Proportional Ranked Choice Voting and the Voting Rights Act
In a recent City Council meeting, Commissioner Mingus Mapps requested a formal legal memo on how Portland’s charter reform – electing councilors from multi-member districts using proportional ranked choice voting (PRCV) – might interact with the federal Voting Rights Act (VRA). This is a prudent and responsible step to ensure the voters can have complete confidence in Portland’s new system.
PRCV electoral systems, like the one that Portlanders voted for in November, support the goals of the VRA by encouraging equitable representation for racial and ethnic minorities. PRCV is structurally designed to give voice to diverse constituencies. Some cities have implemented PRCV to satisfy the VRA after their previous electoral systems failed to deliver equitable results.
When Commissioner Mapps requested the memorandum, he suggested that PRCV possibly has not been “tested” in the context of the VRA. And, in a later interview, he indicated that it is “new territory.” To be sure, the Commissioner is right to note that there is little precedent when it comes to conflict between the VRA and proportional voting systems. We could not find any examples of the VRA being used to challenge multi-winner proportional ranked choice systems. But that’s for good reason: PRCV is designed to ensure equal opportunity for racial and ethnic minority groups to participate in the political process – which is precisely what Section 2 of the VRA requires.
History of PRCV and VRA
The history of PRCV and VRA interactions to date reaffirms this point, with PRCV being used to remedy violations of the VRA and to improve the ability of racial and ethnic minorities to elect their candidate(s) of choice. For example:
In 2019, in Eastpointe, Michigan, PRCV was used to resolve a Section 2 lawsuit filed by the Department of Justice (DOJ).
In 2020, in Albany, California, PRCV was referred to the ballot by city council as part of a settlement under the California Voting Rights Act, and the system is already demonstrating its ability to enhance racial and ethnic representation.
In 2022, in New York, the state legislature passed the John R. Lewis Voting Rights Act of New York, which explicitly recognizes that proportional and semi-proportional election methods (like proportional ranked choice voting, cumulative voting, and limited voting) can be used to remedy voting rights violations.
In 1999, in New York, the DOJ used Section 5 of the VRA to block an attempt to move community school board elections away from an existing PRCV system, noting that this move would likely have a retrogressive effect. This case is unique insofar as it reflected an attempt to move from a proportional system (PRCV) to a semi-proportional system (limited voting) with a higher threshold for election. Nonetheless, the case provides another example of a PRCV system being favorably reviewed by the DOJ under the VRA.
There are also numerous examples of Section 2 and Section 5 cases being resolved using other voting methods, such as cumulative voting and limited voting. And while cumulative and limited systems are often a drastic improvement over the status quo of winner-take-all, plurality elections, PRCV provides an even greater and more consistent degree of protection for minority representation. There are two reasons for this. First, under PRCV, candidates and voters do not need to act or vote strategically to reliably realize the full benefits of proportionality. That is not always the case with cumulative or limited voting. Second, under PRCV, even when a group of voters may not have the ability to elect their candidate of choice outright (which, in Portland, will require 25% of the vote in a district), that same group of voters will have more power to influence the outcome of the election. That is because PRCV incentivizes candidates to seek second- and third-choice rankings from voters in addition to first-choice rankings.
The Role of Proportionality in Section 2 Cases
The most fundamental reason why Portlanders can be confident in their reform, however, is that PRCV structurally provides what Section 2 of the VRA itself was designed to protect: equal opportunity for voters in the minority to elect representatives of their choice. In the vote dilution context, courts often measure this by first using a three-part framework known as the “Gingles test” and then evaluating all the evidence under a “totality of circumstances” test. And while Section 2 of the VRA does not require or establish a right to proportional outcomes, the Supreme Court has long recognized that a lack of proportionality is highly relevant evidence in determining whether a violation has occurred under this final step.
Underlying all of this is a foundational question: whether voters in the protected class have less ability to elect the candidate of their choice under the challenged system compared to an “objectively reasonable alternative” system.
Consider the Section 2 case currently before the Supreme Court: Merrill v. Milligan. In Alabama, roughly 27% of the state’s population is Black. But Black voters have an opportunity to elect a candidate of their choice in only one of the state’s seven congressional districts (14%). Under existing VRA doctrine, this disproportionality is strong evidence of vote dilution. And there is an objectively reasonable alternative readily available: a map that would protect Black voters’ ability to elect in two congressional districts (28%). If Alabama had drawn such a map from the outset, there would have been no VRA liability and no need for a lawsuit.
PRCV, by definition, provides for proportional representation and, with it, a more reliable equal opportunity to elect. That is not to say that it is categorically impossible for a PRCV system to ever produce VRA liability – and it is always worth evaluating any new electoral system to make sure that it protects voters’ equal opportunity to elect candidates of their choice. This makes the Commissioner’s call for an official legal memorandum a reasonable one.
PRCV Unlikely to Create VRA Liability
For all of the reasons above, PRCV systems will typically be highly unlikely to create VRA liability. Instead, PRCV will often be one of the best ways to cure vote dilution and enhance minority ability to elect. And at a time when the Supreme Court seems bent on cutting back on the protections that the VRA has historically provided, Portland’s reforms may do more than just avoid liability – they may serve as a model to other jurisdictions on how to effectively safeguard equitable representation for the next generation.
