The Justice Dept. Run Amok
Blum, Edward
The Justice Dept. Run Amok The latest abuse of the Voting Rights Act. by Edward Blum Unlike its more upscale neighbors of Scarsdale and Larchmont, the village of Port Chester, New York (pop....
...It is a question that has bedeviled the lower courts...
...The Justice Department's claims rely on Thornburg v. Gingles, a 1986 Supreme Court case which established a three-part test to determine if at-large and multimember voting methods violate the law...
...So, for example, a non-Hispanic district might be drawn with 5,000 persons of voting age, 95 percent of whom are citizens, to be represented by one Port Chester trustee...
...A Hispanic district, meanwhile, might have 5,000 persons, only 50 percent of whom are citizens...
...Whatever the number of elections affected by noncitizen voting fraud, it is dwarfed by the number of contests that have been affected legally by immigrants because of our nation's election laws...
...The Ninth Circuit, in contrast, has held that using citizen voting-age population instead of total voting-age population in these contexts would violate the Constitution...
...This kind of voting scheme violates the legal doctrine of one man, one vote established by the Supreme Court in the early 1960s...
...So, what changed after 14 decades to bring the government's wrath down on Port Chester...
...But all that may change this year: The U.S...
...Jurisdictions in the Deep South tried similar shenanigans soon after the passage of the Voting Rights Act in 1965 in an attempt to "dilute" the power of the black vote...
...One thing unforeseen when the Voting Rights Act was passed in 1965: massive Hispanic immigration...
...And what better way than legislation...
...This question needs resolution, either from the courts or, better, from Congress...
...It's worth considering whether the law in this area needs to be revisited—and changed...
...In other words, the trustees don't run for election in separate districts, but rather represent all of the voters regardless of where they live...
...Since 1868, the village has been governed by a six-member board of trustees and a mayor, all of whom are elected at-large...
...It means that the Justice Department wants the village to have citizen-underpopulated Hispanic districts and citizen-over-populated non-Hispanic ones...
...According to Gingles, single-member districts must be created when (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district...
...Setting aside the implication that recent immigrants from Mexico and El Salvador bear the effects of historic American discrimination (to say nothing of their eligibility for affirmative action preferences in education, contracting, and employment), does current law really require the village of Port Chester to adopt a new system of representation simply because of a surge in the number of Hispanic immigrants...
...While each of the Gingles preconditions has serious flaws worthy of discussion, the first is the most troubling in this case because the Hispanic districts the Justice Department wants Port Chester to adopt have significant deviations in citizen population size from the non-Hispanic districts...
...Because Port Chester is small—just 2.1 square miles—this system makes sense...
...For all of the legislative twists and turns in the debate over the recent immigration bill, few on either side of the issue are discussing how legal immigrants are altering centuries-old forms of governance in dozens of towns, school districts, and other jurisdictions throughout the country...
...In other words, should 2,500 citizens in one district get one representative, while in a neighboring district, it takes 4,750 people to get one...
...Department of Justice has decided it doesn't like the way Port Chester has conducted its elections for the last 139 years and has sued, claiming the current at-large voting violates the Voting Rights Act...
...While the immigration bill appears dead for now, these issues still need to be fixed...
...It's a good question...
...After all, how many members of Congress believe U.S...
...This inequity goes to the heart of the Equal Protection clause of the Constitution...
...Yet, the Court has never defined a critical variable in this equation, namely, what is the relevant "population...
...2) the minority group votes as a cohesive bloc...
...The Supreme Court has long held that other than for a state's congressional districts, population deviations between voting districts cannot be greater than 10 percent...
...Port Chester's experience illustrates the problem...
...Because of this, the Department of Justice alleges that Port Chester's Hispanic citizens are victims of voting discrimination because they have "less opportunity than white citizens to participate in the political process and to elect candidates of their choice...
...That trial ended a few weeks ago, and a decision is due shortly...
...He is the author of a forthcoming AEI Press book on the Voting Rights Act...
...The judge in the Port Chester case found all three of these factors to be present, so he enjoined the village from holding elections until a full trial could take place...
...The Fifth Circuit has held that it is "a choice left to the political process" which population to count...
...The federal judge hearing the case a few months ago was so thoroughly persuaded by the federal government's arguments Edward Blum is a visitingfellow at the American Enterprise Institute...
...Another proposed district has a 51.8 percent Hispanic voting-age population, but only a 28 percent citizen Hispanic voting-age population...
...To remedy the alleged violation, the Department of Justice instructed Port Chester to scrap its at-large election of trustees and instead carve out six single-member voting districts, of which two to three must contain enough Hispanics to make it likely they will be able to "elect candidates of their choice"—in other words, one of their own...
...But the courts back then did not anticipate the effect of waves of noncitizen Hispanic immigration...
...This allegedly violates Section 2 of the Voting Rights Act— one of the act's permanent provisions that apply to all jurisdictions coast to coast...
...Well, based on 20-year-old case law, apparently so...
...that he cancelled a forthcoming election and indicated he will soon rule against the village, compelling it to adopt a new system of government...
...At-large representation is the system used by most villages and hamlets in the state of New York...
...Here's why...
...Even if they are, though, no Hispanic has been elected to the board of trustees...
...This would result in one village trustee representing 4,750 citizens, while another trustee represented only 2,500 citizens...
...For instance, one of the DOJ-proposed Hispanic districts has a 77.27 percent Hispanic voting-age population, but only a 56.27 percent citizen Hispanic voting-age population...
...From 1990 to 2000, census data indicate the Hispanic population grew by 73 percent, making Hispanics a 46 percent plurality of the residents, with non-Hispanic whites at 43 percent and non-Hispanic blacks at nearly 7 percent...
...So, here's the legal question in Port Chester that needs resolution: Does undersizing the citizen population in the Hispanic voting districts dilute the strength of the voters in non-Hispanic districts...
...Demographic experts extrapolating from the recent trends estimate Hispanics are by now the majority...
...The courts properly closed this and other loopholes...
...The Fourth Circuit similarly held that courts have no business getting into this essentially "political" question...
...citizens should have their votes for any elective office "diluted" because legal and illegal noncitizens are counted for the purposes of constructing single-member districts...
...This isn't fair...
...and (3) the white majority votes as a bloc to defeat the minority group's preferred candidate...
...28,000), is a modest bedroom community in wealthy Westchester County, a 35-minute rail commute from midtown Manhattan...
...Forget for a moment the concern some have about illegal immigrants voting fraudulently...
...The people of Port Chester and elsewhere need to find out...
Vol. 12 • August 2007 • No. 44
