Ranked-Choice Voting as Reprieve from the Court-Ordered Map

Benjamin P. Lempert* July, 2021

Thus far, legal debates about the rise of ranked-choice voting have centered on whether legislatures can lawfully adopt the practice. This Note turns attention to the courts and the question of remedies. It proposes that courts impose ranked-choice voting as a redistricting remedy. Ranked-choice voting allows courts to cure redistricting violations without also requiring that they draw copious numbers of districts, a process the Supreme Court has described as a “political thicket.” By keeping courts away from the fact-specific, often arbitrary judgments involved in redistricting, ranked-choice voting makes for the redistricting remedy that best protects the integrity of the judicial role.

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 redistricting 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 Texas 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.¹⁵The 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 open-ended, 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.

I. 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.

A. 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.²⁷Maine 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 commences, we can expect the question to surface more often. This Note analyzes the current doctrine and argues in favor of multimember RCV as a court-ordered redistricting remedy.

B. The Problem of the Court-Ordered Map

American election law assigns responsibility for designing elections and drawing districts to legislatures.⁴⁴ But in the course of the many redistricting battles that follow each census, courts often have to assume this responsibility themselves.⁴⁵ This poses a problem. Redistricting is a complex, multifaceted task, whether legislatures or courts draw the maps. A plurality of the Supreme Court once regarded redistricting as such a morass—a “political thicket”—that it refused to entertain plaintiffs’ claims about redistricting violations, let alone draw maps to correct them.⁴⁶

Today, the courts hear hundreds of redistricting claims and often draw remedial districts themselves.⁴⁷ This is not because the Supreme Court has come to celebrate the judiciary’s role in redistricting. On the contrary, the Court continues to emphasize that there are few “neutral legal principles” available when drawing districts⁴⁸ and that courts “possess no distinctive mandate to compromise sometimes conflicting state [redistricting] policies in the people’s name.”⁴⁹ But the courts’ involvement in remedial redistricting necessarily followed from their involvement in redistricting at the liability stage.

Beginning in the 1960s, as the federal government confronted Jim Crow, the Supreme Court and Congress brought the Fourteenth Amendment to bear on abuses of redistricting. The Court required population equality among districts in Reynolds v. Sims and took aim at racial vote dilution in White v. Regester.⁵⁰ Congress relied on the latter decision to create a statutory cause of action against racial vote dilution in the Voting Rights Act of 1982.⁵¹

A typical redistricting lawsuit is brought under section 2 of the Voting Rights Act and focuses on racial vote dilution.⁵² Plaintiffs in such cases argue that a jurisdiction has denied a community of color a chance to translate its votes into political power.⁵³ A state government, for instance, may have gerrymandered its congressional districts so that voters of color are packed into one district rather than spread efficiently across several districts.⁵⁴ As a result, voters of color might receive less representation in Congress than their share of the electorate would suggest they deserve. When a court finds that a state map impermissibly dilutes minority voters or otherwise violates the VRA, it may strike the map down and impose a remedy for the violation.

This Note focuses on court-ordered remedies: the instances where courts must “affirmatively re-map” to resolve a redistricting violation by redrawing districts and reconfiguring elections. Courts, to be clear, do not always need to create a remedy on their own.⁵⁵ After a map is struck down, the first step is to offer the offending legislature a chance to design a remedy itself. If the legislature’s new map cures the redistricting violation, the court has no more remedial work to do.⁵⁶

But courts must design their own remedies when the offending legislature does not come forward with a remedy.⁵⁷ If, for instance, legislative deliberations about a new redistricting map break down, if an election is approaching too quickly, or if the legislature continues to produce invalid maps, a court must construct a remedy of its own. This scenario saddles the court with an uncomfortable remedial task.

Court-ordered redistricting raises a difficult problem because, as scholars and judges have long argued, remedies that restructure public institutions push the limits of the judicial role.⁵⁸ When ordering such a remedy, a judge must do more than answer a binary question about liability.⁵⁹ A judge must, in quasi-legislative fashion, craft a new institution—whether a reformed prison, desegregated school, or a new redistricting scheme.⁶⁰ In so doing, Judge William Fletcher has written, a judge moves “beyond the normal competence and authority of a judicial officer, into an arena where legal aspirations, bureaucratic possibilities, and political constraints converge, and where ordinary legal rules frequently are inapplicable.”⁶¹ Redistricting remedies thus raise basic questions about institutional legitimacy, the scope of the judicial role, and the separation of powers.

C. Approaches to Districts: Multimember Versus Single-Member, and RCV Versus SCV

At present, courts remedy redistricting violations by drawing single-member districts.⁶² But single-member remedies exacerbate rather than resolve the difficulties of court-ordered maps. Single-member remedies require that courts make fact-specific, value-laden efforts to define political communities by drawing districts around them.⁶³ Instead, courts should use multimember RCV as a redistricting remedy. RCV permits elections with multiple winners from single districts. It permits, in other words, elections with larger—and fewer—districts than the status quo. As districts grow in size and scope, map drawers make fewer decisions about which voters belong together in a political community. Multimember RCV thus simplifies the judicial task and better protects the integrity of the judicial role.

To suggest “multimember ranked-choice voting” is really to suggest two changes: first is a move from the “single-choice vote” to “ranked-choice voting”; second is a shift from “single-member districts” to “multimember districts.” We have already encountered the distinction between single-choice voting and ranked-choice voting. SCV asks voters for a single preference and makes a winner of the candidate who receives the most votes. RCV, by contrast, collects a full menu of preferences from voters and determines the winner after reassigning votes wasted on nonviable candidates to those who are still in contention.⁶⁴

SCV and RCV therefore differ in the information they collect from voters and in the way they aggregate this information to choose the winner of an election. By contrast, the terms “single-member districts” and “multimember districts” describe a difference of geography. Single-member districts divide a jurisdiction into a piece of territory for each representative elected. The United States House of Representatives provides an example. Americans elect 435 members of Congress. Each member of Congress hails from a distinct district, called “single-member” because each district elects one representative.⁶⁵

In a multimember election, a district instead elects multiple representatives.⁶⁶ Consider Ann Arbor, Michigan, which has ten city council members but only five districts.⁶⁷ These districts are “multimember” because they each elect two representatives. Multimember elections might feature several multimember districts, as in Ann Arbor, where there are five such districts. A multimember election might also have no districts at all. Imagine that a city has a five-member city council and elects all five candidates from the entire city. This “no districts” election, a special kind of multimember election, is sometimes called an “at-large” election.⁶⁸

To propose multimember RCV as a redistricting remedy is therefore to propose that courts create electoral maps with no districts or, alternatively, with districts that elect multiple representatives at a time. Winners would be chosen using RCV. Courts currently take a different approach.⁶⁹ For reasons explored in Part II, they use single-member districts with SCV. The preference for single-member districts means that courts draw one district for each representative elected. These districts choose their winners with SCV.⁷⁰

This discussion brings to light the basic appeal of multimember RCV as a redistricting remedy: it does not require that courts draw a district for every representative elected. Some versions of multimember RCV would not require that courts draw any districts at all. While single-member districts maximize courts’ exposure to the “political thicket” of drawing districts, the use of multimember RCV would minimize it.

II. Multimember RCV as a Corrective to Two Mistakes in Redistricting Doctrine

Multimember RCV allows courts to avoid drawing districts for every representative elected. It keeps courts at arm’s length from one aspect of the political thicket. American election law, however, advises against multimember remedies and in favor of single-member districts.⁷¹This Part explores those reasons and offers a critique. Multimember RCV remedies vote dilution, just as single-member districts do. Multimember RCV remedies also ensure that a court avoids acting like a legislature when redistricting.

Two reasons loom large in the courts’ preference for single-member districts. First, courts have generally assumed that only single-member districts can solve racial vote dilution.⁷² If this were true, courts could not issue multimember remedies, because the remedy itself might cause a legal violation or fail to resolve the existing one. This concern has some truth. Multimember districts with SCV cause vote dilution. Many jurisdictions historically employed it for precisely that reason.⁷³ But RCV makes the crucial difference. Section II.A explains that multimember districts with RCV redress vote dilution as effectively as single-member districts do.

Second, courts have ordered single-member districts in an effort to respect the separation of powers. Courts agree that legislatures, not judges, should decide how to conduct elections. Most legislatures use single-member districts, not multimember RCV. Courts have decided, therefore, that when they must redistrict on behalf of a legislature, they should order the remedy that the legislature might have chosen itself. Section II.B argues that courts should not draw single-member districts on behalf of a legislature since doing so requires that courts act too much like a legislature.

A. Multimember RCV as a Solution to Vote Dilution

Courts continue to draw remedial single-member district lines in part because of the assumption that multimember elections without districts cause vote dilution.⁷⁴ This assumption forms one basis of the Supreme Court’s presumption in favor of single-member remedies.⁷⁵

As it turns out, courts have misunderstood the connection between multimember elections and vote dilution. Certain kinds of multimember elections, described below, do cause vote dilution. But multimember elections can occur without vote dilution so long as they collect enough information from voters. An RCV ballot collects a full menu of voter preferences. The combination of RCV and multimember districts permits multimember elections without vote dilution.

This Section uses Mobile, Alabama, a subject of vote-dilution litigation in the 1980s, to discuss the available remedies.⁷⁶ When the Supreme Court heard a challenge about racial vote dilution in Mobile in the 1980s, Black voters made up 35 percent of Mobile’s electorate and white voters the remaining 65 percent.⁷⁷ Despite this multiracial electorate, no Black candidate in Mobile had ever been elected to a seat on Mobile’s three-member city commission.⁷⁸ By the 1980s, the problem was not that Black voters were barred from casting ballots. They could access the voting booth. But their votes, once cast, were diluted and lost in a sea of white votes because of the way Mobile held elections.⁷⁹

Mobile held separate, citywide contests for the three seats on the city commission.⁸⁰ The candidate with the most votes in each contest earned the seat.⁸¹ In other words, Mobile held multimember elections with no districts (e.g., an at-large election) and selected winners in each contest via single-choice vote. The important implication of these rules was that the contest for each seat involved the same voters and could involve the same coalitions. Any coalition big enough to outvote opponents in the race for one seat was able to do the same in the races for the other two. This was a recipe for vote dilution.

In Mobile, white voters were a majority of the electorate and Black voters the minority. It followed that if white and Black voters lined up behind opposing candidates in all three contests, as usually happened,⁸² the Black community’s candidates would lose every time. Such a system, as Professor Lani Guiner has described, allowed “[f]ifty-one percent of the population [to] consistently decide[] one hundred percent of the elections.”⁸³

Beginning in the early twentieth century, jurisdictions across the country used this election format to dilute the votes of Black communities and other minorities.⁸⁴ Courts came to solve this brand of vote dilution by jettisoning multimember elections and incorporating single-member districts.⁸⁵ Single-member districts solve dilution by subdividing territory. A minority at the jurisdiction level can turn into a majority at the district level. In Mobile, if there had been single-member districts, Black voters could constitute a majority in one of three smaller subdivisions of territory. Consequently, when the community voted as a bloc, it could earn one of the three seats up for election.⁸⁶

Single-member remedies require subdividing territory and drawing districts, however. When a court administers a single-member remedy, a court has to decide where to draw lines. A court would have to decide which neighborhoods belong together in a district. In Mobile, the court would have to decide which of the city’s Black voters belonged in a majority-minority district.⁸⁷ A legislature or democratically responsive body might credibly make decisions about whether, for instance, a city block should go in district A or B.⁸⁸ But, as the Supreme Court has emphasized, this kind of decisionmaking is a strange fit for the courts.⁸⁹

Courts have nonetheless accepted responsibility for drawing districts, in part because of the assumption that single-member districts are the only viable remedy.⁹⁰ But multimember RCV is a remedy that also cures vote dilution. If Mobile had used multimember RCV, the city would still hold one election.⁹¹ All candidates would run in the same contest rather than for a particular seat (e.g., for seat one or seat two). RCV would set the “threshold of exclusion,” or the threshold needed for victory, at 25% plus one vote.⁹² Because the threshold of exclusion (25%) is lower than the size of Mobile’s Black community (35%), Black voters could elect a candidate of choice if they voted as a bloc—the same outcome as in the case of single-member districts.

The distinctive feature of RCV, the ranked-choice ballot, would enter the picture in the scenario where some of the top candidates only earned tiny fractions of the vote. If fewer than three candidates earned more than 25% of the vote after a first pass, RCV would use the other preferences collected on the ballot to find the most preferred remaining candidate. Voters whose first-preference candidate had already won or who were assuredly going to lose would have their ballots reallocated to a second-preference candidate. This process would repeat until a third winner, with more than 25% of the vote, emerged.⁹³

Multimember RCV, like single-member districting, can solve vote dilution because it permits a minority coalition to earn seats. But the example of Mobile has suggested that multimember RCV takes a comparatively less intrusive approach. Single-member districts divide a territory into small chunks, so that a minority at a jurisdiction level becomes a majority at the district level. Multimember RCV’s method is to simply lower the number of votes required for victory in the jurisdiction writ large.

The discussion thus far has suggested that multimember RCV offers a simple value add. The status quo of single-member districts requires that courts divide up communities into districts. Multimember RCV might absolve the court of the need to draw any districts at all. This description is accurate so far as small jurisdictions like Mobile go. In general, however, a multimember RCV election requires some districts rather than none. As explored below, an RCV ballot that seeks to elect more than a few candidates from a single ballot becomes unmanageable.⁹⁴ No matter the jurisdiction, however, multimember RCV delivers a simplified remedial task for the judge because it reduces the number of districts that need drawing.

RCV elections require districts when the number of representatives to be selected is too great for one ballot. Mobile, for instance, sought to elect three city commission members. An RCV ballot in Mobile would accordingly require that voters rank roughly four or five candidates, a task that scholars assume voters can handle.⁹⁵ But suppose a court imposed at-large RCV on Texas for elections to the Texas State House. That chamber has 150 members.⁹⁶ An RCV ballot in these circumstances would ask voters to articulate, for instance, their seventy-fifth preference among candidates for state legislature. If about half of Americans cannot name a Supreme Court justice,⁹⁷ voters almost certainly cannot articulate a seventy-fifth preference among candidates in a state legislature race.

It would be one thing if an RCV ballot requiring hundreds of rankings were futile but inconsequential. In fact, RCV cannot work as advertised if voters cannot articulate a sufficient number of preferences on their RCV ballot.⁹⁸ When voters mark only a few preferences but not an entire slate—say, preferences 1 through 5 but not 5 through 150—an RCV election may succumb to a problem called “ballot exhaustion.”⁹⁹ That problem works as follows. When ballots are left uncompleted, RCV is unable to reallocate “wasted” votes (e.g., those spent on Ralph Nader) to candidates who remain viable. This means RCV cannot protect against the undesirable outcomes of vote splitting. Most voters, for instance, might prefer Candidate A to Candidate B. But suppose these voters have even stronger preferences for Candidates C, D, E, or F. If these voters split their top-preference votes among C, D, E, and F, and fail to indicate their more weakly held preference for Candidate A, Candidate B can win. In other words, when voters do not articulate a full slate of preferences, RCV may elevate unpopular candidates, like B, who win only because opponents split votes.

RCV cannot, therefore, facilitate an at-large election (that is, a districtless election) when dozens of seats need filling. But this does not mean RCV cannot apply in any form in a jurisdiction like Texas. Where an at-large RCV election is impractical, jurisdictions can adopt RCV with multimember districts.¹⁰⁰ As an example, Texas might not hold a single RCV election for 150 representatives. Instead, it could divide its territory into fifty districts of three members each. No individual voter would need to articulate more than perhaps five preferences, since each ballot would also seek to elect three representatives in a particular district.¹⁰¹ But the election as a whole would produce 150 winners, as desired.

The jury is still out on exactly how many preferences an RCV election can rely on voters to articulate. In other words, debate continues about how many multimember districts a jurisdiction like Texas might require, and therefore about the extent to which RCV would absolve map drawers of the need to draw districts.¹⁰² Some scholars have suggested that voters can competently participate in RCV elections that select five representatives.¹⁰³ Empirical studies of ballot exhaustion in recent RCV elections suggest even five may be too many.¹⁰⁴ While research on voters’ competencies develops, it makes sense for judges ordering RCV to err on the side of caution by selecting multimember districts of sizes of two, three, or four.

Regardless, the essential benefits of RCV for remedial redistricting remain, because RCV allows larger districts, and larger districts simplify the judicial task. An RCV election that used multimember districts could increase the population size of every district by a factor of at least two or three and reduce the number of districts needing drawing by the same amount. Crucially, when districts are bigger, a given district is more likely to subsume an area and less likely to pose difficult questions about how to draw lines through that area. When judges can draw districts that preserve existing boundaries—county, city, municipal, or political—judges need not make sui generis decisions about which voters should belong together.¹⁰⁵ The existing boundaries provide the relevant guidance. But when districts must break these provided-for lines, the rules have run out and judges must make decisions about defining political community themselves. By increasing the sizes of districts, multimember RCV absolves judges of making some of these choices.

Multimember RCV may generate appreciable gains even if it only permits elections of two or three representatives at a time. To make these benefits more concrete, consider a stylized example of the relationship between the size of a state house district, and the number of counties that a map drawer of state house districts must break. Whenever a county’s population is bigger than the size of a state’s house districts, a map drawer must necessarily break up that county, since the county cannot fit inside the district. Counties that can fit inside a district may require splitting, too, since a district that encircles a smaller county will not achieve the required population without adding pieces of other counties. But not every such big county needs breaking up. Thus, the percent of a state’s counties that exceed the size of a state house district provides a rough cut of how many counties a map drawer must break up when designing state house elections.

By this measure, RCV could significantly simplify redistricting remedies if it merely allowed multimember districts of two or three members. Across states with single-member districts in their lower houses,¹⁰⁶ 35 percent of the counties in the typical (median) state are bigger than the corresponding house districts. If districts doubled in size, however, only 18 percent of the counties in the median state would exceed the size of a district; if the district size increased by a factor of three, only 12 percent of the median state’s counties would exceed the size of a district.¹⁰⁷ These numbers suggest that judges would break up significantly fewer counties under multimember RCV because districts could be drawn to include more voters.

The upshot of all this is that whether in its at-large or multimember form, RCV requires much less ingenuity from the court even as it provides a remedy. Rather than ask a judge to decide which voters belong to the same community as defined by certain district lines, multimember RCV permits larger districts that allow voters to join, or not join, in coalition as they choose.¹⁰⁸ Since multimember RCV does not dilute minority votes but still keeps courts away from precarious fact-specific inquiries, courts should order the practice as a remedy in redistricting cases.

One final clarification is in order. Multimember RCV is not the only election method that simultaneously avoids single-member districts and remedies vote dilution. Multimember RCV avoids vote dilution by collecting second and third preferences. But other multimember election schemes solve vote dilution by collecting different kinds of information: for instance, in Europe, many proportional systems collect voters’ preference for party.¹⁰⁹ This Note focuses on multimember RCV for several reasons. In the broader universe of multimember election methods, only three election types allow voters to cast votes for candidates (as opposed to parties);¹¹⁰ American law and tradition approves only of voting for candidates.¹¹¹ Of these three—RCV, cumulative voting, and limited voting¹¹²—multimember RCV has received the most recent sustained attention from the press as well as from jurisdictions contemplating a shift in election method.¹¹³ This makes it most compatible with the doctrines discussed in Section II.B, which sensibly take account of whether a jurisdiction is familiar with a remedial election method. Setting aside popularity, however, this Note takes no strong stand on the merits of multimember RCV relative to these other methods—cumulative voting or limited voting—as a remedy.

B. Redistricting Doctrine and the Errors of a Junior-Partner Approach

American law resists multimember RCV as a remedy not only because of concerns about vote dilution but because of its particular view of the relationship between courts and legislatures. The law calls for courts to craft a remedy that the legislature might plausibly have created itself.¹¹⁴ Usually, that remedy is single-member districts with SCV. This Section applies the doctrine to multimember RCV and situates it in broader context. It then critiques the quasi-legislative choices that this approach forces upon courts.

The Supreme Court has explained that a court’s redistricting remedy must not “intrude upon state policy any more than necessary.”¹¹⁵ The Court elaborated, in White v. Weiser, that courts must not “pre-empt the legislative task” and must “honor state policies.”¹¹⁶ As for how to do so, the Court instructed lower courts to consult the priorities and policies as expressed in “statutory and constitutional provisions or . . . the reapportionment plans proposed by the state legislature.”¹¹⁷ We can understand this as a “hypothetical intent” test: the court inquires into what the legislature might have done had it created an election system without the invalid element.¹¹⁸

This understanding of deference is not unique to redistricting. In many areas of law, courts defer to a legislature.¹¹⁹ And, in many areas of law, courts have deferred precisely as the Court in Weiser advised by seeking to carry out the legislative purpose.¹²⁰ This approach is familiar from purposivist methods of statutory interpretation,¹²¹ and it calls to mind the “junior partner” model of the courts.¹²² That is, under purposivism as well as remedial redistricting doctrine, courts act as partners of the legislature to fill in gaps in a statutory scheme. In the process, judges may exercise some of their own ingenuity, practical judgment, and discretion. That is not only tolerable, but commended: as junior partners, courts are trusted collaborators with the legislature.¹²³

By adopting a junior-partner approach to redistricting, the courts have rejected what scholars have called the “faithful agent” approach.¹²⁴ We may recognize this theory from one of its instantiations, textualism. Under a faithful-agent approach, courts should not inquire into legislative intent and purpose. These indicia are too vague to offer guidance. Courts better respect the limits of the judicial role by adopting decision rules, often formalistic ones, that prevent courts from acting as legislatures themselves.¹²⁵ Multimember RCV, this Note argues, is a useful remedy because it provides such a decision rule.¹²⁶

1. The Current Doctrine Applied to RCV

The Supreme Court has never weighed in on multimember RCV as a remedy.¹²⁷ But we can readily apply the Court’s junior-partner approach to remedial multimember RCV. In the typical case, where a legislature passed an invalid single-member district map, the court would seek to recreate state policy and therefore recreate a single-member map. Multimember RCV would fail not only because it swapped in a multimember map where the legislature wanted a single-member map. It would fail because—except in a very unusual case—the legislature has a preference for SCV, not RCV.¹²⁸ Imposing multimember RCV on a legislature that never requested it would, very clearly, intrude too much on state policy. A court doing so would not be acting as the hypothetical legislature would.

The junior-partner approach would not disqualify multimember RCV in all cases. Where the legislature passed an invalid multimember map, multimember RCV might be tempting as a way to respect a legislature’s status quo preference for multimember elections. Several district courts have ordered multimember cumulative voting for just this reason.¹²⁹ In 2016, for instance, after finding that Ferguson, Missouri’s school districts violated the Voting Rights Act, a district judge ordered multimember cumulative voting to preserve the city council’s existing multimember elections.¹³⁰

But multimember remedies for a multimember status quo are unusual. Courts usually put forward single-member districts to replace multimember districts without even explaining the choice.¹³¹ When courts have addressed the issue head-on, they have suggested that forcing a legislature to adopt an alternative scheme for tabulating votes, like RCV, would be too grave an intrusion—even if the intrusion also preserves a multimember status quo. In Harper v. City of Chicago Heights, for example, the Seventh Circuit reversed a court order for multimember cumulative voting, noting that “[p]rior to the district court’s order, the parties had never thought of cumulative voting.”¹³² In a similar case, the Eleventh Circuit put matters more strongly: “The federal courts have no authority to conjure up such an election scheme and impose it on a state government, regardless of the theoretical prospect of increasing minority voting strength.”¹³³ Under a junior-partner vision, in short, the imposition of multimember RCV or another alternative voting scheme unacceptably contravenes the preferences of the legislature whose map needs remedying.

2. Criticism of the Current Doctrine

Part and parcel of the junior-partner approach to redistricting is the fact that courts will exercise their discretion and practical judgment to fill out a statutory scheme.¹³⁴ The junior-partner approach indeed envisions courts as trusted partners. But the pitfall of a junior-partner approach is that courts may play more than a “junior” role; they might become major decisionmakers. Under current doctrine, courts are asked to draw new maps and make enormous numbers of unguided, quasi-legislative, and potentially arbitrary decisions. There are significant drawbacks to the current approach.¹³⁵

One way to appreciate how major the role of the court is under current doctrine is to revisit the case of the multimember status quo. Return to the case of Mobile in 1980, in which the votes of Black voters were diluted using single-choice voting in multimember districts.

The current doctrine would ask the courts to order the remedy that Mobile might have created itself. But this ultimately requires that courts speculate about questions that Mobile’s City Commission never answered. Mobile’s past map expressed a preference for multimember elections and SCV.¹³⁶ But the vote dilution claim requires that Mobile choose between its multimember elections and SCV. Would Mobile prefer to retain its familiar ballot but subdivide its territory into single-member districts? Or would Mobile rather retain its multimember elections but adopt an unfamiliar RCV ballot? The junior-partner approach trusts courts to guess without much guidance.

The same absence of structure reappears in more alarming form when courts seek to draw new single-member districts. When courts determine that “state policy” advises in favor of single-member districts, the junior-partner model advises courts to design the map that the legislature would have drawn itself. To do so, courts attempt to make changes where necessary to fix the illegal map.¹³⁷ Courts also look for guidance in state policy on redistricting—in the constitutional provisions, statutes, and legislative committee reports that explain how a state believes districts should look.¹³⁸

In the example of Texas in the 2010s, for instance, the Supreme Court instructed the district court to hew closely to state policy as embodied in the previous map, moving lines and districts only where necessary to cure that plan’s legal defects.¹³⁹ The Court encouraged the district court to rely on redistricting criteria from state law as well.¹⁴⁰ These criteria often include compactness, contiguity of districts, and respect for the existing boundaries of political subdivisions.¹⁴¹

Yet how much guidance can courts truly elicit from state policy about how to draw districts? The previous map discloses to a court where the legislature wanted to draw lines. But it cannot tell a court how to choose among the different ways to draw new lines. Curing a redistricting violation means adding and subtracting a group of voters from an invalid district.¹⁴² A court will need to enlist its own judgment to decide among different ways to add and subtract. Furthermore, because every district must have equally sized populations, a court cannot take voters out of the invalid district and put them in a neighboring district without, in turn, subtracting a new round of voters from that neighboring district, and so on.¹⁴³ These cascading effects may radiate outwards from the invalid district, requiring courts to make not only minor tweaks to the district in question but also changes throughout the redistricting map.¹⁴⁴

As for the guidance that courts can expect to find in state redistricting policies, the principles themselves are undefined and conflict with each other. Compactness, for instance, is the widely accepted idea that districts should look square shaped and “regular.”¹⁴⁵ Neither experts nor courts can agree on precisely how to measure compactness, and the various definitions in use often contradict each other.¹⁴⁶ What’s more, compactness can conflict with other legally mandated redistricting goals. For example, the Voting Rights Act prohibits racial vote dilution, and racial vote dilution often entails “packing” voters of color into one district in order to confine their influence to only that one district.¹⁴⁷ But because many voters of color live in denser urban areas, even a compact redistricting scheme may lead to city districts “packed” with voters of color. By contrast, a scheme with oddly shaped district maps can make the votes of marginalized communities appropriately strong.¹⁴⁸

A final sign of the major role that courts have come to play under a junior-partner model is related to personnel. To redistrict, courts usually hire not only a special master, but also experts on local political geography, technicians, computer specialists, and “a staff of people producing and handling the enormous amount of documentation that often accompanies a plan.”¹⁴⁹ A court transfigures into a small administrative agency or legislative office in order to achieve a new redistricting map.¹⁵⁰

III. In Support of Multimember RCV as a Remedy

A junior-partner approach accepts that remedial redistricting relies heavily on courts’ ingenuity. A faithful-agent approach would prefer a strict framework that prevents courts from making unguided policy decisions. This Part argues in favor of a faithful-agent approach to redistricting and multimember RCV as a remedy, for two main reasons. First, multimember RCV as a remedy would align redistricting doctrine with broader currents in the law that have come to emphasize a faithful-agent understanding of the courts. Second, multimember RCV helps courts avoid weighing in on the boundaries of racial identity.

A. Multimember RCV as Best Aligned with the Surrounding Law

The first reason that courts should adopt multimember RCV as a remedy, as well as a faithful-agent approach to redistricting, is that it would align redistricting doctrine with the dominant view of the proper relationship between courts and legislatures. The debate between junior-partner and faithful-agent approaches has played out most thoroughly in the field of statutory interpretation.¹⁵¹ And the trends there point strongly in a faithful-agent direction.¹⁵² As this Section shows, moreover, these trends have already left their mark on one quasi-remedial doctrine: severability. Remedial redistricting law should take the cue and change as well.

Through the 1970s, judges approached statutory interpretation on a theory that the courts have since rejected.¹⁵³ But that theory lives on in today’s remedial redistricting doctrine. In the previous era of statutory interpretation, judges read statutes so as to effect state policy.¹⁵⁴ They inquired into the goals and logic of statutes.¹⁵⁵ They operated as partners of the legislature, conceiving of their judicial task in quasi-legislative terms.¹⁵⁶ The seminal cases on redistricting remedies emerged at the same time, during this pre-textualist era of statutory interpretation.¹⁵⁷

Judges and scholars today have moved in a textualist direction—“we are all textualists now”¹⁵⁸—in part because of a preference for constraints on judicial discretion over adherence to state policy. Reading a statute so as to carry out its intent was said to empower judges to make policy; it was akin to “looking over a crowd and picking out your friends.”¹⁵⁹ Statutes and their legislative histories may contain multiple and contradictory purposes.¹⁶⁰ A method of statutory interpretation that pursues legislative purpose counts on a judge to resolve these tensions in a sensible way.¹⁶¹ But the process of resolution requires something akin to policy judgment. It might allow, or even require, that judges “write their own preferences into the statute” by looking out over available readings and picking their preferred one.¹⁶²

This critique of statutory intent bears an obvious resemblance to the criticisms Section II.B levied at the contemporary approach to redistricting. Under contemporary doctrine, judges seek to draw the map that the legislature might have drawn. But that legislative intent proves hard to divine, just as statutory purpose is hard to divine. Courts are empowered to make quasi-legislative decisions according to their own best judgment about where to place district lines.¹⁶³

Textualists’ alternative to intent mirrors this Note’s solution to the problem of court-drawn districts. Textualists advise that a judge respect the separation of powers by focusing only on the concrete question of what the statute’s words actually mean.¹⁶⁴ By emphasizing text at the expense of legislative intent, textualism puts a thumb on the scale in favor of interpretations that may conflict with a statute’s goals.¹⁶⁵Textualists accept friction with state policy as the cost of an interpretive method that avoids the policymaking pitfalls of an intent-focused approach.¹⁶⁶ A multimember RCV remedy likewise sacrifices fit with state policy for the sake of rule-like constraints on the judge.

The trend towards faithful-agent approaches has not meant that courts must discard legislative intent entirely. Where the alternative to legislative intent is plainly implausible, courts may continue to rely on it. For instance, in another area of remedies, severability, courts still foreground an intent-based question: how a legislature would choose to rewrite a statute after a court invalidates one of its provisions.¹⁶⁷ Justice Thomas has disparaged the severability analysis in familiar, faithful-agent terms. Severability involves the Court taking a “blue pencil” to statutes as part of a “nebulous inquiry into hypothetical congressional intent.”¹⁶⁸ And he is not wrong that the inquiry into legislative intent is difficult and indeterminate, since Congress does not always leave clear instructions about how a court should reconstruct a partially invalidated statute.¹⁶⁹ But severability doctrine persists,¹⁷⁰ in part because the alternative is hard to imagine. As Michael Dorf has argued: “[W]ould the invalidation of some snippet of text imply the invalidation of everything else that was enacted as part of the same omnibus bill as that snippet?”¹⁷¹Courts have no choice but to reconstruct intent during a severability inquiry, in other words, because the more mechanical alternative—a blunt invalidation of the entire statute—seems patently unacceptable.

The central virtue of multimember RCV is that it provides courts an entirely plausible alternative to the search for intent. A court that applies multimember RCV enacts a rule-like remedy, consistent with the current vision of the relationship between courts and legislatures. But this remedy is also a manageable and workable substitute for single-member districts.

B. Multimember RCV as a Restraint on the Courts in Issues of Race

A second reason to prioritize a faithful-agent approach to redistricting, and multimember RCV in particular, is that multimember RCV allows courts to sidestep constitutionally and politically fraught questions about the scope of a racial community. A multimember RCV remedy offers a remedial bargain. By imposing an unfamiliar balloting system onto a legislature, a court can avoid the task of defining racial communities. The first imposition is not like the second. The Constitution provides no special protection for single-member districts or the single-choice vote.¹⁷² By contrast, drawing districts requires courts to juggle a range of race-related harms that are cognizable under the Equal Protection Clause and the Voting Rights Act. Given the difficulty of the balancing that districting requires, and the significance of the racial harms at stake, it is all the more important to reserve these decisions for legislatures, not courts.

Drawing districts threatens at least two serious race-based harms: one of constitutional status, and one protected by the Voting Rights Act. The first limitation, of constitutional status, is that map drawers cannot too obviously take race into account when drawing districts, lest a map send the message that voters are defined only by their race.¹⁷³ In a line of cases beginning with Shaw v. Reno, the Supreme Court has held that the shape of a district cannot suggest that the district was drawn solely or predominantly for the purpose of encircling voters of color.¹⁷⁴ If district lines take too many twists and turns, look too gerrymandered or “highly irregular” and “bizarre,”¹⁷⁵ the district broadcasts a message of racial essentialism. It suggests that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidate at the polls.”¹⁷⁶ This harm is serious enough to trigger strict scrutiny.¹⁷⁷

Shaw thus proscribes courts—or any map drawer—from taking race too much into account when drawing districts. But courts engaged in redistricting cannot ignore race either. The Voting Rights Act requires that map drawers empower minorities to elect candidates of choice when possible.¹⁷⁸ Usually, this involves drawing single-member districts in which a community of color can constitute a majority (a so-called majority-minority district).¹⁷⁹ Hence, a court engaged in redistricting always walks a fine line between relying on race too much and too little—between a VRA violation that consists in racial vote dilution and a constitutional violation of excessive racial gerrymandering. One judge has analogized complying with Shaw and the VRA to making the passage between Scylla and Charybdis.¹⁸⁰ On all sides in the redistricting process looms the risk of cognizable racial harms.

Even when districts neither violate Shaw nor the VRA, moreover, districts may disturb norms that are adjacent to constitutional bars. In particular, the process of districting may require that judges decide on the boundaries of racial communities. Whenever a community of color is too big to fit in one single-member district, the map drawer must decide who belongs together and who does not. Traditional redistricting principles will sometimes provide other bases on which to draw the lines. But because these principles are so often undetermined, the map drawer will often be left to make decisions about who constitutes a racial community.¹⁸¹ The Supreme Court has not squarely labelled this sort of undertaking constitutionally suspect.¹⁸² And the act of identifying racial communities of interest is, of course, not categorically bad; on the contrary, remedying histories of discrimination requires it.¹⁸³ But doing so requires sensitivity to nuance, careful use of data, and skepticism of rigid generalizations.¹⁸⁴ There is good reason to believe that the federal judiciary, especially the current one, has neither the competence nor the ideological inclination to handle this delicate subject effectively.¹⁸⁵

All this is to say that the act of drawing districts requires that judges balance, avoid, and navigate around various racial harms. Some have constitutional status, such as the prohibition against making race the dominant motive when redistricting. Others flow from landmark civil rights legislation, the Voting Rights Act. And others are adjacent to constitutional norms, namely, the concern about the competence of federal judges to decide how to divide up racial communities. Multimember RCV may impinge on a legislature’s choices as between balloting methods. But a practice of court-ordered multimember RCV has the decided virtue of saving for the legislature, and keeping away from courts, fact-intense, higher-stakes decisions about racial identity.

As for how exactly multimember RCV helps avoid these problems: multimember RCV does not entirely absolve courts of the responsibility for drawing districts, as Part II explained. But multimember RCV permits courts to draw fewer districts of much greater sizes, while respecting other preexisting districting norms.¹⁸⁶ A multimember RCV district might have two, three, or four times the population of a typical single-member district. This lessens the impact of both problems discussed above.

RCV with multimember districts means that courts will less often face the scenario that triggers the tension between the VRA and Shaw. In this sort of scenario, voters of color live somewhat far apart—say, on the opposite sides of a city.¹⁸⁷ The map drawer can draw, unartfully, a single district that includes both communities, at the risk of violating Shaw. Alternatively, the map drawer can keep the communities separate, at the risk of violating the VRA, which might require that these communities occupy a single district.¹⁸⁸ Multimember RCV permits districts that are at least twice the size—and perhaps five times the size—of a single-member district. As districts grow in size, more and more decisions about whether or not to include two distantly separated communities become moot. This is why proponents of multimember RCV and similar systems have said that RCV would allow voters “to coalesce along whatever lines they wish without requiring the state to involve itself in these groupings.”¹⁸⁹Rather than asking judges to decide on district lines, voters decide who they belong with based on their own votes.

Multimember RCV will, likewise, moot many decisions about how exactly to divide up a particular community of color. A map drawer needs to make decisions about who constitutes a racial community whenever the number of voters of color is too big to fit in one district. But the bigger a district, the more likely it is that a community of color will fit squarely inside a single district, and the less likely it is that a judge will need to make the decision of who belongs in and who belongs out.¹⁹⁰

Conclusion

When the Supreme Court took on abuses of redistricting in the 1960s, the Court appeared to face an unappealing choice at the remedial stage: order multimember districts at the risk of causing vote dilution, or order single-member maps and risk the fraught enterprise of line drawing. However, the courts can cure vote dilution without drawing a district for every representative elected through the use of multimember RCV. As doctrinal climates change, and the federal bench retrenches on matters of race, we should look to a remedy during the next redistricting cycle that places only mild remedial demands on the federal judge.

* J.D., May 2021, University of Michigan Law School and Ph.D. Candidate, Department of Political Science, University of Michigan. I am indebted to Quinn Zhang for his advice and critiques. Thanks to the Volume 119 Notes Office for extremely valuable feedback, and to David Fegley of Volume 118 for helping me start the process. I am really grateful as well to Ben Green, Emily Kempa, Gabriel Levine, Stewart McDonald, David O’Brien, Evelyn Smith, and Patrick Wu for their interest, comments, thoughts, and support. Thanks to Professors Nina Mendelson and Rebecca Eisenberg, as well as the Winter 2020 Student Scholarship Workshop, for very productive criticism and encouragement. Thanks, finally, to Robert Lempert, Nancy Perloff, Susan Lempert, and Marjorie Perloff for following along with interest and love.