Cumulative Voting in Corporations
Companies that use cumulative voting include: Avon, Walgreen's and Toys 'R' Us, and Hewlett-Packard
HEADLINE: Ousted Chairman Sues;
75-year-old Nan Tucker McEvoy charges Chronicle Publishing Co. and her stockholder relatives with age discrimination
BYLINE: M.L. Stein
NAN TUCKER McEVOY, the principal shareholder in the Chronicle Publishing Co., is suing the company and her relatives to regain the chairmanship of the board from which she was ousted at a special stockholders' meeting.
McEvoy, who had held the chair since 1974, charged age discrimination and a denial of her cumulative voting rights under state law in the Superior Court suit.
The ouster action by the board majority in terms of owned shares seemingly exposed long-simmering differences among owners of the family-owned corporation, whose holdings include the San Francisco Chronicle, two other newspapers, KRON-TV in San Francisco, two book publishing firms and several cable TV systems.
The complaint seeks a preliminary injunction to restore McEvoy to the chairmanship. It alleges that the majority stockholders, at an April 19 special meeting, passed a bylaw barring anyone over 73 years old from sitting on the board. McEvoy is 75.
Since she could no longer serve as a board member, McEvoy also lost the chairmanship. John B. Sias, who was named president and CEO of Chronicle Publishing in 1993, largely through McEvoy's influence, was voted in as chairman and will occupy both positions.
The bylaw "had nothing to do with any director's fitness to serve on the board," the complaint states. "It was simply a device to disenfranchise a single minority stockholder."
With her ownership of 26.3% of the shares, McEvoy is the largest stockholder, but her holdings do not give her controlling interest. Her son, Nion, owns 7%.
The age-limit bylaw was passed by a vote of 1,990,000 shares (52.78%) to 1, 680,000 (44.4%) shares. McEvoy charges in the suit that certain stockholders were pressured into siding with the majority under threat of being disinherited.
Company stock is owned by members of three branches of the family of M.H. deYoung, who founded the Chronicle in 1865. Nan Tucker McEvoy, a widow and former reporter and Washington socialite, is de Young's granddaughter.
The suit stated that the age bylaw violates California and federal law, adding that no board member asserted "that Mrs. McEvoy was incompetent or otherwise unfit for service by virtue of her age. To the contrary, age and the wisdom and experience it may confer have long been considered valuable credentials for leadership at the Chronicle . . . . "
The complaint noted that in the past the directors repeatedly had elected Consuelo Tobin Martin to the board until she voluntarily stepped down at the age of 81.
"It is perfectly clear that the sole purpose of the bylaw was to prevent Mrs. McEvoy - and her alone - from voting her shares to keep herself on the board," the suit went on. The suit avers that McEvoy is in good health and occupies an office in the Chronicle building.
McEvoy is represented by the law firms of Bronson, Bronson & McKinnon of San Francisco and Cravath, Swaine & Moore of New York City.
A Chronicle Co. source told E&P that the board members most responsible for removing McEvoy as chair were Richard Thieriot, former editor and publisher of the Chronicle, and Frances "Rannie" Martin III, ex-head of the company's television operations. Both were forced out two years ago in sweeping management changes led by McEvoy.
However, there are other tensions among shareholders. A faction wants to sell the Chronicle, a move firmly opposed by McEvoy, who has said the sale wouldbe "over my dead body." There reportedly also is some discontent over the Chronicle's increasingly liberal tone, which McEvoy has encouraged.
"I'm the Democrat in the family," she once said. "I'm more politically liberal than the Chronicle has been for a number of years."
Also, a company source said, "Some stockholders feel she is too rich and gets too much publicity while they remain poor. They want to take their money and run."
In a statement made in connection with the suit, McEvoy said: "This fight is about the future direction of the Chronicle Publishing Co. My interests are the interests of the community, our employees and my fellow shareholders . . . . There is nothing more distressing than to have to air in public the illegal attempt by certain family members to eliminate my perspective from the ChronicleCo. board. I believe this action is designed to destabilize the company . . . . "
McEvoy contended she was instrumental in bringing professional management to the company after many years of family control and in implementing a business plan that has improved cash flow and reduced debt.
"Chronicle Publishing is worth more today than it was yesterday, and will be worth more tomorrow than it is today," she said.
Thieriot could not be reached for comment.
Martin, who is McEvoy's cousin, refused to be interviewed but issued a brief statement terming the board dispute a "family matter."
"I think it's unfortunate that she (McEvoy) has chosen to make a public issue of it, in part because I think it reflects poorly on her in a way that I would have preferred to avoid," he continued.
Martin, currently chairman and CEO of U.S. Media Holdings Inc., insisted the shareholders "are not motivated by anything but a desire to do what is best for the company."
He argued that the age bylaw is a prudent and legal provision widely used by many major corporations.
In an interview with E&P, McEvoy said it was her presumption that Thieriot and Martin engineered her removal from the board.
Referring to their being stripped of management positions, she commented: "People don't forget something like that easily."
In response to Martin's complaint about going public over the matter, McEvoy said: "I suppose they would have been very pleased if I hadn't done anything andlet them throw me out on a trumped-up cause. Basically, it's because of their action - which was wrong - that I went to court. I'm very sad it happened - that we had to make this quarrel public."
McEvoy acknowledged past differences between her and certain board members, but asserted that her ouster came as a complete surprise.
Board members received advice from counsel before adopting it, he added.
A Chronicle story quoted "observers" as saying the family feud could increase the possibility of the sale of either the Chronicle or KRON.
But Bill German, longtime executive editor of the Chronicle, told E&P he does not believe the rift in the board presages a sell-off.
"I'm not happy that this happened," German commented.
"I have known Nan for a number of years and have great respect for her," he added
Another Chronicle source, who wished to remain anonymous, also dismissed reports the paper will be sold.
"I don't see how it can happen," he reasoned.
"Mrs. McEvoy is the biggest shareholder, and there are others with sizable holdings who don't want to sell."
However, there is a possibility the company's cable investments may be on the block, he said.
Copyright 1985 The Mining Journal, Ltd.
April 5, 1985
SECTION: COMPANY NEWS; Company Dealings; Pg. 242
LENGTH: 694 words
HEADLINE: Aggressive Minorities
ANTI-takeover moves are in vogue at the moment. Atlantic Richfield has become the latest U.S. oil company to seek shareholder approval for measures to resist hostile attention. Proposals include reincorporation of the company into a wholly-owned subsidiary to eliminate cumulative voting in the election of directors. The company's Anaconda Minerals subsidiary recently sold its Golden Reward mining properties to Australia's Moruya Gold Mines (MJ, February 8, p. 103).
Moruya has now announced that it is raising $ A2.3 million through a one-forthree rights issue to fund exploration of the Astoria and Fannie prospects on the Golden Reward property. The property produced 1.5 Mt of gold ore grading 20 g/t prior to its closure in 1918. Moruya hopes that the acquisition will boost it from being a small explorer to a significant gold producer within two years.
Still fending off unwanted attention is another Australian gold producer -- Southern Goldfields. for once it is not FAI Investments who provides the attention (MJ, March 22, p. 203). This time it is Consolidated Gold Mining Areas, who attempted to take control without even offering to buy shares. Luckily for Southern its shareholders voted heavily against the proposal to elect three additional CGMA members to the board of directors. CGMA controls about 14% of Southern, with FAI controlling a further 15%.
Also still fighting some of its minority shareholders is Gold Fields of South Africa. Last month the group's proposed merger of its two coal subsidiaries Apex Mines and Clydesdale Collieries was blocked by the country's Supreme Court (MJ, March 15, p. 187). The opposition by eight institutional shareholders, holding between them almost 9% of Apex's share capital, was seen as a blow to GFSA's prestige. Pursuant to the court's order for more factual evidence Apex has now applied for aa oral hearing.
The state-owned Canada Development Investment Coporation has engaged investment bankers to advise on the divestiture of certain assets. These include Eldorado Nuclear, which is Canada's only integrated uranium company. Eldorado operates low cost uranium mines at Rabbit Lake and Collins Bay through Eldor Mines, and has a 15% interest in the Key Lake operation through Eldor Resources.
Following settlement of a lawsuit with Wharf Resources earlier this year (MJ, February 8, p. 103) Pegasus Gold is now buying Gold Reserve Corporation's 30% in the Zortman mine and its 15% in the Florida Canyon project for 1.2 million Pegasus shares -- which boosts Gold Reserve's interest in the company to over 13%. Together with the agreement with Wharf, the deal gives Pegasus total control of the Little Rockies area, where the Zortman/Landusky mines are located.
Canada's Inco is issuing 50 million 12 3/4/% Euro-Sterling notes in the international capital markets. Proceeds will be used to reduce the company's borrowings. During 1984 Inco made some headway against its recent difficulties, and the $ U566.2 million sale of indexed preferred shares helped reduce debt to $ US1,114 million.
Also in Canada, albeit on a rather different scale, Erickson Gold Mines has concluded its private placement of 100,000 shares at $ C3.00/share and non-transferable warrants to purchase an additional 100,000 shares at $ C3.50/share, exercisable within six months. Erickson, which operates a gold mine in British Columbia, is also planning to fund its expanded 1985 exploration programme through a $ C3.5 million flow-through share issue.
Aunor Resources, a junior Canadian exploration company incorporated in March 1984, plans to seek a public quotation in Quebec and intends raising $ C12 million from a rights issue to fund future exploration programmes. After the issue the public will have a 46% stake with the balance being held by Greenwich Resources (17%), SNC (14%) and Mr. Y. Vezina (23%). The last named is a director of Aiguebelle Resources. Aunor is currently carrying out exploration on 16 properties in North West Quebec -- the most interesting being the Elder gold property near Rouyn which has proven and probable reserves amounting to 1.1 Mt grading about 5 g/t.
BYLINE: Edited by Ephraim Lewis
Prompted by recent corporate scandals, Senator Howard M. Metzenbaum (D-Ohio) will introduce a bill to strengthen corporate accountability by setting minimum federal standards for the nation's top 1,000 corporations. The measure was drafted by a 12-member advisory committee with representatives from business, labor, consumer, and shareholder groups. Among its provisions: that independent directors make up a majority on boards, that there be mandatory cumulative voting for directors, and that directors' nominations be opened to shareholders.
Copyright 2001 Denver Publishing Company
ROCKY MOUNTAIN NEWS (Denver CO)
April 12, 2001, Thursday
SECTION: Business; Ed. Final; Pg. 3B
LENGTH: 547 words
HEADLINE: CHANGE IN STORAGETEK'S ELECTION RULES PROPOSED
BYLINE: By Janet Forgrieve, News Staff Writer
A longtime shareholder of Louisville-based Storage Technology Corp. hopes to change the way the company elects its board.
Retired doctor Seymour Licht wants shareholders to approve a proposal to institute cumulative voting. Currently, each share equals one vote, which shareholders can either vote for or hold back from each nominee for the board of directors. Under Licht's plan, shareholders could pool all of their votes for one board member.
With that change, shareholders could elect board members other than those put forth by the board's nominating committee, Licht said. Management is against the plan because it could potentially add directors who are loyal to one shareholder or group rather than to all the of company's shareholders, spokeswoman Judith Hargrave said.
Licht's partnership, See More Light Investments Inc., owns 43,000 shares of the company's stock. Additionally, Licht and his wife, Elaine, own 826 shares.
The Phoenix resident paid "pennies on the dollar" for bonds in the company more than 15 years ago, Licht said Wednesday. The bonds were converted to shares of stock when StorageTek emerged from Chapter 11 bankruptcy reorganization in the mid-1980s. During the years, he has filed several shareholder proposals, none of which has been approved.
Reports of annual meetings portray the 70-something Licht as a gadfly, sometimes approving of management, more often critical and never afraid to speak up at annual meetings.
Last year, Licht spent 37 minutes of the two-hour meeting "lambasting the company's management and directors for its shortcomings," according to a report in the Rocky Mountain News.
Two years earlier, he led a standing ovation for then-CEO David Weiss, whom he credited with doubling the value of his investment during the previous year.
He's motivated now, he said, by his concern over the drop in the company's stock price from about $44 per share to about $10 per share during the past two years, and his concern that the company's management isn't responding adequately.
"I have a strong belief that the company belongs to the shareholders, and that management serves at the pleasure of the shareholders," he said. " According to this management, the company belongs to them, and the stockholders are a necessary inconvenience."
StorageTek disagrees with that assessment.
"We believe that management is operating the company for the benefit of the shareholders," Hargrave said. "We see the dedication of our senior management team and all of our employees, and we believe that this management team has the very best interest of the shareholders and the employees at heart, and are making decisions that are right for the future of the company."
StorageTek instituted a restructuring plan in 1999 that cut 1,250 jobs from the company's work force and reduced investment in less-profitable portions of the company's business. The company realized savings of $140 million last year, it said in its annual report, but the changes haven't boosted StorageTek's stock price.
Shareholders will vote on Licht's latest plan at the company's annual meeting May 24 in Minneapolis, where the company has a facility that employs 265 of its approximately 7,600 workers.
Russia has recently further amended its Federal Law on Stock Companies of 1995 (as amended, the "Law") as follows:
• One set of amendments became effective upon their official publication on 17 March 2004 (the "March 2004 amendments"). These amendments change the procedures for electing and removing the board of directors in a Russian stock company, with the aim of strengthening protections for minority shareholders.
• A second set of amendments, officially published on 8 April 2004 (the "April 2004 amendments"), will come into effect on 1 July 2004. These concern dividend payment procedures.
Size of Board
The March 2004 amendments establish that the board of directors of any stock company (either open – an "OAO" or closed – a "ZAO") must consist of at least five members. Previously, companies with fewer than 1,000 shareholders were themselves allowed to determine the number of board members. The March 2004 amendments do not change the existing requirement for the number of board members in companies (necessarily OAOs) having large numbers of shareholders. If the company has over 1,000 shareholders, there must be at least seven board members; if over 10,000 shareholders, there must be at least nine board members.
The Law did not and still does not require all companies to have a board of directors. Companies with fewer than 50 shareholders may do without a board. In this case, a company's charter (i) may provide that the functions otherwise performed by a board are instead to be performed by the general shareholders meeting, and in that case (ii) must designate the person or corporate body in charge of calling a general shareholders meeting and approving its agenda.
Election by Cumulative Voting
The Law now requires that the members of the board of directors may only be elected by cumulative voting. In cumulative voting, the number of shares owned by a shareholder is multiplied by the number of the board members, and each shareholder may either (i) cast its total number of votes for a single candidate or (ii) distribute the votes among various candidates. Cumulative voting enhances the ability of a minority shareholder to elect at least one director.
Prior to the March 2004 amendments, cumulative voting was mandatory only for stock companies with more than 1,000 shareholders. Companies with fewer than 1000 shareholders had been free to establish simple majority voting for the election of directors. Accordingly, a single shareholder holding a majority of shares in such a company had the unilateral power to elect the entire board.
Under the March 2004 amendments, the Law now mandates that the general shareholders meeting may approve the early termination of the board of directors only with respect to all members. The early removal of only one or selected members is no longer possible.
The law that introduced the March 2004 amendments does not prescribe a deadline by which existing companies are to review their charters and bring them into compliance with the new requirements. Further, the law does not expressly have retroactive effect. Thus, while companies should undertake to conform to the new requirements as soon as possible, a good argument can be made that where companies have already elected the board in 2004, they may not be required to call a further meeting to re-elect the board in compliance with the March 2004 amendments.
The April 2004 amendments (i) introduce a definition of "net profit" (from which dividends may be paid) – i.e., the company's after-tax profit determined pursuant to the company's financial statements, and (ii) clarify that dividends on preferred shares may be paid from special-purpose funds of the company, provided that the company has formed such funds in advance.
Prior to the April 2004 amendments, the Law did not define net profit, and did not require that special-purpose funds had to be formed prior to a dividend payment.
Chicago Heights Amicus Curiae
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Nos. 95-3925, 98-2785, 98-2798, 98-2811, 98-2899, 98-3004, 98-3051, & 98-3075
RON HARPER, WILLIAM ELLIOT, et al.,
Plaintiffs-Appellees and Cross-Appellants
ROBERT McCOY and KEVIN PERKINS,
CITY OF CHICAGO HEIGHTS, et al.
Defendants-Appellants and Cross-Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
The Center for Voting and Democracy
as Amicus Curiae
In Support of Plaintiffs-Appellees Kevin Perkins and Robert McCoy Urging Affirmance
Jamin B. Raskin, Professor, American U., Washington College of Law
Attorney for Amicus Curiae
TABLE OF CONTENTS
STATEMENT OF THE ISSUES
INTEREST OF THE AMICUS CURIAE
SUMMARY OF ARGUMENT
TABLE OF AUTHORITIES
STATEMENT OF THE ISSUES
The Center for Voting and Democracy will address the following issues:
1. Whether cumulative voting is a legitimate remedy for a violation of Section 2 of the Voting Rights Act.
2. Whether the district court abused its discretion in selecting a seven-member cumulative voting plan as a remedy in this case.
INTEREST OF THE AMICUS CURIAE
The Center for Voting and Democracy is a non-partisan and non-profit corporation incorporated in the District of Columbia for educational purposes. The Center researches and distributes information on electoral systems that promote full voter participation and fair representation, particularly alternatives that will enable more voters to elect candidates of their choice than in plurality or in traditional at-large elections. The Center's mission is founded on the belief that implementing such voting systems would: restore vitality to our democracy; ensure fairer representation of our society's diversity in elected bodies; and assist local, state, and national governments in solving the complex problems facing our nation. The Center has been active in encouraging government officials, judges and the public to explore systematic alternatives to the use of territorial districting, especially where race is used as a divisive and controlling factor.
SUMMARY OF ARGUMENT
Cumulative voting is a legally valid remedy for minority vote dilution claims under Section 2 of the Voting Rights Act. It has been upheld against constitutional challenge, referred to favorably by federal courts as a vote dilution remedy, and approved as a remedy by federal courts as part of settlements under Section 2. The empirical experience shows that it is effective in remedying minority vote dilution. Its use is not contrary to the "proviso" of Section 2. That proviso merely states that the election of minority candidates at a proportion less than that minority group’s share of the relevant population does not by itself indicate liability; it does not state that the potential for such a result invalidates a Section 2 remedy. Both the plain language of the statute and Supreme Court precedent make clear that the potential to achieve "proportionality" is not problematic. Similarly, the cases cited by appellants rejecting cumulative voting remedies dealt with factually distinct situations in which the district remedy offered by the defendant jurisdiction was itself adequate, the district court showed insufficient deference to the defendant jurisdiction’s policy preferences, or the lower court underestimated the peculiar needs attendant to judicial elections.
The particular cumulative voting plan adopted by the district court in this case is an appropriate remedy within the court’s discretion. Illinois, including Chicago Heights, has a history of using cumulative voting for some elections. The "equal and even" form of cumulative voting adopted by the court is particularly easy for voters to understand and for election officials to administer.
Finally, the district court did not abuse its discretion by choosing a seven-member cumulative voting plan in an at-large framework. The decision to use an at-large framework was justified by the need to achieve finality to this twelve-year denial of plaintiffs’ fundamental voting rights by avoiding the potential for Shaw litigation, and by the deference paid the district court to the policy preferences reflected in the defendant jurisdictions’ electoral system prior to the filing of the suit. The use of seven members was justified by the need for an odd number of members (to reduce the likelihood of tie-breaking votes by an official elected at-large) and the need to keep the government body size as close as possible to that chosen by the defendant jurisdictions.
I. Cumulative Voting is a Proper Remedy Under the Voting Rights Act
There is no federal constitutional or statutory provision banning the use of cumulative voting, limited voting, or single transferable vote systems ("modified at-large systems"), or barring the adoption of such systems by federal courts. The constitutionality of these schemes has been upheld by a number of courts. Federal courts may approve such alternatives to single-member districts as remedies in cases brought under Section 2 of the Voting Rights Act. Indeed, federal courts may be required to adopt such alternative systems to reconcile dilution remedies with the jurisdiction’s policy choices.
A number of courts have commented favorably on the use of cumulative voting and other "modified at-large" systems as voting rights remedies. See, e.g., SCLC v. Sessions, 56 F.3d 1281, 1313 (11th Cir. 1995) (Hatchett, dissenting); see also Marshall v. Edwards, 582 F.2d 927, 936 n.9 (5th Cir. 1978) (noting prevalence of "proportional representation" systems abroad, acknowledging use of "Hare system" in the United States, and quoting approvingly from John Stuart Mill’s endorsement of proportional representation systems); Latino Political Action Committee, Inc. v. City of Boston, 609 F. Supp. 739, 744 (D. Mass. 1985) (describing limited voting’s beneficial effect on minority voters, and relying on use of limited voting in present system to reject vote dilution claim). Judge Hatchett of the Eleventh Circuit has praised cumulative voting as a potential remedy in judicial election cases. SCLC v. Sessions, 56 F.3d at 1313-1315. Many courts have approved settlements of Section 2 cases using cumulative voting. See, e.g., Buckanaga v. Sisseton Indep. Sch. Dist No. 54-5, No. 84-1025 (D.S.D. 1988); Banks v. Peoria, No. 87-2371 (C.D. Ill. 1987); and the Dillard cases cited above.
Contrary to the arguments raised by appellants, there is no factual or legal impediment to the use of cumulative voting as a Section 2 remedy, either as a general matter or under the circumstances of this case.
A. Cumulative Voting Is An Appropriate And Effective Remedy For Minority Vote Dilution
Cumulative voting affords voters protected by Section 2 an equal opportunity to elect candidates of choice, which is the purpose behind Section 2. See 42 U.S.C. § 1973b. By allowing voters to "plump" multiple votes in favor of one heavily preferred candidate and thus register the intensity of voter preference, cumulative voting gives voters in a minority group a better chance to elect a candidate of choice. This principles applies to voters in politically cohesive racial minority groups as well as all other self-defined political minorities.
The track record of the first cumulative voting elections held (pursuant to Voting Rights Act settlements) in the late 1980s and early 1990s makes this clear from the standpoint of racial and ethnic minority empowerment. Whenever racial or ethnic minority candidates participated in a cumulative voting election, their participation resulted in the election of racial or ethnic minority candidates for the first time in decades (or ever). This result obtained in all regions of the country and for all minority groups, including elections held in Peoria, Illinois (black candidate), Alamogordo, New Mexico (Hispanic candidate), Sisseton, South Dakota (Native American candidates), and several local jurisdictions in Alabama (black candidates). Richard L. Engstrom, Modified Multi-Seat Election Systems as Remedies for Minority Vote Dilution, 21 Stetson L. Rev. 743, 750 (1992), at 758-60. Moreover, cumulative voting elections also enhance opportunities for non-racial or ethnic minority voting blocs — for example, they have in some instances resulted in the election of a Republican candidate in a predominately Democratic jurisdiction for the first time in that jurisdiction’s modern history. Engstrom et al., One Person, Seven Votes: The Cumulative Voting Experience in Chilton County, Alabama, in Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights 285 (Anthony A. Peacock ed., 1997); Pildes and Donoghue, Cumulative Voting in the United States.
B. Cumulative Voting Is Not Contrary to the "Section 2 Proviso"
Appellant Park District (Brief at 33-34) cites the opinion in Cousin v. Sundquist, 145 F.3d 818 (6th Cir. 1998) for the proposition that cumulative voting is inconsistent with Section 2 of the Voting Rights Act because of the "Dole proviso," which reads:
Nothing in this Section shall be read to guarantee the election of minority group representatives in proportion to the minority group’s share of population.
42 U.S.C. § 1973 (emphasis added). This language has been interpreted (correctly) to mean that statutorily protected minority groups are not entitled to "proportional representation." See, e.g.., McGhee v. Granville County, 860 F.2d 110, 117-118 (4th Cir. 1988). However, this language has no bearing on the use of cumulative voting as a valid Section 2 remedy. The Park District’s argument and the decision in Cousin reflect nothing more than terminological confusion between a political science rubric for electoral systems used in many democratic nations on the one hand and a very distinct judicial concept in Section 2 law on the other.
Cumulative voting and other "modified at-large" voting systems have been placed by political scientists within a broad umbrella of electoral systems called "proportional representation." These systems contrast with plurality or "winner-take-all" systems in that they are designed to allot legislative seats according to votes cast. These systems have nothing to do with racial quotas or entitlements.
The proviso, on the other hand, was added to the text of Section 2 only to make it clear that Section 2 did not establish a quota system in elections — that is, that no election would be held invalid simply because there were not a certain percentage of blacks elected. The Supreme Court has made it clear that "proportionality" as used in the proviso "links the success rate of minority candidates to the minority group’s share of the jurisdiction’s population." Johnson v. DeGrandy, 512 U.S. 997, 1013 n.11 (1994). For example, if blacks make up 20% of the population of a county governed by a five-member commission, a consistent failure by black candidates to win one out of the five commission seats would not, in and of itself, entitle black voters to Section 2 relief. Nor would a failure to draw one out of five majority-black districts entitle black voters to any relief. Instead, plaintiffs would still have to prove (as they have proven in this case) racial bloc voting, historical discrimination, socio-economic disadvantage, and all the other applicable Gingles factors. However, if they made this showing, the fact that their relief might enable them to approach or even exceed "proportionality" would in no way be fatal to their claim.
This result is entirely consistent with the Section 2 proviso and the Voting Rights Act as a whole. This is clear from both the plain language of the proviso and the Supreme Court’s interpretation of it. The proviso itself merely states that "proportionality" is not a legal guarantee; it does not in any way imply that proportionality is a forbidden result. The Park District invites this Court to take a provision which says merely that racial "proportionality is not guaranteed in legislative bodies and convert it to the unintended and far more restrictive statement that racial "proportionality" is not allowed in legislative bodies.
The Supreme Court has explained this point beyond any doubt. In DeGrandy, the Supreme Court held that a percentage of representation equal to or greater than a minority group’s population percentage was not a "safe harbor" for defendant jurisdictions, and that such a result was consistent with the Section 2 proviso. Id. at 1013 n.11, 1017-1018. Indeed, Justice O’Connor noted that a representation percentage lower than the corresponding population percentage was "always relevant" and "probative evidence of vote dilution." Id. at 1025 (O’Connor, J., concurring). This result is consistent with lower court decisions faced with this very issue. See, e.g., Williams v. City of Texarkana, 862 F. Supp. 756, 764 (W.D. Ark. 1992), aff’d, 32 F.3d 1265 (8th Cir. 1994). Thus, the argument asserted by the Park District (and by the court in Cousin) — that cumulative voting is barred by the Section 2 proviso because it enables minority groups to reliably attain a share of elected seats proportionate to their population share — is flatly inconsistent with the plain language of Section 2 and the Supreme Court’s interpretation of this language.
The argument is also flawed factually. It proceeds from the premise that cumulative voting would guarantee proportionate electoral results. But cumulative voting provides only an opportunity to elect candidates of choice, not a guarantee. Voters who are part of any such political or racial minority must participate in the election and must be cohesive in their voting patterns. And it is by no means a foregone conclusion which candidates will win. Black voters may field too many competing candidates, split the (otherwise politically cohesive) black vote, and elect no candidates of choice. Or black voters may choose not to vote strategically by "plumping" their votes and forego the mathematical advantages afforded under cumulative voting by strategic voting. Alternatively, black voters may form a coalition with another group and help elect a non-black candidate, or a candidate who is not the first choice of the black community. Indeed, modified at-large voting systems move away from the kind of race-based politics now characteristic of territorial districting by allowing voters to, in effect, district themselves.
C. The Cases Cited By Appellants Do Not Hold That Cumulative Voting Is Unavailable As A Section 2 Remedy
Appellants cite several cases dealing with cumulative voting (or limited voting, another "modified at-large" system) for the proposition that such alternative electoral schemes are unavailable either generally or in this case. The cases cited are easily distinguished.
Neither McGhee v. Granville County, 860 F.2d 110 (4th Cir. 1988) nor Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994), cert. denied, 115 S.Ct. 1097 (1995) lend any support to appellants’ arguments. In McGhee, the Fourth Circuit rejected a limited voting remedy because the district remedy offered by the defendant jurisdiction adequately remedied the underlying violation. 860 F.2d at 115. For the reasons explained in the briefs submitted by the Perkins-McCoy plaintiffs and the United States, the defendants’ offered remedy in this case did not adequately remedy the underlying Section 2 violation found by the district court. The court in McGhee expressly disclaimed any intent to rule generally that limited voting schemes were unavailable as remedies, concluding that "the specific issue here is not the validity vel non of the [limited voting plan], but the prior adequacy of the County’s plan." Id. at 120. The Fourth Circuit’s holding in Cane was similarly limited to "the specific facts and circumstances presented," 35 F.3d at 929, which are ably explained and distinguished in the United States’ amicus brief.
Finally, the Sixth Circuit’s opinion in Cousin v. Sundquist, 145 F.3d 818 (6th Cir. 1998) contains a number of criticisms of the cumulative voting remedy employed in that case. However, with the exception of the "Section 2 proviso" argument discussed above, the court emphasizes that all of its criticisms are directed at the use of cumulative voting in the unique context of judicial elections, where the need to maximize judicial "collegiality" and to avoid the "specter of ...organized interest groups seizing control" of the judiciary made cumulative voting inappropriate. 145 F.3d at 834. While we disagree with the criticisms made by the court in Cousin, they clearly do not apply in any event to the instant case.
II. Cumulative Voting Is A Proper Remedy In This Case
A. The Cumulative Voting System Used In This Case Is Established, Simple, And Has A History Of Use In Illinois, Including Chicago Heights
Cumulative at-large voting is not a novel system. Illinois used cumulative voting to elect its state assembly from 1870 to 1980. Everson, The Effect of the "Cutback" on the Representation of Women and Minorities in the Illinois General Assembly, in United States Electoral Systems: Their Impact on Women and Minorities. Many large corporations us cumulative voting (see the ABA Model Business Corporation Act). Cumulative voting has received a sharp increase in attention in recent years, with a corresponding rapid growth in its adoption in localities around the United States; the number of localities with cumulative voting now totals more than fifty. States with localities adopting cumulative voting since 1986 include Alabama, Illinois, New Mexico South Dakota and Texas. Texas has the greatest number of jurisdictions with cumulative voting, and the success of the system is supported by the fact that in 1995, the State of Texas adopted a law allowing school districts to adopt cumulative voting for their elections.
Nevertheless, because most localities still do not use cumulative voting, there are concerns that it will be confusing to voters simply because it is unfamiliar. While important to raise, the suggestion that cumulative voting is confusing to voters is baseless. Every empirical study of the use of cumulative voting in recent elections has shown that voter confusion is not a significant problem. See Richard Engstrom & Robert Brischetto, Is Cumulative Voting Too Complex?: Evidence From Exit Polls, 27 Stetson L. Rev. 813, 821-827 (1998) (exit poll data showed no significant voter confusion; when asked to compare it to other election methods they had experienced, more voters found cumulative voting relatively easier than relatively more difficult); Engstrom, One Person, Seven Votes, supra, at 294-295 (exit poll data of first-time cumulative voting election indicated 90% of voters understood system and did not find it any more difficult to use than other voting systems); Robert Brischetto & Richard Engstrom, Cumulative Voting and Latino Representation: Exit Surveys in Fifteen Texas Communities, 78 Social Sci. Q. 4 (1997) (exit poll data of first-time cumulative voting election indicated 90% of voters understood system); Richard Engstrom and Charles J. Barrilleaux, Native Americans and Cumulative Voting: The Sisseton-Wahpeton Sioux, 72 Soc. Sci. Quarterly 388, 391 (1991) (both Native American and Anglo voters understood cumulative voting system).
The district court has made clear that the form of cumulative voting used in this case is the "equal and even" method of cumulative voting. As the record in this case makes clear (see Richie Affidavit, Document 518, Group Exhibit), this form of cumulative voting is particularly easy for voters and consistent with Illinois’ statutory scheme. The ballot can look exactly like the ballot for a traditional at-large election, and voters can vote exactly as they would in such an election. The only difference for voters is that they must be aware that the fewer candidates for whom they cast votes, the greater the share of their seven votes each favored candidate will receive. Use of equal and even cumulative voting (EE cumulative voting) also fully addresses concerns about election administration. In fact, Cook County used its current punch-card voting during the time when EE cumulative voting was used to elect the Illinois House of Representatives from 1870 to 1980 (Richie Affidavit, p. 4).
EE cumulative voting proceeds as described in the Illinois state statute. "Each elector may cast as many votes as there are aldermen to be elected in the elector's district, or may distribute his or her votes, or equal parts of the votes, among the candidates as the elector sees fit" (65 ILCS 5/3.1-15.35). To distribute "equal parts of votes," a voter simply "X" votes for the candidates he or she supports, and the voters' votes are evenly distributed among these candidates. In elections to the Illinois House of Representatives from 1870 to 1980, voters --including, of course, residents of Chicago Heights -- had the option to "X" vote for one, two or three candidates. If the voter supported one candidate, i.e., placed only one "X" on the ballot, that candidate received three votes. If the voter supported two candidates, each candidate received one and one-half votes each. If the voter supported three candidates, each candidate received one vote. The voter did not have to understand fractions; rather, the voter needed to understand that the fewer the number of candidates supported, the more votes each of those candidates received.
The City of Peoria currently uses EE cumulative voting. The system was adopted in a consent decree and has been used to elect five at-large city council members in elections held in 1991 and 1995. In both elections, Peoria's board of elections pursued community outreach about the cumulative voting system (Richie affidavit, pp. 4-5). The actual method of voting was similar to the previous method of election when three members were elected at-large, with voters having an option to support fewer than three candidates. The rate of invalid ballots has been comparable to other Peoria elections using non-cumulative voting methods.
EE cumulative voting can make voting easier for voters who are interested in electing more than one candidate. Rather than having to make uncertain calculations about which favored candidate might need slightly more votes than other candidates, a voter can simply vote for the preferred "team" of candidates.
As further indication of cumulative voting's viability as a workable electoral system, many senior political leaders and analysts in Illinois have indicated their indicated their support for restoring cumulative voting. The Chicago Tribune editorialized in 1995 that:
The magic of cumulative voting was that it often produced the most thoughtful, independent members of the legislature. There were liberal Republicans and conservative Democrats.... The intermeshing of political and regional interests has all but disappeared in the 15 years since cumulative voting was abolished. In its place, partisan politics has become increasingly shrill and confrontational.... For years, many partisans and political independents have looked wistfully at the era of cumulative voting. They acknowledge that it produced some of the best and brightest in Illinois politics. It's time for a debate about a possible revival.
"Better Politics From An Old Idea,"
Chicago Tribune, May 30, 1995, editorial.
B. The District Court’s Decision To Use Cumulative Voting In The Context Of A Seven-Member Body Was A Valid Exercise Of Its Remedial Discretion
Appellants object that the district court’s remedial plan modifies state law slightly by providing for seven-member cumulative voting at-large rather than either dividing the City into between three and six wards with three members per ward (for a "minority representation" system) or dividing the City into seven wards with two seats per ward (for an "aldermanic system"). Of course, it was the appellants themselves who first modified state law by moving to a six-member body with a "strong mayor" form of government, a result not permitted under Illinois law. Where appellants deviated from state law, it was with the effect of aggravating minority vote dilution. Where the district court did so, it was with the effect of reconciling the overriding need to fully remedy minority vote dilution with the competing interests of 1) deference to the defendant jurisdiction’s policy judgments and 2) the need for certainty and finality in extremely protracted litigation. An examination of the district court’s reasoning shows that the district court did not abuse its remedial discretion.
In this case, the district court "exercise[d] its discretion in fashioning a near optimal plan" by balancing the policy preferences of the defendant jurisdictions with state law considerations and with the need to fully and completely remedy the underlying minority vote dilution. See Cane, 35 F.3d at 927, 928 (emphasis added). The latter concern must of course be paramount, so the district court legitimately decided, for the reasons discussed in the briefs of the Perkins-McCoy plaintiffs and the United States, that an odd number of members was required. State law authorized the use of cumulative voting, which the district court chose to avoid any further litigation under Shaw v. Reno, 509 U.S. 630 (1993).
In doing so, the district court was not making a finding that a viable Shaw challenge could be raised to any districting scheme adopted as a remedy. Rather, the court was making a realistic assessment that any districting plan had the potential for such litigation which could delay the arrival of certainty and finality to the voters of Chicago Heights who had suffered an abridgement of the fundamental right to vote for many years. Under the unique circumstances of this case — after 12 years, several elections, numerous district court hearings and two appeals — it was not an abuse of discretion for the court to decide that a system immune from Shaw challenge was desirable.
Further, an at-large electoral framework was consistent with the policy judgments made by the defendant jurisdictions prior to the filing of this lawsuit. Before plaintiffs filed the instant lawsuit, both the Park District and the City Council were elected at-large. As the United States points out in its amicus brief, district courts may look to the policy judgments "underlying the current electoral scheme or the legally unacceptable remedy offered by the legislative body." Cane, 35 F.3d at 927, 928 (emphasis added). Because of its understandable desire to forestall any further litigation over district lines and to achieve consistency with the electoral scheme existing at the time of suit, the court deviated from state law in crafting this cumulative voting relief. This decision was not an abuse of discretion.
Nor was the selection of seven members an abuse of discretion. Appellant City of Chicago Heights points out (Brief at 34) that state law provided for either a cumulative voting scheme with between nine and 18 members (three each from between three and six wards), or an "aldermanic system" of 14 members (two each from seven wards). But every indication of the City and Park District’s policy preferences — its original five-member plan, its proposed six-member consent decree — pointed toward keeping the size of the body relatively small. A governing body much larger than this would be inappropriate in a city as small as Chicago Heights. By choosing a seven-member body, the district court again reconciled the overriding need to fully remedy the minority vote dilution by using an odd number of seats with the corresponding need to keep the governing body as close as possible in size to that preferred by the defendant jurisdictions. Perhaps a five-member body would have worked as well, but the choice was well within the district court’s equitable discretion.
Similarly, we agree with the Perkins-McCoy plaintiffs and the United States that the change to a seven-member body does not run afoul of Holder v. Hall, 512 U.S. 874 (1994). In Holder, the Court was concerned with the absence of a "benchmark" from which to measure vote dilution for the purposes of determining liability. The Court did not state that after liability was found, a district court could not exercise its remedial discretion to choose a different number of members if it determined such a change to be necessary to fashion a full and complete Section 2 remedy. In the instant case, liability was established through the use of a traditional benchmark. At the remedial phase, all parties, including defendants, were choosing among various municipal government schemes provided for as options in the Illinois statutes. To the extent any "benchmark" was needed at this distinct phase not considered in Holder, the Illinois statutes provided them.
For the reasons stated above, this Court should affirm the district court’s remedial order.
TABLE OF AUTHORITIES
Banks v. Peoria, No. 87-2371 (C.D. Ill. 1987) 4
Blaikie v. Power, 13 N.Y.2d 134, 243 N.Y.S.2d 185 (1963), appeal dismissed, 375 U.S. 439 (1964) 3
Buckanaga v. Sisseton Indep. Sch. Dist No. 54-5, No. 84-1025 (D.S.D. 1988) 4
Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994) 10, 15, 16
Cintron-Garcia v. Romero-Barcelo, 671 F.2d 1 (1st Cir. 1982) 3
Cousin v. Sundquist, 145 F.3d 818 (6th Cir. 1998) 6, 8, 10, 11
Dillard v. Chilton County Bd. of Educ., 699 F. Supp. 870 (M.D. Ala. 1988) 3, 4
Dillard v. City of Guin, No. 87-T-1225-N (M.D. Ala. 1988) (unpublished opinion) 4
Dillard v. City of Centre, No. 87-T-1174-N (M.D. Ala. 1988) (unpublished opinion) 4
Dillard v. Town of Cuba, 708 F. Supp. 1244 (M.D. Ala. 1988) 4
Dillard v. Town of Louisville, 730 F. Supp. 1546 (M.D. Ala. 1990) 3
Dillard v. Town of Myrtleswood, No. 87-T-1263-N (M.D. Ala. 1988) (unpublished opinion) 4
Hechinger v. Martin, 411 F. Supp. 650 (D.D.C. 1976) 3
Holder v. Hall, 512 U.S. 874 (1994) 3, 10, 17
Johnson v. DeGrandy, 512 U.S. 997 (1994). 7, 8
Kaelin v. Warden, 334 F. Supp. 602 (E.D. Pa. 1971) 3
Latino Political Action Committee, Inc. v. City of Boston, 609 F. Supp. 739 (D. Mass. 1985) 4
LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1972) 3
LULAC v. Clements, 986 F.2d 728 (5th Cir. 1993), rev'd on other grounds, 999 F.2d 831 (5th Cir. 1993) (en banc) 3, 4
McGhee v. Granville County, 860 F.2d 110 (4th Cir. 1988) 6, 10
Marshall v. Edwards, 582 F.2d 927 (5th Cir. 1978) 4
Miller v. Johnson, 515 U.S. 900, 916 (1995) 16
Orloski v. Davis, 564 F. Supp. 526 (M.D. Pa. 1983) 3
SCLC v. Sessions, 56 F.3d 1281 (11th Cir. 1995) 4
Shaw v. Reno, 509 U.S. 630 (1993). 15, 16
United States v. Marengo County Comm'n, 731 F.2d 1546 (11th Cir. 1984) 3
Williams v. City of Texarkana, 862 F. Supp. 756 (W.D. Ark. 1992), aff’d, 32 F.3d 1265 (8th Cir. 1994) 8