Richard,

Below is an excerpt of a forthcoming paper of mine that you may find
useful.  The title is Everything that can be Counted does not
Necessarily Count: The Right to Vote and the Choice of a Voting
System.  It will appear in the Michigan State Law Review in the next
few months.  The full paper is available at
http://ssrn.com/author=367415.

best,
Jeff O'Neill


C. Runoff Voting

    Runoff voting has the laudatory goal of enhancing the reliability of an
election. Congress recognized this principle when it passed a statute in
1866 requiring that U.S. senators, then elected by state legislatures and not
by the people, be elected by a majority of the state legislators.114 State and
local governments have enacted runoff voting in response to candidates
winning elections with less than a majority of the vote. For example, Arkansas
enacted runoff voting in 1937 after the winner of the Democratic
primary for Governor received only 32 percent of the vote, and New York
City adopted runoff voting in 1972 after the winner of the Democratic primary
received only 33 percent of the vote.115 In upholding Arkansas's runoff
voting statute from constitutional challenge, the court described runoff
voting as a "bedrock ingredient of . . . political philosophy."116 Runoff voting
also has clear disadvantages that must be weighed against the benefits:
holding a second election doubles the cost of the election, some voters may
have difficulty leaving work to vote a second time, and candidates must
raise more money for the longer campaign season.
    Another criticism of runoff voting is that it makes it more difficult for
minority voters to elect a minority candidate. With plurality voting, a black
candidate could have a better chance of winning if candidates favored by
the white majority split the white vote. In Arkansas in the early 1970s, several
black candidates won elections with a plurality when white candidates
split the majority vote.117 In response, the governments enacted runoff voting.
118 A court held that the runoff statute was unconstitutional after finding
discriminatory intent and discriminatory effects.119 Where plaintiffs have
failed to show discriminatory intent and discriminatory results, courts have
upheld runoff voting against equal protection challenges120 and to challenges
under the Voting Rights Act.121 Courts have not found discriminatory intent
without discriminatory results, and vice versa.122
    Of course, runoff voting can also help black candidates by preventing
black candidates from splitting the black vote or by allowing coalitions with
other minority groups. Thus, no clear principle exists for determining when
runoff voting causes discriminatory results. One court has held that runoff
voting never causes discriminatory results.123 The New York Times expressed
the conflict well: "No theory or value of government should require
a party to create a free-for-all lottery election just to satisfy the long-shot
hopes of some of its members. And no candidate should want the burden of
having to govern with a lesser mandate."124

114. See id.
115. BULLOCK & JOHNSON, supra note 13, at 2, 80.
116. Whitfield v. Democratic Party of Ark., 686 F. Supp. 1365, 1370 (E.D. Ark.
1988), aff'd, 902 F.2d 15 (8th Cir. 1990) (en banc) (5-5 decision).
117. See Jeffers v. Clinton, 740 F. Supp. 585, 594 (E.D. Ark. 1990).
118. See id. at 594Ð95.
119. See id. at 595.
120. See Brooks v. Miller, 158 F.3d 1230, 1241 (11th Cir. 1998); Butts
v. New York,
779 F.2d 141, 150 (2d Cir. 1985); Whitfield, 686 F. Supp. at 1370;
Procaccino v. Bd. of
Elections, 341 N.Y.S.2d 810, 819 (N.Y. Special Term 1973) (the equal
protection challenge
was based on disparate treatment of cities and not on race).
121. To show a violation of ¤ 2, plaintiffs must show discriminatory
results, but need
not show discriminatory intent. See 42 U.S.C. ¤ 1973(b) (2001). Courts
upholding runoff
voting against ¤ 2 challenges have found neither discriminatory intent
nor discriminatory
effect. See Brooks, 158 F.3d at 1237Ð41; Butts, 779 F.2d at 147Ð48;
Whitfield, 686 F. Supp
at 1370, 1387.
122. See Brooks, 158 F.3d at 1243.
123. Circuits have come to different conclusions as to whether runoff
voting could
ever cause discriminatory results. The Second Circuit found that
elections for singlemember
offices will never violate ¤ 2, because "[t]here can be no equal
opportunity for representation
within an office filled by one person." Butts, 779 F.2d at 148. Other
courts have
declined to follow Butts. Brooks, 158 F.3d at 1241; Whitfield, 686 F.
Supp. at 1378.
124. Editorial, Runoffs Need No Fixing, N.Y. TIMES, Mar. 28, 1985, at A30.


On 4/25/06, ban@richardwinger.com <richardwinger@yahoo.com> wrote:

I am not very well informed about the voting rights
act.  Can anyone who is, help me with this question?

Is there any precedent that suggests that if a state
which does not now have a run-off primary were to
institute one, and this state is a covered
jurisdiction, would this state have a problem with the
Voting Rights Act if it tried to implement a run-off
partisan primary?