Testimony of

Nathaniel Persily

Staff Attorney, Brennan Center for Justice at New York University School of Law

Before the House Judiciary Committee

Subcommittee on the Constitution

on

Legal and Policy Issues Raised by the States' Choice of Voting Systems Act

September 23, 1999

Mr. Chairman and members of the Committee:

Good afternoon. My name is Nate Persily. I am a staff attorney specializing in issues of representation and redistricting at the Brennan Center for Justice at New York University School of Law. The mission of the Brennan Center is to develop and implement an innovative and nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. Issues of redistricting and representation, because they are so intertwined with the right to vote, are of particular concern in fulfilling that mission.

I am honored that you have invited me to testify before this Committee concerning what might be the most important piece of election-related legislation considered by this body in 25 years. The importance of the bill, however, is matched only by its brevity and simplicity. After all, the States' Choice of Voting Systems Act would merely give back to the states a power they were given at the time the Constitution was passed -- namely, the power to craft congressional electoral systems with multi-member districts that are tailored to the unique political cultures of each state. The practice was widespread among the smaller states for the first fifty years of our nation's history and has frequently reappeared in state, local, and federal elections. Like other "pro-federalism" bills this body considers, the central issue the States' Choice of Voting Systems Act presents is whether, in the field of redistricting, Congress or state governments know best. While I will deal here with many of the familiar legal and policy arguments waged against districting systems other than those currently used to elect our representatives, this should not obscure the focus of this bill, which is a classic question of states' rights.

Let me begin, however, by saying what this legislation is not. H.R. 1173 is not a sweeping reform of the traditional, geographically-based system of representation for House elections, it does not mandate or even imply that states should adopt a European-style system of proportional representation, and it does not alter the protections codified in the Voting Rights Act of 1965. Given the lack of familiarity most Americans have with alternative electoral systems, there is a great risk that observers might misinterpret or exaggerate the effects of this legislation.

The number of representatives elected from a district -- the only variation in the American system of representation that this legislation will introduce -- is only one small component of an electoral system. And it is difficult to consider the effects of this one variation (assuming states even elect to exercise the newly given power) in isolation. The impact of this change will depend more on other innovations and decisions states make for structuring the electoral system, particularly the decisions whether to adopt proportional, cumulative, or at-large voting rules and how large the multi-member districts will be. Other decisions include whether ballots will include candidate names or merely party labels, whether and how voters might rank their preferences for candidates, and how the state might change the party primary system to adapt to the multi-member districting system. Each of these decisions can have the effect of counteracting or magnifying any given political consequence proponents seek or opponents fear. No one can say with confidence how this bill will affect the electoral system of any state -- indeed, the same set of rules could produce different political consequences for different regions of the country -- and no one can predict with any accuracy how this will alter the national system of representation in the House of Representatives.

With this caveat in mind, let me nevertheless offer some thoughts on the possible consequences of a state's exercise of the power that this bill would cede. I will confine my discussion to the legal, partisan, and electoral consequences of the proposed bill, in general, and leave to others the more technical task of explaining the multiplicity of electoral systems from which each state could choose. On this latter point, though, I commend to you the work of Professor Arend Lijphart, a political scientist at the University of California at San Diego, who has written more than anyone has on the topic of comparative democracy and alternative electoral systems.

Legal Issues Presented By H.R. 1173

Vote Dilution Claims

The States' Choice of Voting Systems Act comes before you at an auspicious time. In the wake of a series of court decisions restricting state discretion in the redistricting process, this bill could revive some measure of autonomy at this critical stage right before the census is taken and the wrangling over redistricting begins. While it will restore state autonomy over redistricting, the bill may also help states deal with the intractable problems of racially polarized voting and the persistent obstacles to participation and representation of racial minorities in the electoral process. Single-member districts, because they force constituencies to be defined by small, contiguous geographic units, have the inevitable effect of skewing the process of representation away from political, racial, or economic interests that are not neatly tied to a piece of land.

Although both Section 2 of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment protect against districting regimes that discriminate against people on the basis of race, the sharper teeth of the Voting Rights Act have made it the primary tool for challenging systems that have the effect of diluting the votes of racial minorities. By its language, Section 2, as amended in 1982, protects against any "prerequisite to voting . . . which results in a denial or abridgment of the right [to] vote on account of race or color," but specifically does not establish a right of proportional representation to protected class members. At-large multi-member districts, wherein several candidates are elected by a majority of a constituency and which under this bill would become possible for House elections, have proven to be the likely targets for lawyers litigating after the 1982 Amendments to the Voting Rights Act. In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court established that such districts could be broken up into single-member districts if the racial minority challenging them was cohesive and sufficiently large to constitute a single-member district majority, and voting behavior in the multi-member district was racially polarized. The same standard would apply to new multi-member congressional districts as subsection 2 of section 2 of the proposed bill specifies.

But this legislation also makes possible additional scenarios of racial vote dilution -- exactly the harm the 1982 Amendments to the Voting Rights Act were intended to prevent. A racial minority in a single-member district that is then subsumed into a larger multi-member at-large district cannot make a vote dilution claim under current interpretations of section 2 of the Voting Rights Act no matter how racially polarized the district's voting behavior. For example, a district with a 40% African-American minority (i.e., not large enough to be a majority) that is then combined with a district with no African Americans will diminish the African-American vote to 20% if the combined district operates under at-large rules. There are easy solutions to this apparent problem of diminishing influence -- such as operating under cumulative voting or proportional electoral rules, but I think this perverse consequence should be flagged nonetheless. The Committee should perhaps consider additional language to guarantee that multi-member districts cannot use at-large voting rules to further the nefarious purposes that required Congress to get involved in the scrutiny of dilutive districting processes in the first place.

On balance, however, the possibility of alternative electoral systems -- keeping in mind that this legislation makes such alternatives only a possibility -- allows for the potential exercise of increased electoral influence by political and racial minorities that currently feel their votes are wasted because they are submerged in a single-member district dominated by political adversaries. Members of a minority group currently dispersed among several single-member districts may gain strength when consolidated into a multi-member district using rules other than at-large voting. Under a cumulative voting system in a five-member district, for example, a voter would be able to cast five votes for any individual candidate or disperse them among the candidates as she sees fit. Such a system, currently employed in over fifty local jurisdictions and used in elections to the Illinois House of Representatives for over a century, is widely hailed as measuring intensity as well as volume of interest group preferences and thought responsible for increased rates of election of racial minorities.

Section 5 of the Voting Rights Act and Race-Based Districting

While this legislation may prove essential for replacing an electoral system that currently submerges minority political influence, it also provides states with a coping mechanism for the contradictory forces of the Voting Rights Act and the Supreme Court's decisions on race-based districting. Section 5 of the Voting Rights Act requires certain states, mainly in the South, to obtain preclearance from the Department of Justice for their redistricting schemes before putting them into effect. The Justice Department will not preclear "retrogressive" redistricting schemes: those that diminish minority influence by subsuming a majority-minority district into a larger multi-member district or by breaking up such a district into other single-member districts where minorities have less of a percentage of the electorate than before. At the same time, however, Shaw v. Reno, 509 U.S. 630 (1993), and its progeny impose the additional requirement that any redistricting scheme that uses race as "the predominant factor" violates Equal Protection. So in order to abide by both the statutory requirements of section 2 and section 5 and the constitutional requirements of the Equal Protection Clause, states must take race into account, but not too much.

The upcoming round of redistricting following the 2000 census presents to the states for the first time the challenge of being caught between the rock of the Voting Rights Act and the hard place of the Shaw Court's interpretation of the Equal Protection Clause. The States' Choice of Voting Systems Act gives them a potential way out. Instead of crafting serpentine districts to satisfy the various legal and political forces constraining their districting decisions, states may decide that a multi-member district could allow them to create districts that avoid giving courts the impression of race-based districting, but at the same time satisfy the strict requirements of the Voting Rights Act.

Of course, multi-member districts are not by nature immune from a challenge by the Department of Justice under section 5 or by plaintiffs suing under Shaw v. Reno. Multi-member districts where race is the predominant factor in their creation would fall just like their single-member district counterparts. But under various voting rules, such as cumulative or limited voting, a district might be able to satisfy Shaw's new constitutional criteria and keep constant a level of minority voting power to satisfy the Justice Department.

The bottom line for issues of compliance with the legal constraints on redistricting, whether they be from the Voting Rights Act or the Constitution, is this: At a time when the courts have slowly taken away more and more of the redistricting tools previously available to states, the States' Choice of Voting Systems Act restores at least one more tool to satisfy the multiplicity of political interests that sit at the redistricting table after the census is taken.

Possible Equal Protection Claims

Subsection 2 of section 2 of the bill only allows states to experiment with systems of multi-member districts that meet the "constitutional standard that each voter should have equal voting power" established by the Supreme Court's decision in Reynolds v. Syms, 377 U.S. 533 (1964) and its progeny. In later decisions (Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Karcher v. Daggett, 462 U.S. 725 (1983)), the Supreme Court further refined the one-person, one-vote test for congressional districting by requiring states to "come as nearly as practicable to population equality." That standard was extended in Fortson v. Dorsey, 379 U.S. 433 (1965), a case dealing with redistricting of the Georgia State Senate, which used some single-member districts and some multi-member districts elected at-large. So long as the ratio of representatives to voters remains equal, the court held, no one-person, one-vote problem existed. In other words, the court defines equal voting power irrespective of the number of representatives elected from each district. Although the Court applies an even stricter standard of mathematical equality to federal districting decisions, no problem should exist if multi-member at-large districts exist alongside single-member House districts.

However, H.R. 1173 also allows for the possibility, perhaps even the probability, of mixed systems of representation where a state employs both single-member districts and multi-member districts that use non-plurality electoral systems. (I say the probability because, of the fifty or so countries in the world that use multi-member districts for legislative elections, only the small island country of Mauritius uses a system of at-large multi-member districts.) A state may decide, for example, to use multi-member proportional districts for cities, but single-member (at-large) districts for rural areas. In that case, a plaintiff in a single-member district who feels her vote is wasted because her party is repeatedly outvoted may argue that she has a right to the same proportional representation system as her neighbors in multi-member districts. Given that regulations that distinguish among citizens in their fundamental interest to vote can only pass scrutiny if they are narrowly tailored to further compelling state interests, it is unclear how the Supreme Court would handle such a claim. Perhaps the ratio between representatives to voters is the only issue relevant to Equal Protection scrutiny in this area. But more likely, the Court will force the state to justify why it chose to favor some voters with one electoral system while it disfavored others.

Effects on the Party and Electoral System

Partisan Gerrymandering

So while this bill restores to the states a much needed tool, it is a tool, like many others, such as new redistricting technologies, that can be used for good or ill. Multi-member districts operating under at-large voting rules, for example, can be used to dilute the vote of political adversaries just as such districts dilute the power of racial minorities. Under current law, parties in charge of the redistricting process only have the ability to "crack" the support of their adversaries by splitting up opposition voting blocs among multiple districts or "pack" them all into a few districts. This bill would allow for the possibility of "stacking" - namely, the strategy a political faction uses to turn a single-member district majority into a multi-member district minority by enlarging a district to the point where one can outvote one's opponents.

The constitutional standard for establishing a partisan gerrymandering claim is very difficult to meet and has never been used to strike down a redistricting scheme for House elections. A plaintiff needs to show that the electoral system "will consistently degrade a . . . group of voters' influence on the political process as a whole," Davis v. Bandemer, 478 U.S. 109, 147 (1986). Thus courts will be reluctant to find that partisan stacking of the type I have just described, even if used to dilute the entire statewide opposition of a party, rises to the level of an unconstitutional partisan gerrymander.

Multipartyism and Party Strength

Some proponents of this legislation will no doubt point to empirical evidence from European democracies that employ multi-member districts with a variety of proportional representation or "PR" systems. Rather than forcing candidates to win majorities in single-member districts, those systems translate a party's share of the vote into a roughly proportionate percentage of seats in the legislature. In general, those countries have higher voter turnout, a greater number of political parties, greater ideological and racial diversity represented in the legislature, a higher number of women representatives, and closer linkages between parties and social groups, such as ethnic or religious groups or labor unions. Opponents of the bill might point to those same systems, but concentrate on their greater tendency toward coalition government, instability, factionalism, occasional instances of disproportionate power exercised by small parties, and the weak parliaments in presidential systems employing those voting rules.

Nothing inherent in multi-member districts or even proportional representation systems necessarily implies a growth in the number of parties. If combined with high electoral thresholds, smaller multi-member districts or other constraints on the electoral system, states can ensure that the multipartyism prevalent in European democracies stays overseas. In addition, the other obstacles to minor party success in America, which include a presidential and senatorial electoral system that uses statewide districts, cumbersome ballot access rules that favor the two major parties, and an electorate that by world standards is perhaps the most politically moderate, could stunt the growth of additional parties.

Thus, while political scientists have emphasized the destabilizing consequences for presidential systems with parliaments elected through proportional representation, the apocalyptic forecast is both premature and easily avoided with the tweaking of the rules of any proportional system. It seems quite unlikely that the use of proportional representation would become widespread to the point of threatening the policy-making process or regime stability. Single-member districts allow for a personal vote and constituent service that Americans have grown to love. Multi-member districts will likely be used as solutions to what are seen as redistricting "problems" rather than a fundamental transformation of the national electoral system.

Cost of Campaigns

Perhaps the most troublesome critique of this bill comes from those who worry about the increased costs a candidate would bear by running from a larger electoral district. For if a candidate adopted the strategy of seeking every vote in a large multi-member district, the argument goes, campaign costs would grow alongside the size of the district. Direct mail to more people, television commercials over a wider area, and canvassing of a greater number of neighborhoods would inflate the costs of campaigning.

While the data are incomplete on this issue, they do not seem to support such a conclusion. In analyzing North Carolina General Assembly races, which employ a mix of multi-member and single-member districts, the Center for Voting and Democracy found that candidates spent on average about 20% less in multi-member district elections than they did in single-member district elections. In studying Chilton County, Alabama's transition from single-member districts to cumulative voting, Professor Richard Pildes and Kristen Donoghue found no change in campaign costs because candidates continued "to target their campaigning to specific areas, in effect replicating a district based election." Richard H. Pildes & Kristen A. Donoghue, Cumulative Voting in the United States, 1995 University of Chicago Legal Forum 241, 300. In addition, depending on how involved the parties are in selecting and campaigning for their slate of candidates in a multi-member district, there is the chance that campaigns would, in a sense, become more efficient as parties run ads and direct their mail in favor of slates instead of individual candidates.

Nevertheless, the threat of rising campaign costs, like the threat of factionalism and multipartyism, is cause for concern in the creation of multi-member districts. And states considering using them should craft electoral rules that moderate those effects.

Voting Turnout and Electoral Competitiveness

Many of the arguments of those who wish to reform the highly majoritarian system of U.S. House elections boil down to a philosophical conviction that votes are wasted in districts that have foreordained winners. Pointing to higher voter turnout in PR regimes, advocates urge that multi-member districts will allow for a greater probability that each voter will cast a "meaningful" ballot for at least one candidate or party that has a chance of winning seats. Minority voters -- whether racial or political -- would thus not be shut out by the electoral system; they will simply get their fair share.

Although fewer votes are indeed wasted under alternative electoral rules and voting turnout tends to be higher, it would be a mistake to conclude that votes are more "efficacious" in such systems. Indeed, the governing coalitions in some European democracies using PR tend to turnover less than the ruling majorities in plurality-based systems. Many voters feel that their votes are wasted under such systems, not because their votes went uncounted, but rather because the components of the governing coalition remain quite consistent over time.

Why a State Might Adopt Multi-Member Districts

While it seems quite likely that stalemated state governments may throw up their hands and adopt multi-member districts to solve partisan difficulties in districting, governors and legislators are not the only actors involved in redistricting. Courts often step in when a state is unable or unwilling to craft a plan that satisfies the many legal constraints on legislative redistricting described above. If the state fails to abide by Justice Department orders under section 5, or cannot come up with a plan that satisfies section 2 or the one-person, one-vote rule, judges may accept, quite reluctantly and after protracted litigation, the task of redistricting part of a House delegation. For courts, in particular, the option of multi-member districts may prove particularly attractive as an easy way out of the partisan quagmire presented by drawing lines for single-member districts. Instead of risking the possibility that a certain set of district lines will be seen as biased toward one party, courts may see multi-member districts as a ready-made solution for satisfying their legal obligations while avoiding a political mess.

There is a more beneficent view of why states would opt for multi-member districts, however, and it is one that fits squarely into the Supreme Court's admonitions on this topic. In many of the recent cases, the Court has repeated the mantra of "traditional districting principles" as if there is consensus on what the phrase actually means. Multi-member districts allow for the possibility that traditional political communities, such as counties or cities or even whole states, could be represented as organic units in the Congress -- a practice that was part of the redistricting "tradition" before the court imposed the one-person, one-vote rule. Under present law, district boundaries rarely overlap with anything that can be defined as a political community. While most voters know what city or county they live in, very few can identify that they live, for example, in New York's 13^th Congressional District. Although the one-person, one-vote rule will make it difficult to make congressional districts perfectly coterminous with these other political communities, the multi-member district option opens up the possibility that more salient regional identities will be expressed in a state's congressional delegation. Thus, instead of working against the grain of geographic districting, which is a frequently heard critique of multi-member districting schemes, such systems can reinforce regional identities for communities that have historical and political meaning for their inhabitants.Finally, to return to the point from where I began, the States' Choice of Voting Systems Act is primarily a instrument of federalism -- not any particular political ideology or conception of representation. This bill poses the central question of whether Congress impose a one-size-fits-all scheme of districting on the states or whether the states ought to retain some power to adapt their electoral system to meet their local needs. In this sense, the bill restores the intent of the Framers who opted against constraining states' decisions on how to represent themselves in the national legislature.

If multi-member districts become the system of choice in America, the impact on our national institutions could be anything from ineffectual to dramatic depending on what other institutional rules accompany them. But they would then be the system of choice, not default. At a time when the Congress has pushed power down to the states to experiment with all types of social welfare legislation, it seems particularly appropriate that states ought to be given at least some power to explore this more fundamental question of federalism. In the tradition of those who framed the Constitution, H.R. 1173 allows states to experiment with different ways their citizens can choose their leaders. In this sense, perhaps more than any legislation recently considered, this bill truly allows states to be "laboratories for democracy."