Parsons, Penrose, and Carroll: “Pico & Proportional Ranked Choice Voting”

The following is a guest post from G. Michael Parsons (Senior Legal Fellow, FairVote), Drew Penrose (Policy Consultant, FairVote), and Terrance Carroll (Senior Fellow for Voting and Democracy, FairVote):

The California Supreme Court’s decision in Pico Neighborhood Association v. City of Santa Monica last week was a major victory for voting rights, fair representation, and the essential protections provided by a growing number of state voting rights acts (SVRAs) across the country. In this post, we raise three observations about what the decision might mean for SVRA litigation going forward. First, alternative “modified at-large” electoral systems (such as proportional ranked choice voting) may offer the clearest benchmark for establishing liability in future SVRA cases. Second, the Court’s emphasis on “lawful” alternatives contemplates a range of potential changes to a locality’s electoral system, including eliminating staggered elections or moving to multi-member districts. Finally, proportional ranked choice voting offers a uniquely compelling remedy in SVRA cases because it encourages the kind of crossover voting that the Pico decision protects as a means of providing communities of color a “real electoral opportunity” to elect their candidate of choice.

1. Alternative electoral systems may offer plaintiffs (and courts) the clearest and easiest benchmark for measuring vote dilution in future cases.

In 2021, FairVote filed an amicus brief in the Pico case noting that alternative “modified at-large electoral systems” (such as cumulative votinglimited voting, and proportional ranked choice voting) could “supply a benchmark that courts can use to determine whether [an] electoral system” dilutes the votes of a protected class of voters. These systems keep elections jurisdiction-wide, rather than using districts, but allow candidates to win with a smaller share of the vote. That makes it possible for communities of color to elect a candidate (or candidates) of choice even if they are too spread out to draw into a compact district. As Nick flagged last week, the California Supreme Court’s framework now explicitly recognizes this method for proving liability and the viability of using such alternative systems to remedy vote dilution as well.

How often will litigants rely upon this method to prove dilution? Quite a lot, we expect.  

To start, when plaintiffs belong to a class of protected voters who are dispersed evenly throughout a jurisdiction, they will often have difficulty demonstrating dilution if they can only show liability using a single-member-district benchmark map. By allowing voters to use alternative electoral systems as a benchmark, more voters in more jurisdictions now have a clear path to show that they are underrepresented in their local government.  

For example, the Pico decision noted that the threshold to elect a member of choice in a seven-seat election under an alternative electoral method would be 12.5% plus one. If a group of voters can show racially polarized voting and that their preferred candidate could get 12.5% of support citywide under such an alternative system, then this group may be able to show dilution under the Pico framework. The protected group itself would not even necessarily have to be larger than 12.5% of the voting population on its own; the decision rejects rigid thresholds in favor of a more searching inquiry as to whether the protected class would have a “real electoral opportunity” to elect its candidate of choice “with the aid of crossover voters.”

Plaintiffs do not need to be experts in voting methods to make these remedies work for them. The simplest semi-proportional method — limited voting — is as simple as it can get: Elect all seats at-large, but allow each voter to cast only one vote. As civil rights activist Jerome Gray would often note: limited voting is like having single-member districts but without the lines. “[In a] plan with five districts, a voter can only vote for one candidate of their choice in the district where he or she resides, although five members will be elected.” Similarly, in a limited voting system, each winner is selected by a distinct group of voters, and it becomes more difficult for a majority-bloc of voters to win all the seats.

Cumulative voting and proportional ranked choice voting introduce more choices and more benefits for both voters and candidates, but the threshold of votes needed to win a seat under each system remains the same.

What do these thresholds look like? They depend on how many seats the jurisdiction is electing. To find the threshold, divide 100% by “the number of seats plus one.” So if a city elects three seats at-large, a group would be guaranteed to win one of the seats with more than 25% of the citywide vote. That’s simply the share of votes that guarantees victory, for the same reason that winning more than 50% of the vote in a single-winner contest guarantees victory. 

Seats Open for ElectionShare of Votes Required to Win a Seat
150% + 1
233.3% + 1
325% + 1
420% + 1
516.7% + 1
614.3% + 1
712.5% + 1

Allowing for a proportional benchmark may also make it easier for voters to identify dilution in their own jurisdictions. Redistricting tools have become increasingly available to the public over the past decade, but the legal rules surrounding redistricting can still be quite difficult for the average voter to navigate. But voters do know when their city or county councils don’t seem to represent them — and an at-large comparison between the voters and their representatives will often be the simplest and starkest way to show it. (Moreover, a proportional benchmark avoids the difficulties that can arise when different groups of voters might prefer different single-member benchmarks, since proportional methods could allow multiple plaintiffs to rely on the same un-districted map to demonstrate liability across multiple classes of voters.)  

2. The lawful-alternative benchmark need not keep the same staggered election cycles as the existing system — and should be informed by what’s available under state law.

The Pico decision notes that the City of Santa Monica has “a seven-member city council” and that its members are “elected at large through staggered elections” with four members “elected during the year of a presidential election” and three members “elected during the year of a gubernatorial election.” Soon thereafter, the opinion notes that staggered elections “may have discriminatory effects in some circumstances.”

This raises an important question for the remand and for future cases: Does the benchmark system need to retain the same stagger as the existing system? As the table above shows, the threshold when three seats are up for election is twice as high as the threshold when seven seats are up for election, so this question could have profound implications.

We believe the California Supreme Court means what it says: If it is lawful to elect all seven members at once, then this is a “lawful alternative electoral system” that can serve as a benchmark for measuring dilution. And, in states with voting rights acts that list a variety of remedial options (such as reasonably increasing the size of a governing body) or in states where multi-member districts are available, the availability of those options should likewise inform what can be introduced by plaintiffs as a “reasonable alternative voting practice” to show dilution.  

3. Of the alternative electoral systems available, proportional ranked choice voting will often provide the most inclusive approach because it encourages diverse candidate entry, minimizes vote-splitting, and incentivizes coalition-building.

The California Supreme Court mentioned three modified at-large systems by name: Limited voting, cumulative voting, and ranked choice voting. Of the three, ranked choice voting is the only fully proportional system (as opposed to semi-proportional), and its unique features make it well-suited for resolving vote dilution cases.

Consider limited voting: In its simplest form, it provides every voter with exactly one vote, no matter how many seats are being elected. That makes it harder for a unified majority bloc to win all of the seats, but to reliably provide minority representation, limited voting requires a level of community coordination that may not always be realistic. For minority communities to earn representation under limited voting (or cumulative voting), they must coalesce around a candidate before the vote takes place. If, for example, the Latino community is large enough to elect one candidate of choice, but two Latino candidates run, the candidates may split the vote and both lose.

Proportional ranked choice voting helps avoid these kinds of vote-splitting and coordination problems by minimizing wasted votes. Voters have one vote, as in limited voting, but they rank backup choices second, third, and so on. That way, if their vote would be “wasted” on a candidate who cannot win (or who would win without it), their vote can instead help elect their next choice. In other words, proportional ranked choice voting maximizes the power of each individual’s vote. Because proportional ranked choice voting doesn’t require a community to coordinate around a candidate before the election and effectively allows coalitions to coalesce on Election Day, it reliably produces proportional representation and encourages new candidates to step into the race. And research shows that ranked choice voting can lead to more candidate entry from previously excluded communities.

The system also affects campaigning: When second-choices matter, a smart candidate does not write off voters who favor their opponents, but instead sees those voters as a potential source of second- or third-choice support. That feature holds the potential to not only help achieve fair representation under conditions of racially polarized voting, but also to foster cross-racial coalitions. This, too, can help protected groups that are below the threshold to have a “real electoral opportunity” to elect their candidate of choice “with the aid of crossover voters.” 

*     *     *

The use of such alternative systems to remedy vote dilution cases is nothing new. In the 1990s, there was a serious push to make these methods a new standard for fair representation, most visibly led by legal scholars like Lani Guinier. As she wrote in 1992, “The only system with the potential to realize [political fairness] for all voters is one in which the unit of representation is political rather than regional, and the aggregating rule is proportionality rather than winner-take-all.”

The Pico decision demonstrates that an “ability to elect” standard can be interpreted and administered in a way that doesn’t rely upon bright-line rules like the kind artificially imposed by the U.S. Supreme Court on the federal Voting Rights Act. And while Pico’s most immediate application will be in California, its reasoning and its framework seem likely to become a model for other state courts and state legislatures to follow. In this, Pico may well become the next Thornburg v. Gingles — a landmark case that impacts the voting-rights landscape for decades to come.

Share this: