guest blog by Elise Helgesen and Rob Richie of FairVote
The battle over legislative redistricting in states around the country this year provides strong evidence of the failure of winner-take-all elections in single-member districts in modern America. In these districts huge numbers of people will, by design, be left feeling that they are without meaningful political representation – and without a realistic chance to change it.
Although seen as the norm in the United States, winner-take-all elections invite computer-facilitated partisan gerrymandering. The power to gerrymander districts is grounded in the simple fact that, given most voters’ strong opinions about the two major parties, outcomes are predictable in any district that leans more than 55% for one party. That makes it easy to make seats “safe,” especially given natural differences in voter opinion in different areas
As a result, most voters’ representation in winner-take-all elections will be decided by how redistricting maps are drawn in 2011-2012, rather than by how they vote in 2012-2020. That often makes the battle over district lines vicious, with the courts regularly used as a weapon. Indeed, more than 100 legal challenges have been filed against congressional redistricting plans, including challenges against Maryland’s districts that John Paul Stevens called “outrageously unconstitutional” to Texas’ high-stakes dispute involving Latino voting rights that will go the Supreme Court in early January. Even in states governed by nonpartisan commissions, such as California and Arizona, the major party that doesn’t like the plan is quick to turn to the courts to challenge the map, or in the case of Arizona, even try to fire the commission.
It is time to take on the winner-take-all rule itself by conducting elections in multi-seat “super-districts.” Used in many national elections and in a growing number our cities, these fair voting methods allow like-minded voters to pool their votes to elect representatives in numbers mirroring their level of public support. It puts voters, rather than partisan mapmakers, in charge of their representation; citizens essentially “district” themselves by the way they vote.
Several candidate-based forms of fair voting have been upheld by our courts and fit within our political traditions. “Choice voting,” now being used in Minneapolis and Cambridge (MA) is a reform that has widespread international use and helped break the power of urban political machines in New York and Cincinnati in the last century. In this transferable vote system, voters rank favored candidates in order of choice in multi-member super-districts, and as many voters as possible participate in electing one of their top-ranked candidates. It tends to reduce negative politics, since candidates have an interest in appealing to all voters, not just their natural “base.”
Cumulative voting is used in dozens of cities. From 1870 to 1980, members of the Illinois House of Representatives were elected this way, with each voter having three votes to cast in a three-member district — assigning them to one, two or three candidates as they saw fit. As a result of many voters giving their favorite candidate more than one vote, nearly every district elected both Democrats and Republicans.
FairVote is drawing alternative fair voting plans for U.S. House races. Under our alternative proposals for Maryland, we divided into two super-districts: one with five seats and another with three seats. Winning in the three-seat district would take just over 25 percent of the vote. Winning two seats would take just over 50 percent, and sweeping all three would take more than 75 percent. In the five-seat district, winning one seat would take about 17 percent of the vote, and winning a majority of three seats would take just over 50 percent. The result would be fair representation of every major political force in the state.
From a partisan perspective, backers of both major parties would almost certainly have the power to help elect at least one candidate in each super-district. All voters in the state would experience competitive elections, while likely electing at least one candidate who truly represents their views.
New voices also could be heard. Minor parties and independents would have a greater chance to compete and win. A cohesive African-American voting bloc would likely have the power to shape electoral outcomes for three seats rather than two, and women candidates would likely increase their success in a state that presently only has one female House member.
It’s this last feature of fair voting plans that make them likely to be an important part of our politics in the coming decade. The Voting Rights Act protects racial minorities from racial discrimination in elections. The traditional approach to provide opportunities to elect candidates of choice has been to draw districts in which racial minorities make up more than 50% of the voters.
But racial minorities aren’t as residentially segregated as they used to be, and there are more situations where multiple racial minority groups are vying for representation from a given area. Fair voting plans promote “shared representation” for everyone. They already have been implemented in response to Section 2 violations of the Voting Rights Act in dozens of local jurisdictions, including relatively large cities like Peoria (IL) and Amarillo (TX), and we can more such cases in the coming years.
To establish fair voting for U.S. House elections, Congress would need to give states back their former power to use multi-seat districts— ideally by passing a law also requiring a more independent redistricting process. State legislatures of course don’t need approval of Congress for establishing such systems for their own elections. As detailed in our blogpost this year , Virginia – where 72% of Assembly seats were uncontested this year – could give every one of its voters a meaningful choice in legislative races if replacing its 100 winner-take-all district with 20 five-seat districts with a fair voting.
Doing so would take power away from the political cartographers in the back room and give it to voters on Election Day. If we want to push the “consent of the governed” forward, we should reject winner-take-all politics and embrace fair voting and full representation.
 See, e.g., LULAC v. Clements, 986 F.2d 728, 814-15 (5th Cir. 1993) (“[S]tate policy choices may require the district court to carefully consider remedies such as cumulative voting), rev’d on other grounds, 999 F.2d 831 (5th Cir. 1993) (en banc); United States v. Marengo County Comm’n, 731 F.2d 1546, 1560 (11th Cir. 1984) (listing cumulative voting as a potential Section 2 remedy); United States v. Euclid City School Bd. (Euclid III), 632 F. Supp. 2d 740, 744 (N.D. Ohio 2009); Dillard v. Town of Louisville, 730 F. Supp. 1546, 1548 n.8 (M.D. Ala. 1990); United States v. Village of Port Chester, 704 F.Supp.2d 411 (S.D.N.Y. 2010).
 In 1995, the Texas Legislature enacted a statute that provided that all school districts in the state may choose to vote by cumulative voting. Tex. Ed. Code. § 11.054 (1995).
FairVote, a national organization based in Takoma Park, Maryland, is a leader in promoting fundamental reform of American elections. Utilizing a combination of research, advocacy, and education FairVote, seeks to ensure that every individual’s vote counts through fair voting systems and fair access to participation. Additionally, FairVote assists in voting rights litigation through a vibrant amicus brief practice and helps local jurisdictions in their implementation of alternative voting systems, such as instant runoff voting.
Elise Helgesen is an attorney currently employed as a Democracy Fellow at FairVote. Before coming to FairVote, Elise interned for the Lawyers’ Committee for Civil Rights Under Law, working on voting rights issues. She also interned for the U.S. Attorney’s Office for the Southern District of Florida. Elise graduated from the College of William and Mary with honors in 2008 with a major in Government. She graduated from theUniversity of Florida Law School with honors in 2011 and was recently admitted to the Virginia State Bar.