FairVote Legal Staff Promote Fair Representation Voting in Law Review Issue Celebrating Voting Rights Act

Posted by Chris Hughes on August 24, 2016

FairVote staff were recently published in the Voting Rights Act 50 year anniversary issue of the Cumberland Law Review. Following up on our prior piece in the University of Richmond Law Review, our article makes the case that lessons from vote dilution cases brought under the VRA show us the way out of the congressional gerrymandering crisis, and a way to pull courts out of the "political thicket" of adjudicating partisan gerrymandering claims. Read our article here: Escaping the Thicket: The Ranked Choice Voting Solution to America’s Redistricting Crisis.

Last year was the 50th Anniversary of the March on Selma and the passage of the seminal Voting Rights Act of 1965, which changed the course of minority voting power in American politics, and just last week celebrated its 51st Anniversary. To honor that legacy, the Cumberland Law Review at the Samford School of Law in Birmingham, Alabama dedicated an issue of its most recent volume to the history, impact, and future of the VRA, to which FairVote contributed an article about adopting ranked choice voting in multi-winner districts for Congress.

The issue is packed full of impactful and meaningful analysis, from an investigation into pre-Civil War teaching at Howard College, which later became Samford University, to an examination of the “Dillard Cases,” lawsuits brought in small Alabama towns in the wake of the Voting Rights Act that led to the adoption of fair voting methods in more than 30 towns across the state.

Jerome Gray, a 40 year stalwart in the Alabama civil rights community, co-wrote the article on the Dillard cases. The article tells the story of Dillard v. Crenshaw County and its progeny to demonstrate how Gray’s advocacy for limited and cumulative voting in settlement talks with the towns being sued convinced them to adopt those alternative voting methods.

Gray points to Ed Still, another dedicated Alabama civil rights advocate, and Lani Guinier, a celebrated civil rights advocate and academic, as the reason he advocated for alternative voting methods as the solutions in those small Alabama towns. Thanks to the use of cumulative and limited voting in these towns, black voters in those towns have been able to consistently elect black officials for the last 40 years.

Our article, “Escaping the Thicket: The Ranked Choice Voting Solution to America’s Redistricting Crisis,” lays out FairVote’s case for multi-winner ranked choice voting as the answer to the ills of the winner take all districts used today to elect members of Congress, solving issues of vote dilution and gerrymandering itself. The article next argues that fair representation methods are already a part of the American electoral fabric and examines their use and applicability under the Voting Rights Act. Finally, the article discusses the Fair Representation Act, a bill proposing the adoption of multi-winner ranked choice voting for Congress.

Vote dilution, the practice of dividing up like-minded communities by using district lines or packing those communities into a single district in order to decrease their power to elect their preferred representatives, is a serious problem for minority communities (racial, political, or otherwise) in the winner-take-all, single-winner district system for Congress. Vote dilution is a particular problem in single-winner districts because communities are never evenly spaced in a given state.

Take Louisiana, a sharply racially polarized state, which has six Congressional districts and whose population is 30% African American. Because of how African American populations are dispersed within the state, there is only one district, located in New Orleans, that is majority African American. It includes about 34% of the state’s African American population and elects the only African American representative in the state.

Given that people in Louisiana still vote predominantly along racial lines, the other 66% of Louisiana’s African American population is left without a representative of their choice in Congress. That does not have to be the case. Multi-winner ranked choice voting in Louisiana would allow for two multi-winner districts to elect two African American representatives of choice in Louisiana, providing representation for the whole African American population in Louisiana and avoiding problems of vote dilution inherent to winner-take-all, single winner districts. This pattern holds for minority groups across the United States. Women also fare better under multi-winner systems and, as our Representation 2020 project argues. Increasing women’s currently dismal representation in government will be good for all Americans.

After unpacking the role of single winner districts in vote dilution, the paper turns to fair representation voting’s place in American elections. Fair representation voting (including ranked choice voting as well as cumulative and limited voting) is used in more than 100 cities and towns across the United States (for a total of more than 200 elected bodies). The Dillard cases that Jerome Gray worked on brought fair representation voting to more than 30 of those cities and towns in Alabama, and voting rights act lawsuits and settlement agreements since have introduced cumulative and limited voting to towns and cities across the United States.

Cumulative and limited voting have been in place in Connecticut and Pennsylvania for decades through their statutes and constitution (respectively), and Illinois used cumulative voting to elect its General Assembly for over a century. And ranked choice voting was used in the 1930s through 1960s in two dozen cities including Cleveland and New York, is still used for multi-winner elections in Cambridge, Massachusetts, and will be used (in its single-winner form) this year by cities like San Francisco, Minneapolis, and St. Paul. In all, this paints a picture of diverse election methods being used in cities across the US over the past 150 years, and demonstrates an American willingness to experiment with our democracy and, in so doing, improve it.

That’s why the article concludes with an analysis of the Fair Representation Act: as Congress becomes more and more dysfunctional thanks to increasing party polarization, the need for a new election method becomes clearer and clearer. Empowering voters with ranked ballots and fair representation, to give voters the strongest voice possible, ensures that government will be of, by, and for the people. It ensures that Congress will once again respond to the interests of the people who elect it, and begin working again instead of devolving into bitter partisan bickering over every bill.

Image Source: Cecil Stoughton

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