VOL. 18 ISSUE NO. 26   |   JUNE 30 – JULY 6, 2010


First Hispanic elected under new vote early, vote often rules

‘You have the power to award your six votes as you wish … including casting more than one vote for your favorite candidate’
Bookmark and Share PORT CHESTER, N.Y. – On June 16, unofficial results indicated the citizens of the Village of Port Chester, N.Y. elected Luis Marino, as its first Hispanic member to the village Board of Trustees, ending a legal challenge filed by the U.S. Attorney’s Office in December 2006, claiming Hispanic citizens had less opportunity than white citizens to participate in the political process and to elect candidates of their choice, in violation of Section 2 of the Voting Rights Act of 1965.

According to the complaint, the total population of Port Chester, based on the 2000 Census, is 27,867 of which 12,884 (46.2 percent) are Hispanic, 11,934 (42.8 percent) are non-Hispanic white, and 1,841 (6.2 percent) are black.

The voting age population (VAP) of Port Chester, according to the 2000 Census, is 21,600, of which 9,362 (43.3 percent) are Hispanic, 9,991 (46.3 percent) are non-Hispanic white, and 1,349 (6.2 percent) are black.

However, the citizen voting age population (CVAP) of Port Chester, according to the 2000 Census, is 13,989, of which 3,068 (21.9 percent) are Hispanic, 9,160 (65.5 percent) are non-Hispanic white, and 1,245 (8.9 percent) are black.

The Port Chester Board of Trustees is made up of six trustees and a mayor. The trustees serve three-year, staggered terms and are elected at large by all the voters in Port Chester.
The complaint appeared to address the entire Hispanic population, despite the fact over half of its VAP is comprised of non-citizens, called the prevailing voting patterns in trustee elections are “ethnically and racially polarized,” and said Hispanic candidates have never been elected to the board of trustees or to the local school board.

Despite the fact roughly 78 percent of the CVAP is non-Hispanic, it laments, “Port Chester’s Hispanic citizens bear the socioeconomic effects of historic discrimination in employment, education, health, and other areas, and their depressed socioeconomic status hinders their ability to participate in the electoral process on an equal basis with whites.”

From the Census figures presented, it would appear lack of citizenship is more likely the barrier to any such participation.

Stating Port Chester’s at-large method of electing its board of trustees was not equally open to participation by Port Chester’s Hispanic voters, the government argued, “If not enjoined by order of this court, defendant will continue acting in violation of Section 2 of the Voting Rights Act by administering, implementing and condoning future elections for the Port Chester Board of Trustees using an at-large method of election.”

On March 2, 2007, following a nine-day hearing, the court issued a preliminary injunction blocking the village from holding its next election for the board of trustees, which was then scheduled for March 20, 2007.

The court stated proceeding with the 2007 election under a “structural framework that violated the Voting Rights Act” would cause irreparable harm and said the government demonstrated it was likely to succeed on the merits at trial.

Subsequent settlement negotiations failed and the parties reconvened for a six-day bench trial in June 2007.

The court allowed the parties to submit post trial briefs in lieu of oral arguments to support their respective positions.

It also granted permission to FairVote to submit an amicus curiae brief.

With a mission “to advocate for fair representation through voting system changes,” FairVote’s website states, “Every vote cast in every election should be of equal value, regardless of where a voter lives or for whom they vote. Popular will should never be subject to overturning by illogical, anachronistic mechanisms divorced from the ideal of one person, one vote.”

However, the group’s amicus curiae did indeed divorce itself from that ideal – one person, one vote – and suggested modifying the at-large system of voting with “cumulative” or “choice” voting.

Cumulative voting gives each voter the same number of votes as there are seats in a multi-seat district but allows voters to allocate their votes in any manner they choose, either one vote for each of several candidates or multiple votes for one highly favored candidate.
Choice voting allows voters to rank candidates in order of preference: one for their favorite candidate, two for their second favorite, and so on. Ballots are counted in a series of rounds of elections. First-choices are counted, and any candidate who reaches the victory threshold is elected. In the next round, "surplus votes" are counted for the second choices of voters as indicated by their ballots. These rounds continue until all seats are filled or the number of remaining candidates equals the number of seats.

In his Jan. 17, 2008 decision and order, U.S. District Judge Stephen C. Robinson, for the Southern District of New York, stated the Supreme Court in Thornburg v. Gingles set out three “preconditions” that must be met for a challenge under Section 2 of the Voting Rights Act to be successful:
  1. The minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district;
  2. The minority group must be politically cohesive and vote as a bloc; and
  3. The white majority must vote sufficiently as a bloc to enable it, in the absence of specific circumstances, to defeat the minority’s preferred candidate.
He also noted, “No specific showing of discriminatory intent is required to prove a Section 2 violation.”

Port Chester argued the proportion of Hispanic registrants and the turnout rate among Hispanics were such that the Hispanic population would not constitute an effective voting majority.

However, Robinson found “significant shortcomings” in that line of reasoning and stated, “[I]f low voter turnout could defeat a Section 2 claim, excluded minority voters would find themselves in a vicious cycle: their exclusion from the political process would increase apathy, which in turn would undermine their ability to bring a legal challenge to the discriminatory practices, which would perpetuate low voter turnout, and so on.”

Robinson also rebuffed Port Chester’s claim that electoral outcomes were due to partisan politics, rather than racial polarization, stating it was clear to the court that Hispanic and non-Hispanic voters in Port Chester prefer different candidates and non-Hispanic voters generally vote as a bloc to defeat Hispanic-preferred candidates.

In December 2009, Port Chester entered into a consent decree, agreeing to use the cumulative method of voting and holding a series of six court-ordered voter education forums (six in English, six in Spanish) to explain the cumulative voting system.

The court allowed Port Arthur to proceed with its election of village trustees on June 15, 2010.

The Port Chester Votes website states, “You have the power to award your six votes as you wish: In the past … voters could only give one vote to each candidate. With our new cumulative voting system, you have the power to cast your votes exactly as you wish, including casting more than one vote for your favorite candidate.”

After casting all six of his votes for one candidate, 80-year-old Arthur Furano, a lifelong Port Chester resident, was quoted in an AP News article as saying, “That was very strange. I’m not sure I liked it. All my life, I’ve heard, ‘one man, one vote.’”

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