Saturday, September 23, 2017

Rob Richie


Rob Richie, The Right Choice for Elections: How Choice Voting Will End Gerrymandering and Expand Minority Voting Rights, from City Councils to Congress, 47 University of Richmond Law Review 959 (March, 2013) (356 Footnotes)



ABSTRACT



“Every voice will be heard, every right will be seen, and every wrong felt; and then the House of Representatives will become what the Framers of the Constitution intended it should be--a bright and honest mirror, reflecting all the lights and shades of the multifarious interests of this mighty people, as they lie spread out over this broad land.”
-- Senator Jacob W. Miller of New Jersey


When the United States Congress first imposed single-member congressional districts on the states in 1842, it had the loftiest of intentions. The several states that at the time elected U.S. House Representatives on a statewide, at-large basis often had only one party win seats due to winner-take-all election rules. Proponents argued that single-member districts would ensure fair representation of every viewpoint, majority or minority, making Congress a “mirror of the people.” Experience has since proven their hopes misguided.

Instead, congressional elections have been characterized by largely uncompetitive races, distortions in partisan representation, declines in centrist representatives able to advance compromise, and low levels of representation for women and racial minorities. Such outcomes are not inevitable, but rather are a direct product of winner-take-all, single-member district elections that have a long history of resulting in noncompetitive elections and--even if not as problematic as at-large, winner-take-all elections--distortions in representation. Despite such problems and the U.S. Constitution's silence on methods of election, federal law continues to treat the single-member district system as the preferred method for electing candidates at all levels of government, with legislators and judges seemingly still hypnotized by the failed promise of Senator Miller's vision in 1842. For congressional elections, federal law since 1967 has blocked states from even considering any other method for congressional elections. At the state and local level, judges routinely order creation of single-member, winner-take-all districts as the judicially preferred remedy to violations of the Voting Rights Act despite evidence of the shortcomings of these districts.

This article recommends a different approach, grounded in replacing winner-take-all voting rules with choice voting, both as a generally applied voting method and as a preferred remedy in Voting Rights Act cases. In Section I, it reviews the major winner-take-all methods for electing legislative candidates, both at-large and by district. It places these methods in historical and legal context, and critiques them based on their policy implications for voters and candidates. In Section II, it provides the same for modified, non-winner-take-all methods of electing candidates and demonstrates that choice voting in multi-member districts provides voters with greater choice and more representative legislative bodies. In Section III, it addresses choice voting as a remedy in Voting Rights Act cases and argues not only that it is legal under both the Federal Voting Rights Act and the California Voting Rights Act, but also that it often would effectuate the policies of those Acts better than single-member districts. Section IV will demonstrate how choice voting can and should be implemented for electing legislative bodies more generally, how it is fully constitutional, and how it can be implemented with relatively modest changes to legislative districts that are fully consistent with American political traditions. Finally, this article concludes by appealing to courts and legislatures to look to choice voting as a model for how to create a fairer and more representative republican form of government at every jurisdictional level.

* * *

The promise of a U.S. House serving as a “mirror of the people” has remained out of grasp, and state and local bodies have not fared much better. The shift from winner-take-all, at-large, and multi-member elections to single-seat districts succeeded in avoiding slate elections for huge areas. However, the use of the single-seat district as a talisman has come at a cost. It should be revisited both by courts that have wrongly focused only on single-member districts as voting rights remedies, jurisdictions required by law to change their winner-take-all systems, and policymakers structuring our voting rules.

As racial polarization remains an enduring feature of American elections, as women continue to hold fewer than 20% of congressional seats and fewer than 25% of state legislature seats, and as party polarization plagues civic activities resulting in gridlock and cynicism, reformers should look to alternatives for some hope. Scholars of political science have long suggested fair voting systems such as choice voting as just such an alternative. Organizations like FairVote continue to suggest concrete examples of how these reforms could be put into action in ways that are modest, constitutional, and distinctly American.

However, legal roadblocks remain in the way. Judges and lawyers must be willing to see beyond the use of single-seat districts when interpreting legislation that requires minority representation, such as the VRA. Legal scholars can lead the way in proposing new legislation and legal paradigms, such as state Voting Rights Acts and novel legal theories leading toward more flexibility in choice of election system. Legislators must look beyond the electoral system in which they themselves have had to work in order to achieve a legislative body that will break up the patterns of polarization and better represent the left, right, and middle of their jurisdictions.

As John Stuart Mill said in advocating choice voting in 1861, “It is an essential part of democracy that minorities should be adequately represented. No real democracy, nothing but a false show of democracy, is possible without Choice voting, though still unfamiliar to many outside of those already interested in electoral reform, has an illustrious history in the United States. We expect it will have an even more illustrious future.

 


 

. Executive Director, FairVote. B.A., 1987, Haverford College.

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