In response to civil rights litigation, one Orange County town will experiment with “cumulative voting” in 2020.
In response to a lawsuit accusing the city of violating the California Voting Rights Act, Mission Viejo moved in late July to adopt a novel strategy to address the disenfranchisement of its Latinx citizens: The Southern California town will let voters vote more than once.
The proposed judgment, which an Orange County superior court judge signed on July 27th, will make Mission Viejo likely the first California city to implement “cumulative voting.” An unusual kind of electoral reform, cumulative voting gives citizens the same number of votes as there are seats up for election. When Mission Viejo implements the new system in 2020, all five city council seats will be up for election: This means that voters will cast five votes each, dividing them among council candidates as they see fit.
The city’s journey toward this uncommon electoral reform began in September of 2017, when the Malibu-based law firm Shenkman & Hughes sent a letter to the city accusing it of disenfranchising Latinx voters. Noting that Mission Viejo—which the 2010 census recorded as over 17 percent Latinx—had not elected a Latinx city council member in over nine years, the letter declared that the city was in violation of the state’s voting rights act.
“The contrast between the significant Latino proportion of the electorate and the near absence of Latinos to be elected to the City Council is telling,” attorney Kevin Shenkman wrote in the letter, written on behalf of the Southwestern Voter Registration Education Project, a Texas-based group that works to enhances Latinx representation in politics.
Though the city’s initial response was mixed, Mission Viejo eventually hired a California State University–Fullerton demographer to research the issue. The resulting study found evidence of racially polarized voting in the district: In short, the Latinx population’s vote was being swallowed by the white majority. Though they were voting as a bloc, Latinx residents were being denied proportional representation on the city council. They were disenfranchised.
Though Mission Viejo acknowledged the injustice illuminated by the demographic research, the path to a solution proved far from straightforward. In general, the town found its movement toward election reform weighed down by the city council's reluctance to break Mission Viejo's “at large” voting area into separate pieces.
At public meetings, residents spoke out against what they saw as a sort of balkanization: They did not want to see their town broken up. However, in the past 50 years, this has been how governments have successfully addressed racial polarization: By breaking a voting area into multiple voting districts, officials can ensure that the minority population is the majority in a proportional number of these districts.
This method—called majority-minority redistricting—works like this: A city with a 20 percent minority population will split into five distinct districts. In one of these districts, the minority population will be the majority. Ideally, this means that the minority vote won't be buried, and minority voters will see proportional representation in their city councils, school boards, and congressional seats.
Motivated by civil rights lawsuits, governments across the country have implemented majority-minority redistricting. Ever since the Voting Rights Act of 1965, electorates in states from New York to Mississippi have been compelled to split into new districts. But on February 13th, Mission Viejo's city council voted unanimously against redistricting.
The council members may have had good reason to distrust majority-minority redistricting in their city’s own specific case. As Michael Kang, a professor of political science at Northwestern University, explained, redistricting only works when minority populations are densely concentrated in a specific geographic area. If a minority population is spread out across the city, or grouped in distant clumps, mappers can’t draw effective districts—at least without drawing funky, geographically irrational maps.
This turned out to be the case in Mission Viejo. Demographers found that the city’s Latinx population was clustered into two areas that showed similar voting patterns: the southern tip of the city and the northwest. With the distance between the two pockets, drawing a workable district map seemed impossible.
But Mission Viejo still had an obligation to offer its Latinx population a road toward proportional representation. After the city council voted against redistricting, council members said they intended to research other options, including cumulative voting. But when the officials failed to present new options by March, Shenkman sued the city in an attempt to spur action.
Impelled by the lawsuit, city officials, together with Shenkman and the Southwest Voter Education Registration Project, formed an ad hoc commission to research the issue. Shenkman also conferred with experts from FairVote, an advocacy group that pursues novel reforms to make elections more democratic. As all the parties weighed different solutions, one possible fix rose to the top: cumulative voting.
According to Kang, cumulative voting can empower minority populations. By coordinating their votes, members of a minority group can focus their support on a single candidate. For example, Latinx voters in Mission Viejo could cast all five of their city council votes for a single Latinx candidate. Because the white majority population will have a harder time coordinating its votes (and will likely spread them out over multiple candidates), the cumulative system could benefit the Latinx minority. “Using cumulative voting is kind of like virtual minority-majority redistricting,” Kang says.
Shenkman says the reaction of his clients and other invested interest groups was mixed. “I don't think I'd say anything Earth-shattering by telling you that there are differences in opinion about the appropriateness of cumulative voting,” Shenkman says. He says many in the civil rights community stand by the tried-and-tested history of redistricting; however, groups like FairVote see considerable potential in novel electoral forms.
Theodore Landsman, a research associate at FairVote, offers a measured opinion on cumulative voting: “Generally, FairVote sees cumulative voting as a semi-proportional system that, while not our ideal, ameliorates many problems with the first-past-the-post system [another name for typical winner-takes-all elections] and has been fairly successful in improving representation for people of color.” (In much of its work, FairVote advocates specifically for ranked choice voting, another kind of electoral reform under which voters rank candidates, instead of voting for one).
While unusual, cumulative voting is not unprecedented. Illinois used the system to elect state house representatives from 1870 to 1980, and Landsman says that Illinois’ use of cumulative voting saw “significant success in electing people of color.” Today, cities like Port Chester, New York, and Peoria, Illinois, still use cumulative voting.
However, cumulative voting is not guaranteed to enhance minority voting power. “There are complications in practice,” Kang explains. “[The effectiveness of cumulative voting] depends on the strength of racial polarization and the cohesion among minority voters. It relies on a kind of coordination and strategy that in practice might not work out.”
Shenkman, for his part, says he thinks that, more often than not, redistricting is the more appropriate remedy. But he acknowledges instances when cumulative voting—or other strategies like limited voting or ranked-choice voting—are the more appropriate option. “It's certainly the exception to the rule, but that doesn't mean it doesn't exist,” Shenkman says.
It remains to be seen if Mission Viejo is such an exception. If Latinxs do not gain greater representation when the new voting system is implemented in 2020, the city could be found to persist in its violation of the California Voting Rights Act.
“Under the California Voting Rights Act, a remedy here is required. And if cumulative voting—however it works in practice—doesn't achieve minority representation, then it's not good enough,” Kang says.