Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 1 of 26 PageID #: 9139

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MISSOURI STATE CONFERENCE
OF THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF
COLORED PEOPLE, et al.,
Plaintiffs,
vs.
FERGUSON-FLORISSANT
SCHOOL DISTRICT, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 4:14 CV 2077 RWS

REMEDIAL ORDER
Plaintiffs Doris Bailey, Redditt Hudson, F. Willis Johnson, and the Missouri
State Conference of the National Association for the Advancement of Colored
People filed suit against Defendants Ferguson-Florissant School District (the
School District) and the St. Louis County Board of Election Commissioners (the
Election Board) under Section 2 of the Voting Rights Act of 1965, 52 U.S.C. §
10301. Plaintiffs alleged that the electoral structures used in Ferguson-Florissant
School Board elections, together with historical and socioeconomic conditions,
deprive African American voters in the School District of an equal opportunity to
elect representatives of their choice. After a six-day non-jury trial and post-trial
briefing, I concluded Plaintiffs established a Section 2 violation.

I enjoined

Defendants from conducting any elections for the Ferguson-Florissant School

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 2 of 26 PageID #: 9140

Board until a new system is properly implemented. See Mem. Op. & Order, ECF
No. 185.

At a status conference held to discuss remedies, Defendants were

afforded the first opportunity to submit a remedial plan, but the School District
stated it preferred that Plaintiffs, rather than the School District, submit initial
remedial proposals for the Court’s consideration. The Election Board did not
object or offer its own remedial proposals. Plaintiffs proposed three remedial
plans, with a preference for a cumulative voting system. The School District
responded and proposed this Court maintain the current system. The Election
Board also responded and indicated it can accommodate any of Plaintiffs’ three
proposed plans. For the reasons that follow, I will order adoption of a cumulative
voting at-large electoral system for Ferguson-Florissant School Board elections
with a comprehensive voter education plan.
I.

The current system and the parties’ proposed remedial plans
The Ferguson-Florissant School Board is composed of seven members who

serve three-year terms and are elected in an at-large system. Under the existing
election scheme, board elections are staggered and held off-cycle, with either two
or three members elected every April in accordance with Missouri law. See Mo.
Rev. Stat. §§ 162.0261; 162.341; 162.291. Voters can cast up to two votes in a
two-seat election and up to three votes in a three-seat election but cannot vote more
than once for the same candidate in a single election. If voters wish to vote for
2

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 3 of 26 PageID #: 9141

only one candidate, they must relinquish their remaining votes (referred to as
“single shot” or “bullet” voting). Board seats are awarded to the candidates with
the most votes.

At the liability stage of these proceedings, I concluded this

electoral process in the School District’s board elections, together with a number of
other factors in the District, deprives African American voters of an equal
opportunity to elect board members of their choice.
Plaintiffs proposed three remedial plans for consideration: (1) cumulative atlarge voting; (2) a districting plan with seven single-member districts; and (3) a
hybrid districting plan with five single-member districts and two at-large limitedvoting districts. Of these, Plaintiffs’ preferred remedy is cumulative voting. In a
cumulative voting system, voters still receive one vote for each available seat but
may distribute their votes as they wish, either dividing their votes between
different candidates or concentrating their votes by casting more than one vote for
a single candidate (“plumping”). Seats are awarded to the candidates with the
most votes. Cumulative voting allows voters to concentrate their full voting power
behind their preferred candidate or candidates without requiring voters to give up
any of the votes they are entitled to cast, as they must do in bullet voting. Plaintiffs
propose that the implementation of cumulative voting in the School District’s
board elections should be preceded by a voter education program to help voters
understand their options under cumulative voting and how to implement them.
3

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 4 of 26 PageID #: 9142

As alternatives, Plaintiffs also propose two districting plans. Plaintiffs’ first
proposed plan contains seven single-member districts. In three of these districts,
African Americans comprise a majority of 59% or more of the voting age
population (VAP). See Cooper Report B-2, ECF No. 201, Ex. 3 B-2. In two other
districts, African Americans comprise about 50% of the VAP. Id. Under this plan,
candidates would be required to reside in the single-member district in which they
seek election. Elections would be staggered according to the end of incumbent
board members’ three-year terms to minimize disruptions.
Plaintiffs’ second proposed plan is a hybrid plan consisting of five board
seats elected from single-member districts and two seats elected at-large through
limited voting. Under limited voting, voters are allocated fewer votes than the
number of seats at issue in an election; in a two-seat election, for example, each
voter would cast one vote. Winning candidates in a limited voting election are
determined by a plurality vote rule. This plan includes three districts in which
African Americans make up 59% of the VAP and a fourth district in which they
make up almost 50%. See Cooper Report C-2, ECF No. 201, Ex. 3 C-2. This plan
would require candidates to reside in the single-member district in which they are
seeking election but would permit any qualified district resident to run for the atlarge seats. Again, elections would be staggered according to the end of incumbent
board members’ three-year terms.
4

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 5 of 26 PageID #: 9143

The School District opposes all three of Plaintiffs’ proposals and proposes
keeping the current system.

The School District concedes that two of their

priorities—maintaining an at-large system to promote unity and consensus and
maintaining staggered terms to promote continuity—can be accommodated in a
cumulative voting system. But they oppose cumulative voting because they argue
that their third priority—proportionality—already results from the current system,
while cumulative voting is not sure to succeed and could actually reduce African
American representation. The School District argues that while their proposal to
maintain the status quo conflicts with my finding of liability, an analysis of the
results of the 2016 election (analysis they did not present at the liability stage),
together with all of the evidence already considered, shows the current system
results in proportionality and offers the best solution. The School District also
opposes both districting plans, arguing they will likely result in less African
American representation and may create a new Section 2 violation.
The Election Board responded, stating it is confident it can accommodate
any of Plaintiffs’ proposals using its current equipment and software. The Election
Board could accommodate a cumulative voting system by listing each candidate on
the ballot repeatedly for each open seat and indicates only that it would need to
know the ballot design, i.e., names should be presented vertically or horizontally.
To implement the districting plans, it would need maps and legal descriptions
5

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 6 of 26 PageID #: 9144

showing proposed districts. The Election Board indicates the hybrid redistricting
plan would require “a complicated ballot form” and notes that “[w]ith complex
ballots there is a significant risk that there will be an over voting, voting for more
candidates than allowed.” Def. St. Louis Cnty. Bd. Resp. 3‒4, ECF No. 205.
II.

Legal standard for choosing a proposed plan
After a court determines liability, it must give the defendant the first

opportunity to suggest a legally acceptable remedial plan. Bone Shirt v. Hazeltine,
461 F.3d 1011, 1022 (8th Cir. 2006). If the defendant fails to respond or responds
with a legally unacceptable remedy, the court must fashion its own remedy or
adopt a remedial plan proposed by the plaintiffs. Id.; cf. Williams v. City of
Texarkana, 32 F.3d 1265, 1268 (8th Cir. 1994). “In formulating a remedial plan,
the first and foremost obligation of the district court is to correct the Section 2
violation.” Bone Shirt, 461 F.3d at 1022. The court should formulate a narrowly
tailored plan that achieves population equality (i.e., comports with one person, one
vote), does not create a new Section 2 violation, and avoids, when possible, the use
of multi-member districts. Id. at 1022‒23; see also United States v. Village of Port
Chester, 704 F.Supp.2d 411, 449‒50 (S.D.N.Y. 2010). The plan “should not
‘intrude on state policy any more than is necessary’ to uphold the requirements of
the Constitution,” Bone Shirt, 461 F.3d at 1023 (quoting Upham v. Seamon, 456
U.S. 37, 41‒42 (1982) (per curiam)), and should accommodate, to the greatest
6

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 7 of 26 PageID #: 9145

extent possible, the policies and preferences expressed in the legislative policy
judgments underlying the current electoral scheme and the defendant’s remedial
plan. See White v. Weiser, 412 U.S. 783, 795 (1973); Cane v. Worcester Cnty., 35
F.3d 921, 928 (4th Cir. 1994); United States v. Euclid City Sch. Bd., 632
F.Supp.2d 740, 751 (N.D. Ohio 2009).
Of Plaintiffs’ three proposals, Plaintiffs prefer an at-large cumulative voting
system. The School District opposes all three plans but offers the least opposition
to the cumulative voting proposal, which, as explained below, also allows for
maximum accommodation of existing practices and the School District’s stated
priorities as compared to Plaintiffs’ districting plans. As a result, I will focus my
analysis on Plaintiffs’ cumulative voting plan.
III.

The School District’s plan is legally unacceptable
“Generally speaking . . . a legally acceptable plan is one that corrects the

existing Section 2 violation without creating one anew.”

Euclid City, 632

F.Supp.2d at 752. The School District proposes maintaining the current electoral
system, which I concluded results in a Section 2 violation.

This is legally

unacceptable on its face. In an attempt to counter this issue, the School District’s
remedial report from its expert, Dr. Jonathan Rodden, includes a brief analysis of
the 2016 school board election results, which the School District argues will allow
me to interpret the 2016 election results and conclude Connie Harge, an African
7

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 8 of 26 PageID #: 9146

American candidate who won a seat in 2016, was a Black-preferred candidate,
which they then argue shows the current system actually results in proportionality.
The 2016 elections took place in April, after the close of evidence in this
case. The School District moved then to reopen the case and asked me to admit
and take judicial notice of the certified election results. They did not present any
expert analysis of the results. Plaintiffs did not oppose admission of the election
results, but asked that if I took notice of those results, I also take notice that: (1) the
2016 election included another African-American candidate who lost; (2) a white
incumbent chose not to run for re-election; and (3) the only incumbent who did run
is white and won. See Pls.’ Response to District’s Motion to Reopen 1‒2, ECF
No. 184. I granted the School District’s motion and reopened the case to take
judicial notice of the 2016 certified election results as well as the facts pointed out
by Plaintiffs. I also concluded that, in the absence of meaningful expert testimony,
I could not draw significant legal conclusions based on these facts.
The School District has not moved to reopen the case again or to submit this
additional expert analysis as evidence. Rather, the School District includes this
analysis in its expert’s report on the Plaintiffs’ remedial proposals. Their argument
seems to be that I should forgo the detailed analysis I conducted of all of the
evidence and expert analysis presented over the course of a six-day trial, accept
their expert’s analysis of the 2016 election results without giving the Plaintiffs a
8

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 9 of 26 PageID #: 9147

chance to respond and without considering any context, and simply conclude that
because there are currently three African Americans (who, they argue, are all
Black-preferred candidates) on the Ferguson-Florissant School Board, the current
system results in proportionality and is thus legally acceptable and superior to any
of the systems Plaintiff propose.
I decline to do so. It would be neither fair nor helpful to consider the School
District’s expert analysis on the 2016 election results at this stage. A finding of
proportional representation at this moment would not, standing alone, negate my
liability finding. See Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1388
(8th Cir. 1995) (en banc) (“Just as proportional representation is not mandated
under Section 2, it also does not preclude finding a violation, because racial
reference points do not necessarily reflect political realities.”). Plaintiffs have not
had the opportunity to respond or offer their own expert analysis. Cf. Cottier v.
City of Martin, 604 F.3d 553, 561 n.4 (8th Cir. 2010) (en banc) (rejecting
suggestion to consider election data appended to plaintiffs’ brief, as the court
would not “allow one party to augment its evidentiary presentation in a case
involving extensive statistics that were the subject of complex analysis by experts
for both parties”). If I were to reopen the case again and give them the chance to
do so, we would necessarily extend the case, perhaps past the next election, and
then there would seem to be no reason not to reopen the case again to include those
9

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 10 of 26 PageID #: 9148

results, and so on. The School District offers no explanation for why it did not
seek to introduce expert analysis when it moved to reopen the case at the liability
stage. My liability finding was based on careful examination of many factors,
including consideration of the present realities in Ferguson-Florissant School
District, special circumstances surrounding recent elections, years of election
results, and extensive analysis from experts for both parties. That serves as the
benchmark for the remedial stage of this case. The current system results in a
Section 2 violation and it is legally unacceptable to continue using it.
IV.

Cumulative voting is a legally acceptable plan that accommodates the
School District’s expressed policies and preferences
a. Cumulative voting would correct the Section 2 violation
To cleanse a Section 2 violation, a remedial plan must afford minority voters

“an equal opportunity to participate in the political processes and to elect
candidates of their choice.”

Thornburg v. Gingles, 478 U.S. 30, 44 (1986)

(quotation marks omitted). This does not mean that a remedial plan may be
implemented only if it guarantees electoral success for African Americans; rather
“the plan must provide a genuine opportunity ‘to exercise an electoral power that is
commensurate with its population.’” Port Chester, 704 F.Supp.2d at 449 (quoting
LULAC v. Perry, 548 U.S. 399, 428 (2006)); see also Johnson v. De Grandy, 512
U.S. 997, 1014 n.11 (1994) (“[T]he ultimate right of § 2 is equality of opportunity,
10

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 11 of 26 PageID #: 9149

not a guarantee of electoral success for minority-preferred candidates of whatever
race.”); Bone Shirt, 461 F.3d at 1023 (“The defendants’ argument that the remedial
plan must provide some sort of guarantee that [Black]-preferred candidates will be
elected is not persuasive; all that is required is that the remedy afford [African
Americans] a realistic opportunity to elect representatives of their choice.”).
Courts evaluate whether cumulative voting will give minorities the
opportunity to elect their candidates of choice using a political science concept
called the “threshold of exclusion.” Port Chester, 704 F.Supp.2d at 450. “The
threshold of exclusion ‘is the percentage of the vote that will guarantee the winning
of a seat even under the most unfavorable circumstances.’” Id. (quoting Cottier v.
City of Martin, 475 F.Supp.2d 932, 937 (D.S.D. 2007), vacated on other grounds,
604 F.3d 553 (8th Cir. 2010)). The threshold of exclusion is calculated by the
following formula: 1/(1 + number of seats available). Id. So, for example, in a
two-seat race, the threshold of exclusion would be 33.3% (1/(1 + 2)=33.3%),
meaning that even in the “worst case scenario” from the minority group’s
perspective, minority voters need only exceed 33.3% to have the opportunity to
elect their candidate of choice. See id. The “worst case scenario” assumes there
are as many majority candidates as there are seats to be filled and the majority
spreads its votes evenly among its candidates, casting no votes for the minority-

11

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 12 of 26 PageID #: 9150

preferred candidate. See id. It also assumes minority voters will “plump” their
votes, i.e., cast all their votes for the minority-preferred candidate. Id.
Ferguson-Florissant School Board elections are for two or three seats,
meaning the relevant thresholds of exclusion are 33.3% (two-seat) and 25.0%
(three-seat). I have accepted the 2010 Decennial Census figures in this case.
Those figures show that the single-race Black voting age population (VAP) in the
School District is 47.33% of the overall VAP, meaning the VAP is 142% of the
threshold in two-seat elections and 189.2% in three-seat elections.1 See Engstrom
Report 11, ECF No. 201, Ex. 1. The African American VAP is significantly higher
than the thresholds of exclusion in both two- and three-seat elections, meaning that
even assuming the worst case scenario, African Americans would have the
opportunity under a cumulative voting plan to consistently elect at least one
candidate of their choice in each election cycle and the potential to elect more than
one candidate of choice in a three-seat election.

And because the African

American VAP is significantly higher than the threshold of exclusion, African
Americans “still have an opportunity to elect their preferred candidate even if not
all [African Americans] plump their votes behind a single candidate of choice.”
Port Chester, 704 F.Supp.2d at 451. The fact that I have found cohesiveness
1

The any-part Black VAP is 48.19%. Dr. Engstrom did not calculate the any-part Black VAP as
a percentage of the threshold because it is so close to the single-part Black VAP. See Engstrom
Report 11 n.14, ECF No. 201, Ex. 1.
12

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 13 of 26 PageID #: 9151

among African American voters behind candidates of choice in each of the
elections between 2011‒2015 makes it reasonable to expect that African American
voters will continue to vote cohesively and will be able to take advantage of their
voting power under a cumulative voting plan. See Mem. Op. & Order 78, ECF
No. 185; Port Chester, 704 F.Supp.2d at 450 (finding that high levels of cohesion
among Hispanic voters made it highly likely they would plump their votes behind a
candidate of choice).
The School District does not contest that a cumulative voting system would
give African Americans an equal opportunity to elect their candidates of choice.
Rather the sum of the School District’s opposition to implementing a cumulative
voting plan is that under the current system, three African American candidates
have been elected to the School Board in the last three years, while cumulative
voting does not guarantee a better result.

Again, the question of whether a

remedial system will guarantee better electoral results is neither a relevant inquiry
nor a permitted goal under Section 2. And this argument seeks to oversimplify a
complex case, asking me to conclude that because three African American
candidates have been elected in the last three years (and of those three elections, I
found two were marked by special circumstances, and one has not been analyzed),
African Americans have an equal opportunity to elect their candidates of choice to
the Ferguson-Florissant School Board under the current system. I choose instead
13

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 14 of 26 PageID #: 9152

to take account of all of the evidence presented in this case, which led me to
conclude that the current system violates Section 2, and implement a remedy that
will correct the Section 2 violation.
I do agree with the School District that any discussion of the threshold of
exclusion would be incomplete without acknowledging that the various factors I
found contributed to African Americans’ lack of success in electing their
candidates of choice—including, but not limited to, felony disenfranchisement and
lower voter registration (due in part to renting as opposed to owning a residence)—
mean that reality will not perfectly match the theory.

The fact that African

Americans comprise 47.33% of the VAP does not mean that 47.33% of votes will
be cast by African Americans. At trial, the School District presented evidence
indicating the difference in turnout rates between African American and white
voters in the School District who are already registered to vote is statistically
insignificant. See Mem. Op. & Order 21‒22, ECF No. 185. Trial evidence also
demonstrated that African Americans in the School District are disproportionally
affected by felony disenfranchisement and likely registered to vote at a lower rate
than white residents, though the record does not contain evidence regarding these
rates in the Ferguson-Florissant School District or analysis of meaningful turnout
data that would allow me to apply that data in this context. But the School District
presents no argument as to why these factors would lead me to leave in place a
14

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 15 of 26 PageID #: 9153

system that has deprived African Americans of an equal opportunity to elect their
candidates of choice instead of implementing a system that will provide them that
opportunity. Rather, these factors support finding that a change is required to
provide equality of opportunity despite the close proportions of the majority and
minority populations in the School District. Registration and turnout rates often
improve once a court finds and remedies the Section 2 violation.
Based on these considerations, I conclude that an at-large cumulative voting
system will afford African American voters in Ferguson-Florissant School District
“a genuine opportunity ‘to exercise an electoral power that is commensurate with
its population’” and will correct the Section 2 violation. See Port Chester, 704
F.Supp.2d at 449 (quoting LULAC, 548 U.S. at 428).
b. Cumulative voting is a lawful remedy that will not create a new
Section 2 violation
Cumulative voting has been adopted as a remedy in a number of Section 2
cases. See, e.g., id. at 453; Engstrom Report 2 & n.1, ECF No. 201, Ex. 1 (noting
cumulative voting has been adopted by over 60 local governments in the United
States, including 35 school districts, usually in response to complaints that
previous systems diluted the votes of minority voters protected under the Voting
Rights Act). The School District does not challenge its lawfulness as a remedy

15

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 16 of 26 PageID #: 9154

under the Voting Rights Act.2 Federal court decisions have repeatedly described
cumulative voting as a potential remedy in Voting Rights Act cases. See, e.g.,
Branch v. Smith, 538 U.S. 254, 309‒10 (2003) (O’Connor, J., concurring) (“[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 v. Hall, 512 U.S. 874, 910 (1994) (Thomas, J., concurring)
(noting that “nothing in our present understanding of the Voting Rights Act places
a principled limit on the authority of federal courts that would prevent them from
instituting a system of cumulative voting as a remedy under § 2”); Port Chester,
704 F.Supp.2d at 448 (collecting cases mentioning cumulative voting as a remedial
option in Voting Rights Act cases); Euclid City, 632 F.Supp.2d at 752 n.11 (“So,
too, no particular election scheme is required by Section 2; both limited and
cumulative voting systems can be ‘legally acceptable.’”).
Plaintiffs maintain cumulative voting is consistent with state law principles
and does not conflict with the provisions of Missouri law governing school board
elections. The School Board does not contest these points or argue cumulative
2

The School District argues I may not choose any remedy but a single-member district plan
(which, they argue, is not a viable remedy either) because single-member districts served as the
benchmark remedy in my liability finding. It is clear that use of this standard at the liability
stage, which is required by Gingles, does not bind the court to that remedy. “[A]t the initial
stage of the Gingles precondition analysis, the plaintiffs are only required to produce a
potentially viable and stable solution . . . the Gingles preconditions are designed to establish
liability, and not a remedy.” Bone Shirt, 461 F.3d at 1019. “The court may consider, at the
remedial stage, what type of remedy is possible . . . . But this difficulty should not impede the
judge at the liability stage of the proceedings.” Id. (quotation marks omitted).
16

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 17 of 26 PageID #: 9155

voting is an inappropriate remedy under Missouri law. Missouri statutory sections
governing school board elections in the Ferguson-Florissant School District do not
dictate that elections employ a particular voting arrangement or prohibit the use of
cumulative voting. See, e.g., Mo. Rev. Stat. §§ 162.291, 162.459. Cumulative
voting is not unknown in Missouri law.

See, e.g., Mo. Const. Art. 11, § 6

(authorizing cumulative voting in the context of electing corporate directors); Mo.
Rev. Stat. § 355.296 (governing cumulative voting in nonprofit corporation
elections). I find no reason to conclude Missouri law prohibits cumulative voting
in school board elections.3 See Port Chester, 703 F.Supp.2d at 449 (“[T]he Court
does not find that cumulative voting is prohibited by New York law just because
the law is silent on the issue.”).

3

I reach this conclusion notwithstanding the provision in section 162.492 stating “the names of
all candidates shall appear only once on the ballot” or the provisions in sections 115.439,
115.453, and 115.467 that indicate voters cannot “vote for the same person more than once for
the same office at the same election.” Section 162.492 deals with hybrid systems in urban school
districts that include both districts and seats elected at-large. See Mo. Rev. Stat. § 162.492.2. In
that specific context, the prohibition on names appearing once addresses a specific issue with the
hybrid structure, as the statute says “[n]o candidate may file both at large and from a subdistrict
and the names of all candidates shall appear only once on the ballot, nor may any candidate file
more than one declaration of candidacy.” Id. § 162.492.5. The provisions in section 115, in
context, do not appear to be a prohibition on cumulative voting but rather seem to identify an
error that would spoil the ballot in a traditional voting system. See id. § 115.467.2 (“If the total
number of votes including write-in votes for any office exceeds the number allowed by law, or if
a voter has voted more than once for the same person for the same office at the same election, a
notation of the fact shall be noted on the back of the ballot card, and it shall be returned with the
write-in form, if any, to the counting location in an envelope marked “DEFECTIVE
BALLOTS.”); see also §§ 115.439 (describing how a voter shall complete a paper ballot and
how an election judge should handle a ballot if a voter accidentally spoils his ballot or makes an
error); 115.453 (describing how votes are counted and when votes should not be counted if the
ballot is filled out improperly).
17

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 18 of 26 PageID #: 9156

Cumulative voting also satisfies the constitutional requirements of oneperson, one vote and the prohibition on the improper use of race in districting.
“District courts have consistently found that cumulative voting complies with oneperson, one-vote because the entire population is contained in one district and each
voter is given the same number of votes.”

Id. at 452.

Because Plaintiffs’

cumulative voting plan does not require drawing districts, there is no concern about
the improper use of race in districting. Id. at 452‒53.
Finally, a remedial plan should not create a new Section 2 violation. The
School District does not argue cumulative voting will create a new Section 2
violation, but it expresses concern about effective coordination among African
American voters, pointing out that coordination—effective “plumping”—is crucial
if minority voters are to achieve the electoral success available under a cumulative
voting system. To that end, Plaintiffs suggest that the first use of cumulative
voting in Ferguson-Florissant School Board elections should be preceded by an
educational program to help voters understand their options under cumulative
voting and how to exercise them.4 I agree that an educational program is necessary
to eliminate any possibility of perpetuating the Section 2 violation if voters do not

4

The School District expresses concern about paying for a cumulative voting educational
program but also suggests that if the current system were maintained, they could implement an
educational program to instruct voters on the effective use of bullet voting. As a result, and
given that the School District cannot continue a Section 2 violation based on cost considerations,
this concern does not provide a persuasive basis for maintaining the current system.
18

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 19 of 26 PageID #: 9157

fully understand cumulative voting. See id. at 452. Because the parties have not
provided any detail on what an educational program would look like, I will order
the parties to work together to submit a joint proposed educational program,
describing the form, format, and schedule for voter education and outreach before
the first election using cumulative voting.
c. Cumulative voting accommodates the School District’s priorities
“If the district court must craft its own remedy, that remedy must, to the
greatest extent possible, effectuate the policies and preferences expressed in the
defendant’s remedial plan.” Euclid City, 632 F.Supp.2d at 751; see also Cottier,
475 F.Supp.2d at 936 (“[T]o the extent that an existing plan does not violate the
Constitution or federal law, the court’s remedial plan must adhere to the legislative
judgments reflected in the existing plan.”). The School District’s board elections
currently occur in a traditional at-large system with off-cycle elections and
staggered terms. Plaintiffs’ proposal maintains all of these practices except that it
changes from traditional to cumulative voting.
The School District articulates three priorities for its voting system. First, it
prioritizes maintaining an at-large system, which it believes provides unity and
consensus and is particularly appropriate for school boards. Second, the School
District prioritizes maintaining staggered electoral terms to maintain continuity in
governance. While these practices are some of the very ones Plaintiffs challenged,
19

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 20 of 26 PageID #: 9158

I also found at the liability stage that the School District has legitimate and
compelling reasons for using these voting practices. See Mem. Op. & Order 115‒
16, ECF No. 185. The School District itself makes clear that cumulative voting
can accommodate both of these practices. See District’s Resp. 10, ECF No. 206
(“the parties agree that cumulative voting is attractive because it retains an at-large
system that allows for staggered terms.”).
The School District even agrees that cumulative voting is effective in cases
where minority voters have been entirely unable to elect their candidates of choice.
But they oppose using it here because they argue their third priority—
proportionality—has already been achieved by the current system, while
cumulative voting is not guaranteed to return the same result. As explained above,
this premise is inconsistent with my liability finding and does not provide a
persuasive basis for rejecting a cumulative voting system, as Section 2 does not
guarantee proportional representation. See Euclid City, 632 F.Supp.2d at 753
(rejecting assertion that a remedy must result in roughly proportional
representation, as “[s]uch a contention confuses the use of proportionality as one
tool through which a reviewing court determines the possible existence of vote
dilution on the one hand, with a guarantee of proportional representation on the
other . . . [t]he former is common sense, the latter is prohibited by statute”).

20

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 21 of 26 PageID #: 9159

The cumulative voting system Plaintiffs propose would be similar to the
current system the state has in place, retaining the majority of the elements of the
current system and allowing the School District to maintain the aspects of its
system that it prioritizes, but with the key difference that it “permits minority
voters, and all other voters, to cast a more efficacious type of ‘single-shot’ vote
than they may in more traditional multi-seat elections.” See Richard L. Engstrom,
Cumulative and Limited Voting: Minority Electoral Opportunities and More, 30
St. Louis U. Pub. L. Rev. 97, 102 (2010); see also id. at 103 (“This alteration in the
voting rules within an at-large system, however, can cleanse the multi-seat format
of its tendency to dilute the vote of a minority.”); Holder, 512 U.S. at 909 n.15
(1994) (Thomas, J., concurring) (explaining that cumulative voting allows a group
of minority voters “to concentrate its voting power behind a given candidate
without requiring that the minority voters themselves be concentrated into a single
district”); Euclid City, 632 F.Supp.2d at 755 (noting it is clear why cumulative
voting “provides a cohesive minority group increased opportunity relative to a
traditional voting system,” as “[i]n a district with extreme racial polarization, a
minority group will be unable to elect a candidate because, of course, they are
outvoted for every available seat,” while under cumulative voting, “if minority
voters coalesce around a single candidate, that candidate will win so long as certain
numerical conditions . . . are met”). Given the unique circumstances of this case,
21

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 22 of 26 PageID #: 9160

this change can correct the Section 2 violation while adhering as closely as
possible to the legislative judgments reflected in the existing plan and the priorities
the School District has articulated.
d. Circumstances in Ferguson-Florissant School District warrant
deviating from the preference for single-member districts
“There is a strong preference for single member districts in judicially
fashioned remedial plans.”

Cottier, 475 F.Supp.2d at 939. “An at-large district

from which multiple candidates are elected is considered a multi-member district.”
Id. If a court chooses a multi-member remedial plan, it must articulate a “‘singular
combination of unique factors’” that warrant deviating from the preference for
single-member districts. Id. (quoting Connor v. Finch, 431 U.S. 407, 415 (1977)).
Such a combination of factors warrants deviation here.
The demographics of the Ferguson-Florissant School District make this case
unique and warrant use of a unique remedy. As I explained at the liability stage,
“[t]he facts of this case, which include African American and white voting-age
populations at levels of near numerical parity, and a trend in the District that
suggests the African American voting-age population is growing, set it apart from
most § 2 cases, making review especially challenging.” Mem. Op. & Order 118,
ECF No. 185.

A cumulative voting plan can accommodate the changing

demographics in Ferguson-Florissant School District, allowing the relative voting
22

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 23 of 26 PageID #: 9161

power of any given demographic or interest group to shift with the relative voting
size of those groups without having to wait for redistricting. Cumulative at-large
voting also extends equality of opportunity to all voters in the district, regardless of
where they live, and can be a superior model in a district like Ferguson-Florissant
that has high levels of racial polarization and political cohesion. See Euclid City,
632 F.Supp.2d at 755 (noting that in districts with high levels of racial polarization,
cumulative voting “provides a cohesive minority group increased opportunity
relative to a traditional voting system”). The large African American population in
the School District, coupled with shifting demographics, makes it possible to
accommodate legislative policy judgments and the School District’s preferences
and maintain aspects of the current system that may normally have to be changed
to correct the Section 2 violation.
Significantly, neither party prefers a districting plan. The School District is
convinced Plaintiffs’ proposed districting plans would result in less African
American representation and may create a new Section 2 violation. The School
District argues single-member districts are an inappropriate remedy in a district
that is experiencing demographic transitions, as in Ferguson-Florissant.

The

School District points out that Plaintiffs’ proposed districts would group
incumbents together, including by placing the two most recently elected African
American candidates in one district and two white incumbents in one of the
23

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 24 of 26 PageID #: 9162

majority-minority districts, and argues single-member plans would likely insulate
white incumbents and risk losing every African American incumbent on the board.
The School District argues single-member districts would also exacerbate the
candidate recruitment problem.

Dr. Rodden indicates African American

candidates who have been successful in the School District have relied on districtwide support.

And the School District argues Plaintiffs’ hybrid plan, which

includes five single member districts and two at-large seats elected through limited
voting, combines an unfamiliar voting system with a flawed districting plan,
effectively combining the worst elements of the other proposals.
All of these points support finding that an alternative voting scheme in this
case “will ‘afford minorities a greater opportunity for participation in the political
process than do single member districts,’ [which] is an exceptional circumstance
warranting rejection of the preference for single-member districts.” Cottier, 475
F.Supp.2d at 941 (quoting Wallace v. House, 538 F.2d 1138, 1145 (5th Cir.
1976)); see also Euclid City, 632 F.Supp.2d at 758 (explaining that “use of at-large
districts appears more important to school boards than other elected bodies,
because [u]nlike other political structures, school boards exist for the precise
purpose of cultivating this consensus and shielding the provision of education from
the clash of political conflict” (quotation marks omitted)).

24

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 25 of 26 PageID #: 9163

Finally, because the School District currently uses and prefers to keep using
an at-large system, keeping an at-large system, rather than adopting a districting
plan, gives deference to state policy judgments and helps preserve the School
District’s priorities. And as the current system is at-large, a cumulative at-large
remedy matches the dilution problem in this case, solving a jurisdiction-wide issue
that affects all African American voters in the School District. See Engstrom,
Cumulative and Limited Voting, 30 St. Louis U. Pub. L. Rev. at 114. Together,
these unique circumstances warrant deviating from the preference for singlemember districts and instead implementing an at-large cumulative voting system.
V.

Conclusion
The School District’s proposal to maintain the current system is legally

unacceptable. Plaintiffs’ proposal to implement an at-large cumulative voting
system with staggered terms and off-cycle elections, preceded by a voter education
program, is a legally acceptable remedy that will correct the Section 2 violation.
To effectuate this system, the parties must propose a full plan that includes the
form, format, and schedule for providing voter education and outreach efforts and
the duration of such efforts.
Accordingly,
IT IS HEREBY ORDERED that Defendants Ferguson-Florissant School
District and the St. Louis Board of Election Commissioners are enjoined from
25

 Case: 4:14-cv-02077-RWS Doc. #: 212 Filed: 11/21/16 Page: 26 of 26 PageID #: 9164

conducting school board elections via the traditional at-large electoral method at
issue in this litigation.
IT IS FURTHER ORDERED that the Court adopts Plaintiffs’ cumulative
voting proposal, as detailed in this memorandum and order, and Defendants shall
implement a cumulative voting at-large electoral system for Ferguson-Florissant
School District board elections with a comprehensive voter education program.
IT IS FURTHER ORDERED that the parties shall propose for court
approval a joint proposal for a voter education program that includes the form,
format, and schedule for providing voter education and outreach before the first
election using cumulative voting.
IT IS FURTHER ORDERED that the Court shall retain jurisdiction over
this matter to enter further relief or such other orders that may be necessary to
carry out the terms of this Order.
IT IS FURTHER ORDERED that the Clerk is directed to administratively
close this case.
A status conference in this matter remains set for Tuesday, November 22,
2016 at 11:30 a.m. in Courtroom 16-South.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 21st day of November, 2016.
26