The Voting Rights Act has been critical for protecting voting rights since its passage in 1965. Even after the Court’s disappointing decision in Shelby County, Section 2 of the VRA continues to play an important role in keeping diverse communities from being denied the ability to elect candidates of choice. But in many ways it is not being used to its full effect.

While the racial justice goals of the federal Voting Rights Act are admirable and necessary, the standard model of resolving a federal VRA case alleging vote dilution – while it has successfully diversified many otherwise homogeneous legislative bodies – has contributed to the host of negative consequences resulting from the use of single-member plurality winner electoral districts.  This is because the creation and defense of majority-minority districts is often the chosen remedy.  Indeed, the notion of single-member districts as the default solution is embedded within the very method of analysis courts are required to use under Supreme Court precedent.  A recent case illustrates the kind of analysis courts are required to use to enforce the VRA’s prohibition on minority vote dilution.

On April 25th, Judge Keith Ellison of the U.S. District Court for the Southern District of Texas issued a ruling in a case called Cisneros v. Pasadena Independent School District.  The case concerns the structure of elections used to fill the Pasadena, Texas school board (officially called the Board of Trustees).  The school district, located southeast of Houston, featured an enrollment of about 53,000 students for the 2011-2012 school year.  Of these, about 82% were Hispanic and about 8% white.  Despite such a commanding Hispanic majority among students, the seven member board of trustees for the district is composed of six whites and one Hispanic.  This six-to-one composition has held since 1987, albeit with different members of the board.  It has remained despite Pasadena undergoing a substantial demographic shift toward increased Hispanic residents and students from 1993 to the present.

Plaintiffs claimed that distorted representation is due to the at-large voting system used to elect the board of trustees.  Winner-take-all at-large elections, when combined with racially polarized bloc voting, often result in the exclusion of racial minority groups from representation on an elected body.

Judge Ellison noted that Hispanics in Pasadena lacked descriptive representation on the board in proportion to their population (“[The composition of the board] is far from proportional with the rapidly growing Hispanic population in the community and the schools[.]”), but nevertheless held for the defendants that Section 2 of the VRA was not violated.

His analysis rested upon the “Gingles factors,” which are a set of three preconditions that courts require plaintiffs in a vote dilution case to satisfy before their claim may proceed further.  These are that a minority group must demonstrate that: (1) it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it to generally defeat the minority’s preferred candidates.  These preconditions are not written into the Voting Rights Act itself, but are the result of Supreme Court precedent, from a 1986 case called Thornburg v. Gingles.  In Cisneros, Judge Ellison found that even though Latinos were effectively denied representation, they had no claim under the VRA, in part because they could not meet the first Gingles factor.

The first Gingles factor (“Gingles 1”, for brevity) has been justified by courts by the claim that “the plaintiff in a §2 case must demonstrate that if a violation is found, a remedy can be imposed,” coupled with the assumption that drawing districts is the only feasible remedy for vote dilution.

But of course there often are feasible remedies that do not involve districts.

At-large elections coupled with fair representation voting have been effectively used to remedy vote dilution claims in about 100 cities, counties, and school boards across the United States. The use is spreading as well, as just this year Santa Clarita, a California city of 180,000, settled a vote dilution claim by extending cumulative voting rights to its residents. FairVote makes the case for such remedies, in particular the use of ranked choice voting in multi-member districts, in an amicus brief it filed this year in a case out of Palmdale, CA.

The availability of fair representation voting clarifies why Gingles 1 should not be required and can render patently unfair results.  For example, imagine two adjoining counties in the South: one has a black population of 12%, all in one neighborhood; the other has a black population of 24% living in three distinct residential pockets. In the first, it is easy to draw a 60% black district, but the other cannot make a single district with more than 40% black voters.  Given Gingles 1’s requirement of the possibility of drawing a majority-minority district, black voters in the second county could not win a voting rights claim – despite having twice the percentage of voters as the first and equal political isolation.

If a fair representation system like cumulative voting were enacted as a remedy instead of districts, however, then either county’s black voters could all join together to easily elect at least one representative irrespective of where they live. Indeed, voters in the first county would be even better off than they would be with districts, because cumulative voting would allow black voters outside of that one neighborhood the ability to help elect a preferred candidate; it would also allow white voters to join in cross-racial coalitions with black voters; and it would respect the preferences of black voters who prefer to vote for one or more of the white candidates.

A further contradiction in the reliance on Gingles 1 can be seen in cases where the remedy adopted is not districts, such as in Chilton County, Alabama.  Generally in vote dilution litigation, plaintiffs will attempt to satisfy Gingles 1 by drawing demonstration districts where racial minorities make up a majority of the citizen voting age population (CVAP).  But, if the case is subsequently settled with a remedy that uses fair representation voting systems instead of single member districts (as in Chilton County), why should it have been necessary to draw such demonstration single-member districts in the first place?

Moreover, the pressure to draw majority-minority districts can potentially lead to a catch-22 for litigants, in that race cannot be the predominant factor in drawing district lines without violating the Equal Protection Clause of the Constitution (per Shaw v. Reno); but race remains central to the entire litigation.  A districting plan must therefore use traditional districting criteria to achieve a racial justice end, but without over-relying on racial considerations.  This exercise in tightrope walking may be avoided through the use of fair representation voting systems, which does not engage in any racial classification at all, instead of majority-minority districts.

For places frustrated by the unnecessary road block of Gingles 1, another possibility exists: state level anti-vote dilution statutes.  California is the only state that currently has one: the California Voting Rights Act. It contains no analogous requirement to Gingles 1.  This has been a great boon to plaintiffs and California has seen considerable vote dilution litigation under the state statute rather than the federal VRA. 

FairVote supports state legislative efforts to enact anti-vote dilution statutes that encourage the use of fair representation voting systems, and even provides a model statute based largely on the California Voting Rights Act.