Does a small Arkansas first-class city violate the federal Voting Rights Act by electing some council members at large and others by ward?

Plain-English summary

Representative Milton Nicks Jr. asked whether a small first-class Arkansas city violates the federal Voting Rights Act by electing some council members citywide and others by ward. He also asked who could redraw wards and what safeguards protect representation. Attorney General Leslie Rutledge said the mixed system is not necessarily unlawful. Whether it dilutes minority voting power in a particular city requires a local factual inquiry that her office could not conduct in an opinion.

Arkansas law authorizes first-class cities transitioning to mayor-council government to elect one alderman from each ward citywide and the other aldermen by ward. A city council may redraw ward boundaries. The statutes discussed in the opinion require substantially equal ward populations and allow 100 or more dissatisfied qualified electors to petition the circuit court. If the court finds the council's redistricting arbitrary and capricious, it may redraw the wards. The opinion gives no deadline for filing that petition.

Currency note

This opinion was issued in 2017. Check current law before applying its discussion of elections or petition procedures today.

Common questions

Q: Is a mix of citywide and ward council seats automatically a Voting Rights Act violation?
A: No. The opinion says electing at-large candidates does not necessarily dilute votes. A definite answer for a particular city would require investigation of the local electoral system and its effect on minority voters.

Q: May the city council redraw the wards?
A: Yes. The opinion says Arkansas law authorizes a first-class city's council to redraw ward lines when it determines that adding, combining, or changing wards will better serve residents, including by equalizing ward populations.

Q: What safeguards apply to redistricted wards?
A: The opinion points to substantially equal ward populations, a circuit-court petition by 100 or more dissatisfied qualified electors, and potential federal review under the Voting Rights Act and the Fourteenth Amendment's Equal Protection Clause.

Q: When must electors file a circuit-court petition?
A: The opinion identifies the petition option but states no filing deadline. Anyone considering a petition should check the applicable law and procedure rather than infer a deadline from this opinion.

Q: What can the circuit court do with the petition?
A: It may redraw the wards if it finds that the city council's redistricting action was arbitrary and capricious, according to the statutory text quoted in the opinion.

Background and statutory framework

The opinion describes vote dilution as weakening a politically cohesive minority's voting power by fragmenting it across districts or concentrating it in too few districts. Whether an electoral system has that effect depends on the circumstances in that locality. Rutledge therefore declined to decide if any particular city's mixed system violated federal law.

For redistricting, she identified the city council's authority, substantially equal ward population, and judicial review on a petition from 100 or more electors. She referred the gerrymandering question back to those state safeguards and the fact-sensitive federal voting-rights and equal-protection standards. Her answer did not resolve any actual redistricting dispute.

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-136
April 25, 2017

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Milton Nicks, Jr.
State Representative
247 Windover Lane
Marion, AR 72364-3029

Dear Representative Nicks:

This is in response to your request for an opinion regarding protections afforded minority voters in a city of the first class that elects its council using both at-large and ward-based representation. I have paraphrased and slightly re-ordered your questions:

1) Is it a violation of the Voting Rights Act for a small first-class city to elect its council at large as well as by ward representation?

2) If the answer to the first question is yes, what process should be used to prevent future violations of the Voting Rights Act?

3) Is the city council in a small first-class city authorized to redistrict the city's wards?

4) When wards are redistricted, what safeguards exist to ensure equal representation of the voters within a small city of the first class?

5) When wards are redistricted, what safeguards exist to prevent gerrymandering in a small city of the first class?

RESPONSE

Your questions regarding the Voting Rights Act ("VRA") appear to focus on vote dilution, a claim that depends on evidence of an "electoral structure operat[ing] to minimize or cancel out" the ability of a minority electorate to choose its preferred candidate. Analysis of such evidence requires a "searching practical evaluation of the past and present reality" of the electoral system in question, a process "peculiarly dependent upon the facts of each case." My office is not equipped to pursue this sort of fact-intensive inquiry in response to an opinion request.

However, I note that electing at-large candidates does not necessarily result in vote dilution under the VRA. And Arkansas statutes authorize the election of city-council members "from each ward citywide and . . . from each ward by the voters of the ward only." Therefore, I do not believe it is necessarily a violation of the VRA for a first-class city to elect both at-large candidates and ward-based candidates. Your follow-up question, regarding permissible alternatives to a mixed voting system, is therefore moot.

With respect to your third question, an Arkansas statute authorizes city councils in cities of the first class to redistrict ward lines. The same statute requires that each ward have a substantially equal population in order to ensure equality of representation on the city council. And judicial review of redistricted wards is available if 100 or more qualified electors petition a circuit court. These statutory provisions are, I believe, among the safeguards responsive to your fourth and fifth questions concerning protections for minority voters in municipal elections.

DISCUSSION

Question 1: Is it a violation of the Voting Rights Act for a small first-class city to elect its council at large as well by ward representation?

In relevant part, the VRA prohibits the imposition of any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . ." Because your question is premised on the manner in which municipal candidates are elected, that is, from a hypothetical combination of at-large and ward-based representation, I believe it implicates the framework that has developed to analyze "vote dilution" claims under the VRA. Vote dilution occurs when the voting power of a "politically cohesive minority" is weakened as the result of "fragmenting minority voters among several districts so that a majority bloc can usually outvote the minority, or . . . packing the minority into one or several districts so that the minority's influence is minimized in its neighboring districts." In order to prove the fragmentation or packing of voters, a plaintiff ultimately must show that under the totality of the circumstances, minority voters had "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

Establishing a violation of the VRA based on this rubric is "peculiarly dependent upon the facts of each case." Indeed, the Supreme Court has characterized vote-dilution claims as requiring "an intensely local appraisal of the design and impact of the contested electoral mechanisms." Thus, your first question about whether it would violate the VRA to hold a municipal election using a "mixed" voting system is highly fact-sensitive. Because I am "not a fact-finder in the issuance of Attorney General opinions," I cannot offer a definitive response.

Nevertheless, I can state as a general matter that "maintenance of an at-large voting system, by itself, is not a violation of federal law." This follows from the principle that a voting system will not run afoul of the VRA unless it is found to actually "minimize or cancel out [minority voters'] ability to elect their preferred candidates." I therefore have no reason to believe that an electoral system involving candidates from discrete wards, as well as at-large candidates, would necessarily violate the VRA. And under Arkansas law, first-class cities transitioning to the mayor-council form of government may choose by ordinance to elect "one (1) alderman from each ward citywide and the other aldermen from each ward by the voters of the ward only." But I emphasize that any definitive analysis of your first question would require extensive investigation, and exhaustive review, of the electoral system and its effect on minority voters in the locality.

Question 2: If the answer to the first question is yes, what process should be used to prevent future violations of the Voting Rights Act?

Because I do not believe the "mixed" voting system described in your first question would necessarily violate the VRA, the second question is moot.

Question 3: Is the city council in a small first-class city authorized to redistrict the city's wards?

Based on the Arkansas statutes applicable to aldermanic government in cities of the first class, I believe that a city council is empowered to redistrict ward lines. If city councils in cities of the first class "determine that the people can best be served by adding wards, combining wards, or changing ward boundary lines to equalize the population in the various wards," then the councils "shall have the authority to redistrict the wards in their city." Likewise, the councils may "increase the number of wards or continue the same number of wards without affecting the terms of office of incumbent aldermen of the city." Redistricting or alteration of city wards would, of course, be subject to the anti-dilution requirements of the VRA outlined above. But as a matter of Arkansas law, a city council in a city of the first class is authorized to redistrict its wards in order to better serve the people of that municipality.

Question 4: When wards are redistricted, what safeguards exist to ensure equal representation of the voters within a small city of the first class?

The same statutes that authorize a city council to redistrict its wards mandate that the city take steps in order to ensure equal representation of electors. As an initial matter, cities of the first class "choosing to elect all aldermen by wards or in part by wards shall provide . . . for the establishment of wards of substantially equal population in order that each alderman elected from each ward shall represent substantially the same number of people in the city." And with respect to the redistricting of wards once they have been established, electors "shall have the authority to petition the circuit court" if 100 or more electors are "dissatisfied with the redistricting of the city." The circuit court, then, acquires jurisdiction to "redistrict the city into such wards as the court shall deem best if the court finds that the redistricting action by the council was arbitrary and capricious."

These statutory provisions are examples of safeguards intended to provide equal representation of voters within redistricted wards. I would also note that voter representation may be subject to federal review under the equal-protection clause of the Fourteenth Amendment, in addition to the VRA. Due to the fact-intensive nature of such inquiries, however, I cannot respond more specifically to your question about redistricting safeguards.

Question 5: When wards are redistricted, what safeguards exist to prevent gerrymandering in a small city of the first class?

I interpret this question as concerning "the deliberate and arbitrary distortion of district boundaries . . . for racial purposes." In this context, a gerrymandered district is one that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." Gerrymandering therefore implicates the legal standards (and potential remedies) found in the VRA, Arkansas municipal-election statutes, and the equal-protection clause of the Fourteenth Amendment. And gerrymandering shares the complexity and fact-dependent nature of the voting-rights issues addressed by these bodies of law. With these caveats, please refer to my responses to questions one through four, regarding vote dilution and redistricting, for guidance on safeguards against gerrymandering.

Sincerely,

LESLIE RUTLEDGE
Attorney General