Fox News' Gregg Jarrett suggested that an election "scheme" which resulted in the election of the first Latino member of the Board of Trustees of Port Chester, NY is unconstitutional. In fact, the system used in Port Chester is in use elsewhere and was mandated in this case by a judge appointed by George W. Bush.
From the June 16 edition of Fox News' America Live:
JARRETT: One person, one vote: it's a time-honored principal of elective democracy in America. But, in a small New York village, it has morphed now into one person, six votes. All as a way to give Latinos a huge advantage at the ballot box. What's surprising is that a federal judge ordered it. Some say the Constitution is being shredded to advance racial politics.
There's the map, the village of Port Chester. It's roughly 46 percent Latino, but many are not American citizens, or they're not registered to vote, or they're too young.
Despite their ineligibility to vote, Latino advocates complained that they were underrepresented on the board of trustees. Well, that changed yesterday when voters elected their first Latino trustee. How did they do it? A new voting method allowing people to cast six votes for one person. It's called cumulative voting. It's a system, or a scheme depending on your point of view, deliberately intended to give minorities, even minorities who are not permitted to vote, greater representation.
Here's how it works. With six open seats on the village board and thirteen candidates, each voter was given six votes. Instead of casting six votes for six candidates, voters were allowed to cast all of their votes for one person. Sounds undemocratic to some who ask "Is it legal?"
Well, a federal judge, Stephen Robinson -- there he is -- thinks so. After the Department of Justice sued the village of Port Chester in 2006 claiming the Latino population was not fairly represented under the Voting Rights Act, the judge, Judge Robinson, agreed, ordering this new system. But you know Shannon, you're a lawyer. Judges make mistakes all the time, and they get overturned on appeal, so this one may be challenged too. If some voters exercised six times the ballot power than others, this could be a violation of the equal protection clause of the U.S. Constitution.
Now one Latino voter said that without this new system, quote "there would be no chance for a Latino to get elected." But that assumes that voters cast ballots based on race, not qualification. And there is scant evidence of that. What's more, most registered voters in Port Chester are non-Latino. Why should their voice be diminished by giving the minority a greater voice than the majority? Is that anathema to democracy?
Case against Port Chester was brought by George W. Bush Justice Department and decided by a Bush appointee
Bush Justice Department filed lawsuit against Port Chester for violating the Voting Rights Act. In 2006, during the Bush presidency, the Justice Department filed a lawsuit alleging that "[n]o Hispanic has ever been elected to the Port Chester Board of Trustees" under its election system, in which voters could cast up ballots for up to six candidates elected village-wide, and that "[e]thnically and racially polarized voting patterns prevail in elections for the Port Chester Board of Trustees." The lawsuit also alleged:
Port Chester's at-large method of electing its Board of Trustees is not equally open to participation by Port Chester's Hispanic voters, in violation of Section 2 of the Voting Rights Act. Further, the at-large method results in Hispanic voters having less opportunity than white voters to participate in the political process and to elect representatives of their choice.
Bush appointee sided with Justice Department, finding that Port Chester had violated the Voting Rights Act. In 2008, Judge Stephen Robinson, a Bush appointee, sided with the Justice Department, holding that Port Chester had violated the Voting Rights Act.
Port Chester requested that cumulative voting be used
Department of Justice had recommended that Port Chester be required to use single-member districts to elect board. After Robinson's decision that Port Chester had violated the Voting Rights Act, the Justice Department and the village of Port Chester both submitted suggested plans for remedying the violation. According to the district court decision (retrieved via Lexis), the plaintiffs -- the Justice Department and a Latino voter -- proposed "a districting plan that divides Port Chester into six single-member districts with one majority-minority Hispanic district." According to The Washington Post's Politics Glossary, a single member district is defined as:
The most common electoral system in the United States used to elect House members and many state and local officials. Each district votes on one person to represent them in a legislative body. In a plurality system, a winner must earn more votes than his opponent - even if his total is fewer than 50 percent. In a majority system, there are run-offs to ensure a lead candidate receives the majority of voters' support.
The village of Port Chester actually requested the cumulative voting system. From the district court's decision (retrieved via Lexis):
The Village of Port Chester proposes an at-large, cumulative voting scheme with the elimination of staggered terms. Each voter would be allotted the same number of votes as there are seats up for election and would be free to allocate them however he or she chooses. Voters may choose to "plump" all their votes on one candidate--the strategy of choice for minority communities who want to indicate a strong preference for a particular candidate. Defendant also acknowledges the need for an education program to help voters, and in particular Port Chester's Hispanic population, understand how cumulative voting works and what their strategic options are under the system.
Judge's decision: A court must accept the defendant's remedy for a Voting Rights Act violation if it is "legally acceptable." Robinson accepted Port Chester's cumulative voting system proposal, stating: "The Court must give the defendant jurisdiction the first opportunity to suggest a legally acceptable remedial plan, based on the theory that the judiciary should not intrude on legislative policy any more than necessary."
Cumulative voting is used in other districts and was endorsed by Justices Thomas, Scalia, and O'Connor
Several courts have mentioned cumulative voting as an option to deal with Voting Rights Act violations. Jarrett repeatedly suggested that the judge's order violated the Constitution. However, the judge noted in his decision that in 2009 an Ohio district court accepted a cumulative voting plan as a remedy for a Voting Rights Act violation. The district court also cited several trial and appellate federal judges that have ruled that cumulative voting is a permissible option for voting rights violation.
Justices Thomas, Scalia, and O'Connor endorsed cumulative voting as a remedy for Voting Rights Act violations. In a 1994 concurring opinion joined by Justice Antonin Scalia, Justice Clarence Thomas stated:
Such changes may seem radical departures from the electoral systems with which we are most familiar. Indeed, they may be unwanted by the people in the several States who purposely have adopted districting systems in their electoral laws. But nothing in our present understanding of the Voting Rights Act places a principled limit on the authority of federal courts that would prevent them from instituting a system of cumulative voting as a remedy under §2, or even from establishing a more elaborate mechanism for securing proportional representation based on transferable votes.
Similarly, in a 2003 concurring opinion joined by Thomas, retired Justice Sandra Day O'Connor stated:
Finally, the fact that a court must enter an order under §2a(c)(5) mandating at-large elections does not necessarily mean that the plan would violate §§2 or 5 of the Voting Rights Act, 42 U.S.C. § 1973 1973c, or that traditional winner-take-all elections are required on a statewide basis. Rather, as cross-appellants acknowledge, Brief for Cross-Appellants in No. 01--1596, pp. 27--28, Tr. of Oral. Arg. 47--48, a court could design an at-large election plan that awards seats on a cumulative basis, or by some other method that would result in a plan that satisfies the Voting Rights Act.
Jarrett falsely claimed that there's "scant evidence" that Port Chester voters cast ballots based on race
The district court found that both the white majority "vote sufficiently as a bloc" to defeat the Latino minority's preferred candidates. Jarrett claimed: "Now one Latino voter said that without this new system, quote 'there would be no chance for a Latino to get elected.' But that assumes that voters cast ballots based on race, not qualification. And there is scant evidence of that." In fact, after reviewing the evidence presented by the Justice Department and the village of Port Chester, the district court concluded:
In sum, it is clear to this Court that Hispanic voters and non-Hispanic voters in Port Chester prefer different candidates, and that non-Hispanic voters generally vote as a bloc to defeat Hispanic-preferred candidates.