Note on at-large voting and plurality voting

<x-flowed>Dear List,

I am a 3L at Cornell Law School and I have written a student Note titled "Everything that can be Counted does not Necessarily Count: The Right to Vote and the Choice of a Voting System." The Note has two main points: (1) The Court has not considered at-large voting since 1982 and should revisit its precedent in light of Vieth's implication that the right to an effective vote exists beyond unequal apportionments. I argue that at-large voting always dilutes the effectiveness of some voters' votes and should be per-se unconstitutional. (2) The Constitution requires some level of reliability in an electoral outcome and a plurality election is constitutionally unreliable where the winning threshold is far below a majority. The remedy would be to impose a runoff election.

I have copied the introduction below and you can download the entire Note at
http://www.people.cornell.edu/pages/jco8/JCO-Note.pdf

I would greatly appreciate feedback from interested members of this list.

best regards,
Jeff O'Neill
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The presidential elections of 2000 and 2004 demonstrated the importance of the integrity of voting procedures. In 2000, the Supreme Court resolved the dispute over counting votes in Florida, and in 2004, the dispute over counting votes in Ohio sparked members of Congress to formally challenge Ohio�s electoral votes. The relevant issues included whether long lines at polling places prevented people from voting, whether a hanging chad represented the will of the voter, and whether a voter was entitled to have her provisional ballot counted. The disputes involved defining the set of ballots to be counted to determine the winner of the election. For a hanging chad, the state needs to determine whether the ballot sufficiently represents the will of the voter for it to be counted. Voters who left the polls without voting after waiting hours may have been wrongly denied the right to have their votes counted.

The integrity of the vote counting process does not end when the state has determined the set of ballots to be counted; the ballots themselves must also count. The 2000 election illustrates two aspects of the vote counting process where although votes were counted they arguably did not count. First, because of the Electoral College, George Bush won the election even though Al Gore won the popular vote. Second, Al Gore probably would have won the state of Florida and the election had Ralph Nader not �spoiled� the election by taking votes away from Al Gore. Under the established rules for electing the President, George Bush won the election, but because of these two aspects of the vote-counting process just mentioned, supporters of Al Gore may have felt that their votes, although counted, did not count. This Note investigates how the choice of a voting system impacts whether votes count.

In electing public officials in the United States, state and local governments use a variety of different voting systems. Voting systems currently in use include plurality voting, runoff voting, instant runoff voting, at-large voting, limited voting, cumulative voting, and the single transferable vote. A voting system consists of specifying the manner in which a voter casts his or her vote and the method by which such votes are counted to determine the winner or winners of an election. Black�s Law Dictionary defines a vote as the �expression of one�s preference or opinion in a meeting or election by ballot, show of hands, or other type of communication.� This definition is general enough to include different manners of casting a vote: a voter could select one candidate, select several candidates, or rank candidates in order of preference. For a given manner of casting a vote, multiple methods exist for counting the votes to determine the winner or winners. This Note will consider voting systems that have been used in the United States or that have strong advocates and will consider two specific way in which a vote may be counted but not count.

First, for a vote to count all voters must cast equally effective vote. The Constitution requires �complete equality for each voter� and that �each citizen have an equally effective voice.� The Court has applied this principle to require equal apportionment of state and congressional districts. This Note argues that at-large voting denies voters the right to cast an equally effective vote. This proposition is not new, but this Note presents new arguments and reconsiders old arguments in light of the Court�s more recent voting rights jurisprudence.

Second, for a vote to count the outcome of the election must reliably represent the will of the voters. For example, consider plurality voting. When the winner receives a majority of the vote, the outcome is reliable. This Note argues that when the winner receives far less than a majority of the vote, the outcome is unreliable. Since American politics is dominated by a two-party system, most general elections will not have more than two strong candidates and the winner will generally receive a majority. Primary elections can have multiple strong candidates and the winner of the primary is more likely to receive less than a majority. For example, in the 1969 Democratic primary for the Mayor of New York City, the winning candidate received only 33% of the vote. In response to this unreliable election result, New York City adopted runoff elections.

In order to ensure that votes count, state and local governments are considering changing their voting systems. A variety of organizations and web pages advocate for governments to use particular voting systems. In 2002, San Francisco adopted instant runoff voting and held its first election with it in 2004. In 2004, three cities passed ballot initiatives in favor of instant runoff voting: Ferndale, Michigan; Burlington, Vermont; and Berkeley, California. Many states are currently considering legislation to enact instant runoff voting. In May, 2005, the province of British Columbia will vote on whether to change its voting system to the single transferable vote. This Note will help governments understand how the choice of a voting system can make sure that votes are not only counted, but also count.

Part I of this Note presents background material on voting systems. Part I.A is a glossary of the eleven voting systems considered in this Note, including a history of their use in the United States. Part I.B summarizes the theory of voting, known as public choice theory. Kenneth Arrow won the 1972 Nobel Prize in economic sciences for his contributions to the theory of voting. This theory is necessary for understanding the legal implications of a voting system. Part I.C gives a comprehensive summary of state and federal caselaw of voting systems dating back to 1890. Part II briefly discusses the current debate regarding the role of the courts in policing the electoral process and calls for the Court to take an active role. Part III develops the right to an equally effective vote and considers several ways in which a voting system may violate this requirement. This Part concludes that at-large voting always denies some voters an equally effective vote. Part IV develops the right to a reliable electoral outcome and considers the circumstances under which the eleven voting systems may produce an unreliable outcome. This Part concludes the plurality voting will sometimes produce unacceptably unreliable outcomes and in these circumstances a runoff election is necessary to protect the right to vote.

This Note makes three important contributions. First, this Note presents a comprehensive summary of the history of voting systems in the United States and presents the first comprehensive examination of the caselaw on voting systems. One recent academic article considered the constitutional requirements of one particular voting system, instant runoff voting, and whether it violated the Equal Protection Clause. Second, this Note revives attacks on at-large voting, a clearly discriminatory voting practice from the era of poll taxes, white primaries, and separate-but-equal accommodations. The Court last considered at-large voting in 1982 and, in light of its more recent jurisprudence, the Court should reevaluate its position. Further, the academic literature has not addressed the constitutionality of at-large voting in the last twenty years. Finally, this Note argues for creating a new Constitutional requirement for the right to vote: an election must produce an outcome that reliably represents the will of the people. This requirement has not been heretofore proposed, but is eminently reasonable and fundamental to the democratic process.

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