Posted by Maya Efrati, Drew Penrose on December 01, 2016
UPDATE: The Ferguson-Florissant school board has appealed the judge's order, on December 13th, 2016, and on January 5, 2017 the court confirmed that the new cumulative voting method will be stayed until the appeal can be decided.
After a successful case brought under the Voting Rights Act, the Ferguson-Florissant School Board now joins the more than 200 jurisdictions in the United States which elect their officers using fair representation voting. By giving voters cumulative voting rights, the families of the Ferguson-Florissant School District will have a stronger voice in the education system for their community.
For more than two years, since the tragic death of 18-year-old Michael Brown, the eyes of the entire country have been on Ferguson, Missouri. As the nation has begun to grapple with the racial disparities in when and how the police and the judicial system uses force, the city of Ferguson has become central to this discourse. The story of Michael Brown, as well as the school system that he graduated from, has been seen as a microcosm for the ills of the rest of the country.
Like the majority of school boards in the U.S., the Ferguson-Florissant School Board uses at-large elections, meaning that the entire area votes as one region. Like most at-large jurisdictions, they previously used winner-take-all rules that allow a single group of voters to outvote any minority groups. The petitioners in the case, who consist of Ferguson families and the ACLU, argued that this system resulted in unequal and unfair representation for the African-American community, and the court agreed.
Under most Voting Rights Act cases, this would result in the jurisdiction switching to election from districts, with one or more districts drawn to ensure that the African American community would be able to elect a candidate of choice. However, the Ferguson-Florissant school district is one of many places where fair representation voting serves as a better remedy, as recognized by both the plaintiffs and the judge. Consequently, the judge ordered that the school district continue to elect at-large, but that it extend cumulative voting rights to its voters.
Cumulative voting has a long history of being used as a remedy in voting rights cases. In this type of system, voters still elect at-large, and they still have the same number of votes as the seats being contested. However, voters gain the right to allocate their votes among the candidates in any way that they see fit, including giving more than one vote, or even all their votes, to a particular candidate. If a substantial minority of voters cast all their votes for one candidate, that candidate will be able to win one of several seats, even if outvoted by a bloc-voting majority.
Retaining the at-large character of the school district keeps the community together, rather than break it up into several districts. As school boards should both be reflective of the families that live in their community and also foster and enrich that community, breaking up the school district into different voting districts can be detrimental. Fair representation voting allows it to gain the benefit of districts - fair representation for groups of voters in the minority - while retaining that at-large character.
Cumulative voting can be a real step forward, and FairVote has argued for it where appropriate before. However, it is still a plurality system, and as such can cause very real problems when “too many” candidates seek office. For example, the city of Port Chester, New York adopted cumulative voting to settle a similar lawsuit brought under the Voting Rights Act brought on behalf of its Latino population. However, once that population grew to the point of being able to elect more than a single candidate of choice, the system largely began to fail them.
Like any plurality system, cumulative voting can fail to elect the best candidates when votes are split among several similar candidates. To avoid this, the political parties in Port Chester have begun to exercise complete control over outcomes by nominating fewer and fewer candidates. In 2016, Port Chester elected six city councilmembers by cumulative voting. The Democrats and Republicans were each entitled to nominate up to six, but instead they each nominated exactly three. Every incumbent who ran was re-elected. Even though three Latino candidates sought election, the Democratic Party only nominated one Latino candidate (and the Republican Party did not nominate any), leaving the other two candidates to seek election as Independents. Altogether, 38% of the vote was cast for the three Latino candidates, but only one - the one Latino candidate who the Democratic Party nominated - won enough votes to be elected.
A situation like this is, unfortunately, possible in the Ferguson-Florissant School Board elections. There, the African American community is close to a majority of voters and growing. However, the ability of that community to successfully elect more than one candidate in a single election may be hampered by their ability to coordinate, and the system will likely remain closed off to challengers. For cumulative voting to be an effective remedy, it will be important for communities in Ferguson to actively prioritize the representation of minority candidates, and to coordinate and strategize to accomplish that goal.
Other options did exist. In particular, the political character of the area strongly suggests that ranked choice voting would have gone even further in protecting minority voting rights while also encouraging more diverse and competitive elections. Under ranked choice voting, candidates could still be elected at-large. Voters would rank the candidates in order of choice, from first to last. Like cumulative voting, a sufficiently large minority group would always be able to elect a candidate of choice. Unlike cumulative voting, however, voters would not have to coordinate, deciding who to give all of their votes to and when to split them up. That’s because the rankings would ensure that no votes were “wasted.” If a candidate won easily, their voters would be able to contribute part of their vote to their next choices. If a candidate could not win, their voters would instantly have their votes added to the totals of their next choices. Candidates could compete openly and honestly, and voters would maximize their power by ranking them from first to last. Although Port Chester decided not to adopt ranked choice voting because it was too “complicated,” it does not require the coordination and strategy of cumulative voting, making it a far simpler system for voters.
Neither cumulative voting nor ranked choice voting is a new idea. Cumulative voting rights are commonly used in corporate board elections, have settled Voting Rights Act cases in over 50 jurisdictions, and were a consistent part of Illinois state legislative elections from 1870-1980. The city of Cambridge, Massachusetts has elected its city council and school board with ranked choice voting in at-large elections since 1941, and it has consistently elected bodies that fairly represent the diversity of Cambridge’s population. Ranked choice voting is even more common in single-winner contests; starting in June, 2018, Maine will use ranked choice voting to elect all of its state and congressional offices.
These results are a success for the families of the Ferguson-Florissant School District, and the ACLU, which led the court battle. FairVote, like the rest of the nation, looks forward to a future in which the name Ferguson, Missouri stands for an education system which takes into account the needs of its particular community and its school children, and is willing to use the best system available to best serve those needs.