reliably control only one of the five seats.  But the alternative systems also allow the potential to capture a significant upside: if the white majority were less than perfectly strategic, and the minority community turned out in force, it would be possible for minorities to control more than two seats.

The particular example above highlights perhaps the most significant aspect, not only of this presentation, but of many topics discussed today: the importance of context.    Realistic turnout projections are crucial factors in deciding which electoral structures most effectively promote minority voting opportunities in a particular location.  So are the extent of polarization and the geographic dispersion or concentration of a minority community. 

Staggered seats are important elements in the overall context as well.  A staggered election structure effectively limits the number of available seats in any one at-large election; limiting the number of available seats increases the threshold of inclusion.  For example, imagine that our five-seat city has been divided into districts, with district #1 designed to give minorities the opportunity to elect their candidate of choice.  If elections are conducted for districts #1, 3, and 5 in one year, and districts #2 and 4 have elections in a different year, the staggering will not usually affect minorities’ opportunities to elect a candidate in district #1.[xv]  If, however, the elections are held at-large, and seats #1, 3, and 5 are up for office in one year, with seats #2 and 4 staggered to another year, the scenario changes.  Now, instead of a 5-seat election, with minorities guaranteed to win one seat if they can muster 16.7% of the vote, the jurisdiction has one 3-seat election in one year (minorities have the chance to win only if they collect at least 25% of the total vote), and one 2-seat election in the next election cycle (minorities have the chance to win only if they collect at least 33.3% of the total vote).  That staggered structure will make it comparatively more difficult for minorities to win in an at-large district.

The limitations discussed above make it unwise to adopt at-large alternative voting systems in every case.  I do, however, urge you to add these alternatives to your menu of options, if state law permits you to do so.  In the right circumstances, alternative voting systems allow the benefits of an at-large structure, while simultaneously promoting effective opportunities for minority voters.[xvi]

 In the real world

The alternative voting systems described above are not merely pie-in-the-sky political scientists’ ventures.  Several have an extensive American pedigree; cumulative voting, for example, was used for more than 100 years to elect members of Illinois’ state house of representatives.[xvii]  In part because they help preserve jurisdiction-wide electorates while giving effective voice to minority populations, they have become increasingly popular options for municipalities. In the past twenty years, cumulative voting has been adopted by more than fifty local governments, and limited voting by more than thirty.[xviii]  Ranked choice voting was once more in vogue for multi-seat elections than it is currently;[xix] at present, it is used to elect city council members in Aspen, CO; Cambridge, MA; Hendersonville, NC; and will be used in Minneapolis for the first time in 2009.[xx]  Other local jurisdictions have authorized the use of ranked choice voting, but have not yet implemented the system.[xxi]

In addition to those municipalities that have chosen to enact such alternatives unprompted, both limited voting and cumulative voting have been implemented to address liability under the Voting Rights Act.[xxii]  Several jurisdictions with substantial African-American, Latino/Hispanic, or American Indian minority populations — including Lake Park, Florida, as recently as October 2009 — have entered into consent decrees that established cumulative or limited voting.[xxiii]  Just this past year, an Ohio federal court chose limited voting — one of two alternative voting systems proposed by the Euclid, Ohio, school board — as an appropriate remedy for a Section 2 violation,[xxiv] and a decision is currently pending in a New York federal court regarding the Village of Port Chester’s efforts to adopt a cumulative voting scheme as a remedy for its Section 2 liability.[xxv] 

The cases above all show the use of alternative voting systems as responsive measures, in response to litigation.  With the Census around the corner, I would like to suggest a different approach.  Some of you may represent jurisdictions with a minority population about to achieve significant numbers for the first time.  Others may represent areas covered by section 5 of the Voting Rights Act like Calera, Alabama, where the minority population has dwindled or become less geographically concentrated over the past decade, making it more difficult to draw districts that avoid retrogression.[xxvi]  You will no doubt be watching the Census carefully, to see whether demographic change augurs change to your electoral structure.  In that context, to the extent permitted by state law, I suggest adding alternative voting systems to the menu of options you should be considering to promote minority voting opportunities well before the Department of Justice comes calling.  Under the right circumstances, they can be very effective means to represent minority voices, without sacrificing the benefits of an at-large structure. 

Prisons and redistricting

Thus far, our discussion has concerned alternatives to drawing district lines — but many of you have determined or will determine that districts are the most appropriate structure in your jurisdiction.  I have a “hot voting rights topic” for you, too.   It concerns the distortions in the redistricting process that result from the way in which incarcerated persons are tallied.

The status quo

 At present, incarcerated individuals are counted by the Census at the blocks where they are incarcerated, rather than at their prior addresses, in their home communities.  These two addresses are usually far from each other, and coupled with the nation’s rising incarceration rate, lead to a systematic distortion of the population picture.

When local redistricting decisions rely directly on the Census tallies, they build this distortion into the distribution of local democracy.  Districts are constructed on the backs of “ghost voters,” packing in prisoners who count toward the district size but who, with few exceptions, are not permitted to vote, and who are not connected to the other residents of the district.   This artificially inflates the political power of voters in prison districts, and artificially deflates the power of voters everywhere else, so that some votes are worth far more than others.[xxvii] 

For example, in Lake County, Tennessee, after the 2000 Census, 88% of the reported population of one County Commissioner district was allotted to a local correctional facility.  As a result, each resident in this district has more than 8 times the voting power of every other resident in the county. And in Anamosa, Iowa, 1300 of the 1400 individuals allotted to City Council ward 2 are incarcerated there, giving the 100 voters in that ward massively disproportionate political power.  Indeed, in districts so distorted by the prison population, candidate recruitment is difficult and turnout suffers greatly; only two voters of the 100 eligible in Anamosa’s ward 2 actually bothered to vote for the single candidate on the ballot in 2006.[xxviii]  

 Local redistricting alternatives

 Rather than counting prisoners where they are incarcerated, the most appropriate policy for redistricting purposes is to count prisoners where they lived before their incarceration, which is where virtually all prisoners return when they are released.  This more accurately accounts for prison populations in the communities to which they have an actual connection.

Some of the jurisdictions that you represent may well have the administrative capacity to determine prisoners’ last addresses before incarceration, and the legal authority to adjust the census count for local redistricting purposes.  I heartily encourage you to seek this data and adjust the count accordingly.

In other municipalities, acquiring the last address of incarcerated individuals may entail substantial logistical complexities.  In such circumstances, I recommend an alternative halfway measure that corrects a sizable portion of the skew.  The way that prison populations are currently tallied creates two distortions: counting incarcerated individuals where they are imprisoned and refusing to count prisoners in their home communities.  Even if it is not immediately possible to determine the home addresses where incarcerated individuals should be counted for redistricting purposes, it is possible to eliminate half of the skew by ensuring that prisoners are not counted where they are incarcerated.  Instead, incarcerated populations would be tallied as part of a special precinct not tied to any specific geographical location for redistricting purposes.  This is akin to the way that the Census Bureau tallies members of the military and federal government personnel who are overseas when the Census is conducted: such individuals are assigned to the state whence they came for congressional apportionment purposes, but not to a specific address within that state that would affect redistricting.[xxix]

Removing this half of the skew would not completely resolve the prison distortion by reconnecting the incarcerated population to the communities to which they most tangibly belong. But it would take a significant step toward resolving the mass inequities in voting power occasioned by districts in which the majority of the population is imprisoned.  And this step would benefit all of the remaining voters in the jurisdiction, whose political power is presently diluted in favor of the relatively small number of voters in prison districts.

As with the alternative voting systems discussed earlier, adjusting the Census count in this fashion for local redistricting purposes may be unusual, but it is hardly unprecedented.  Several jurisdictions, including about 1/3 of the counties with prisons in New York State, have excluded prisoners from the population figures used to conduct local legislative apportionment or redistricting.[xxx]  And where state law does not preclude local adjustment to Census determinations for redistricting purposes, other jurisdictions have sought and received approval by their state attorneys general for permission to do the same.[xxxi]  Indeed, some state law mandates such an adjustment.  Colorado, for example, requires its county commission districts to exclude incarcerated populations for redistricting purposes.[xxxii]  Mississippi law appears to correct the skew entirely; a 2002 opinion by the Mississippi Attorney General, for example, appears to require local jurisdictions in that state to count incarcerated persons in their former communities when redistricting.[xxxiii]

 Advocacy for state adjustment

 In addition to the local redistricting correction above, your jurisdictions may have a role in advocating for a correction to the redistricting practice statewide.  In many areas, the sizable prison institutions are located in more rural portions of the state.  This means that the current practice of tallying prisoners where they are incarcerated generally inflates the district size and political power of rural populations across the country, at the expense of small, mid-size, and larger urban communities.

For example, in the Brennan Center’s home state of New York, 91% of prisoners from New York City are housed outside the city. And 66% of the state’s prisoners as a whole are from New York City.  The failure to account for these shifts in redistricting deprives New York City of the representation in the state legislature to which it should be entitled.  Indeed, if incarcerated populations were tallied in the communities to which they are tied, New York City would gain substantial representation, drawing from seven New York state legislative districts that would be too underpopulated to exist.  Even if prisoners were not counted in their home communities, simply eliminating the present skew would redistribute the representation unduly lodged in those seven districts, to communities all around the state.

Few cities, of course, would be affected by a redistricting reconfiguration of incarcerated persons in as extreme a manner as would New York City.  Yet your municipalities are likely also losing representation based on the way prisoners are tallied in the redistricting process.  Moreover, given the heavily minority composition of the communities from which most incarcerated populations are drawn, and given the demographics of voters in most districts where prisons are located, this representational skew is likely working to dilute minority votes.  The issue was mentioned in a 2006 Voting Rights Act case in the Second Circuit, and though it has not been fully litigated, it represents a plausible cause of action on the horizon.[xxxiv]

Some state legislators and executives have expressed interest in correcting the prison-count skew for state legislative districts, and bills have been filed this year in at least five states to accomplish that end, in whole or in part.[xxxv]  Just as individual municipalities have the authority to adjust the census count for local redistricting purposes, so too may states choose to correct the distortion caused by prison populations for purposes of state legislative redistricting.  Many of you may have an interest in advocating for such a correction on behalf of your municipal clients, to return to them the representation to which they should rightfully be entitled.  Indeed, to the extent that the skew unduly dilutes the votes of racial minorities, correcting the distortion may well be required by the Voting Rights Act.  I encourage you to raise the issue with the responsible state authorities, before the redistricting process begins for the next cycle.

Conclusion

Some of the cities that you represent have long had sizable minority populations; elsewhere, the 2010 census will confirm that a significant minority population has recently emerged.  In the months ahead, you will likely be asked to provide advice on the import of these demographic trends for ensuring minority enfranchisement, and for avoiding the wrath of the Justice Department. 

In providing this advice to your client jurisdictions, I urge you to consider the two topics I have briefly introduced today, to the extent state law allows you to add them to your toolkit.  First, in addition to evaluating the use of districts or redrawing district lines to ensure minority opportunities, consider the potential for alternative voting systems to provide opportunities for minority voters within an at-large structure, particularly where minority populations are geographically diffuse or in small pockets that make compact districts difficult to draw.  Second, if you find that districts are more appropriate, consider designing those districts with prison populations tallied either as part of their home communities, or in non-geographical precincts, so that the districts with prisons do not enjoy artificially inflated voting power, at the expense of voters throughout the remainder of the city.  And I suggest that you further consider advocacy with state decisionmakers, to reflect similar corrections in statewide redistricting procedures, to ensure that your client jurisdictions are allotted the representation to which they should be entitled.

Thank you, once again, to IMLA for allowing me to bring these topics to your attention, and to all of you for your participation in today’s very important conference.  I am happy to take any questions that you may have; if you wish to ask questions beyond today’s gathering, I can best be reached by email at justin.levitt@nyu.edu.

 

 

 

 



* Note: This presentation was prepared and submitted on November 2, 2009.  Several of the cases or elections described in this draft as pending have since been resolved.

[I] For more information on these alternative voting systems, see generally, e.g., Southern Center for Studies in Public Policy & Center for Voting and Democracy, Full Representation: Election Systems Manual 11-22 (1999) [hereinafter Full Representation]; Steven J. Mulroy, Alternative Ways Out: A Remedial Road Map for the Use of Alternative Electoral Systems as Voting Rights Act Remedies, 77 N.C. L. Rev. 1867 (1999); Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994); Todd Donovan with Heather Smith, Proportional Representation in Local Elections (1994), at http://www.wsipp.wa.gov/rptfiles/Localelections.pdf; Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution, 21 Stetson L. Rev. 743 (1992).

[ii] See generally Anupam Chander, Minorities, Shareholder and Otherwise, 113 Yale L.J. 119 (2003); Jeffrey N. Gordon, Institutions as Relational Investors: A New Look at Cumulative Voting, 94 Colum. L. Rev. 124 (1994); Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 Va. L. Rev. 1413 (1991).

[iii] Full Representation, supra note 1, at 11.

[iv] See Press Release, Preferential Voting Extended to Best Picture on Final Ballot for 2009 Oscars, Aug. 31, 2009, at http://www.oscars.org/press/pressreleases/2009/20090831a.html.

[v] The threshold described here, known as the “Droop quota,” is calculated by dividing the total number of votes (3000) by one more than the total number of seats (6), and then adding one.  Other aggregation algorithms use slightly different threshold formulas.

[vi] If voters are not required to rank all of the candidates, it may be that none of the last remaining candidates clear the threshold.  In such cases, the remaining seat or seats are usually awarded to the candidates with the most votes.

[vii] Also, from political groups’ perspective, ranked choice voting renders unnecessary strategic choices about the optimal number of candidates; in other voting systems, including traditional at-large voting, running “too many” aligned candidates can create a problem by causing supporting groups to divide their vote. 

[viii] See Full Representation, supra note 1, at 29-30, 34 (tabulating minority voter percentage and minority candidate wins in jurisdictions with alternative voting systems).

[ix] Two strands of Supreme Court jurisprudence have raised serious questions about districts drawn in order to promote voting opportunities for racial minority populations that are not “compact” — a concept that has not been well-defined in the courts, but that essentially refers to populations concentrated fairly closely together.  League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), held that section 2 of the Voting Rights Act protects only compact populations of racial minorities.  See id. at 430-35; see also Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).  And a series of cases beginning with Shaw v. Reno, 509 U.S. 630 (1993), has held that there may be constitutional difficulties with drawing districts predominantly to promote the voting power of racial minorities, if such districts are not required by the Voting Rights Act.  For minority populations that are not compact, alternative voting systems in an at-large district can provide effective minority voting opportunities without creating these constitutional questions.

[x] Richard L. Engstrom & Robert R. Brischetto, Is Cumulative Voting Too Complex?  Evidence from Exit Polls, 27 Stetson L. Rev. 813, 821‑26 (1998).

[xi]  In 1994, the Department of Justice objected to a preclearance request under section 5 of the Voting Rights Act for a cumulative voting system by the city of Morton, Texas, because it had not taken sufficient steps to explain the cumulative voting structure to minority voters.  Hearing on H.R. 1173, the “States’ Choice of Voting Systems Act”, Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 106th Cong. (Sept. 23, 1999) (statement of Anita Hodgkiss, Deputy Asst. Att’y Gen., Civil Rights Div.,  Dep’t of Justice).  After plans for voter education had improved, the cumulative voting system was precleared.  Id.

 

 

[xii] The formula to determine the threshold for winning a seat in a cumulative or ranked choice voting system is fairly straightforward:

1
_____________________________

1 + (number of seats up for election)

[xiii] It is more complicated to determine thresholds for winning multiple seats in a limited voting system.  Rob Richie has developed a formula called the “Code to Win,” to calculate the thresholds involved.  Email from Rob Richie, Executive Director of FairVote, to Justin Levitt (Oct. 25, 2009).  If s is the total number of seats up for election, t is the number of seats that the cohesive group is targeting, and v is the number of votes that each voter is allowed, the Code to Win is as follows:

max ( t , v )
__________________________

max ( s+1, 2v, t+v, 1+s+v–t  )

[xiv] Mark E. Rush & Richard L. Engstrom, Fair and Effective Representation? Debating Electoral Reform and Minority Rights 42 (2001).

[xv] The caveat is that the years of staggering must be years with similar turnout, with similarly motivating races at the top of the ticket.  Staggering races so that districts designed for minority opportunities have elections only in low-turnout years, particularly if minority voters are less likely to turn out than white voters, increases the chance that minority voting power will be diluted.

[xvi] See sources cited in Engstrom & Brischetto, supra note 5, at 816 n.25.

[xvii] See Full Representation, supra note 1, at 11.

[xviii] See Shaun Bowler, Todd Donovan, & David Brockington, Electoral Reform and Minority Representation: Local Experiments with Alternative Elections 120-122 (2003); Full Representation, supra note 1, at 8; Engstrom & Brischetto, supra note 10, at 814 n.10.

[xix] See sources cited in Mulroy, supra note 1, at 1879 n.61.

[xx] See City of Aspen, Instant Runoff Voting Procedures Manual (2009), at http://bit.ly/4szJQH; Aspen, Colo., Home Rule Charter § 2.7; Mass. Gen. Laws ch. 43, § 96; Cambridge, Mass., Municipal Code § 2.02.030; Hendersonville County Bd. of Elections, Hendersonville Pilots Instant Runoff Voting (2009), at http://bit.ly/36EDpB; Chris Steller, New Instant-Runoff Voting Could Factor in 22 Minneapolis Races, Minn. Independent, July 22, 2009, at http://bit.ly/2epWuC; Minneapolis, Minn., Charter ch. 2, § 5B.

Ranked choice voting has been used more often in districted or single-seat elections, where it is more commonly known as instant-runoff voting; this method has particular advantages for military and overseas electors who might have more difficulty participating in a second runoff election.  Basalt, CO; San Francisco, CA; Takoma Park, MD; Cary, NC; Burlington, VT; and Pierce County, WA are among the jurisdictions that have recently used ranked choice voting for single seats.  See, e.g., Basalt, Colo., Home Rule Charter § 2.8; City and County of San Francisco, Cal., Municipal Charter § 13.102; City and Takoma Park, Md., Municipal Charter art. VI, § 606; Jordan Schrader, To Stem Runoffs, New Ballots Have Voters Rank Top 3, USA Today, Oct. 18, 2007; Vt. Stat. Ann. tit. 24 app., ch. 3, § 5; Pierce County, Wash., Charter § 4.10.

[xxi] See, e.g., Ferndale, Mich., Charter ch. IV, § 17; Sarasota, Fla., Charter art. IX, § 5.

[xxii] Cf. Holder v. Hall, 512 U.S. 874, 897, 910 (1994) (Justice Thomas, concurring) (“Perhaps the most prominent feature of the philosophy that has emerged in vote dilution cases since Allen has been the [Supreme] Court’s preference for single member districting schemes, both as a benchmark for measuring undiluted minority voting strength and as a remedial mechanism for guaranteeing minorities undiluted voting power . . . .  But nothing in our present understanding of the Voting Rights Act [limits] the authority of federal courts [so as to] prevent them from instituting a system of cumulative voting as a remedy under § 2, or even from establishing a more elaborate mechanism for securing proportional representation . . . .” ).

            When courts have rejected the use of alternative voting systems to remedy violations of the Voting Rights Act, it has generally been because the alternative system was imposed despite the affected jurisdiction’s preference for districts.  See, e.g., Cane v. Worcester County, 35 F.3d 921, 928-929 (4th Cir. 1994); Harper v. City of Chicago Heights, 223 F.3d 593, 601-03 (7th Cir. 2000).

[xxiii] Consent Judgment and Decree, United States v. Town of Lake Park, Florida, No. 09-80507 (S.D. Fla. Oct. 26, 2009) (limited voting); Agreed Settlement and Release of Claims, Reynoso v. Amarillo Indep. Sch. Dist., No. 98-00186 (N.D. Tex. May 17, 1999) (cumulative voting); Moore v. Beaufort County, 936 F.2d 159, 164 (4th Cir. 1991) (limited voting); Dillard v. Town of Cuba, 708 F. Supp. 1244 (M.D. Ala. 1988) (limited voting); Dillard v. Chilton County Bd. of Educ., 699 F.Supp. 870 (M.D. Ala. 1988) (cumulative voting); Buckanaga v. Sisseton Indep. Sch. Dist., No. 84-01025 (D.S.D. Oct. 26, 1988) (cumulative voting); Amended Final Consent Decree and Full Resolution of Action exh. B, Banks v. City of Peoria, No. 87-02371 (C.D. Ill. Aug. 10, 1988) (cumulative voting); Stipulated Findings of Fact and Conclusions of Law, Vega v. City of Alamogordo, No. 86-0061-C (D.N.M. Mar. 2, 1987) (cumulative voting).

[xxiv] United States v. Euclid City School Bd., 632 F.Supp.2d 740 (N.D. Ohio 2009).  The Euclid school board consisted of five members, each elected in odd-numbered years to four-year staggered terms.  The African-American voting-age population had grown from 27.8% in 2000, at the start of the proceedings, to 40.2% at the time of the remedy trial.  Id. at 746, 756-57.  Yet until 2008, no African-American had ever been elected as a school board member.

[xxv] United States v. Village of Port Chester, 2008 WL 190502 (S.D.N.Y. 2008).  Port Chester had maintained an at-large voting system to elect its Mayor and its six-member Board of Trustees.  The Village’s Hispanic community had been rapidly growing, and by 2000 Hispanics constituted a substantial portion of the population — yet in ten consecutive contests for Trustee in which the Hispanic candidate of choice differed from the non-Hispanic candidate of choice, the candidate preferred by non-Hispanic voters won nine of the elections.

[xxvi] Because the minority population in Calera is “spread citywide, they were no longer able to draw the [city council district] lines in a way that kept one district with a majority black population.”  Mary Orndorff, Court to Hear Case on Need for U.S. Elections Oversight, Birmingham News, Apr. 27, 2009.  Instead, they turned to an at-large election for city council, using a limited voting system that was recently precleared by the Justice Department. Scottie Vickery, Justice Clears Calera Plan for Elections, Birmingham News, Sept. 26, 2009.  Of the nine candidates for six seats, one is African-American.  Id.  The election will take place on November 10, 2009, after this paper has been submitted.

[xxvii] See, e.g., Peter Wagner & Elena Lavarreda, Importing Constituents: Prisoners and Political Clout in Oklahoma (2009), at http://bit.ly/2j6RSE; John Hejduk & Peter Wagner, Importing Constituents: Prisoners and Political Clout in Wisconsin (2008), at http://bit.ly/1iN1Z7; Peter Wagner & JooHye DellaRocco, Phantom Constituents in Tennessee’s Boards of County Commissioners (2008), at http://bit.ly/1SC04Y; Peter Wagner et al., Phantom Constituents in the Empire State (2007), at http://bit.ly/2jkdMI

[xxviii] Maureen Turner, The Prison Town Advantage, Valley Advocate, Oct. 8, 2009.

[xxix] National Research Council, Once, Only Once, and in the Right Place: Residence Rules in the Decennial Census 327-28, 330-31 (Daniel L. Cork & Paul R. Voss, eds. 2006); Franklin v. Massachusetts, 505 U.S. 788, 805-06 (1992).  Other overseas citizens, and members of U.S. flag merchant vessels docked abroad, are not counted in the Census at all, even if their identities are known.  National Research Council, supra at 301.

[xxx] Letter from Daniel Jenkins et al. to U.S. Census Bureau Director (July 9, 2004), available at http://www.prisonersofthecensus.org/news/2004/09/06/ruralcitizens/.  Peter Wagner has assembled a running list of local jurisdictions that exclude incarcerated populations for redistricting purposes, at http://www.prisonersofthecensus.org/local/ (last updated Oct. 6, 2009). 

[xxxi] See, e.g., Op. No. 91-601, 74 Ops. Cal. Atty. Gen. 162, 1991 WL 495473 (Cal. A.G. 1991).

[xxxii] Colo. Rev. Stat. §§ 30-10-306, 30-10-306.7.

[xxxiii] Op. No. 2002-0060, 2002 WL 321998 (Miss. A.G. 2002).

[xxxiv] The case, Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), concerned a direct challenge to the practice of felony disenfranchisement under the Voting Rights Act.  The court, sitting en banc, dismissed the challenge at hand, but remanded to consider whether the plaintiffs had stated a vote dilution claim based on redistricting that counts incarcerated populations where they are incarcerated.  Id. at 328-29.  In the trial court, plaintiffs clarified that they had not stated such a claim, and the case was dismissed.  Memorandum and Order, Hayden v. Pataki, No. 00-8586, 2006 WL 2242760 (S.D.N.Y. Aug. 4, 2006).

[xxxv] See, e.g., H.B. 4650, 96th Gen. Assem. (Ill. 2009); S. 1633, 2009 Leg. (N.Y. 2009); H.B. 2930, 75th Leg. Assem. (Or. 2009); H.B. 2855, 81st Leg. (Tex. 2009); Assem. J. Res. 63, 99th Leg. (Wis. 2009). Cf. H.B. 5969, 2009 Leg., Jan. Sess. (Conn. 2009) (adjusting population data to count incarcerated persons in their home communities for funding purposes).