Cumulative Voting as a Means to Address Disparate Racial Impact of Election Laws

James Strickland is an Assistant Professor in the School of Politics and Global Studies at Arizona State University

In this week’s “Constitutional Conversations” post, James Strickland makes the case for innovation in the way we vote to address electoral disfunction at the state and local levels. Strickland argues that the adoption of a system of cumulative voting would do more to facilitate greater voter participation and broader representation than the current legislative focus on the reform of rules and regulations governing electoral administration.  

Recent conversations over election administration focus on election rules such as voter registration and neglect to consider the role of electoral systems in addressing differences in turnout or participation. Given Congress’ failure to enact election reform, as well as the publication of recent studies that cast doubt on the discriminatory effects of different voter identification laws, I suggest that reformers instead focus their efforts on reforming electoral systems. One of the most crucial concerns that reformers have over voter identification laws (i.e., differential impact by race) may effectively be addressed by cumulative voting.

Electoral systems consist of the institutional rules that govern the structure of ballots and how winners are chosen. Major examples of such systems include first-past-the-post (plurality) voting popular in the United States where most districts elect single winners, and different types of proportional systems (involving multiple winners) popular in Europe and Latin America. Such electoral systems are different from the electoral rules or regulations that determine the logistics of voting (e.g., registration requirements). 

In the United States, discussions of election reform have focused predominately on rules or regulations. The past decade has seen the emergence of new laws in the states regarding election rules. These include numerous laws that affect forms of identification required for voting, and the circumstances surrounding early, absentee, and postal voting. The laws have attracted criticism, with critics raising concerns about the laws’ racially discriminatory effects. President Biden labeled laws in Georgia a form of “Jim Crow 2.0,” and a political scientist even argued that state governments that enacted similar laws are “laboratories of democratic backsliding.”¹

Many members of Congress proposed that the national government take steps to regulate elections in the states more directly. The members introduced an act that focused exclusively on electoral rules (i.e., not systems). The “For the People Act,” (H.R. 1 , U.S. House,2019) would have required states to: allow voters to register and vote on the same day; require voting to occur for at least two weeks before Election Day; allow pre-registration by 16- and 17-year-olds; make Election Day a federal holiday; require online voter registration; and require the use of independent redistricting commissions, in addition to requiring states to implement other election-administration practices. While the proposed act was approved by a majority of members of the House of Representatives, it failed to overcome the filibuster threshold in the Senate. It is unlikely to become law in the unforeseeable future. 

While the national discussion over election administration is valuable, it neglects the even more weighty effects of electoral systems on representation. Political scientists and other academics are often concerned over the effects of participation bias, or large-scale differences between the preferences of voters and those of non-voters. Since election-seeking candidates are presumed to respond only to the preferences of voters, such bias, scholars argue, skews policy towards the preferences of voting groups like homeowners and wealthy individuals, and away from the preferences of groups like renters and those with low incomes.²

Due to a history of racial and ethnic discrimination in voting rules in the United States, a multitude of studies have looked for disparate impacts of new voting rules on members of different racial and ethnic groups. The results are mixed. Although there is evidence that non-white voters are more likely to turn out to vote but not have the necessary identification documents³, as well as evidence for other, context-based effects by race, the large-scale effects of identification laws on turnout by race⁴⁵⁶ and ethnicity are empirically inconsistent.⁷ ⁸ ⁹ ¹⁰ ¹¹Nevertheless, some studies do find disparate effects, and participation bias also occurs for reasons unrelated to election rules (e.g., personal factors such as income).

Electoral system reform holds more promise for addressing the effects of participation bias than reform of electoral rules only. First, this is due to practicable matters. The “For the People Act” is unlikely to become law and states remain free to experiment “against” democracy. Second, even with hypothetically zero participation bias occurring between racial and ethnic groups, some electoral systems effectively limit the representation of minority groups when used in combination with specific kinds of districts. 

Unbeknownst to many, an electoral system found in some cities in the United States is effective at addressing participation bias and possible discrimination in elections. 

With cumulative voting, voters cast multiple ballots in multi-member districts (i.e., districts that elect multiple winners). For example, if districts each elect three winners, then voters each submit three votes: including, if they wish, three votes for the same candidate (a so-called bullet vote). In this example, the candidates with the three highest vote totals are the winners. Cumulative voting differs from the plurality voting with which most Americans are familiar since, under cumulative voting, multiple votes are cast by each person for possibly multiple winners. Today, most Americans each cast a single vote for a candidate in a single-member district.

Cumulative voting has unusual potential to decrease the effects of participation bias between racial and ethnic groups regardless of the presence of electoral rules that may affect turnout. It has received scholarly attention largely for its role in addressing the effects of racially discriminatory electoral rules. In the American South, after the Supreme Court deemed whites-only primaries as violations of civil rights, some local governments transitioned from using districts to using at-large, plurality elections that effectively prevented minority candidates from being elected.¹² Such elections resulted in a form of minority-vote dilution (i.e., when the voting power of a minority group is drowned out by the voting power of a majority). Cumulative voting, prevents such dilution.¹³ With cumulative voting in an at-large election for city council, members of racial or ethnic minorities can more effectively win office provided that sufficiently large blocs of minority voters prefer candidates who look like them. With this electoral system, the presence of electoral rules that affect turnout by race have minimal or no effects on the ultimate composition of the city council (provided that blocs of voters are sufficiently cohesive).¹⁴ Cumulative voting has the added benefit of ensuring that representatives generally reflect voters even when minority-voters are dispersed widely across cities or states such that district elections cannot effectively produce reflective councils or legislatures. It accomplishes this goal by eliminating any geographic effect on election outcomes (via districting), especially in the context of segregated communities. 

Such potential to address racial or ethnic discrimination is the reason why federal courts have repeatedly prescribed the use of cumulative voting in cities that used at-large, plurality elections. Legal challenges resulted in the implementation of cumulative voting in Alamogordo, New Mexico, Chilton County, Alabama, and Sisseton, South Dakota, among many other places.¹⁵ Not only did the use of cumulative voting in these municipalities improve minority representation, but the general use of such voting elsewhere is linked with higher turnout in general.¹⁶ There is no evidence that cumulative voting is too complex for individual voters to understand.¹⁷

Today, citizen-initiated amendments or constitutional conventions are the only popular (non-judicial) means of adopting cumulative voting.  Legislators cannot be relied upon to adopt cumulative voting. A constitutional convention was required for the adoption of cumulative voting in the only state legislature (Illinois) to ever use it.¹⁸ Cumulative voting is widely used at the local level in the United States primarily because of lawsuits. 

It may be argued that, since election laws requiring identification have limited or inconsistent results on minority turnout, cumulative voting is not needed as a means to address racial or ethnic differences in turnout. Recall, however, that some studies do find an effect of identification laws, and other studies find more consistent turnout effects due to contextual issues such as waiting times and precinct locations. Moreover, differences in turnout by race and ethnicity persist across elections due to other factors. Cumulative voting is a means of improving representation more effectively than the “For the People Act” or other election-rule changes. 

I suggest that voters consider adopting cumulative voting for state and local governments not only as a means of addressing concerns over participation bias and election laws’ disparate effects, but also as a means of addressing polarization (as I argue elsewhere).¹⁹ It is possible to revive the states’ reputation as laboratories of democracy.

1.  Jacob Grumbach. 2022. “Laboratories of Democratic Backsliding.” American Political Science Review. doi:10.1017/S0003055422000934.

2. Kim Quaile Hill and Jan E Leighley. 1992. “The Policy Consequences of Class Bias in State Electorates.” American Journal of Political Science 36(2): 351-65.

3. Phoebe Henninger, Marc Meredith, and Michael Morse. 2021. “Who Votes Without Identification? Using Individual-Level Administrative Data to Measure the Burden of Strict Voter Identification Laws.” Journal of Empirical Legal Studies 18(2): 256-86.

4. M. Keith Chen, Kareem Haggag, Devin G. Pope, Ryne Rohla. 2020. “Racial Disparities in Voting Wait Times: Evidence from Smartphone Data.” NBER Working Paper 26487. https://www.nber.org/papers/w26487.

5. David Cottrell, Michael C. Herron, and Daniel A. Smith. 2020. “Voting Lines, Equal Treatment, and Early Voting Check-In Times in Florida.” State Politics and Policy Quarterly. https://doi.org/10.1177/15324400209438.

6.  Enrico Cantoni. 2020. “A Precinct Too Far: Turnout and Voting Costs.” American Economic Journal: Applied Economics 12(1): 61-85.

7. John Kuk, Zoltan Hajnal, Nazita Lajevardi. 2022. “A Disproportionate Burden: Strict Voter Identification Laws and Minority Turnout.” Politics, Groups, and Identities 10(1): 126-34. 

8. Justin Grimmer and Jesse Yoder. 2022. “The durable differential deterrent effects of strict photo identification laws.” Political Science Research and Methods 10(3): 453-69.

9. Justin Grimmer, Eitan Hersh, Marc Meredith, Jonathan Mummolo, Clayton Nall. 2018. “Obstacles to Estimating Voter ID Laws’ Effect on Turnout.” Journal of Politics 80(3): 1045-51. 

10.  Enrico Cantoni, Vincent Pons. 2021. “Strict Id Laws Don’t Stop Voters: Evidence from a U.S. Nationwide Panel, 2008–2018.” Quarterly Journal of Economics 136(4): 2615-60.

11. Jeffrey J. Harden and Alejandra Campos. 2023. “Who benefits from voter identification laws?” Proceedings of the National Academy of Sciences of the United States of America 120(7). https://doi.org/10.1073/pnas.2217323120. 

12. Chandler Davidson and George Korbel. 1981. “At-Large Elections and Minority-Group Representation: A Re-Examination of Historical and Contemporary Evidence.” Journal of Politics 43(4): 982-1005.

13. Lani Gunier and Gerald Torres. 2002. The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy. Cambridge: Harvard University Press.

14.  Richard H. Pildes and Kristen A. Donoghue. 1995. “Cumulative Voting in the United States.” University of Chicago Legal Forum 1995: 241-313.

15.  Alan Lockard. 2006. “Another Consideration in Minority Vote Dilution Remedies: Rent-Seeking.” Review of Law and Economics 2(3): 397-421. 

16.  Shaun Bowler, David Brockington, Todd Donovan. 2001. “Election Systems and Voter Turnout: Experiments in the United States.” British Journal of Political Science 63(3): 902-15. 

17.  Richard Engstrom and Robert R. Brischetto. 1998. “Is Cumulative Voting Too Complex? Evidence From Exit Polls.” Stetson Law Review 27: 821-26.

18.  James Strickland. 2022. “Legislative Size and Interest Mobilization: The Effects of Institutional Change.” American Politics Research 50(4): 511-24.

19.  James Strickland. 2020. “To Improve Arizona Legislature, Consider Cumulative Voting.” Arizona Capitol Times. https://azcapitoltimes.com/news/2020/12/31/to-improve-arizona-legislature-consider-cumulative-voting/