Sekulow falsely claims judge mandated new voting system to get the vote he wanted

Sekulow: This case “is a judge saying, I'm going to get the vote I want, not just in the law, but by the legislature I am now ... selecting.” During the segment, Sekulow falsely suggested that a federal judge had selected the election system used in Port Chester in order to get the electoral result the judge wanted. From the June 18 edition of Fox News' America Live with guest host Shannon Bream:

SEKULOW: You know, it sure does. Because this is what we call outcome driven litigation, except here, the judge seems to have been driving the train. This idea that gee, the judge feels like there's underrepresentation of a particular minority class, which is -- that's a situation, there's elected ways within the legal system to do it. But to go back and to say well, gee, to fix that, I'm going to give this six votes maximum approach, cumulative voting as its called, to be divided any way you want. Well look, that's just gerrymandering, and you're not supposed to be able to do that. But, you know, the court cases are conflicted at best, but I think it's a horrible precedent and really undercuts the idea of a representative democracy.

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SEKULOW: You know, I think Shannon, it goes beyond legislating from the bench. It's determining who the legislature is from the bench, and that's even more dangerous, it's more onerous, because what that means is a judge that wants to get a particular outcome not only affects how he interprets the law, he now affects and impacts who is actually making the law. And that is a breach, in my view, of the separation of powers, the concept that we have a legislative branch, a judicial branch, an executive branch, and it merges the two or the three. And whenever you do that, it's dangerous.

My fear here is that other judges are going to say, well, this is a good idea on how to, you know, figure out inequities that might exist in the system, so let's just do this. Instead of six, why not make it 12? And you can divide them any way you want, which means at the end of the day, the math tells me, you know what? It's not one vote or even a cumulative one vote per person. It's really gerrymandered voting. And that is by judicial decree, which is really dangerous.

SHANNON BREAM (host): Should we be worried at all that changing these voting policies and the way that these things are set up will in any way open the door to fraud or confusion or ways for people to interfere in any way with legitimate voting?

SEKULOW: Sure. I mean you ask absolutely the best question. That is because here's what you do. You're saying, well look, you get six votes. So if you want to really have an impact on this, don't just vote, you know, four for me and two for this guy. But maybe the voting calculus is five for this one and one for me or two for me and four for this guy. Whatever it might be, that is not judicial -- that's not voting. That is a judge saying, I'm going to get the vote I want, not just in the law, but by the legislature I am now affecting and really selecting.

Port Chester actually requested the voting system the judge mandated

Bush Justice Department filed suit claiming that Port Chester had violated 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. The Justice Department further alleged that "[e]thnically and racially polarized voting patterns prevail in elections for the Port Chester Board of Trustees."

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.

The village of Port Chester actually requested the voting system that was used in the election. After finding that Port Chester had violated the Voting Rights Act, both sides in the case asked the court to impose their preferred remedy. Port Chester proposed that the village use “cumulative voting,” a system in which each voter would continue to get six votes for the six seats on the board, but could choose to allocate as many of those six votes to one candidate as they wished. 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.” The Justice Department had requested that the court remedy the Voting Rights Act violation by mandating that the board of trustees be elected through single-member districts -- the method used to elect members of the U.S. House of Representatives. Robinson, however, refused and accepted Port Chester's cumulative voting system proposal. Robinson stated that, based on binding precedent, “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.

Fox had previously attacked election of first Latino to Port Chester legislature

Election resulted in first-ever election of Latino and African American to the Port Chester Board of Trustees. From a June 16 New York Times article:

This village in Westchester County has elected a Hispanic member to its board of trustees for the first time, capping a bitter legal battle over giving its large Latino population a stronger voice in local government.

That member, Luis Marino, a Peruvian immigrant who ran as a Democrat, was among the victors Tuesday in the first local election since a federal judge ordered Port Chester to adopt a new voting system to give Latinos a better shot at electing one of their own to the six-member board.

The electoral system itself made news, letting voters use six votes however they chose, including casting all six for one candidate. One Republican who won, Joseph D. Kenner, was the first black candidate elected to the board.

“I think the results are clear -- that the new system worked,” Mayor Dennis G. Pilla, a Democrat, said on Wednesday.

Fox's Jarrett previously suggested that the election was unconstitutional attempt to “give Latinos a huge advantage.” In a June 16 report on Fox News' America Live: Fox News' Greg Jarrett asserted:

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.

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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.

In fact, cumulative voting is used elsewhere and has been validated by Supreme Court justices. The city of Peoria, IL, uses cumulative voting to elect some of the members of its city council. In addition, according to Robinson's decision, an Ohio district court selected cumulative voting as a means to remedy a Voting Rights Act violation. Justices Clarence Thomas, Antonin Scalia, and Sandra Day O'Connor have endorsed cumulative voting as a method to cure Voting Rights Act violations.