Alternative, Nondistrict Vote Dilution Remedies Under the Voting Rights Act
AMERICA VOTES! A GUIDE TO MODERN ELECTION LAW AND VOTING RIGHTS, Benjamin E. Griffith, ed., American Bar Association, 2012
24 Pages Posted: 7 Sep 2011
Date Written: September 1, 2011
In this chapter of the book AMERICA VOTES, Prof. Mulroy discusses the use of “alternative” electoral systems like limited voting, cumulative voting, and choice voting as remedies for minority vote dilution claims under the Voting Rights Act. Previously, there was some room to question whether courts could impose any remedy other than drawing single-member districts for minority voters. However, two recent federal district court decisions imposed such remedies over the objection of plaintiffs, the first extant decisions to do so outside the context of a settlement. The chapter concludes that such alternative systems are lawfully available Section 2 remedies, particularly where state law does not forbid their use and where there is not an equally viable single-member-district remedy preferred by the defendant. These alternatives to single-member districts have much to recommend them. They lead to results more representative of the popular will, empower not only racial and ethnic minorities but other minorities as well, and avoid or minimize issues of gerrymandering. As relatively unknown systems, their use inevitably raises (likely manageable) issues of voter confusion. The systems are particularly appropriate where it is difficult to draw a compact single-member district (or enough such districts), or where the jurisdiction is small and subdividing it into districts may be impractical. Courts using them will appropriately apply the “threshold of exclusion,” the well-recognized mathematical formula used to determine the minimum share of the electorate the minority group needs to be in order to be relatively assured of electing at least one candidate of choice. When courts apply the threshold formula, they should carefully consider whether to use minority voting age population figures and/or minority voter turnout estimates. Finally, courts should order a robust voter education plan to make the use of these alternative remedies effective.
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