Seventh Circuit on the Right to "An Effective Voice in the General Election."

Posted on September 11, 2015

ScalesThe Court of Appeal for the Seventh Circuit recently struck down the use limited nominations in judicial elections in Indianapolis, Indiana. It held that the law substantially burdened "the right of voters to have an effective voice in the general election."

The law required that no political party could nominate more than half the number of candidates to be elected in an at-large election. In practice, this meant that half of those elected were Republicans, while the other half were Democrats, in every election so far.

Although the Seventh Circuit incorrectly equates the two, this case involved the use of limited nominations, and not the use of "limited voting." Limited voting is what some call a "semi-proportional voting system" (albeit one with an unfortunate name) in which voters have fewer votes than the number of seats to be elected in a multi-winner contest. The fewer votes allowed, the more groups of voters have the power to elect a preferred candidate, with the "single vote" form having the greatest impact in that respect.

It is unfortunate that the Seventh Circuit only refers to "limited voting" without mentioning "limited nominations," as the two are not the same (curiously, the court also says Indiana uses closed primaries, but as we note on our page listing primary election methods, Indiana is best characterized as an open primary state). Limited voting was not at issue in this case, and it has been upheld regularly. In fact, it has been used to remedy two cases brought under Section 2 of the Voting Rights Act by the Department of Justice in recent years: in Lake Park, Florida and in Euclid, Ohio. FairVote publishes a booklet on how the single vote and other fair voting methods can help resolve such cases.

Limited nomination involves multi-winner elections for partisan offices in which each party has fewer nominations than the number of seats to be elected. It is a relatively common practice that was, in fact, established by Congress for the four at-large city council seats in Washington, DC - two are up each cycle, and each political party can nominate only one candidate.

In Indianapolis, there are either 18 or 20 judges being elected each cycle, but each political party can nominate only 9 or 10 respectively. If there are no third party or independent candidates, that means the general election has 20 candidates for 20 seats: an uncontested race. The Seventh Circuit seemed to assume that independent and minor party candidates cannot realistically win office, and so the case responded to what have been meaningless general elections in which the only contest takes place in the primaries. 

Limited nominations do not always result in meaningless general elections. In Washington, DC, independent and minor party candidates regularly (and often successfully) challenge Republicans for the "second seat," and the Working Families Party has had some success in Connecticut elections with limited nominations in cities like Hartford.

Limited voting and limited nomination often go together in partisan elections in the United States. Indeed, it's the law for at-large city council elections in Connecticut (76 Connecticut jurisdictions using limited voting), and it is established by law for most county commission elections in Pennsylvania (affecting 47 county elections). Limited voting has been adopted to settle dozens of cases brought under the Voting Rights Act in jurisdictions like Alabama, Florida, North Carolina, Ohio, and Texas.

See FairVote's list of jurisdictions with fair representation voting.

The Seventh Circuit's ruling may have significant implications. Indianapolis's current law recognizes that in partisan elections for judges, partisan voters often "vote the ticket" and wipe out one side. That makes the primary the determinative election, with the general election at most contested on paper. FairVote's analyses have pointed out that most state legislative elections have general elections with no meaningful competition; several whole legislative chambers are represented by state representatives with party affiliations that match up perfectly with the partisan affiliation of the presidential nominee who carried their district.

Even worse, more than four in ten state legislative elections are not even contested on paper today.

Here is what the Seventh Circuit panel had to say about the right to vote:

"When an election law reduces or forecloses the opportunity for electoral choice, it restricts a market where a voter might effectively and meaningfully exercise his choice between competing ideas or candidates, and thus severely burdens the right to vote."

If there really is a constitutional right to meaningful choices in November, we could be in for some creative legal challenges ahead!


 
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