The Justice Dept. Run Amok
By Edward Blum  -  August 6, 2007
The Weekly Standard

Unlike its more upscale neighbors of Scarsdale and Larchmont, the village of Port Chester, New York (pop. 28,000), is a modest bedroom community in wealthy Westchester County, a 35-minute rail commute from midtown Manhattan. Since 1868, the village has been governed by a six-member board of trustees and a mayor, all of whom are elected at-large. 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. Because Port Chester is small–just 2.1 square miles–this system makes sense. At-large representation is the system used by most villages and hamlets in the state of New York.

But all that may change this year: The U.S. 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. The federal judge hearing the case a few months ago was so thoroughly persuaded by the federal government’s arguments that he cancelled a forthcoming election and indicated he will soon rule against the village, compelling it to adopt a new system of government.

So, what changed after 14 decades to bring the government’s wrath down on Port Chester? One thing unforeseen when the Voting Rights Act was passed in 1965: massive Hispanic immigration.

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. Forget for a moment the concern some have about illegal immigrants voting fraudulently. 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. It’s worth considering whether the law in this area needs to be revisited–and changed.

Port Chester’s experience illustrates the problem. 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. Demographic experts extrapolating from the recent trends estimate Hispanics are by now the majority.

Even if they are, though, no Hispanic has been elected to the board of trustees. 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." 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.

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.

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? Well, based on 20-year-old case law, apparently so. Here’s why.

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. 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; (2) the minority group votes as a cohesive bloc; and (3) the white majority votes as a bloc to defeat the minority group’s preferred candidate. 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. That trial ended a few weeks ago, and a decision is due shortly.

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. 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. Another proposed district has a 51.8 percent Hispanic voting-age population, but only a 28 percent citizen Hispanic voting-age population.

This isn’t fair. It means that the Justice Department wants the village to have citizen-underpopulated Hispanic districts and citizen-overpopulated non-Hispanic ones. 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. This would result in one village trustee representing 4,750 citizens, while another trustee represented only 2,500 citizens.

This kind of voting scheme violates the legal doctrine of one man, one vote established by the Supreme Court in the early 1960s. 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. The courts properly closed this and other loopholes. But the courts back then did not anticipate the effect of waves of noncitizen Hispanic immigration. This inequity goes to the heart of the Equal Protection clause of the Constitution.

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? 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?

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. Yet, the Court has never defined a critical variable in this equation, namely, what is the relevant "population"?

It is a question that has bedeviled the lower courts. The Fifth Circuit has held that it is "a choice left to the political process" which population to count. The Fourth Circuit similarly held that courts have no business getting into this essentially "political" question. 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 question needs resolution, either from the courts or, better, from Congress. While the immigration bill appears dead for now, these issues still need to be fixed. And what better way than legislation? After all, how many members of Congress believe U.S. 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?

It’s a good question. The people of Port Chester and elsewhere need to find out.

 

 

Edward Blum is a visiting fellow at AEI. He is the author of The Unintended Consequences of Section 5 of the Voting Rights Act (AEI Press, 2007).