Can a New York village switch from one-vote-per-candidate trustee elections to cumulative voting through a local law, and does the change need a referendum?
Plain-English summary
The Village of Port Chester had used cumulative voting under a federal court order in a Voting Rights Act case. After the order ended, the village wanted to keep the system rather than revert to single-vote-per-candidate trustee elections. Cumulative voting lets each voter cast as many votes as there are open seats (six in Port Chester) and pile any combination of those votes onto a single candidate. The mechanism is often used to give a numerical minority a realistic shot at electing one of its preferred candidates.
The village attorney asked the Attorney General two questions. First, can a village switch to cumulative voting on its own through a local law? Second, does the local law need a referendum?
The opinion concluded yes to both, at least at the time it was written in 2018. The home rule authority in Municipal Home Rule Law § 10(1)(ii)(a)(1) covers the "mode of selection" of village officers, and the New York Court of Appeals in Bareham v. City of Rochester, 246 N.Y. 140 (1927), held that "mode of selection" includes the precise voting method, not just the choice between elected and appointed offices. None of the Election Law's vote-counting or canvass provisions textually bars cumulative voting; the statutes refer to "the person or persons" who receive the most votes for an office, which fits a multi-seat at-large election under either single-vote or cumulative-vote rules.
On the referendum question, Municipal Home Rule Law § 23(2)(e) requires a mandatory referendum when a local law changes the method of electing an elective officer. Cumulative voting is such a change.
Currency note
This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
In particular, New York enacted the John R. Lewis Voting Rights Act of New York in 2022, which created additional state-law tools for adjusting local election systems. A village considering an electoral change today should review both this opinion's home-rule reasoning and the more recent statutory framework before acting.
Common questions
Q: What was Port Chester's situation?
A: The village had used cumulative voting under a federal court order issued in United States v. Village of Port Chester, a Voting Rights Act case from the early 2000s. After the consent decree expired, the village wanted to continue using cumulative voting (or another fair representation system) rather than revert to plurality voting at large.
Q: How did the AG's reasoning treat the Election Law's "highest number of votes" language?
A: The AG read the statute as referring to the highest number of votes for each of multiple seats (the "persons" who receive the most votes), not as requiring a single winner per ballot office. The opinion noted that the same problem would exist for any single-vote-per-candidate at-large multi-seat election if the statute were read otherwise. So the structural argument worked in either direction.
Q: Did the opinion address whether cumulative voting violates "one person, one vote"?
A: Yes, in passing. The AG cited Seaman v. Fedourich, 16 N.Y.2d 94 (1965), for the proposition that the principle protects the equal weight of each voter's vote, not a one-vote ceiling. Each voter in a cumulative-voting election has the same number of votes as every other voter (six, in Port Chester's case), so the principle is satisfied.
Q: Could a village skip the referendum and just pass the local law?
A: Not under this opinion's reading. Municipal Home Rule Law § 23(2)(e) required a referendum for any change to the mode of selecting an elected officer. Bypassing it would expose the local law to challenge.
Q: Does the opinion apply to cities, towns, and school districts?
A: The opinion focuses on villages, but the home rule and referendum statutes are similar across local government tiers. The structural analysis (mode of selection includes voting method; mandatory referendum for changes to elected-officer selection) generalizes.
Background and statutory framework
The Bareham line goes back to a 1927 Court of Appeals decision that read New York's home rule grant broadly. Bareham v. City of Rochester, 246 N.Y. 140, decided that a city could choose its own method of electing officers because the term "mode of selection" in the home rule grant covered the mechanics of election, not just the macro choice of elected versus appointed.
Article 9, section 2(c) of the constitution and Municipal Home Rule Law § 10(1)(ii)(a)(1) carry that grant forward today. Together they let a local government adopt local laws on its own government, including its officers' mode of selection, as long as those laws stay consistent with the constitution and general state statutes.
The Election Law applies to village elections under § 15-100 and § 1-102, but it does not specifically prescribe a one-vote-per-candidate rule or bar a multi-vote-per-candidate rule. Sections 9-212(1) and 15-104(1)(d) speak in terms of the candidate "elected by the greatest number of votes," and § 15-126(2)(a) refers to "the person or persons" elected. The plural "persons" gives the AG textual ground to read multi-seat at-large elections as multiple parallel single-seat contests rather than as one multi-winner contest.
The mandatory referendum requirement in Municipal Home Rule Law § 23(2)(e) ensures voters have a direct say when their mode of choosing officers changes. The provision treats the choice of voting system as a fundamental enough change to require approval beyond the local legislative body.
The opinion is informal because it was issued to a village attorney; the Attorney General reserves formal opinions for state officers and departments. The reasoning, however, has been widely cited by election lawyers exploring fair-representation voting at the local level.
Citations and references
Statutes and constitution:
- N.Y. Const. Art. 2, § 7; Art. 9, § 2(c)(i), (ii)(1)
- Municipal Home Rule Law §§ 10(1)(i), 10(1)(ii)(a)(1), 23(2)(e)
- Election Law §§ 1-102, 9-112, 9-212, 15-100, 15-104, 15-126
Cases:
- Bareham v. City of Rochester, 246 N.Y. 140 (1927), mode of selection includes precise election method
- Seaman v. Fedourich, 16 N.Y.2d 94 (1965), one person, one vote means equal weight, not one-vote ceiling
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/2018-1_pw.pdf
Original opinion text
New York Constitution Article 2, § 7, Article 9, § 2(c)(i), Article 9, § 2(c)(ii)(1); Municipal
Home Rule Law §§ 10(1)(i), 10(1)(ii)(a)(1), 23(2)(e); Election Law §§ 1-102, 9-112, 9-112(1),
15-100, 15-104, 15-104(1)(d), 15-126(2)(a)
A village can adopt a local law implementing a cumulative voting system and such local
law would be subject to mandatory referendum.
January 24, 2018
Anthony M. Cerreto
Village Attorney
Village of Port Chester
222 Grace Church Street
Port Chester, New York 10573
Informal Opinion
No. 2018-1
Dear Mr. Cerreto:
You have requested an opinion regarding whether the Village is authorized to adopt
a local law that would establish a system of cumulative voting to elect village trustees, and,
if so, whether that local law would be subject to referendum. Under a cumulative voting
system, each voter is entitled to cast as many votes as there are open seats—in the Village’s
proposal, six votes because the Village is governed by a board of six trustees elected at large
(and a mayor)—but is not limited to casting a single vote for a candidate. A voter could cast
a single vote for each of six candidates, or cast all six votes for one candidate, or allocate the
six votes among candidates in some other way. You have explained that the Village was
using cumulative voting by court order, which has since terminated, and would like to
continue using cumulative voting or another “fair representation” voting system instead of
returning to the single-vote-per-candidate system for its at-large trustee elections that the
Village’s Charter provides for. As explained below, we are of the opinion that the Village
can adopt a local law implementing a cumulative voting system and that such local law
would be subject to mandatory referendum.
The Village is authorized to adopt a local law relating to its government and to the
mode of selection of its officers, as long as that local law is consistent with the state
Constitution and general state statutes. N.Y. Const. Art. 9, § 2(c)(i),(ii)(1); Municipal Home
Rule Law § 10(1)(i),(ii)(a)(1). And the Court of Appeals has determined that the term “mode
of selection” is not limited to whether an officer is elected or appointed but also means that
“a municipality may define the precise method by which either an election or appointment
shall be effected.” Bareham v. City of Rochester, 246 N.Y. 140, 146 (1927). We therefore
believe that the Village’s proposed local law falls in the first instance within its home rule
authority.
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The next question is whether the proposed local law is inconsistent with either the
state Constitution or a general state law. We are not aware of any provision of the
Constitution that governs the method of electing local officers, other than the general
requirement that they be elected by ballot or by other method prescribed by law. N.Y.
Const., Art. 2, § 7. The proposed local law is consistent with this provision.
Nor are we aware of a provision of state law with which the proposed local law would
be inconsistent. The Election Law—which governs elections for village trustee as well as
for many other elective offices, see Election Law § 15-100 (application of statutes to village
elections); id. § 1-102 (same)—neither expressly mandates a ballot with respect to which a
voter can cast only a single vote per candidate nor specifically precludes a ballot with respect
to which a voter may cast more than one vote per candidate.
It has been suggested that certain provisions of the Election Law indirectly prohibit
a cumulative voting system. Specifically, section 9-212, relating to the canvass of elections
by county boards of election, and section 15-104, relating to village elections, provide that
the winning candidate is the one who receives the most votes. Election Law §§ 9-212(1)
(“each person elected by the greatest number of votes to each . . . village office”), 15-104(1)(d)
(“a candidate must receive more votes than any other candidate for the office”). Because an
election for an office can have only one winning candidate, if the Village’s at-large election
is viewed as filling a single office of village trustee, then it might be argued that an election
at which cumulative voting is used would have six, rather than one, winning candidates for
the office. But the Village’s election is better viewed as an election to fill six identical offices
of village trustee, with a single winner for each office. The Election Law supports this view
by providing, with respect to village elections, that “[t]he person or persons” who receive the
highest number of votes are elected.1 Election Law § 15-126(2)(a) (emphasis added).
In fact, were the Village to again implement a single-vote-per-candidate system for
electing its trustees at large, village voters could cast votes for six trustees, just as they
could if the Village adopted cumulative voting; the difference between the two systems
would not be in the number of “winners” but in the number of votes a voter could cast for a
single candidate. And the Election Law does not address the number of votes a voter can
cast for one candidate.
We thus conclude that the proposed local law would be consistent with the Election
Law. And we find no evidence that the Legislature has expressed an intent to preempt local
1 At-large elections may also be held in cities, towns, and school districts as well as in villages.
See Gerald
Benjamin, At-Large Elections in N.Y.S. Cities, Towns, Villages, and School Districts and the Challenge of
Growing Population Diversity, 5 Albany Gov’t L. Rev. 733, 734 (2012). Any election to fill an at-large office
with multiple vacancies will run afoul of sections 9-212(1) and 15-104(1)(d), even using one-vote-per-candidate
voting, if such an election is viewed as one for a single office instead of an election for multiple identical offices.
Page 3
legislation relating to the number of votes a voter can cast for a single candidate: the
Legislature simply has not spoken with respect to that area.
Finally, to briefly address a misunderstanding that might be raised with respect to
the proposed cumulative voting, it does not violate the “one person, one vote” principle.2
That principle does not limit a voter to only one vote but instead ensures that the vote of
any one voter has the same weight as that of any other voter. See Seaman v. Fedourich, 16
N.Y.2d 94, 101-02 (1965). The Village’s proposed local law does not undermine that
principle.
If adopted, as a local law that changes the method of electing an elective officer, the
proposed local law would be subject to mandatory referendum. Municipal Home Rule Law
§ 23(2)(e).
The Attorney General issues formal opinions only to officers and departments of state
government. Thus, this is an informal opinion rendered to assist you in advising the
municipality you represent.
Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions
2 See Alec Slatky, Debunking the Myths about Port Chester (June 25, 2010), FairVote, at
http://www.fairvote.org/debunking-the-myths-about-port-chester.