The Voting Rights Act redux

A few weeks ago, I posted on a story from the Village of Port Chester, New York, where the Federal government was overseeing a new method of election for village trustees in which each resident was given six votes to cast as they saw fit.

One self-professed “progressive” commentator took me to task for criticizing it at another blog, claiming that the practice was “commonplace” and that I was making much ado out of nothing.

He was half-right.

Cumulative voting is common-place, although not required in the governance of corporations as a measure to provide minority shareholders with the means to elect at least one member of the corporation’s board of directors.  The reason that it seems counter-intuitive to many people with regard to elections for political office likely stems from the decision in Reynolds v. Sims, which ruled that in states with a bicameral legislature, the apportionment plans must allocate seats according to the population as to make the voting power of one citizen as equal as possible to that of any other citizen.  This was reduced to the maxim “One man, one vote.”

However, as it happens, pursuant to the Voting Rights Act, the federal government has been tinkering with this formula for some time now.

From the Justice Department’s Website:

The Voting Rights Act is not limited to discrimination that literally excludes minority voters from the polls. Section 2 of the Act (42 U.S.C. 1973) makes it illegal for any state or local government to use election processes that are not equally open to minority voters, or that give minority voters less opportunity than other voters to participate in the political process and elect representatives of their choice to public office. In particular, Section 2 makes it illegal for state and local governments to “dilute” the votes of racial minority groups, that is, to have an election system that makes minority voters’ votes less effective than those of other voters. One of many forms of minority vote dilution is the drawing of district lines that divide minority communities and keep them from putting enough votes together to elect representatives of their choice to public office. Depending on the circumstances, dilution can also result from at-large voting for governmental bodies. When coupled with a long-standing pattern of racial discrimination in the community, these and other election schemes can deny minority voters a fair chance to elect their preferred candidates.

To show vote dilution in these situations, there must be a geographically concentrated minority population and voting that is polarized by race, that is, a pattern in which minority voters and white voters tend to vote differently as groups. It must also be shown that white voters, by voting as a bloc against minority-choice candidates, usually beat those candidates even if minority voters are unified or cohesive at the polls.

Anyone aggrieved by minority vote dilution can bring a federal lawsuit to stop it. If the court decides that the effect of an election system, in combination with all the local circumstances, is to make minority votes less effective than white votes, it can order a change in the election system. For example, courts have ordered states and localities to adopt districting plans to replace at-large voting, or to redraw their election district lines in a way that gives minority voters the same opportunity as other voters to elect representatives of their choice.

I have to confess, while I have been reading and interpreting statutes for almost 20 years now, I still did not interpret this the way that it has been applied in Port Chester, and I decided to dig a little deeper.  I found the Justice Department’s Complaint, and read it.  It made for some interesting reading, considering some of the allegations it made.  Out of curiosity, I would like to see what proof the government had to back those allegations.  Afterall, the claim that the hispanic voters almost always vote cohesively for the candidate they prefer, but that the white majority usually votes sufficiently as a bloc to defeat the Hispanic preferred candidate is an allegation begging for proof, especially when the citizen voting age population of the village is 21.9 % hispanic and 65.5% non-hispanic white.  With a discrepancy like that, the majority white voters don’t have to “vote against” any candidate, hispanic or otherwise.  (The population demographic that apparently matters to the DOJ is that when you look at the voting age population without that pesky “citizen” designation, the hispanic percentage constitutes 43.3% of the population as opposed to the 46.3% of the white non-hispanic percentage of the village population…21.4% is a lot of people who are not citizens, and yet seem to be due some right to elect a representative of their preference.)

I also read through FairVote’s amicus brief, in which it suggested the cumulative voting resolution, claiming that division into districts was not a practical solution in this case.  I did not find the Village’s answer to the complaint.

However, when I read more about the facts, I became even more troubled.  The AP story on this made some intriguing representations:

Under the outlawed system, two of Port Chester’s six trustee seats were up each election year and the entire village chose from the candidates. Most voters were white, and white candidates always won.

Not really a mystery.  If the number of non-hispanic whites who were of voting age and were citizens was more than double than that of their hispanic counterparts, this should not be shocking.  Nor is it shocking in an at-large voting system where two of the six positions were up for election in any election. 

The Justice Department’s plan would have divided the village into six districts, with each electing one trustee. One district would be drawn to include Hispanic neighborhoods, increasing the chances that a Hispanic-backed candidate would be elected.

Port Chester officials, however, noted that because many Hispanics are not citizens, the special Hispanic district would have fewer eligible voters than other districts. That would violate the one-person, one-vote requirement of the Constitution, village attorneys said.

Think about this for a minute.  The root irritant here is that there is an assumption on the part of the federal government that because nearly half of the village’s residents are hispanic, that they would necessarily prefer being represented by hispanics on the village board of trustees, and that such an assumption is worthy of government interference to achieve.  I know that I find this notion repugnant, as a deliberate preservation of a racist intent by the government that can somehow be justified as a worthy goal because of the minority status of this population.  And a prior AP story noted that the elections in Port Chester were not a new development.

Mayor Gerald Logan blasted the lawsuit, calling it “unfortunate and heavy-handed” and noting that Port Chester has used at-large elections since 1868.

Somehow I doubt that this form of election was adopted in 1868 so that the racist white people could keep the latino hoards in their place.  But that doesn’t matter.  The fact that no latino had ever been elected, despite the apparent fact that no eligible voter had ever been prevented from voting for the candidate of their choice, was enough to make the election system racist and subject to Federal bullying and interference.  Still, I was having trouble accepting this outcome.  Then I got out my trusty Corwin and Peltason (twelfth ed.), and read this happy bit:

The Voting Rights Act, especially as amended in in 1982, goes beyond the Fifteenth Amendment in another very important way.  Electoral arrangements that do not relate directly to voting and are neutral on their face are not violations of the Fifteenth Amendment, even if they dilute the voting power of blacks, unless they are motivated by a discriminatory “purpose”.  What does not violate the Fifteenth Amendment, however, may violate the Voting Rights Act.  A Supreme Court plurality opinion in Mobile v Borden had declared that, to establish a violation of either the Voting Rights Act of the Fourteenth Amendment, minority voters had to prove that a contested electoral mechanism was intentionally adopted or maintained by state officials for a discriminatory purpose.  The 1982 amendments set aside this limitation.

As a result, today most of the litigation involving the Voting Rights Act is not about the right to vote, but about the right not to have the votes of minorities diluted.  What precisely constitutes dilution and how it is to be determined is the subject of much litigation.  Although the 1982 amendments do not guarantee “members of a protected class a right to have members….elected in numbers equal to their proportion in the population,” they do make it illegal for governments to adopt or maintain procedures, regardless of intent, if such procedures result in the dilution of African-American (or Chicano, or Native-American, or Asian-American) voting power.

Without any apparent objective test for dilution or a bright-line rule establishing how much dilution is too much, it would appear to be in the eye of the beholder, much like the determination of obscenity.  The difference here, is that all it takes is an allegation, the fact that minorities are not elected, and the Justice Department can make the city or town subject to an expensive suit to make them change the system so that a minority can be sure to be able to elect a minority, pursuant to the assumption that someone of the same racial or ethnic group will be the preferred candidate.   Who said government sponsored segregation is dead?  And apparently, there is not much concern about the issue of citizenship being tied to representation, either.  I suppose my life would be easier if i would simply accept that citizenship vs. non-citizenship is a distinction without difference, especially when elections or receiving welfare benefits from the state or even habeas corpus for a non-citizen who has never even set foot on U.S. soil is at stake.  If I could just abandon the silly notion that citizenship means something other than I’m one of the suckers who gets to pay the bill for all the free goodies, I’m sure I’d make a jim-dandy Democrat.

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