RANKED-CHOICE VOTING AS REPRIEVE FROM THE COURT-ORDERED MAP.

• Author: Lempert, Benjamin P.

TABLE OF CONTENTS INTRODUCTION I. MULTIMEMBER RCV AS A SOLUTION TO THE PROBLEM OF THE COURT-ORDERED MAP A. RCV, Wasted Votes, and Multimember Districts B. The Problem of the Court-Ordered Map C. Approaches to Districts: Multimember Versus Single-Member, and RCV Versus SCV II. MULTIMEMBER RCV AS A CORRECTIVE TO TWO MISTAKES IN REDISTRICTING DOCTRINE A. Multimember RCV as a Solution to Vote Dilution B. Redistricting Doctrine and the Errors of a Junior-Partner Approach 1. The Current Doctrine Applied to RCV 2. Criticism of the Current Doctrine III. IN SUPPORT OF MULTIMEMBER RCV AS A REMEDY A. Multimember RCV as Best Aligned with the Surrounding Law B. Multimember RCV as a Restraint on the Courts in Issues of Race CONCLUSION INTRODUCTION

American election law leaves the drawing of district maps--congressional districts, state legislative districts, school board districts, and so on--to legislatures. (1) But sometimes the job of drawing a map falls into the hands of courts. (2) This presents a dilemma. Drawing a map requires politically charged, policy-laden choices about where to place district lines, and courts are poorly suited for such a role. This Note argues that, in these circumstances, the best solution is for courts to impose a proportional voting method, such as multimember ranked-choice voting, that minimizes the need for a court to draw district lines in the first place.

Consider the case of Texas in the 2010s. During that decade's redisricting cycle, Texas's state legislature drew state house districts that diluted the votes of Black and Hispanic communities in violation of the Voting Rights Act (VRA). (3) Federal courts barred the plan from going into effect. (4) But Tex as did not respond with a valid replacement. The legislature sat on its hands, hoping the courts would give way. (5) As November 2012 drew near, Texas had no map from which to hold elections. The court would have to draw districts for the State of Texas on its own. (6)

The three-judge panel charged with redistricting regarded its job as "unwelcome," (7) and it's easy to see why. The court, in a time crunch, had to call on technical staff for assistance to parse complex demographic data in order to group Texas's communities into more than one hundred districts. (8) The shape of these districts--the political constituencies they included and excluded--would determine whether incumbent politicians in the state house and Congress would keep their jobs. (9)

Not only were the stakes high; the legal tools at the court's disposal were thin. (10) In redistricting, the available rules and norms quickly "run out." (11) The residual decision space has to be filled by the court's policy judgment and discretion. For instance, on the existing but invalid map, District 26 of the Texas State House was a strange-looking gerrymander in the Houston suburbs designed to suppress minority votes. (12) To cure the violation, the court set out to restore the VRA-compliant version of District 26 from the 2000s, making minor changes where necessary to correct for population changes. (13) The court also explained that it would follow "neutral" redistricting principles: it would avoid splitting municipalities between districts and would draw a district as compactly as possible. (14)

But these principles--individually and as an ensemble--were (and almost always are) too vague to supply a decision rule. (15) The new District 26 was reasonably compact, but the court could have shifted its boundaries east, west, or south to create a district nearly as compact and square shaped. (16) The court needed to break some municipal lines to account for population growth, but the rules could not say precisely which or how many municipal lines to break. (17) Under the VRA, the court would have to draw a majority-minority district--a district where voters of colors made up a majority of voters. But the VRA does not tell a court which voters of color in an area should constitute this majority. (18)

District 26 therefore presented a challenging remedial task, but it was not unusual in this regard. Redistricting necessarily demands discretionary, policy-laden, and sometimes arbitrary trade-offs. (19) The Supreme Court has said that map drawing always requires an unwieldy balancing of "myriad factors" that courts are not well positioned to do. (20)

The difficulties of court-drawn districts make it easy to understand the appeal of a world where judges could cure invalid maps without needing to draw districts, or at least not draw quite so many districts, in the first place. This is roughly the world advertised by contemporary advocates of ranked-choice voting. Ranked-choice voting (RCV) proposes an electoral system that obviates or diminishes the need to draw districts. In particular, RCV permits elections where single districts elect multiple representatives. (21) Multi-winner elections usually suffer serious problems, including racial vote dilution and vote splitting. But RCV resolves them and therefore makes fair elections with fewer districts possible. Using RCV, the federal court in Texas could have constructed fifty districts of three representatives each instead of 150 districts of one member each. (22)

In light of the way that RCV lessens the burden on courts of implementing redistricting remedies, this Note argues for the use of multimember RCV as a redistricting remedy. Part I describes RCV and connects it to longstanding debates about the legitimacy of court-ordered remedies. Part II explores the contemporary law on remedial redistricting and critiques the openended, quasi-legislative choices that this approach forces on the courts. Part III makes the case that multimember RCV is the remedy that most simplifies the judicial task and best comports with contemporary understandings of the separation of powers.

1. MULTIMEMBER RCV AS A SOLUTION TO THE PROBLEM OF THE COURT ORDERED MAP

   Multimember RCV has reentered the national conversation after several decades of dormancy. It is uniquely well suited to mitigate the burdens that remedial redistricting places on the judiciary. This Part explains the mechanics of RCV, discusses the basic difficulties of court-ordered redistricting, and points to a natural affinity between the advantages of multimember RCV and the problems of court-ordered maps.

   1. RCV, Wasted Votes, and Multimember Districts

      Between 1915 and 1948, twenty-four cities in the United States used RCV, including New York, Cincinnati, and Cleveland. (23) By the 1960s, RCV had nearly gone extinct. (24) But today, RCV has resurfaced as a much-discussed, New York Times-approved reform. (25) Editorials in leading newspapers and magazines endorsed it. (26) The American Academy of Arts and Sciences featured multimember RCV on its short list of proposals to improve American democracy. (27) Maine adopted RCV in 2016. (28) In 2020, Alaska did the same, (29) several Democratic presidential candidates indicated support, (30) and, for the first time, RCV was used in presidential primaries. (31)

      The basic premise of RCV is as follows: an RCV ballot collects voters' first choices, but also their second, third, and fourth choices--and often more. (32) When a voter registers a first preference for a candidate who has too few votes to win, her vote is reallocated from the losing candidate, on whom the vote is said to be "wasted," to a candidate who remains viable. If, for instance, you most preferred Ralph Nader in 2000, an RCV ballot would allow you to also indicate your second-place preference for another candidate, either George W. Bush or Al Gore. When Nader ultimately failed to receive a majority of first-place votes, your ballot would not have been "wasted." (33) It would have been reallocated to your top choice among the still viable candidates.

      Most American jurisdictions, of course, vote in a different way: they use the "single-choice vote" (SCV), where a ballot asks for one preference, not a ranking, and where the winner is the candidate who earns the most votes. (34) The Nader scenario illustrates two basic advantages RCV has over SCV. First, RCV prevents vote splitting, in which two candidates divide support (e.g., Nader and Gore) and allow a third candidate to prevail. (35) Second, RCV makes it less important to vote strategically. Because a voter need not worry about vote splitting, she can support the candidates she likes best, instead of the candidates she thinks have the best chance of winning. (36)

      In proposing RCV as a remedy for redistricting violations, this Note stresses a particular impact of RCV on the geography of American elections. (37) Under RCV, a jurisdiction can elect multiple candidates from a single district, instead of requiring that each district elect only one candidate. (38) RCV would therefore ease the burden on the map drawer of producing the redistricting remedy.

      As a remedy, RCV raises a simple legal question and a difficult remedial question. The simple question is whether a legislature, if it so desires, can cure its redistricting violation by implementing RCV. Courts have said, essentially, yes. (39) A legislature may decide how to cure its redistricting violation, so long as it offers an effective remedy. (40) And, as Part II demonstrates, RCV is indeed a valid remedy. In June 2019, for instance, the Department of Justice settled a Voting Rights Act lawsuit with the City of Eastpointe, Michigan when Eastpointe's City Council adopted multimember RCV instead of the usual single-member districting map. (41)

      RCV also raises a second and more difficult remedial question, which is the subject of this Note. Courts must sometimes design a remedy themselves, as happened in Texas in 2012. (42) This situation raises the issue of whether a court might order a jurisdiction to adopt RCV as a redistricting remedy. Several district courts have contemplated this kind of remedy. (43) As RCV gains momentum and as this decade's redistricting cycle...