Academic journal article William and Mary Law Review

Remedy Gone Awry: Weighing in on Weighted Voting

Academic journal article William and Mary Law Review

Remedy Gone Awry: Weighing in on Weighted Voting

Article excerpt


The health of our republican form of government hinges on an equitable and proportional system of representation. In order to lay claim to legitimacy, a republican government must establish the means for electing representatives in such a way that all holders of the franchise are active and meaningful participants in the electoral process. In the latter half of the twentieth century, American jurists have understood this process as being one in which all voters have a comparable voice in selecting their representatives. (1) Such a voice must be comparable on two distinct levels: first, when citizens select their representatives, and second, when the representatives shape policy in their respective assemblies. (2)

The need for an accurate count was deemed so critical that the Founders mandated a census process in the Constitution. (3) The Constitution mandates that every ten years our nation attempt to count the people within its borders so that government can be adjusted to accurately reflect the needs and desires of the people.

The decennial census provides a method for determining the proper apportionment of representatives for the people. The census, however, is only the beginning of the process of establishing a fair apportionment. Once the people are counted, the responsibility for drawing and redrawing voting districts falls to legislatures. (4) Although in some respects it is desirable for legislatures to shape voting districts, the possibilities for abuse are especially palpable in this setting. There have been numerous cases, for instance, in which the legislative apportionment process was used as a means of reducing the effective voting power of racial minorities. (5) There have also been occasions in which the state legislature was unable to draw proper and fair voting districts. (6) In both situations, the Fourteenth Amendment's Equal Protection Clause (7) serves as the primary means of vindicating a citizen's rights, and the federal courts provide the appropriate forum. How the Fourteenth Amendment should be applied, however, is a significantly more ambiguous question.

This Note examines Korman v. Giambra, (8) a case in which political deadlock threatened to diminish the fairness of New York's apportionment process. Instead of drawing district boundaries from the bench when the legislature failed to apportion the districts correctly, a federal district judge for the Western District of New York instituted a system of weighted voting. (9) The result of the weighted voting system was not a new electoral map reflecting population shifts, but a change in the relative power of each elected representative to reflect the disproportionate sizes of their constituencies. (10)

In examining this temporary remedy, Part I explains the reapportionment situation that recently faced western New York and the weighted voting remedy devised by the court. Next, Part II reviews methods prior courts have used both to remedy and avoid equal protection violations in voting districts. In light of those more traditional methods, Part III then considers the weighted voting system with reference to "one person, one vote" principles, (11) maintenance of racial equity, and efficiency. This analysis also considers the potential for application of weighted voting systems in other short-term and long-term scenarios. Although there may be uses for weighted voting in the short term, this Note argues that too many costs result from long-term use.


A. Getting to the Courthouse in Erie County

New York's Erie County, which contains the City of Buffalo and its significant suburbs, had a seventeen-district legislative body in 2001 when the reapportionment dispute began. The New York State Constitution and the Erie County Charter require that the state and county legislatures readjust their legislative districts in accordance with population shifts made evident by the results of the federal census. …

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