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.

On September 29, Ohio Democrats and their allies, especially labor unions, submitted 318,460 signatures, asking for a referendum on HB 194. That is the omnibus election law bill passed by this year’s legislature. Because no one knows if there are enough valid signatures yet, the existence of the petition means that HB 194 can’t take effect yet. If the petition has at least 231,147 valid signatures, the bill is suspended until after the November 2012 election, and the public will vote on it in November 2012. Even if the petition doesn’t have enough valid signatures, the bill can’t take effect until the petition has been checked. The checking process will take at least three weeks.

HB 194 was the bill that supposedly gave Ohio a constitutional ballot access law for minor parties. The original law had been declared unconstitutional in 2006, mostly because it required the signatures for minor party qualification to be submitted in November of the year before the election. HB 194 had moved the petition deadline from four months before the primary, to three months before the primary. Now that change can’t take effect, for a while at least. All of this makes it even more likely than before that the Secretary of State will now recognize Americans Elect, the Constitution Party, the Green Party, and the Socialist Party, for the 2012 election. Because a U.S. District Court on September 7, 2011, had already enjoined the new February petition deadline, saying it was still too early, chances had already looked good that all the minor parties would be on the 2012 ballot. But now the chances are even higher, because the new statutory petition deadline reverts to November 2011, the same deadline that was already tossed out by the 6th circuit in 2006.