5. Multimember Districts

Introduction

As of 1998, 13 states still had multimember districts in at least one of their legislative bodies, as shown in table 7. Before the 1982 amendments to the Voting Rights Act, challenges to the use of multimember legislative districts had been based upon alleged discrimination in violation of the Fourteenth Amendment (the Equal Protection Clause) or the Fifteenth Amendment (the right of citizens to vote) to the U.S. Constitution. The question of the constitutional validity of multimember districts had “focused not on population-based apportionment but on the quality of representation afforded by the multimember districts as compared with single-member districts.” However, as a result of the Supreme Court’s holdings in City of Mobile v. Bolden and Thornburg v. Gingles, and the Voting Rights Act amendments of 1982, it seems likely that, henceforth, courts will consider challenges by racial groups to multimember districts under the Voting Rights Act as amended in 1982 and not under the Equal Protection Clause of the Fourteenth Amendment. (The Voting Rights Act is examined in detail in chapter 4.) The following overview of the case law regarding multimember legislative districts includes a discussion of challenges to multimember legislative districts by racial groups or on a partisan basis, an examination of a preference discouraging multimember legislative districts in court-constructed redistricting plans, and a discussion of the relevant law concerning congressional districts.

Table 7. Multimember Districts in Each State

Source: NCSL, 1999.

Judicial Review Of Multimember Districts

Today, a challenge to multimember legislative districts typically will arise when a racial group is of sufficient population that, if placed in a single-member legislative district, the racial group would constitute either a majority of the population or a significant percentage of the population in that district. As a majority or significant percentage of the population of a single-member legislative district, the racial group would have a considerable effort on the outcome of elections in the district. However, when placed in a multimember legislative district and combined with a larger population of another race, the racial group becomes a significantly smaller percentage of the population in the district and, consequently, its effect on the outcome of elections is proportionately diminished.

The question of the constitutional validity of multimember legislative districts has been reviewed by the U.S. Supreme Court since the first of the modern reapportionment cases. In 1964, in Reynold v. Sims, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution requires that seats in both houses of a bicameral state legislature must be apportioned on a population basis. With respect to the effect of this equal protection standard on the concept of bicameralism and its continued justification, the Supreme Court commented, in dictum, that “[o]ne body could be composed of single-member districts while the other could have at least some multimember districts.” In 1965, the Supreme Court cited this dictum in Fortson v. Dorsey, when it rejected the notion that the equal protection standard necessarily requires the formation of single-member districts.” The Court in Fortson found that a redistricting plan that consisted of a mixture of multimember and single-member districts did not on its face deny residents in a multimember district a vote approximately equal in weight to that of voters in a single-member district. In 1966, the Court reaffirmed this position in Burns v. Richardson, stating that:

Where the requirements of Reynolds v. Sims are met, apportionment schemes including multimember districts will constitute an invidious discrimination only if it can be shown that “designedly or otherwise, a multimember constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.”

Application Of The Equal Protection Clause

In 1973, the Court in White v. Regester upheld a lower court finding that certain multimember legislative districts were in violation of the Equal Protection Clause. In reaching this conclusion, the Court stated:

Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.

Thus, the Supreme Court invalidated the use of multimember legislative districts in two Texas counties because the redistricting plan had operated to cancel out or minimize the voting strength of Black and Mexican American communities.

However, starting with Whitcomb v. Chavis in 1971, the Supreme Court acknowledged that multimember districts violate the Equal Protection Clause if the districts were “conceived or operated as purposeful devices to further racial or economic discrimination.” In its 1980 decision in City of Mobile v. Bolden, the Supreme Court, citing Whitcomb v. Chavis, refused to find a violation of the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment (the right of citizen’s to vote), or Section 2 of the Voting Rights Act because the Court found that the plaintiffs failed to show a discriminatory purpose.

In Rogers v. Lodge the Supreme Court reaffirmed its holding in Bolden and upheld, for the first time since Regester nine years earlier, a lower court finding of a violation of the Equal Protection Clause in the use of multimember districting (albeit a county governing board rather than a state legislative body). Just two days before the Supreme Court handed down its decision in Rogers v. Lodge, the 1982 amendments to the Voting Rights Act were signed into law.

The Supreme Court first construed the 1982 amendments to the Voting Rights Act in Thornburg v. Gingles. In that decision, the Court explained that:

The amendment [Sec. 2] was largely a response to this Court’s plurality opinion in Mobile v. Bolden, which had declared that, in order to establish a violation of either § 2 or of the Fourteenth or Fifteenth Amendments, minority voters must prove that a contested electoral mechanism was intentionally adopted or maintained by state officials for a discriminatory purpose. Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the “results test.”

Therefore, the Supreme Court applied the new standard set forth in Section 2 (discriminatory results) to the case, rather than proceed under the more difficult constitutional standard (discriminatory purpose and discriminatory results).

In Thornburg, the Supreme Court reaffirmed that multimember legislative districts and at-large election schemes do not, per se, violate the rights of minority voters. The Court stated that minority voters who contend that the multimember form of districting violates their constitutional rights must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates. Specifically, the Court held that, unless there is a conjunction of the following circumstances, the use of multimember legislative districts generally will not impede the ability of minority voters to elect representatives of their choice:

1.  The minority group must demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member legislative district;

2.  The minority group must show that it is politically cohesive; and

3.  The minority group must demonstrate that the majority votes sufficiently as a bloc to enable the majority to usually defeat the preferred candidate of the minority.

(An in-depth discussion of the holdings in Thornburg and related cases can be found in chapter 4,)

Challenges By Political Parties

In 1986, the Supreme Court held that political gerrymandering cases are properly justiciable under the Equal Protection Clause of the Fourteenth Amendment. A constitutional challenge to multimember legislative districts based on a claim of partisan gerrymandering generally arises when a political group alleges that the use of multimember legislative districts has diminished its influence on the political process. However, to succeed in such a claim, the plaintiffs must prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. (Partisan gerrymandering is examined in detail in chapter 6.)

Districts Drawn By Courts

In the 1970s, the Supreme Court made clear its preference for single-member legislative districts by discouraging the use of multimember districts in court-drawn plans. In Connor v. Johnson, the Court held that, as a general rule, single-member districts are preferable to large multimember districts when district courts are required to fashion apportionment plans. Similarly, in Chapman v. Meier, the Supreme Court stated that “(t)he standards for evaluating the use of multimember districts thus clearly differ depending on whether a federal court or a state legislature has initiated the use … Absent particularly pressing features calling for multimember districts, a United States district court should refrain from imposing them upon a State.” However, a U.S. Court of Appeals has held that the preference for single-member districts in court-drawn plans “is not an unyielding one” and a court-drawn plan may utilize multimember districts if the court determines that 1) significant interests, which are not rooted in racial discrimination, would be advanced by the use of multimember districts and the use of single-member districts would jeopardize constitutional requirements; or 2) multimember districts afford minorities a greater opportunity for participation in the political processes than do single-member districts.

Congressional Districts

In 1967, Congress enacted legislation that provided that, in each state entitled to more than one representative under an apportionment made pursuant to the decennial census of the population, “there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative.” However, Congress has not repealed legislation enacted in 1929 providing to the contrary that:

(c) Until a State is redistricted in the manner provided by the law thereof after any apportionment … (2) if there is an increase in the number of Representatives, such additional … Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State … or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.

Addressing the inconsistency between the statutes enacted in 1929 and 1967, a U.S. District Court (in a decision affirmed by the United States Supreme Court) held that the 1967 statute (section 2c), repealed by implication section 2a(c)(5), which addressed a decrease in the number of representatives as a result of reapportionment. The district court found that nothing in section 2c suggested any limitation on its applicability, and that the floor debate on the legislation enacting section 2c indicated that Congress intended to eliminate the possibility of at-large elections, including those in situations where the legislature had failed to enact a plan. It would appear that the reasoning of the district court with respect to 2 U.S.C. §2a(c)(5) would equally apply to the provision concerning increases in the number of representatives set forth in 2 U.S.C. §2a(c)(2).

Conclusion

The U.S. Supreme Court has held that the use of multimember legislative districts is not unconstitutional per se. However, the Court has invalidated the use of multimember legislative districts where their use impedes the ability of minority voters to elect representatives of their choice. Multimember districts that discriminate against a racial group will most likely be challenged under Section 2 of the Voting Rights Act, which requires only showing that an election practice results in discrimination.

Challenges to multimember legislative districts on the ground that the districts discriminate against members of a political party will continue to be raised under the Equal Protection Clause of the Fourteenth Amendment. In these cases, a discriminatory purpose and discriminatory results are necessary elements of a successful challenge.

The Supreme Court has made clear its preference for single-member legislative districts by discouraging the use of multimember districts in court-drawn plans absent extraordinary circumstances. Congress has prohibited multimember districts for the purposes of redistricting seats in the U.S. House of Representatives. Table 8 summarizes multimember district cases.

Table 8. Multimember District Cases

Fortson v. Dorsey, 379 U.S. 433, 436 (1965).

The Supreme Court, affirming its position in Reynolds v. Sims, 377 U.S. 533 (1964), held that the Equal Protection Clause does not necessarily require the formation of all single-member districts.

Burns v. Richardson, 384 U.S. 73, 88 (1966).

The Supreme Court ruled that the Equal Protection Clause does not require that at least one house of a bicameral state legislature consist of single-member legislative districts.

Connor v. Johnson, 402 U.S. 690, 692 (1971).

The Supreme Court stated that, in court-ordered reapportionment schemes, “we agree that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multimember districts as a general matter.”

Whitcomb v. Chavis, 403 U.S. 124, 143 (1971).

The Supreme Court reaffirmed its holding that the use of multimember state legislative districts is not, per se, unconstitutional under the Equal Protection Clause, but may be “subject to challenge where the circumstances of a particular case may ‘operate to minimize or cancel out the voting strength of racial or political elements of the voting population.”’

Connor v. Williams, 404 U.S. 549, 551 (1972).

The Supreme Court affirmed its preference for single-member districts in court-ordered reapportionment plans.

White v. Regester, 412 U.S. 755, 765 (1973).

The Supreme Court, affirming the district court’s findings, invalidated the use of multimember districts in two Texas counties because the black and Mexican American communities had been “effectively excluded from participation in the Democratic primary selection process.”

Chapman v. Meier, 420 U.S. 1, 19 (1975).

The Supreme Court held that “[a]bsent particularly pressing features calling for multimember districts, a United States district court should refrain from imposing them upon a State.”

City of Mobile v. Bolden, 446 U.S. 55 (1980).

The Supreme Court ruled that a discriminatory purpose, as well as a discriminatory result, was necessary for an Equal Protection Clause violation.

Rogers v. Lodge, 458 U.S. 613 (1982).

The Supreme Court reaffirmed its ruling requiring a discriminatory purpose, but also upheld a lower court ruling of unconstitutional multimember districting.

Thornburg v. Gingles, 478 U.S. 30 (1986).

The Supreme Court applied the new Voting Rights Act language for racial multimember district violation, which necessitated only looking to discriminatory results.

Source: NCSL, 1999.

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Update:  10/31/03 (psw)
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