Electoral college reform and voting rights.

• Author: Bullock, Charles S., III

INTRODUCTION

In 2007, North Carolina and California, two of the "Mega-States," (1) made efforts to alter the allocation of Electoral College votes. The North Carolina legislature considered, but ultimately abandoned, a promising effort to reallocate Electoral College votes at the congressional district level. This effort passed the state House of Representatives but then ran afoul of other Democratic Party forces at the national level, who encouraged letting the legislation die. Soon after, the California legislature created an initiative to persuade California voters to change the method by which California allocates its presidential elector votes. Efforts to determine how to allocate electoral votes is the subject of ongoing debates in intellectual circles, and a variety of election law issues arise in that debate.

This paper explores constitutional and voting rights issues arising from the proposed North Carolina and California reforms. It then explores the potential voting rights issues associated with allocating Electoral College votes in other states. Issues of racial fairness potentially affect how states allocate Electoral College votes, either in affecting how states might change their Electoral College allocations or even whether they should change those allocations. The paper then consider the potential constitutional implications for the Voting Rights Act ("VRA") (2) were it applied to presidential elector choice systems in the state.

In Section 1, we discuss the history of at-large elections in the United States as the practice relates to issues of racial fairness in elections. In this section, we also describe the function of the Electoral College in the context of at-large elections. If challenges to at-large electoral selection were to come before federal courts, the challenges would have to satisfy the court-created tests first laid out in Thornburg v. Gingles. (3) In Section 2, we discuss possible Gingles challenges. In Section 3, we examine more generally the development of challenges to States' Article II, Section 1 powers. In this section, we also lay out a model for understanding potential constitutional challenges to States' historical power to choose their electoral slates. We argue that because of the States' specific enumerated power in Article II Section 1 to provide for the appointment of electors, combined with doctrinal precedent, First and Second order Constitutional principles are created that should be seriously considered in any challenge to States' Article II power of electoral selection. First order principles refer specifically to enumerated constitutional amendments that can directly limit State power. Second order principles are derivations of Congress' enforcement power within each amendment that, apart from directly enforcing the text itself, are nevertheless limited by Congress' own powers, the separation of powers on the national level, and also principles of federalism. In short, challenges to States' Article II, Section 1 powers are not easily transposed to VRA concerns as some scholars suggest, especially in light of the Supreme Court's decision in City of Boerne v. Flores, (4) which placed additional limits on Congress' enforcement powers under the Fourteenth Amendment. Thus while this paper shows how a Constitutional challenge to at-large systems of electoral selection could be made through Gingles, it also shows the limits to such challenges more generally.

1. AT-LARGE ELECTIONS AND VOTING RIGHTS

   At-large elections have a long tradition in the United States. During the Republic's early days, many states chose their members of Congress at-large. (5) Until finally banned in the late 1960s, New Mexico and North Dakota continued to elect their two representatives at-large. (6) Also, into the 1960s, some states elected at least one at-large member. (7) States often adopted this practice when the state gained a representative as a result of reapportionment. (8) Texas was the last state to follow this practice and elected one member at-large in both 1962 and 1964. (9) Many local collegial bodies such as city councils, school boards, and county commissions, often elected members at-large. (10) Members of state legislatures frequently competed in multi-member districts. (11) However, the VRA provided a major impetus to eliminate at-large elections. (12)

   During the Progressive Era, reformers favored local at-large elections as a potential check on boss control. (13) Moreover, reformers hoped that candidates who competed at-large would be more attuned to the policy preferences of the entire community, such as a city, and not give precedence to the interests of wards or neighborhoods if those conflicted with the larger polity. (14) To some extent, the reformers' zeal flowed from a desire to see the "better classes" serving in public office. (15) In some southern communities, a motivation for the shift to at-large elections included a desire to reduce the likelihood of electing African-Americans. (16) In a district system, a minority or working class neighborhood could have reasonably expected to elect a representative from their neighborhood. However, in an at-large system, minorities and working class representatives were less likely to be elected by a city-wide vote.

   The VRA, as passed in 1965, did not take aim at existing at-large systems. Section 5 "froze" existing electoral arrangements in states and selected counties in which less than half of the voting age population had voted or registered in the 1964 election and where tests or devices served as prerequisites to registration. (17) Henceforth, these jurisdictions--Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and about 40 counties in North Carolina--could maintain their existing electoral requirements, but federal authorities would have to approve any changes. (18) Two routes existed for securing the necessary approval. The most commonly followed route was to submit the proposed change to the attorney general. Alternatively, a jurisdiction could seek a declaratory judgment that the proposed change was not discriminatory from the district court of the District of Columbia.

   Although the VRA did not expressly ban shifts from district to at-large elections, there was some initial uncertainty as to whether such a shift would require federal approval. In 1969, the Supreme Court clarified that some shifts from district to at-large elections do require federal approval. In Allen v. State Board of Elections, the Supreme Court read the authority of Section 5 broadly. (19) One of the issues in Allen was whether a Mississippi county needed federal approval before changing its elections from district to at-large. (20) The Supreme Court ruled that the proposed change should have been submitted for approval since,

   [t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. Voters who are members of a racial minority might well be in the majority in one district but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting. (21)

   While Allen prevented jurisdictions subject to Section 5 from shifting to at-large electoral formats if doing so would make it harder for African-Americans to elect their candidates of choice, this provision did nothing to eliminate existing at-large election systems. (22) While there were some challenges to at-large or multimember election arrangements, (23) most of these electoral systems persisted until the rewrite of Section 2 of the VRA in 1982.

   Prior to 1982, Section 2 had been seen as little more than a restatement of the Fifteenth Amendment. (24) The impetus to change Section 2 came in the wake of City of Mobile v. Bolden. (25) In this case, the Supreme Court reversed a lower court decision invalidating the commission form of government used by Mobile, Alabama, where all commissioners ran at-large. (26) Although no African-Americans had ever won a commission seat, the Supreme Court held that for the plaintiffs to prevail they would need to provide evidence of an intent to discriminate, which they had failed to do. (27) The Bolden decision came down just before the sunset provision of Section 5 was to take effect. Section 5 had been extended, initially from 1970 until 1975 and then for an additional seven years to keep it in place through the round of redistricting that followed the 1980 census. (28)

   With Congress about to consider whether to extend the coverage of Section 5 still further, the civil rights community had the opportunity to focus congressional attention on their perceived problem with the Bolden decision. A coalition of civil rights organizations sought to remove the burden of proving intent to discriminate from challenges to existing electoral systems. (29) The civil rights organizations convinced Congress to pass a new and invigorated Section 2 that allowed plaintiffs to prevail in challenging at-large elections by showing that this arrangement had the result or effect of making it more difficult for minorities to elect their candidates of choice. (30) No longer would it be necessary to provide evidence that the establishment or maintenance of the electoral arrangement intended a discriminatory effect.

   Adoption of Section 2 released a flood of litigation challenging at-large election arrangements, not just in the states subject to Section 5, but nationwide. (31) The Supreme Court s first Section 2 review revealed three conditions plaintiffs must establish in an at-large election challenge. (32) First, "the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district" if the minority group prevailed and the jurisdiction changed from at-large to districted...