Amicus Curiae Brief — Richard Rose, et al., Petitioners v. Brad Raffensperger, Georgia Secretary of State

No. 23-1060

In the

Supreme Court of the United States

RICHARD ROSE, et al.,

Petitioners,

v.

BRAD RAFFENSPERGER,

GEORGIA SECRETARY OF STATE

Respondent.

On Petition for Writ of Certiorari to the United

States Courts of A ppeals for the Eleventh Circuit

BRIEF FOR GEORGIA CONSERVATION

VOTERS EDUCATION FUND AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

Bradley Heard

Jack Genberg

Courtney O’Donnell

Southern Poverty

Law Center

150 East Ponce de Leon

Avenue, Suite 340

Decatur, Georgia 30030

Randall T. A dams

Counsel of Record

Neema Jyothiprakash

Victoria Pavlock

Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

(212) 756-2019

randall.adams@srz.com

Attorneys for Amicus Curiae

328973

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTERESTS OF AMICUS . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. Cumulative and Limited Voting Systems Can

Remedy Vote Dilution . . . . . . . . . . . . . . . . . . . . . . 7

i.

Members of this Cou r t and the

Eleventh Circuit have Endorsed

Cumulative and Li mit ed Voting

Systems to Remedy Vote Dilution . . . . . . . . 9

ii.

Fe de r a l C ou r t s H ave A dopt e d

Cumulative and Li mit ed Voting

Systems to Remedy Vote Dilution . . . . . . . 10

iii. Cumulative and Li mit ed Voting

Systems Have a Rich History in

A m e r i c a n Ele c t ion s a nd H a ve

Successfully Remedied Dilution . . . . . . . . . 13

ii

Table of Contents

Page

iv. Cumulative and Li mit ed Voting

Systems Can Remedy Vote Dilution

by Modi f y ing the Winner-Take All Feature of At-Large Systems . . . . . . . 16

III. Cumulative and Limited Voting Systems Can

Remedy Vote Dilution and Are Consistent

with Georgia’s Stated Policy Interests

in Maintaining Its At-Large System . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Allen v. Milligan,

599 U.S. 1 (2023) . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6, 21

Baber v. Dunlap,

376 F. Supp. 3d 125 (D. Me. 2018) . . . . . . . . . . . . . . . . 7

Bone Shirt v. Hazeltine,

336 F. Supp. 2d 976 (D.S.D. 2004) . . . . . . . . . . . . . . . . 6

Bone Shirt v. Hazeltine,

461 F.3d 1011 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 2

Branch v. Smith,

538 U.S. 254 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. City of Augusta,

No. CV-187-004 (S.D. Ga. 1987) . . . . . . . . . . . . . . . . . 12

Cottier v. City of Martin,

551 F.3d 733 (8th Cir. 2008), reh’g en banc granted,

opinion vacated on other grounds (Feb. 9, 2009),

on reh’g en banc, 604 F.3d 553 (8th Cir. 2010) . . . . . 10

Dillard v. Baldwin Cnty. Bd. of Educ.,

686 F. Supp. 1459 (M.D. Ala. 1988) . . . . . . . . . . . . . . 15

Dillard v. Chilton Cnty. Bd. of Educ.,

699 F. Supp. 870 (M.D. Ala. 1988) . . . . . . . . . . . . . . . 11

iv

Cited Authorities

Page

Dillard v. Chilton Cnty. Comm’n,

868 F.2d 1274 (Table) (11th Cir. 1989) . . . . . . . . . . 9, 11

Dillard v. Crenshaw Cnty.,

640 F. Supp. 1347 (M.D. Ala. 1986) . . . . . . . . . . . . . . 11

Dillard v. Town of Cuba,

708 F. Supp. 1244 (M.D. Ala. 1988) . . . . . . . . . . . . . . 11

Dudum v. Arntz,

640 F.3d 1098 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 7

Holder v. Hall,

512 U.S. 874 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Hous. Laws. Ass’n v. Att’y Gen. of Tex.,

501 U.S. 419 (1991), superseded by 986 F.2d 728

(5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

League of United Latin Am. Citizens, Council

No. 4434 v. Clements

986 F.2d 728 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 6

Maine Republican Party v. Dunlap,

324 F. Supp. 3d 202 (D. Me. 2018) . . . . . . . . . . . . . . . . 7

McGhee v. Granville Cnty.,

860 F.2d 110 (4th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 15

v

Cited Authorities

Page

Mo. State Conf. of the Nat’l Ass’n for the

Advancement of Colored People v.

Ferguson-Florissant Sch. Dist.,

219 F. Supp. 3d 949 (E.D. Mo. 2016),

aff’d 894 F.3d 924 (8th Cir. 2018) . . . . . . . . . . . . . 10, 12

Moore v. Beaufort Cnty.,

936 F.2d 159 (4th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 10

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994) . . . . . . . . . . . . . . . . . 9, 20

Rogers v. Lodge,

458 U.S. 613 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rose v. Raffensperger,

619 F. Supp. 3d 1241 (N.D. Ga. 2022) . . . . . . . . . . . . . 5

Rose v. Sec’y, State of Georgia,

87 F.4th 469 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 5

Rural W. Tenn. Afr. Am. Affs. Council, Inc. v.

Sundquist,

29 F. Supp. 2d 448 (W.D. Tenn. 1998),

aff’d sub nom., 209 F.3d 835 (6th Cir. 2000) . . . . . 5-6

Thornburg v. Gingles,

478 U.S. 30 (1986) . . . . . . . . . . . . 2, 3, 5, 6, 7, 19, 20, 21

vi

Cited Authorities

Page

United States v. Euclid City Sch. Bd.,

632 F. Supp. 2d 740 (N.D. Ohio 2009) . . . . . . . . . 12, 18

United States v. Marengo Cnty. Comm’n,

731 F.2d 1546 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . 9

United States v. Village of Port Chester,

704 F. Supp. 2d 411 (S.D.N.Y. 2010) . 7, 8, 10, 11, 21, 19

CONSITUTIONS

Ga. Const. art. IV § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

COURT FILINGS

Consent J. & Decree, United States v. Town of

Lake Park, No. 09-80507 (S.D. Fla. Oct. 26,

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Consent Decree, Weddell v. Wagner Cmty. Sch.

Dist., No. 02-4056 (D.S.D. Mar. 18, 2003) . . . . . . . . 13

STATUTES

52 U.S.C. § 10301(a) (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 5

Conn. Gen. Stat. Ann. § 9-167a (West 2023) . . . . . . . . . 15

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vii

Cited Authorities

Page

Voting Rights Act § 2 . . 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 21

OTHER AUTHORITIES

Alternative Voting Methods in the United States,

U.S. Election A ssistance Comm ’n (Apr. 4,

2023), https://www.eac.gov/election-officials/

alternative-voting-methods-united-states . . . . . . 14-15

Communities in America Currently Using

Proportional Voting, FairVote (Dec. 2009),

https://archive.fairvote.org/?page=2101 . . . . . . . . . 15

Drew DeSilver et al., More U.S. locations

experimenting with alternative voting systems,

Pew Research Center (June 29, 2021), https://

www.pewresearch.org/short-reads/2021/06/29/

more-u-s-locations- exper imenting-w ithalternative-voting-systems/ . . . . . . . . . . . . . . . . . . . . 13

Richard L. Engstrom, Cumulative and Limited

Voting: Minority Electoral Opportunities and

More, 30 St. Louis U. Pub. L. Rev. 97 (2010) . . . . . . 14

Bernard Grofman et al., Minority Representation

and the Quest for Equality (1st ed. 1992) . . . . . 12, 14

Lani Guinier, The Representation of Minority

Interests: The Question of Single-Member

Districts, 14 Cardozo L. Rev. 1135 (1992) . . . . . . 8, 17

viii

Cited Authorities

Page

Marcia Johnson, The Systematic Denial of

the Right to Vote to America’s Minorities,

11 Harv. BlackLetter L.J. 61 (1994) . . . . . . . . . . . . 15

Jur isdictions Using Fair Representation

Voting, FairVote , http://www.fairvote.org/

jurisdictions_using_fair_rep#full_list_of_fair_

voting_jurisdictions (last visited Apr. 24, 2024) . . . 15

Pamela S. Karlan, Maps and Misreadings:

The Role of Geographic Compactness in

Racial Vote Dilution Litigation, 24 H arv.

C.R.-C.L. L. Rev. 173 (1989) . . . . . . . . . . . . . . . . . . . 11

Arend Lijphart et al., The Limited Vote and the

Single Nontransferable Vote: Lessons from the

Japanese and Spanish Examples, in Gordon

E. Baker et al., Electoral Laws and Their

Political Consequences, 154 (3rd ed. 2003) . . . . . . . 17

Linda Mag ui re, An Inter view With Lani

Guinier, 19 The Fletcher Forum of World

A ffairs 99 (Winter/Spring 1995) . . . . . . . . . . . . . . . 18

Binny Miller, Who Shall Rule and Govern? Local

Legislative Delegations, Racial Politics,

and the Voting Rights Act, 102 Yale L.J. 105

(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

ix

Cited Authorities

Page

Margaret Morales, Over 300 Places in the United

States Have Used Fair Voting Methods,

Sightline Institute (Nov. 8, 2017), https://www.

sightline.org/2017/11/08/over-300-places-in-theunited-states-have-used-fair-voting-methods/ . 13, 14

St even J. Mu l roy, A lt er nat ive Elec t or a l

Systems, America Votes! Guide to Modern

Election Law and Voting Rights, A merican

Bar A ssociation (2nd ed. 2012) . . . . . . . . . . . . . . . . . . 8

Steven J. Mulroy, The Way Out: A Legal

Standard for Imposing Alternative Electoral

Systems as Voting Rights Remedies, 33

Harv. C.R.-C.L. L. Rev. 333 (1998) . . . . . . . . . . . 14, 16

Richard H. Pildes & Kristen A. Donoghue,

Cumulative Voting in the United States,

1995 U. Chi. Legal Forum 241 . . . . . . . . . . . 14, 16, 18

Nicholas O. Stephanopoulos, Our Electoral

Exceptionalism, 80 U. Chi. L. Rev. 769 (2013) . . . . 13

1

INTERESTS OF AMICUS

Georgia Conser vation Voters Education Fund

(“GCVEF”)1 is a nonprofit, nonpartisan organization that

advocates for climate and environmental justice through

policy advocacy, civic engagement and education, and

campaign advocacy. The GCVEF is part of a family of

organizations, which includes the Georgia Conservation

Fund and the Georgia Conservation Voters Action Fund.

The GCVEF focuses on educating and mobilizing voters

in Georgia on and in support of access to safe, reliable,

and affordable energy. The Georgia Conservation Voters

Action Fund supports candidates in Georgia who prioritize

climate and environmental justice issues. As a result,

GCVEF has an interest in ensuring that all Georgians,

regardless of race, can fairly participate in electing

members to the Georgia Public Service Commission,

which regulates electricity in Georgia.

Amicus submits this brief in support of Petitioners’

claims that Section 2 of the Voting Rights Act does not

require plaintiffs to propose a remedy during the injury

phase, let alone one that maintains the state’s chosen

electoral model, and that a state’s asserted policy interests

for its choice of at-large elections are not entitled to

insurmountable weight. Amicus contends that modified

1. No counsel for any party authored this brief in whole or

in part, and no counsel or party other than Amicus Curiae or

its counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Counsel of record in

this case received timely notice of the intent to file this brief,

pursuant to Supreme Court Rule 37.2. Additionally, for the Court’s

information, Brionté McCorkle, one of the Petitioners, is the

Executive Director of the Amicus.

2

at-large remedies like cumulative and limited voting

are legally available vote dilution remedies that would

maintain an at-large electoral system in Georgia. If the

Court grants certiorari and summarily reverses the

Eleventh Circuit’s decision, then governments, the courts,

and Voting Rights Act plaintiffs in the Eleventh Circuit

can benefit from the full range of vote dilution remedies.

SUMMARY OF ARGUMENT

The first Gingles2 precondition does not require Voting

Rights Act plaintiffs propose a viable, ultimate remedy,

nor does it require a proposed remedy give priority to the

state’s policy choices over ensuring the state’s minority

residents can equally participate in the political process.

Instead, the first precondition in Gingles requires

plaintiffs to demonstrate that the minority population in

question is sufficiently compact and numerous to form a

majority in a single district that is reasonably configured.

Allen v. Milligan, 599 U.S. 1, 18 (2023). In other words,

satisfying the first precondition establishes injury.

Whether or not a proposed remedy would actually remedy

vote dilution is not assessed at the liability stage, but at

the remedial stage. Bone Shirt v. Hazeltine, 461 F.3d

1011, 1019 (8th Cir. 2006) (“The court may consider, at the

remedial stage, what type of remedy is possible[,] [b]ut

this difficulty should not impede the judge at the liability

stage of the proceedings.”).

Not only does this Court’s long history applying

Gingles confirm that the time to assess viable remedies is

after establishing a Section 2 violation, but the existence of

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

3

vote dilution remedies other than single-member districts,

such as cumulative and limited voting, illustrates the

incompatibility of a viable remedy requirement within

the first Gingles precondition analysis: whatever plan

plaintiffs proffer in an effort to satisfy the first Gingles

precondition must always be a single-member districts

plan, because no other electoral structure could allow

plaintiffs to demonstrate that the minority population is

sufficiently compact and numerous to form a majority in

a single district. However, under the Eleventh Circuit’s

test, plaintiffs cannot advance beyond the first Gingles

precondition if they proffer (as they must under this

Court’s precedents) a single-member districts plan to

prove vote dilution in an existing at-large system. This

double bind would prevent legislatures and courts from

ultimately considering vote dilution remedies other than

single-member districts at the remedial stage, despite

federal courts across the country, including this Court,

having endorsed them.

Further, the proper stage to consider the State’s

asserted interest in its challenged electoral system is

during the totality-of-circumstances analysis, after

determining whether plaintiffs satisfied the three Gingles

preconditions. Under this Court’s precedents, as most

recently stated in Allen, no single factor in the totalityof-circumstances should be dispositive. 599 U.S. at 26.

Georgia’s stated reasons for maintaining its existing

at-large electoral structure cannot override all the

other factors proving that structure dilutes Black voting

strength in violation of Section 2. This is especially true

when Georgia’s purported interest in maintaining its

dilutive, at-large electoral structure is undercut by the

availability of alternative at-large electoral structures like

4

cumulative and limited voting that may not dilute Black

voting strength.

Amicus argues that compared to the voting system

currently in place for Georgia’s Public Service Commission

(“PSC”) elections, electoral structures like cumulative

and limited voting may allow Black voters in Georgia to

increase their opportunities for representation and should

be available for Georgia, the District Court, and Petitioners

to consider for three reasons. 3 First, many courts have

approved cumulative and limited voting systems to remedy

Section 2 vote dilution violations, and these systems have

been used throughout the United States for over a century.

Second, these electoral structures lower the threshold

for representation, which increases the possibility of a

minority candidate’s successful election. Third, these

modified, at-large electoral structures are consistent with

Georgia’s chosen form of government.

For the foregoing reasons, this Court should grant

the Petition and summarily reverse the Eleventh Circuit’s

decision or set the case for full merits briefing and

argument.

3. Amicus in no way suggests that a single-member districts

system is not an appropriate remedy in this case. Rather, Amicus

contends that, once Section 2 liability is determined, the State

may propose a remedy, that that remedy must be analyzed for its

appropriateness in remedying the violation, and that the State

may be able to establish that cumulative or limited voting could

remedy the Section 2 violation while still preserving its preferred

at-large voting method.

5

ARGUMENT

I.

Introduction

Regardless of a state’s chosen electoral model, Section

2 of the Voting Rights Act provides a clear directive

against any and all practices that “result[] in a denial

or abridgement of the right of any citizen of the United

States to vote on account of race or color.” 52 U.S.C.

§ 10301(a) (2014). The district court in this case found that

Georgia’s chosen electoral model for PSC elections—a

statewide, at-large electoral structure—diluted Black

voting strength in violation of Section 2’s command. Yet,

an Eleventh Circuit panel reversed because it did not

consider Petitioners’ illustrative map for the first Gingles

precondition to be a viable remedy to cure dilution because

the map did not comport with Georgia’s stated policy

interests in preserving an at-large electoral structure.

Rose v. Raffensperger, 619 F. Supp. 3d 1241, 1267-68

(N.D. Ga. 2022) (“Dist. Ct. Opinion”); Rose v. Sec’y, State

of Georgia, 87 F.4th 469, 483-84 (11th Cir. 2023) (“11th

Cir. Opinion”).

The Eleventh Circuit’s opinion erroneously rested its

analysis on a singular, elevated factor: Georgia’s interests

in maintaining its at-large system. This contradicts the

Supreme Court’s instructions that a state’s interests in

maintaining a certain electoral system should be “merely

one factor to be considered in evaluating the ‘totality of

circumstances’” and “does not automatically, and in every

case, outweigh proof of racial vote dilution.” Hous. Laws.

Ass’n v. Att’y Gen. of Tex., 501 U.S. 419, 426-27 (1991),

superseded by 986 F.2d 728 (5th Cir. 1993); see also Rural

W. Tenn. Afr. Am. Affs. Council, Inc. v. Sundquist, 29

6

F. Supp. 2d 448, 460 (W.D. Tenn. 1998) (“state’s interest

in maintaining [its current election system] is simply

insufficient alone to overcome the other factors” in totalityof-circumstances analysis.), aff’d sub nom., 209 F.3d 835

(6th Cir. 2000); Bone Shirt v. Hazeltine, 336 F. Supp. 2d

976, 1047 (D.S.D. 2004) (finding state interest did not

defeat Section 2 liability). Moreover, “[a] substantial state

interest is not inherently preclusive of dilution and is not

raised to disprove the existence of dilution. Rather, the

state’s interest is weighed against proven dilution to assess

whether such dilution creates § 2 liability.” League of

United Latin Am. Citizens, Council No. 4434 v. Clements,

999 F.2d 831, 871 (5th Cir. 1993).

Furthermore, courts must undergo the totalityof-circumstances analysis of which the state’s interest

is a factor, after determining whether the Gingles

preconditions are satisfied. See e.g., Allen, 599 U.S. at 18

(“a plaintiff who demonstrates the three preconditions

must also show, under the ‘totality of circumstances,’

that the political process is not ‘equally open’ to minority

voters.”) (citing Gingles, 45 U.S. 30, at 45-46). Despite

agreeing that the totality-of-circumstances test follows

the three Gingles preconditions, the Eleventh Circuit’s

ruling incorrectly inserted the “strong state interests”

factor into the first Gingles precondition. 4 11th Cir.

Opinion at 485.

4. The threshold inquiry is whether the plaintiff can establish

the following three preconditions: (1) that the minority group is

“sufficiently large and geographically compact to constitute a

majority in a single-member district[,]” (2) that the minority group

is “politically cohesive[,]” and (3) that sufficient racial bloc voting

exists such that the white majority usually defeats the minority’s

preferred candidate. Gingles, 478 U.S. at 50–51.

7

Therefore, Amicus joins Petitioners in asking this

Court to reject the Eleventh Circuit’s erroneous Gingles

analysis. As set forth herein, (i) cumulative voting and

limited voting are modified at-large electoral structures

that can remedy vote dilution and enjoy long-standing

acceptance in federal courts and jurisdictions across the

country, and (ii) cumulative or limited voting systems

align with Georgia’s stated policy interest in maintaining

an at-large electoral structure. 5

II. Cumulative and Limited Voting Systems Can

Remedy Vote Dilution

In a cumulative voting system, each voter has as many

votes as there are open seats up for election. United States

v. Village of Port Chester, 704 F. Supp. 2d 411, 447 (S.D.N.Y.

2010). For example, Georgia’s PSC has five members, and

5. The “single-transferable vote” is another at-large electoral

structure that can remedy vote dilution. Under this system, each

voter ranks the candidates and voters’ first choices are counted

for each candidate until a candidate receives enough votes to

win. Holder v. Hall, 512 U.S. 874, 910 n.16 (1994) (Thomas, J.,

concurring in judgment, joined by Scalia, J.). Then, the remaining

first-choice ballots are transferred to another candidate (usually

the second choice on the ballot). Id. This system “allows a minority

group to concentrate its voting power” and “has the additional

advantage of ensuring that ‘surplus’ votes are transferred to

support the election of the minority voters’ next preference.” Id.;

see also Baber v. Dunlap, 376 F. Supp. 3d 125 (D. Me. 2018) (finding

Maine’s single-transferable voting system constitutional); Maine

Republican Party v. Dunlap, 324 F. Supp. 3d 202 (D. Me. 2018)

(same); Dudum v. Arntz, 640 F.3d 1098, 1112-13 (9th Cir. 2011)

(finding no vote dilution in San Francisco’s single-transferable

voting system).

8

in 2022, two of those seats were up for election.6 Dist.

Ct. Opinion at 1249. If the 2022 PSC elections had been

conducted using cumulative voting, each Georgia voter

would have had two votes to allocate to PSC candidates.

Voters would have had the option to allocate those two

votes to a single candidate, “to express the intensity of

[their] preferences,” or to allocate one vote each to two

different candidates. Lani Guinier, The Representation

of Minority Interests: The Question of Single-Member

Districts, 14 Cardozo L. Rev. 1135, 1136 (1992).

In a limited voting system, the total number of votes

a voter may cast is less than the total number of seats to

be filled. Steven J. Mulroy, Alternative Electoral Systems,

America Votes! Guide to Modern Election Law and

Voting, A merican Bar A ssociation, 1 (2nd ed. 2012). For

example, if five commissioner seats were up for election,

voters would only be allowed to vote for four, or three, or

two candidates. Unlike cumulative voting, voters may not

give more than one vote to a candidate.

Cumulative and limited voting are clearly viable

options to remedy vote dilution as (i) members of this

Court and the Eleventh Circuit have endorsed cumulative

and limited voting, (ii) federal courts across the country

have upheld cumulative and limited voting as viable

remedies to cure vote dilution, (iii) these remedies have

a historic presence in American elections, and have

proven effective in electing minority candidates, and

(iv) they modify traditional at-large electoral systems to

6. The number of seats up for election could be increased by

eliminating staggered terms. See, e.g., Village Of Port Chester,

704 F. Supp. 2d at 447.

9

provide minority populations with an opportunity to elect

candidates of choice.

i.

Members of this Court and the Eleventh Circuit

have Endorsed Cumulative and Limited Voting

Systems to Remedy Vote Dilution.

Members of this Court and the Eleventh Circuit have

endorsed modified at-large voting systems as a potential

remedy to Section 2 violations. See Branch v. Smith, 538

U.S. 254, 309-10 (2003) (O’Connor, J., concurring in-part,

joined by Thomas, J.) (“a court could design an at-large

election plan that awards seats on a cumulative basis, or by

some other method that would result in a plan that satisfies

the Voting Rights Act”); Holder, 512 U.S. at 910 (Thomas,

J., concurring, joined by Scalia, J.) (“nothing in our present

understanding of the Voting Rights Act … limit[s] … the

authority of federal courts … from instituting a system

of cumulative voting [or other transferable voting system]

as a remedy under § 2.”); United States v. Marengo Cnty.

Comm’n, 731 F.2d 1546, 1560 n.24 (11th Cir. 1984) (listing

cumulative voting as an alternative voting method for

“effective minority participation.”); Nipper v. Smith, 39

F.3d 1494, 1559 (11th Cir. 1994) (Hatchett, J., dissenting,

joined by Kravitch, P.) (endorsing limited and cumulative

voting schemes to redress vote dilution claims); see also

Dillard v. Chilton Cnty. Comm’n, 868 F.2d 1274 (Table)

(11th Cir. 1989) (affirming cumulative voting scheme to

remedy Section 2 claim).

10

ii.

Federal Courts Have Adopted Cumulative

and Limited Voting Systems to Remedy Vote

Dilution.

Beyond this Court and the Eleventh Circuit, multiple

federal courts have ordered cumulative and limited voting

schemes as remedies for Section 2 violations. In fact, “[t]

here is no case law that rejects cumulative voting as a

lawful remedy under the Voting Rights Act. . . . Federal

courts have repeatedly mentioned cumulative voting as a

remedial option[.]” Village of Port Chester, 704 F. Supp.

2d at 448; see also Mo. State Conf. of the Nat’l Ass’n

for the Advancement of Colored People v. FergusonFlorissant Sch. Dist., 219 F. Supp. 3d 949, 957 (E.D. Mo.

2016) (“cumulative voting has been adopted as a remedy

in a number of Section 2 cases”), aff’d, 894 F.3d 924 (8th

Cir. 2018).

The Fourth and Eighth Circuits have found limited

and cumulative voting to be adequate remedies to cure

vote dilution. See Moore v. Beaufort Cnty., 936 F.2d 159,

164 (4th Cir. 1991) (striking down challenge to a limited

voting scheme to remedy a Section 2 voter dilution claim

in North Carolina, as limited voting scheme was not

“so contrary to state or federal policy that it cannot be

enforced.”); Cottier v. City of Martin, 551 F.3d 733, 745

(8th Cir. 2008) (upholding cumulative voting scheme to

remedy section 2 violation), reh’g en banc granted, opinion

vacated on other grounds (Feb. 9, 2009), on reh’g en

banc, 604 F.3d 553 (8th Cir. 2010).

Numerous federal district courts have also approved

cumulative or limited voting systems in Section 2 cases. The

Middle District of Alabama, for example, has consistently

11

approved limited and cumulative voting to remedy vote

dilution. In Dillard v. Crenshaw County., 640 F. Supp.

1347 (M.D. Ala. 1986), the court concluded that at-large

systems in five Alabama counties intentionally diluted

Black voting strength in violation of Section 2. Id. at

1362. The Dillard litigation resulted in at least two dozen

court-approved settlements providing for cumulative or

limited voting schemes, one of which was affirmed by the

Eleventh Circuit. See e.g., Dillard v. Chilton Cnty. Bd. of

Educ., 699 F. Supp. 870, 876 (M.D. Ala. 1988), aff’d sub

nom. Dillard v. Chilton Cnty. Comm’n, 868 F.2d 1274

(Table) (11th Cir. 1989); Dillard v. Town of Cuba, 708

F. Supp. 1244 (M.D. Ala. 1988); Pamela S. Karlan, Maps

and Misreadings: The Role of Geographic Compactness

in Racial Vote Dilution Litigation, 24 Harv. C.R.-C.L.

L. Rev. 173, 227 (1989). In Town of Cuba, for instance,

the court approved settlements in two towns in Alabama,

explaining that limited voting schemes are “not illegal

or against public policy [, as the] court has uncovered

nothing in federal constitutional or statutory law that

prohibits such schemes,” and that they represent a “fair

and equitable resolution” that “offers all [B]lack citizens

[] the potential to elect candidates of their choice.” 708

F. Supp. at 1246.

In addition, the Southern District of New York, in

Village of Port Chester, adopted a cumulative voting plan

to remedy the dilution of Hispanic voting strength in

elections of the village’s governing Board. 704 F. Supp. 2d

at 453. Reasoning that “[t]here is no case law that rejects

cumulative voting as a lawful remedy under the Voting

Rights Act,” the court found the proposed cumulative

voting plan remedied the Section 2 violation by “[giving]

Hispanics a genuine opportunity to elect a representative

12

of their choice.” Id. at 448-50. Although a cumulative voting

plan had never been used in villages in the state before,

with its order, the court also implemented an educational

program to help voters understand cumulative voting and

to educate them on their strategic options. Id. at 453.

Likewise, in Ferguson-Florissant School District,

the court adopted a cumulative voting system to remedy

a Section 2 violation in a Missouri school district election.

219 F. Supp. 3d at 961. The court reasoned that cumulative

voting was a lawful method to cure the vote dilution while

also “giv[ing] deference to state policy judgments . . .

[and] the School District’s priorities” by maintaining the

existing at-large electoral system. Id.

Lastly, in United States v. Euclid City School Board,

the court adopted a limited voting system to remedy

a dilutive at-large school board election system. 632

F. Supp. 2d 740 (N.D. Ohio 2009). The court reasoned

that cumulative and limited voting systems were legally

acceptable Section 2 remedies that “provide[] a cohesive

minority group increased opportunity relative to a

traditional voting system,” before selecting the limited

voting system based upon its reasoning that limited voting

would be easier for voters to understand. Id. at 755-57.

Through consent decrees, courts have also approved

settlements of voting rights actions that implemented

cumulative and limited voting systems. In fact, the

Southern District of Georgia approved a Section 2 case

settlement adopting a limited voting system to be used

in Augusta, Georgia. Bernard Grofman et al., Minority

Representation and the Quest for Equality 126 (1st

ed. 1992) (citing United States v. City of Augusta, No.

13

CV-187-004 (S.D. Ga. 1987), settled out of court); Binny

Miller, Who Shall Rule and Govern? Local Legislative

Delegations, Racial Politics, and the Voting Rights Act,

102 Yale L.J. 105, 137 (1992). More recently, the Southern

District of Florida approved a settlement of a Section 2

enforcement action against the Town of Lake Park, Florida

that implemented a limited voting system. Consent J. &

Decree, United States v. Town of Lake Park, No. 09-80507,

at 4-5 (S.D. Fla. Oct. 26, 2009); see also Consent Decree,

Weddell v. Wagner Cmty. Sch. Dist., No. 02-4056, at 3-4

(D.S.D. Mar. 18, 2003) (adopting cumulative voting plan).

iii. Cumulative and Limited Voting Systems Have

a Rich History in American Elections and Have

Successfully Remedied Dilution.

Legislatures and local governments across the

country have successfully implemented cumulative and

limited voting systems. For example, cumulative voting

elected the Illinois state house for more than a century,

and it is the method of choice for towns and counties

across Alabama, Texas, and South Dakota. Nicholas O.

Stephanopoulos, Our Electoral Exceptionalism, 80 U.

Chi. L. Rev. 769, 835 (2013); Margaret Morales, Over

300 Places in the United States Have Used Fair Voting

Methods, Sightline Institute (Nov. 8, 2017), https://www.

sightline.org/2017/11/08/over-300-places-in-the-unitedstates-have-used-fair-voting-methods; Drew DeSilver et

al., More U.S. locations experimenting with alternative

voting systems, Pew Research Center (June 29, 2021),

https://www.pewresearch.org/short-reads/2021/06/29/

more-u-s-locations-experimenting-with-alternativevoting-systems/.

14

Further, cumulative voting boasts impressive

results from the standpoint of racial and ethnic minority

representation. In the late 1980s and early 1990s, “[w]

henever minority candidates ran under a cumulative

voting system, they won for the first time in decades (or

for the first time ever).” Steven J. Mulroy, The Way Out:

A Legal Standard for Imposing Alternative Electoral

Systems as Voting Rights Remedies, 33 Harv. C.R.-C.L.

L. Rev. 333, 349 (1998). For example, since 1988, in Chilton

County, Alabama, voters have used cumulative voting to

elect members of the County’s principal political bodies,

the County Commission and the Board of Education.

Richard H. Pildes & Kristen A. Donoghue, Cumulative

Voting in the United States, 1995 U. Chi. Legal Forum

241, 242. In the first election held under cumulative voting,

“Bobby Agee became the first [B]lack representative

to be elected to the Chilton County Commission since

Reconstruction.” Id. at 272. Similarly, implementing

cumulative voting in the Village of Port Chester, New York

resulted in voters electing the first Latino to the Board

of Trustees in 2010. Richard L. Engstrom, Cumulative

and Limited Voting: Minority Electoral Opportunities

and More, 30 St. Louis U. Pub. L. Rev. 97, 99 (2010). In

South Dakota, in the 1990s and 2000s, 30-45% of the

population was Native American in some districts, yet

Native Americans’ preferred candidates rarely won

elections. After implementing cumulative voting, Native

American candidates won. Morales, supra.

Limited voting has been used since 1871 in the

United States, and it is used in school board, county

commission, and city council elections across Pennsylvania,

Connecticut, North Carolina, and Alabama. Grofman,

supra, 125; Alternative Voting Methods in the United

States, U.S. Election A ssistance Comm’n, at 5 (Apr. 4,

15

2023), https://www.eac.gov/election-officials/alternativevoting-methods-united-states; Communities in America

Cur rently Using Propor tional Voting, Fa i rVo t e

(Dec. 2009), https://archive.fairvote.org/?page=2101.

Philadelphia has used limited voting since 1951 for its

seven at-large city council seats. Id. Since 1871, by law,

all counties in Pennsylvania (except some with home

rule powers) must use limited voting to elect county

commissioners. Jurisdictions Using Fair Representation

Voting, Fairvote, http://www.fairvote.org/jurisdictions_

using_fair_rep#full_list_of_fair_voting_ jurisdictions

(last visited Apr. 24, 2024). In Connecticut, limited voting

has been required for all local school board elections since

1959. See Conn. Gen. Stat. Ann. § 9-167a (West 2023).

Like cumulative voting, in jurisdictions that have used

limited voting, it has resulted in successful outcomes for

minority candidates. Granville County, North Carolina,

first implemented a limited voting system for its school

board elections as a result of a vote dilution claim. Marcia

Johnson, The Systematic Denial of the Right to Vote to

America’s Minorities, 11 Harv. BlackLetter L.J. 61, 78

n. 135 (1994); McGhee v. Granville Cnty., 860 F.2d 110 (4th

Cir. 1988). The County had a 39.5% Black registered voter

population, and no Black candidate had been elected to

the Board in modern history. After instituting a limited

voting system, Black candidates won three of the five

board seats up for election. Johnson, supra, at 78 n. 135.

Likewise, in Alabama, after the Dillard v. Baldwin

County Board of Education, 686 F. Supp. 1459 (M.D. Ala.

1988) litigation challenging vote dilution across the state,

fourteen jurisdictions implemented limited voting systems

in settlements. Johnson, supra, at 78 n. 135. Subsequently,

Black candidates had resounding success, winning in

thirteen of those fourteen jurisdictions. Id.

16

iv.

Cumulative and Limited Voting Systems

Can Remedy Vote Dilution by Modifying the

Winner-Take-All Feature of At-Large Systems.

Cumulative and limited voting systems can remedy

vote dilution by modifying the winner-take-all feature of

at-large electoral systems. In traditional at-large elections,

candidates run on a statewide basis, which “enable[s] the

same statewide majority to control all seats.” Pildes &

Donoghue, supra, at 252. Essentially, an at-large system

“allow[s] a cohesive voting bloc with 51% of the vote to

control 100% of the seats.” Mulroy, The Way Out, at

338. Indeed, in 1842, the concern that majoritarianism

could diminish minority representation led Congress

to require for the first time that states create districts

for congressional elections. Pildes & Donoghue, supra,

at 252-53. Similar concerns exist here, where Georgia’s

statewide system for electing PSC candidates diminishes

minority representation by maintaining a winner-take-all

majoritarianism. See Dist. Ct. Opinion at 1250 (as of 2021,

53.1 percent of Georgia’s active voters are white and 29.4

percent are Black); see also Rogers v. Lodge, 458 U.S. 613,

616 (1982) (“[a]t-large voting schemes and multimember

districts tend to minimize the voting strength of minority

groups by permitting the political majority to elect all

representatives of the district.”). Cumulative and limited

voting systems may cure this defect while preserving the

statewide structure that Georgia’s legislature chose for

PSC elections.

Cumulative and limited voting systems numerically

lower the threshold for representation. This effect is known

17

as the “threshold of exclusion,” 7 which is “the number of

votes which cannot be denied representation under the

most adverse conditions.” Guinier, supra, at 1136 n. 3. For

example, in a limited voting system, if five commissioner

seats are up for election, and voters are allowed to vote

for only one seat, or if three seats are up for election and

voters can vote for only one seat, a candidate would be

guaranteed election by obtaining 16.66 percent and 25

percent of the vote, respectively. Under a cumulative

voting system, the results are the same if either five or

three seats were up for election: a candidate would need

to receive 16.66% or 25% of the vote, respectively, to

guarantee election. Reaching this threshold of exclusion is

likely achievable in PSC elections for Black voters, given

29.4 percent of active Georgia voters identify as Black,

and Black voters have voted cohesively at rates greater

than 94% in recent PSC elections. Dist. Ct. Opinion at

1250, 1253.

Compared to traditional at-large voting, cumulative

and limited voting systems lower the threshold of

exclusion to the “smallest cohesive minority group that

7. Specifically, a threshold of exclusion formula is used

to calculate the amount of the vote needed to elect a minority

candidate in a limited or cumulative voting system. For a limited

voting system, the threshold of exclusion formula is (v / (v + m)) *

100%, in which m represents the number of seats up for election

and v is the number of votes each voter can cast. Arend Lijphart

et al., The Limited Vote and the Single Nontransferable Vote:

Lessons from the Japanese and Spanish Examples, in Gordon E.

Baker et al., Electoral Laws and Their Political Consequences, 157

(3rd. ed. 2003). For cumulative voting, the threshold of exclusion

is calculated as 1 / (1 + s), where s is the number of seats to be

filled. Guinier, supra, at 1136 n. 3.

18

can control one seat under different voting systems even

if the majority (1) is uniformly hostile to the minority’s

preferences and (2) distributes its own votes cohesively

enough to maximize the majority’s effort to defeat

minority-supported candidates.” Pildes & Donoghue,

supra, at 241. 8 By lowering the threshold for minority

groups to successfully express their voting preferences

to below 51 percent, cumulative and limited voting may

remedy vote dilution where a minority group is sufficiently

compact and numerous to form a majority in a single

district without a minority opportunity district itself

being the remedy.

Cumulative and limited voting systems can also

empower Black Georgians because “it is a way of enabling

voters who feel that they are a politically cohesive minority

to vote strategically to acquire representation for their

‘minority group interests.’” Linda Maguire, An Interview

With Lani Guinier, 19 The Fletcher Forum of World

A ffairs 99, 102 (Winter/Spring 1995); see Euclid City

Sch. Bd., 632 F. Supp. 2d at 755 (“[i]t is clear enough why,

generally speaking, either [cumulative or limited voting]

provides a cohesive minority group increased opportunity

relative to a traditional voting system … if minority voters

coalesce around a single candidate, that candidate will

win so long as certain numerical conditions [] are met.”).

In fact, “experts recognize that the opportunity to elect

a candidate of choice tends to dramatically increase voter

8. The threshold of exclusion is “calculated on the assumption

that the hostile majority distributes its votes optimally among the

right number of white candidates; any deviation of the majority

from perfectly cohesive voting of this sort lowers the practical

election threshold for minority-supported candidates.” Pildes &

Donoghue, supra, at 241.

19

registration and turnout in the minority community.”

Village of Port Chester, 704 F. Supp. 2d at 451.

III. Cumulative and Limited Voting Systems Can

Remedy Vote Dilution and Are Consistent with

Georgia’s Stated Policy Interests in Maintaining

Its At-Large System.

In addition to being legally accepted and potentially

effective vote dilution remedies, cumulative and limited

voting systems align with Georgia’s stated policy

objectives. The weight of Georgia’s policy interest is

assessed as part of the totality-of-circumstances test,

where it is fair to consider the availability of alternatives

to Georgia’s chosen electoral model that satisfy Georgia’s

stated goals. See Gingles, 478 U.S. at 44-45.

Cumulative and limited voting are consistent with

the policy interests that Georgia presented in defense of

its at-large voting system—specifically, that an at-large

structure “allows commissioners to ‘work in the best

interest of the whole state.’” Dist. Ct. Opinion at 1255.

The Eleventh Circuit reasoned that statewide elections

would serve Georgia’s policy interests by “allow[ing] each

commissioner to prioritize the ‘best interest[s] of the whole

state’ without logjams from regionalized disputes,” so

that commissioners can “focus on the needs of the entire

State,” and that the PSC can be insulated “from localized

special interests.” 11th Cir. Opinion at 474, 483. Whereas,

on the other hand, single-member districts could lead to

“home cooking,” or elected officials being too closely linked

to their constituents, which would undermine fairness.

Id. at 483. The Eleventh Circuit did not articulate any

public policy of Georgia that cumulative or limited voting

20

would undermine. On the contrary, Justice Hatchett

of the Eleventh Circuit (dissenting, joined by Justice

Kravich) previously reasoned that, because limited voting

maintains the at-large structure, it “strongly diminish[es]”

the problem of elected officials “being too closely linked

to their political constituencies,” and “abolishes the

discriminatory effect of multi-member at-large elections

by removing the possibility of minority vote dilution.”

Nipper, 39 F.3d at 1559. Because cumulative and limited

voting would preserve statewide elections for each PSC

seat, they align with Georgia’s stated interest in allowing

PSC commissioners to focus on the whole state and avoid

its concern that commissioners elected from a single

district would favor the interests of their electoral base.9

In light of the fact that cumulative and limited voting

maintain Georgia’s at-large structure while potentially

remedying its dilutive effect, it is fair to consider whether

Georgia’s rejection of these modified at-large structures

renders “the policy underlying [its] use of [its at-large

electoral model] . . . tenuous.” Gingles, 478 U.S. at 37.

Assuming arguendo, Georgia’s policy interest for its

challenged at-large structure is nevertheless substantial,

such interest still cannot be given insurmountable weight

against evidence of vote dilution and thereby preclude

any remedial modifications to Georgia’s PSC electoral

system—especially when cumulative and limited voting

may be viable remedies that would not “fundamentally

9. The Georgia legislature also has not prohibited cumulative

or limited voting—the Georgia Constitution simply requires that

the PSC be “elected by the people.” Ga . Const. art. IV § 1, ¶ I(a);

see also Village of Port Chester, 704 F.Supp.2d at 449 (“the Court

does not find that cumulative voting is prohibited by New York law

just because the law is silent on the issue.”).

21

change” the PSC’s structure. 11th Cir. Opinion at 482.

Cumulative and limited voting systems have successfully

remedied, or prevented, vote dilution in this country

for over a century and have been upheld in the face of

numerous challenges.

The very fact that viable vote dilution remedies not

dependent on single-member districts exist demonstrates

that the Eleventh Circuit erroneously conflated liability

and remedy. Cumulative and limited voting systems show

that the first Gingles precondition does not impose a viable

remedy requirement on Section 2 plaintiffs seeking to

establish liability through proffering a single-member

districts plan. Instead, the purpose of the first Gingles

precondition is to establish injury by showing that “the

minority has the potential to elect a representative of

its own choice in some single-member district.” Allen,

599 U.S. at 18 (emphasis added). Only after the Gingles

preconditions and the totality-of-circumstances analysis is

satisfied can Georgia, the District Court, and Petitioners

evaluate remedies to the now-proven vote dilution. The

Eleventh Circuit erred by preventing the parties from

doing so. Following a Section 2 violation finding (and only

following such a finding), all parties should be given an

opportunity to consider cumulative and limited voting as

remedies.

22

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari and summarily reverse the Eleventh Circuit’s

decision or set the case for full merits briefing and

argument.

Respectfully submitted,

Dated:April 26, 2024

Bradley Heard

Jack Genberg

Courtney O’Donnell

Southern Poverty

Law Center

150 East Ponce de Leon

Avenue, Suite 340

Decatur, Georgia 30030

Randall T. A dams

Counsel of Record

Neema Jyothiprakash

Victoria Pavlock

Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

(212) 756-2019

randall.adams@srz.com

Attorneys for Amicus Curiae