On September 28, the Fifth Circuit issued this 28-page opinion in League of United Latin American Citizens v City of Boerne, 10-50290/10-50416. Boerne, Texas, has been embroiled in lawsuits over how it elects its city council since 1996, and the controversy is still not over. Originally Boerne used at-large elections for all five of the city council seats. The League of United Latin American Citizens (LULAC) sued, charging that under the at-large system, no Hispanic had ever won any seat. The city settled by promising to use Cumulative Voting, and under Cumulative Voting, one Hispanic did get elected and re-elected.

However, then the city and LULAC asked the court to modify their consent decree, to switch to single-member districts, and the court did then approve single-member districts. But then a Boerne voter, Michael R. Morton, intervened in the case, saying that he opposed modifying the consent decree, because modifying it was causing him to lose his ability to cast a vote for all five seats. The U.S. District Court then ruled that Morton lacked standing. But the 5th circuit ruled he does have standing. The case now returns to the U.S. District Court, where it may again reinstate district elections, but only if the evidence shows that there is a good reason to do that. It is possible that cumulative voting will be reinstated, because it does have a good track record; under cumulative voting, a Hispanic was elected. There are no longer any Hispanics on the council.

Cumulative voting gives a voter several votes. He or she is free to cast all the votes for a single candidate, or disperse them to different candidates. Boerne elects two city council members in odd years, and three in even years, so the number of votes a voter has in each election is either two or three, depending on what year it is.