Remedy gone awry: weighing in on weighted voting.

• Author: Wesolowski, Keith R.
• Position: Case Note

INTRODUCTION

The health of our republican form of government hinges on an equitable and proportional system of representation. In order to lay claim to legitimacy, a republican government must establish the means for electing representatives in such a way that all holders of the franchise are active and meaningful participants in the electoral process. In the latter half of the twentieth century, American jurists have understood this process as being one in which all voters have a comparable voice in selecting their representatives. (1) Such a voice must be comparable on two distinct levels: first, when citizens select their representatives, and second, when the representatives shape policy in their respective assemblies. (2)

The need for an accurate count was deemed so critical that the Founders mandated a census process in the Constitution. (3) The Constitution mandates that every ten years our nation attempt to count the people within its borders so that government can be adjusted to accurately reflect the needs and desires of the people.

The decennial census provides a method for determining the proper apportionment of representatives for the people. The census, however, is only the beginning of the process of establishing a fair apportionment. Once the people are counted, the responsibility for drawing and redrawing voting districts falls to legislatures. (4) Although in some respects it is desirable for legislatures to shape voting districts, the possibilities for abuse are especially palpable in this setting. There have been numerous cases, for instance, in which the legislative apportionment process was used as a means of reducing the effective voting power of racial minorities. (5) There have also been occasions in which the state legislature was unable to draw proper and fair voting districts. (6) In both situations, the Fourteenth Amendment's Equal Protection Clause (7) serves as the primary means of vindicating a citizen's rights, and the federal courts provide the appropriate forum. How the Fourteenth Amendment should be applied, however, is a significantly more ambiguous question.

This Note examines Korman v. Giambra, (8) a case in which political deadlock threatened to diminish the fairness of New York's apportionment process. Instead of drawing district boundaries from the bench when the legislature failed to apportion the districts correctly, a federal district judge for the Western District of New York instituted a system of weighted voting. (9) The result of the weighted voting system was not a new electoral map reflecting population shifts, but a change in the relative power of each elected representative to reflect the disproportionate sizes of their constituencies. (10)

In examining this temporary remedy, Part I explains the reapportionment situation that recently faced western New York and the weighted voting remedy devised by the court. Next, Part II reviews methods prior courts have used both to remedy and avoid equal protection violations in voting districts. In light of those more traditional methods, Part III then considers the weighted voting system with reference to "one person, one vote" principles, (11) maintenance of racial equity, and efficiency. This analysis also considers the potential for application of weighted voting systems in other short-term and long-term scenarios. Although there may be uses for weighted voting in the short term, this Note argues that too many costs result from long-term use.

1. FACTUAL SCENARIO AND DESCRIPTION OF REMEDY

   1. Getting to the Courthouse in Erie County

      New York's Erie County, which contains the City of Buffalo and its significant suburbs, had a seventeen-district legislative body in 2001 when the reapportionment dispute began. The New York State Constitution and the Erie County Charter require that the state and county legislatures readjust their legislative districts in accordance with population shifts made evident by the results of the federal census. (12) The year 2001 was an election year for the Erie County Legislature, and the reapportionment was scheduled to occur prior to the election. (13)

      Erie County legislators proposed various plans for reapportionment. (14) For the most part, the debate split along partisan lines, with a few independent Democrats attempting to preserve their interests by protecting the Party as a whole. (15) Ultimately, the Democratic majority in the legislature passed its plan by a vote of eleven-to-six. (16) Erie County Executive Joel A. Giambra, a Republican, vetoed the reapportionment plan. (17) The legislature was unable to muster the two-thirds vote required to override Giambra's veto, due to some Democrats' decision to vote with the Republicans. (18) Just prior to the 2001 elections, the county's districts thus remained in their 1990 form.

      Alan Korman, a county resident, filed suit in state court, asserting that the population shift and the failure to reapportion resulted in the dilution of his vote. (19) Giambra, the primary named defendant, removed the suit to the Western District of New York due to the federal constitutional questions presented. (20) Korman based his equal protection challenge on population figures alone, (21) as opposed to racial discrimination or rural-urban disproportionality (or even reverse discrimination), which were the underlying claims in many prior cases concerning equal protection and voting. (22)

      The 2000 Census indicated a population shift from the City of Buffalo and its immediate (or inner-ring) suburbs to the more distant suburban areas of Erie County. (23) The shift continued a pattern in which predominantly middle-class Caucasian families relocated further and further away from the county's urban center. (24) The result, over time, has been an increasing concentration of minorities in the City of Buffalo as the population of the city, relative to the county, has fallen. (25) Concurrently, the City of Buffalo has become increasingly controlled by Democrats, whereas the suburbs tend to be controlled more by Republicans. Race issues aside, population shifts within the county merited reapportionment of the county legislature's districts.

   2. Remedy

      After argument, District Judge John T. Elfvin considered several proposals to redistrict, but decided not to adopt any of them. (26) Instead of redrawing the district boundaries in accordance with one of the proposals or implementing a redistricting plan of his own, in August of 2001, he ordered that the legislative districts be frozen for the duration of the 2001 election and thereafter until the new government could agree on new districts or until March 15, 2002. (27) The district boundaries under this order would remain the same as they had been since the reapportionment reflecting the results of the 1990 Census.

      Judge Elfvin also ordered that each legislator elected in the November elections receive a weighted vote until the 2003 elections, the duration of his term. (28) Each legislator's vote would be proportionally weighted according to the fraction of Erie County's population contained within the legislator's district. (29) The legislators' weighted votes would be calculated to three decimal places, with the seventeen districts having seventeen total votes. (30)

      The results of the 2000 Census indicate that one-seventeenth of Erie County's population is 55,898. (31) A hypothetical district with a population of exactly 55,898 would, under the Korman formula, be represented by a legislator with exactly 1.000 vote in the legislature. One would calculate a legislator's weighted vote by taking the 2000 Census population for his district and dividing it by the average of 55,898. According to the 2000 Census, the least populated district is the Third District, containing 44,334 persons. This district's representative, therefore, would receive a weighted vote of 0.793. (32) The most populous district is the Seventeenth District; its 61,227 citizens would be represented by a weighted vote of 1.192.

      Although the mathematics behind the weighted voting system boils down to a simple calculation, the implementation of the system and how it would operate over time is significantly more complex. Judge Elfvin asserted that he would maintain jurisdiction over the matter and stated in his opinion that he would devise and implement his own reapportionment plan should the legislature fail to put a redistricting plan in place by March 15, 2002. (33) Judge Elfvin left unclear whether such a judge-made plan would continue to strictly employ the weighting system, incorporate the weighting system into a larger hybrid mechanism, or simply redraw all of the district boundaries in such a way that the county would return to seventeen unweighted single-member districts and somehow meet constitutional muster.

      The political reality at the time, however, did not appear to be any more conducive to reaching a legislatively and judicially acceptable compromise. Although Democrats continued to have a majority in the legislature, the weighted voting system served to diminish that majority. In particular, Democrats in the Second, Third, and Fifth Districts had their voting power reduced to 0.913, 0.793, and 0.888, respectively. (34) Meanwhile, Republicans in the Sixteenth and Seventeenth Districts, had their voting power increased to 1.156 and 1.192, respectively. (35) The Democratic majority, unable to push through its reapportionment plan prior to the election, found itself in an even weaker position than before, and would have to offer significant concessions in order to bring about a legislative solution. As a result of the November elections and use of the weighted voting system, the Republican Party hoped to put together a working majority in the legislature. (36)

      Judge Elfvin suggested that the primary motivation for the weighting system was the preservation of continuity in the election process and prevention of unduly burdensome...