I completely agree with your view. Multimember districts might be more
democratic then singlemember districts in some aspect, but that does not
make singlemember districts unconstitutional. This question should be left
to the legislators. The court should not try to produce what is ideal
democracy in its eyes and thus narrow the whole election law.

There is an interesting discussion on this question - where should be a line
between issues on which issues in electoral law people should seek relief in
courts and on which issues in political arena. See Daniel H. Lowenstein.
Political Reform is Political, in: Zmmerman & Rule, eds. US House of
Representatives: Reform or Rebuild? and Rick Hasen. The Supreme Court and
Election Law. 2003, pp. 5-6.

Lowenstein on one hand, takes quite extreme position that "Tinkering with
electoral and legislative procedures is no less empirical imponderables than
tinkering with economy. What constitutes a democratic or impartial political
procedure is just as conceptually contestable as what constitutes an
externality in the economic realm.... if those who are aggrieved by an
economic regulation ordinarily are consigned to the political arena to seek
relief, why should not the same be true for those who disagree with some
aspect of the political process?" Hasen, on the other hand defends the
Court's interventions.

There is also an article entitled "Towards a democracy-centered
jurisprudence" (I forgot the author) some time ago and a response "What is
center of democracy" on this question.

But I think that Charles went way too far in this direction.

Best,
Jurij



----- Original Message -----
From: "Thom Cmar" <tcmar@law.harvard.edu>
To: "Rick Hasen" <Rick.Hasen@lls.edu>
Cc: "election-law" <election-law@majordomo.lls.edu>; "jjohnsto"
<jjohnsto@ualberta.ca>
Sent: Tuesday, February 10, 2004 3:16 PM
Subject: Re: message from J. Paul Johnston re: Charles and single-member
districts

I read the Charles article with interest.  I found it to make a compelling
argument for why, as a policy matter, a switch to multi-member districting

might

better vindicate constitutional values.

But the arguments made by Charles seem to go more to the question of what

the

law should be, rather than what a court could say the law is without

exceeding

its institutional role.  Particularly given the current state of the

law -- in

particular, the discussion in Voting Rights Act cases such as _Holder v.

Hall_

-- which suggests that the current Court sees no principled basis for

going any

deeper into the "political thicket" than it already has.

Does anyone on the list disagree with me?  If one were to take this

argument

into a courtroom, is there precedential ground for it to stand on?


Thom Cmar
3L, Harvard Law School



Quoting Rick Hasen <Rick.Hasen@lls.edu>:

J. Paul Johnston writes:

Guy-Uriel Charles' Findlaw commentary on the constitutionality of
single-member districting raises some very basic issues of electoral

reform

with arguments that many members of the list should find provocative, to

say

the least.

An important point in his argument that was not overtly stressed is that

the

solution of moving to multi-member districts only works, to the extent

that

it
does, because he combines it with a switch to using cumulative voting,

too.

It
also depends on voters adopting a partisan, slate-voting approach in

making

their allocations of cumulated votes. Indeed, the example he offers as

an

illustration is, however, a "take" on a well-known actual case: that

used for

elections to the Illinois State House of Representatives prior to 1980.

One

"knock" on that experience was that the parties reached local

arrangements

wherein one party's stronghold was not challenged in return for like
treatment
or one seat was effectively "conceded" to the second strongest party by

the

dominant one only running two candidates. Personally, I never found the
argument that one should change an electoral that had desirable features
[which I see this one as having] because of a flaw in the party system
wherein
party elites chose NOT to compete. The Illinois example is a limited
instance,
however, and I'm unaware of other instances, except perhaps at the

municipal

level. Perhaps list members can cite some.

A more common combination using multi-member districts, within the
majoritarian tradition, is to employ the "block vote" wherein the voter

makes

as many simple candidate choices as there are positions [seats] to fill.

This

combination actually worsens the control given to the dominant party and

the

degree of seats share/votes share disproportionality that occurs. That

is

certainly NOT the direction one would want to take to improve either

minority

representation or party competition.

My preference is to use multi-member districts employing three to seven
members along with the "single transferable vote" procedure that employ

a

preferential ballot on which voters can rank any number of candidates up

to

the number of seats to be filled plus one. It accomplishes much the same
outcome as Charles' example would yield, with even closer seats

share/votes

share proportionality when voters adopt "slate voting" practices in

making

the
rankings, approximating the degree found in largest remainder party-list

PR

systems.

An advantage of varying the district magnitude from 3 to seven seats is

that

one can also better approximate the more exact "rep by pop" standards

that

have evolved in the U.S.A. in the "one person, one vote" tradition. And

one

can accommodate "local" or traditional geographically-based "communities

of

interest" more flexibly in drawing district boundaries.

J. Paul Johnston, Associate Professor
Department of Political Science
The University of Alberta,
Edmonton, AB  Canada

J. Paul Johnston