Sample State Voting Rights Act
Below is a model state voting rights act that may be modified for passage in any state with a constitutional guarantee of the right to vote. It is based largely on the California Voting Rights Act, which was passed in 2002 and largely developed by noted law professor and minority voting rights advocate Joaquin Avila.
The statute adopts the substance of Section 2 of the federal Voting Rights Act with a key exception: The geographic concentration of the protected group is specifically excepted as a factor in recognizing vote dilution claims. The U.S. Supreme Court instituted geographic concentration as a precondition to recognizing vote dilution claims under the Voting Rights Act in their holding in Thornburg v. Gingles.478 U.S. 30, 47 (1986). This ruling assumed that the only possible remedy for vote dilution is the drawing of singe-member districts guaranteeing the protected group a majority in at least one district. Under the logic of Gingles if a viable majority district for a protected minority group could not be drawn then no remedy was possible and so no vote dilution claim should be recognized. However, this ruling failed to take account of the possibility of proportional voting systems as remedies.
Proportional voting systems involve at-large elections without a winner-take all approach. The three most popular forms are titled cumulative voting, limited voting, and choice voting. All three systems provide cohesive minority groups with the opportunity to elect representatives of their choice and have accomplished as much already in various U.S. communities. The only factor which determines a minority group’s electoral success under such systems is whether their percentage of the population exceeds a “threshold of exclusion”, which is calculated based on the number of seats to be filled. The geographic distribution of the group is wholly irrelevant under these systems. These systems can hence be applied to remedy vote dilution even when the minority group is not geographically concentrated.
Under the federal Voting Rights Act, geographically dispersed minority communities suffering from vote dilution with a potential full representation remedy are unable to state a claim. They cannot reach the remedy stage of litigation. The statue below would repair this flaw at the state level and provide these communities with an opportunity to state a claim and receive injunctive relief. The statute in no way inhibits the ability of courts to order the drawing of single-member districts as a remedy for vote dilution if appropriate. It only expands the menu of options available to courts and litigating parties for remedying vote dilution and works to protect the voting power of a wider swath of minority communities.
CHAPTER XX. Chapter XX (commencing with Section XXXX1) is added to Division XX of the Elections Code, to read:
CHAPTER XX RIGHTS OF VOTERS
XXXX1. This act shall be known and may be cited as the (State) Voting Rights Act of (year).
XXXX2. As used in this chapter:
(a) ‘‘At-large method of election’’ means any of the following methods of electing members to the governing body of a political subdivision:
(1) One in which the voters of the entire jurisdiction elect the members to the governing body.
(2) One in which the candidates are required to reside within given areas of the jurisdiction and the voters of the entire jurisdiction elect the members to the governing body.
(3) One that combines at-large elections with district-based elections.
(b) ‘‘District-based elections’’ means a method of electing members to the governing body of a political subdivision in which the candidate must reside within an election district that is a divisible part of the political subdivision and is elected only by voters residing within that election district.
(c) ‘‘Political subdivision’’ means a geographic area of representation created for the provision of government services, including, but not limited to, a city, a county, a school district, a community college district, or other district organized pursuant to state law.
(d) ‘‘Protected class’’ means a class of voters who are members of a race, color or language minority group, as this class is referenced and defined in the federal Voting Rights Act (42 U.S.C. Sec. 1973 et seq.).
XXXX3. No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any political subdivision in a manner which results in a denial or abridgement of the right of any citizen member of a protected class as defined in section XXXX2 .
XXXX4: A violation of section XXXX3 is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the political subdivision are not equally open to participation by members of a protected class as defined section XXXX2 in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance that may be considered.
(a) The fact that members of a protected class are not geographically compact or concentrated will not preclude finding a violation of Section XXXX3, but may be a factor in determining an appropriate remedy.
(b) Proof of an intent on the part of the voters or elected officials to discriminate against a protected class is not required to find a violation of Section XXXX3.
XXXX5. Upon a finding of a violation of Section XXXX3 the court shall implement appropriate remedies, which may include the imposition of district-based elections or an at-large voting system that is tailored to remedy the violation.
XXXX6. Any voter who is a member of a protected class and who resides in a political subdivision where a violation of Section XXXX3 is alleged may file an action pursuant to those sections in the superior court of the county in which the political subdivision is located.
XXXX7. This chapter is enacted to implement the guarantees of (state constitutional provisions).