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 Arkansas first-class city violated the federal Voting Rights Act when it elected some council members at large and others by ward. He also asked who could redistrict ward lines, what safeguards existed against unequal representation, and what protected against gerrymandering.

Attorney General Leslie Rutledge declined to give a yes-or-no answer to the VRA question. The legal test for vote dilution under section 2 of the VRA, drawn from Thornburg v. Gingles, requires a "searching practical evaluation of the past and present reality" of an electoral system, including factual proofs of geographically compact and politically cohesive minority groups, racially polarized voting, and totality-of-the-circumstances analysis. The AG's office is not a fact-finder.

That said, the opinion noted that mixed at-large and ward systems are not categorically illegal. The Eighth Circuit and federal district courts have held that at-large voting is not per se a VRA violation. Arkansas statutes expressly authorize first-class cities (transitioning to mayor-council form) to elect some aldermen at large and others by ward. So as a general matter, the structure was permissible, but a specific challenge would still rise or fall on the local facts.

On the redistricting questions, the AG was more direct. Arkansas law gives the city council in a first-class city the authority to redistrict ward lines. The same statute requires that wards be of "substantially equal population." If 100 or more qualified electors are dissatisfied with a redistricting, they can petition the circuit court within 90 days, and the court has authority to redraw the wards if it finds the council's action arbitrary and capricious. Federal equal-protection and VRA review remained available on top of these state-law safeguards.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does the Voting Rights Act actually prohibit here?
A: Section 2 of the VRA (52 U.S.C. § 10301) prohibits any voting practice or procedure 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." When the structure of an electoral system is challenged, the typical claim is "vote dilution," meaning the system either fragments a politically cohesive minority across districts (cracking) or packs them into too few districts (packing) so that their voting power is reduced.

Q: What did the AG mean by "fact-intensive"?
A: The Supreme Court's Gingles test requires a plaintiff to prove three preconditions: (1) the racial group is sufficiently large and geographically compact to form a majority in a single-member district, (2) the racial group is politically cohesive, and (3) the majority votes sufficiently as a bloc to usually defeat the minority's preferred candidate. After that, courts apply a totality-of-the-circumstances analysis. None of those steps can be done from a desk in the AG's office; they require trial-level evidence.

Q: Why isn't a mixed at-large/ward system automatically a violation?
A: The Western District of Arkansas in Williams v. City of Texarkana recognized that at-large voting schemes "are not per se violative of minority voters' rights." Whether they actually dilute votes in a particular city depends on the racial geography, voting patterns, and election history of that city. Mixed systems are even less suspect because some seats are still chosen by the local ward.

Q: Who has the authority to redraw ward boundaries in an Arkansas first-class city?
A: The city council. Ark. Code Ann. § 14-43-311(a)(1)(A) gives councils the authority to redistrict, add wards, combine wards, or change boundaries when they determine "the people can best be served" by doing so.

Q: What stops a city council from gerrymandering?
A: Three layers. First, the same statute requires wards to have "substantially equal population." Second, if 100 or more qualified electors are unhappy with the redistricting, they can petition the circuit court within 90 days, and the court can redraw the wards if the council's action was "arbitrary and capricious." Third, federal review under the VRA and the Fourteenth Amendment Equal Protection Clause remains available.

Q: What is the standard if voters challenge a council's redistricting in circuit court?
A: The court must find the council's action "arbitrary and capricious" before redrawing the wards itself. That is a high bar. Courts give significant deference to legislative line-drawing as long as the population-equality requirement is met and there is no evidence of intentional discrimination.

Background and statutory framework

Arkansas first-class cities operating under the mayor-council form of government can 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" (Ark. Code Ann. § 14-43-307(b)(1)(B)(ii)). City-director governments have a parallel option under § 14-61-107.

Section 14-43-311 governs ward redistricting. It places the authority with the city council, requires substantially equal populations, and provides a citizen-petition mechanism for circuit-court review. The scheme is designed to balance local democratic control with population-equality safeguards.

Federal VRA analysis layers on top of Arkansas law. The Gingles preconditions and totality-of-the-circumstances analysis are the controlling framework for any minority vote-dilution claim. The Fourteenth Amendment provides a separate equal-protection track for claims of intentional racial gerrymandering, as set out in Shaw v. Reno. The two tracks have different elements but can overlap factually.

Citations and references

Statutes and constitution:

• 52 U.S.C. § 10301 (Voting Rights Act § 2)
• Ark. Const. art. 12, § 3
• Ark. Code Ann. § 14-43-307(b)(1)(B)(ii) (mixed at-large/ward elections)
• Ark. Code Ann. § 14-43-311 (redistricting authority and citizen-petition review)
• Ark. Code Ann. § 14-61-107 (city director equivalent)

Federal cases:

• Thornburg v. Gingles, 478 U.S. 30 (1986) (U.S. Supreme Court, three-precondition vote-dilution test)
• Shaw v. Reno, 509 U.S. 630 (1993) (U.S. Supreme Court, racial gerrymandering equal-protection claim)
• Rogers v. Lodge, 458 U.S. 613 (1982) (U.S. Supreme Court, fact-intensive nature of VRA inquiry)
• Bone Shirt v. Hazeltine, 461 F.3d 1011 (8th Cir. 2006)
• Williams v. City of Texarkana, 861 F. Supp. 756 (W.D. Ark. 1992)
• Turner v. Dierks School District, 782 F. Supp. 81 (W.D. Ark. 1992)
• Harris v. City of Texarkana, 2015 WL 128576 (W.D. Ark. Jan. 9, 2015)
• Perkins v. City of West Helena, 675 F.2d 201 (8th Cir. 1982), aff'd 459 U.S. 801 (1982)
• Jeffers v. Tucker, 839 F. Supp. 612 (E.D. Ark. 1993)

Source

• Landing page: 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