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Coloring Outside of the Lines: Is State Law a Boundary on VRA Remedies?

By Eric L. Lipman

In a genuinely fascinating opinion issued yesterday, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld a lower court?s order abolishing the city council ward system in Martin, South Dakota and replacing it with an at-large council system.br /br /Two Native American voters in Martin had earlier sued to set aside the city?s ward system as violative of a href="http://www4.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001973----000-.html"Section 2 of the Voting Rights Act/a. These voters asserted that the aldermanic system in Martin diluted Native American votes so that none of the candidates preferred by their community were able to win elective office. For its part, the City replied that it was simply not possible to draw a single-member council district in Martin that included a majority of Native American voters.br /br /Agreeing that it could not draw such a district itself, the trial court ordered that the ward system of electing city council members be supplanted with an at-large election system. Presumably, by ?a href="http://www.fairvote.org/?page=563amp;mode=showallbigamp;offset=15"bullet balloting/a,? Native American voters in Martin could then elect at least one member (and perhaps more members) to the city council. This innovation, however, would be the only at-large city council election system in South Dakota; that state's law doe not otherwise provide for such an arrangement.br /br /A divided appellate panel affirmed the lower court?s entry of the injunction, concluding that the remedy did not ?intrude on state policy any more than necessary? to implement the Voting Rights Act. Disagreeing, Circuit Judge Steven M. Colloton wrote:br /blockquoteTo the extent the plaintiffs made a sufficient showing to justify a finding of liability for vote dilution under § 2, this showing required proof that Native Americans were ?sufficiently large and compact to constitute a majority in a single-member district.? a href="http://supreme.justia.com/us/478/30/case.html"Thornburg v. Gingles/a. If the record supports that conclusion (the so-called first emGingles/em precondition), then it was unnecessary for the district court to impose a remedy contrary to South Dakota law. The appropriate remedy would have been to create a district (or ward) in which Native Americans constitute a majority. The district court concluded, however, that it ?could not draw a three-ward plan that contains an effective majority of Indian voters in one ward.? If this conclusion is correct, then there was no liability for vote dilution in the first place, because the first emGingles/em precondition was not satisfied. Accordingly, I would remand the case to the district court with directions either to revisit the finding of liability and dismiss the case if the plaintiffs have failed to meet the first emGingles/em precondition, or to implement a remedy that conforms to South Dakota law by creating a ward in which Native Americans constitute a majority./blockquoteThe complete set of analyses in the case, emCottier v. City of Martin,/em are accessible a href="http://www.ca8.uscourts.gov/opndir/08/12/071628P.pdf"here/a.

Full post as published by Within the Scope on December 17, 2008 (boomark / email).