May 11, 2015
By: Dania Korkor, Legal Analyst
Left to Right: Drew Spencer, Peter Rosenstein, Lisa Gilbert, State Senator Jamie Raskin, Dania Korkor, Lia Epperson, Alexandra Shapiro. Not shown in the photograph but took part in this panel on Judging Seven Democracy Initiatives: Rob Richie, David Lubin, Mark Schmitt, Trent England, William Galston, Sarah John.
The Voting Rights Act protects the votes of people of color, but it also includes a provision that could create new opportunities for advancing the election of women.
|Dania Korkor, Democracy Slam 2015|
Section 2 of the Voting Rights Act (VRA) prohibits minority vote dilution in climates of racially polarized voting. This Section has become increasingly important after Section 4 of the Act, the formula for determining pre-clearance under Section 5, was found unconstitutional in Shelby County v. Holder in 2012.
Here’s what a Section 2 “vote dilution” case looks like. A group of voters from a racial minority community brings a lawsuit against their city, county, school board (or other jurisdiction) in federal court. They have to prove three things: that the racial majoritygroup votes together as a bloc, that the racial minority community also votes together but for different candidates, and that the winner-take-all election method means that the majority can elect every candidate they prefer while denying the same to the minority group – effectively silencing the voices of people of color in local elections. The most common remedy is replacing the winner-take-all, at-large electoral schemes with winner-take-all, single-winner districts.
There are clear consequences to remedying vote dilution with single-winner districts rather than using a remedy that retains multi-winner elections. One problem with moving away from multi-winner districts, elections where voters can have more than one representative, to single-winner districts, is that these single-winner districts are detrimental to women’s representation. Research shows that female candidates are elected at higher rates in multi-winner districts when compared to single-winner districts.
Election structures are important, especially when it comes to gender disparities in elected office. Women occupy less than a quarter of state legislative seats, and only about 20% of congressional seats, making the United States worse than 93 other nations worldwide for women’s representation. However, of the ten states that elect their state legislatures in multi-winner elections, six make the top ten for women’s representation, including Vermont with 41.1%, Arizona with 35.6% and New Hampshire with 33.5% women in their respective state legislatures.
Using fair voting methods, like ranked choice or cumulative voting, alongside multi-winner districts instead of single-winner districts are very effective VRA remedies. Given the growing evidence that women will be better represented under fair voting, there is a strong legal case to be made that judges should prefer fair voting remedies because they can cure the discrimination that compelled the Section 2 challenge, and promote the representation of female candidates.
Additionally, in multi-winner districts, the number of racial minority voters who have a representative of their choice and the number of voters with a female representative are higher than in single-winner districts. This could also lead to representatives being more responsive to racial minority voters in general and to women of color in particular.
Last month, FairVote, American University’s Washington College of Law, and the American Constitution Society hosted a productive and action-packed convening: National Democracy Slam 2015. Numerous reforms were presented, debated, and rated by panelists, judges, and attendees. The reform I presented and submitted as a paper discussed Section 2 of the VRA and why representation of women candidates may deserve consideration in decisions about Section 2 remedies in voting rights cases.
My reform paper recommends that when judges are remedying voting systems that violate Section 2 by discriminating against minority communities, they should preference remedies that not only cure the discrimination, but also promote representation of female candidates.
Polling done immediately following my presentation of the paper showed that a majority of conference attendees agreed that representation of women should be considered by judges in decisions regarding Section 2 voting rights remedies.
|FairVote Staff Members, Democracy Slam 2015|
Poll: Should the representation of women be considered in decisions regarding Section 2 voting rights remedies?
While this reform is not a panacea to the current underrepresentation of women, considering the representation of women while remedying Section 2 discrimination has the added benefit of helping to erase two wrongs in flawed voting systems.