California’s 1879 Constitution enshrined cumulative voting as a constitutional right.  Cal. Const. of 1879, Art. XII, § 12 (repealed). The 1931 California General Corporation Law continued mandatory cumulative voting. When the current California General Corporation Law was introduced, it allowed corporations to opt out of cumulative voting.  However, the law as finally enacted continued mandatory cumulative voting. It wasn’t until 1989 that California finally relaxed its cumulative voting mandate by allowing “listed corporations” to opt out. Cal. Corp. Code § 301.5.  So strong is California’s embrace of cumulative voting that the legislature requires California agencies holding shares in corporations to vote to permit or authorize cumulative voting.  Cal. Gov’t Code § 6900.

Thus, I was surprised to learn that the California Secretary of State’s Office cannot accommodate cumulative voting. According to this article, a Superior Court Judge has rejected the City of Santa Clarita’s bid to implement cumulative voting in city council elections after receiving a letter from California’s Secretary of State stating that the state’s election system “has not been tested for use in a cumulative voting election environment by the Secretary of State’s office.” The Secretary of State’s position is surprising in light of the fact that in response to the Help America Vote Act (HAVA), Public Law 107-252, California had promised that it would under the direction of the Secretary of State’s office:

support, promote and encourage the use of direct recording electronic (DRE/touchscreen) voting systems, at polling places in California, and optical scan systems that are used for tabulating vote-by-mail ballots, that are compatible with alternative voting methods such as ranked ballot and cumulative voting . . . .

consider, through established processes, decertifying systems and refusing to certify systems that cannot accommodate alternative voting systems, such as ranked ballots and cumulative voting systems, in a manner in which voters can easily understand . . . .

My Vote Counts: The California Plan for Voting in the 21st Century 10 (2003) (emphasis added).  Perhaps what the state promises “in vento et rapida scribere oportet aqua (ought to be writ in the wind and swift waters)”.  Last month, it was reported that a court had nixed another southern California community’s attempt to adopt cumulative voting.

In a forthcoming article, Professor John F. Coyle takes stock of California’s cumulative voting regime for corporations and how it has been circumvented and eroded.