The Ballot Bulletin: August 2018

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In The Ballot Bulletin, Ballotpedia tracks developments in election policy at the federal, state, and local levels. Each issue will include an in-depth feature such as an interview or event timeline. We will also discuss recent prominent events relating to electoral and primary systems, redistricting, and voting provisions.

This month's edition: This month, we take a closer at cumulative voting, an electoral system that was recently adopted in Mission Viejo, California. We will also bring you up to speed on redistricting reform ballot initiatives, plus a lawsuit whose outcome might impact the 2020 census, which determines how congressional seats will be apportioned to the states.

## Mission Viejo set to become first California city to implement cumulative voting[edit]

* What's the story? On July 26, 2018, Judge Walter Schwarm, of the Superior Court of Orange County, signed an order establishing the use of cumulative voting in Mission Viejo municipal elections beginning in 2020, marking the conclusion of a challenge to the city's electoral system initiated by the Southwest Voter Registration Education Project. As a result of Schwarm's order, Mission Viejo is set to become the first California city to adopt cumulative voting for municipal elections.
* What is cumulative voting? Under cumulative voting, an elector may cast as many votes as there are seats up for election. If, for example, five seats are up for election, a voter may cast five votes for a single candidate or distribute his or her votes among several candidates. The candidates with the highest number of votes are elected.
* History and usage: Between 1870 and 1980, cumulative voting was used to elect Illinois state legislators. At present, cumulative voting is used for municipal elections in Port Chester, N.Y., Amarillo, Texas, Chilton County, Ala., and Peoria, Ill. Cumulative voting is also used in the private sector in elections for corporate boards of directors. At the time of publication, there appears to be no organized opposition to this electoral system.
* What brought us here? On September 26, 2017, attorney Kevin Shenkman filed a letter on behalf of the Southwest Voter Registration Education Project with city officials alleging that Mission Viejo's at-large electoral system for city council seats violated the California Voting Rights Act (CVRA). The letter said, "Mission Viejo’s at-large system dilutes the ability of Latinos (a ‘protected class’) — to elect candidates of their choice or otherwise influence the outcome of Mission Viejo’s council elections." The city held a series of five public hearings on the matter. On February 13, 2018, the Mission Viejo City Council voted unanimously to pursue an alternative voting system after concluding that district elections would not ameliorate the CVRA violation alleged by Shenkman; this was the council's only vote on the matter. On July 20, 2018, Shenkman and Mission Viejo City Attorney Bill Curley reached a settlement and requested that Schwarm order the use of cumulative voting in future council elections.
* What do experts and electoral system reform advocates think about cumulative voting? We spoke with two electoral system experts — Drew Penrose, Legal and Policy Director at FairVote, and Aaron Hamlin, Executive Director at the Center for Election Science — to get their thoughts on cumulative voting.
* Drew Penrose: FairVote supports the use of cumulative voting in many contexts, and we are very happy to see this development in Mission Viejo. Cumulative voting is what we call a "fair representation" voting method. Rather than a single majority group being able to control who wins election, different groups of voters have the power to elect their own representatives. That has particular relevance in cases brought under the Voting Rights Act or (in the case of Mission Viejo) the California Voting Rights Act, which prohibit election methods that dilute the votes of communities of color. With cumulative voting, those groups have the power to elect candidates of choice by coordinating their voting around a single candidate. Although FairVote believes that ranked-choice voting is the best fair representation voting method for elections in the United States, cumulative voting does have a strong history of use. Almost 60 local elected bodies, including city councils, county councils, and school boards, are elected with cumulative voting in the United States. The state of Illinois used cumulative voting for the election of its state house of representatives for over a century, and saw greatly improved governance during that period. In many states including California, corporate board elections are required to use cumulative voting in order to prevent the domination of the board by a single majority shareholder. This history demonstrates that cumulative voting works. It helps promote representation of people of color in diverse places without the need to use winner-take-all district plans, and its expanded use can help make the case for why we should think outside of the winner-take-all box when it comes to elections more generally.
* Aaron Hamlin: Dozens of cities have used cumulative voting as a response to voter disenfranchisement lawsuits. Cities in over half a dozen states use cumulative voting. The bulk of those cities are in Texas. Cumulative voting is a semi-proportional voting method. So, if Latinx voters make up 17 percent of the electorate, they should get roughly the same representation on the council under this method. Cumulative voting works similar to the standard at-large plurality voting method by letting voters have as many votes as there are seats to be filled. Cumulative voting diverges, however, by letting voters stack their votes on individual candidates. For example, Latinx voters could stack all five of their council votes on a Latinx-friendly candidate. Proportional methods also rely on the number of candidates being elected at once to reduce the threshold of votes needed to elect a candidate. Because the Mission Viejo council consists of only five members and the Latinx voters make up just 17 percent of the electorate, they will have little room for error. That's because the threshold necessary to get someone elected here (estimated around 16.7 percent) is very close to the total Latinx population within the electorate. Further, because cumulative voting is a somewhat low-end voting method (though not as bad as the status quo), Latinx candidates would be wise to limit their number of Latinx-friendly candidates to one. This way, voters can stack their five votes on that sole Latinx candidate rather than split their vote between multiple candidates.
* What's going on in the rest of the country? The maps below identify states in which electoral systems and primary systems bills are being considered in 2018. A darker shade of red indicates a greater number of relevant bills.

Electoral systems legislation as of August 7, 2018

Primary systems legislation as of August 7, 2018

## Redistricting round-up: Catching up on the status of redistricting reform ballot initiatives, and looking ahead to the 2020 cycle[edit]

* Michigan: On July 31, 2018, the Michigan Supreme Court, in a 4-to-3 decision, ruled that a redistricting ballot initiative can remain on the ballot for the election on November 6, 2018. The ballot initiative, if approved, would transfer the authority to draw the state's congressional and state legislative districts from the state legislature to a 13-member redistricting commission. Citizens Protecting Michigan’s Constitution, a PAC opposed to the initiative, brought the suit, contending that the ballot initiative would change the fundamental operation of state government in violation of state law.
* Justice David Viviano, writing for the court’s four-justice majority, rejected the plaintiffs' arguments. Viviano wrote that the initiative would not “significantly alter or abolish the form or structure of our government” nor “propose changes creating the equivalent of a new constitution.” The majority consisted of two Republican and two Democratic justices.
* Chief Justice Stephen Markman wrote for the court's minority, which accepted the plaintiffs' argument. Markman wrote that the initiative “would affect the ‘foundation’ power of government by removing altogether from the legislative branch authority over redistricting and consolidating that power instead in an ‘independent’ commission made up of 13 randomly selected individuals who are not in any way chosen by the people, representative of the people, or accountable to the people.” The minority consisted of three Republican justices.
* Other redistricting ballot initiatives:
* Colorado: The fate of two proposed constitutional amendments, Y and Z, will be decided by Colorado voters on November 6. Amendment Y, if approved, would transfer the authority to draw the state's congressional district plans from the state legislature to a 12-member commission. Amendment Z, if approved, would do the same for state legislative district plans.
* Utah: Proposition 4, if approved, would transfer the authority to draw both congressional and state legislative district plans from the state legislature to a seven-member commission, will be decided by Utah voters on November 6.
* Looking ahead to the 2020 redistricting cycle:
* 2020 apportionment: On July 26, 2018, Judge Jesse Furman, of the United States District Court for the Southern District of New York, issued an order allowing a suit challenging the inclusion of a citizenship question in the 2020 census to proceed. Furman determined that the plaintiffs "plausibly allege that [Secretary of Commerce Wilbur Ross's] decision to reinstate a citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect." Furman also wrote, "None of that is to say that Plaintiffs will ultimately prevail in their challenge to Secretary Ross's decision to reinstate the citizenship question on the 2020 census. As noted, the Enumeration Clause and the Census Act grant him broad authority over the census, and Plaintiffs may not ultimately be able to prove that he exercised that authority in an unlawful manner. Put another way, the question at this stage of the proceedings is not whether the evidence supports Plaintiffs’ claims, but rather whether Plaintiffs may proceed with discovery and, ultimately, to summary judgment or trial on their claims."
* On April 3, 2018, 17 states and several municipal government entities filed suit against the U.S. Department of Commerce, the census bureau, and Ross, in his capacity as secretary of commerce. The plaintiffs alleged that the inclusion of a citizenship status question in the census would discourage "participation in immigrant communities, because of concerns about how the federal government will use citizenship information," thereby compromising the accuracy of the population counts, which are used in determining apportionment of the Congress, allocation of presidential electors to the Electoral College, and "the distribution of hundreds of billions of dollars in federal funds to states, local governments, and other grantees."
* On March 26, 2018, the U.S. Department of Commerce announced that a question on citizenship status would be included in the 2020 census. In a statement, the commerce department said that "having citizenship data at the census block level will permit more effective enforcement of the [[[Voting Rights Act]]], and [Secretary of Commerce Wilbur] Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighs the limited potential adverse impacts."
* What's going on in the rest of the country? The map below identifies states in which redistricting legislation has been introduced in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about redistricting legislation, see this article.

Redistricting legislation as of August 7, 2018

## See also[edit]

* Election policy on Ballotpedia
* Electoral systems legislation at the state and city levels in the United States, 2018
* Primary systems legislation at the state and city levels in the United States, 2018
* Redistricting legislation at the state and city levels in the United States, 2018
* Federal redistricting legislation in the United States, 2017-2019 (115th Congress)

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