USA v. Port Chester, the voting rights case, was back in court today in White Plains, and U.S. District Judge Stephen Robinson showed his characteristic good humor.

“I never thought I’d be saying this, but I actually missed you guys,” he told attorneys from the U.S. Department of Justice and the village. Robinson ruled Jan. 17 that the village board is elected in a way that denies Hispanics full participation. The question before him now is how to remedy the system.

The Justice Department is proposing six voting districts, each with its own trustee, to replace the current at-large voting. All six trustee seats would be up for election this fall, timed with the general election, and then the village would return next year to a staggered system in which two seats are up for election annually. In at least one of the six districts being proposed, the majority of U.S. citizens of voting age would be Hispanic.

The village’s proposal is cumulative voting. All six trustee seats would be up for election at the same time, and voters would be allowed to “plump” their votes by casting up to six votes for the same person. This would be a departure from the usual remedy imposed by the courts in such cases. But the village will argue that it would give Hispanic voters a chance to elect their preferred candidate.

The news today is that the court has scheduled July 17, 28 and 29 as the hearing dates when each side will pitch their plan. The first to testify, on July 17, will be expert Richard Engstrom, for Port Chester.

An independent, nonprofit organization, FairVote, is seeking to make oral arguments also, and Robinson deferred judgment on that request. FairVote is advocating “choice voting” another system of voting that would preserve the at-large trustee seat. Under that system, voters would choose six candidates and rank them by order of preference.

Below is my story from February about how the village is bringing the immigration issue into the case.

(Photo: Dave Kennedy/The Journal News)

Feb. 7, 2008

PORT CHESTER – As the village tries again to fend off changes to its election system, attorneys are focusing on the fact many of its Hispanic residents are not U.S. citizens.

The noncitizen population, they argue, would unfairly skew voting power under the federal government’s plan to create six election districts, each with a similar number of people and each with its own trustee.

The argument has drawn the attention of one national group that thinks Port Chester has a Supreme Court case on its hands. At issue is how to draw voting districts when much of the population is not eligible to vote. Political district maps always have been drawn to encompass an equal number of residents, not an equal number of citizens. Some conservative groups want that to change.

“Large influxes of noncitizens, mostly Hispanics, are prompting the Justice Department and others to challenge the form of governance that has been in place – in the case of Port Chester as I recall – for close to 140 years,” said Edward Blum, director of the Washington-based Project on Fair Representation. The critic of racially based districting is offering to help Port Chester appeal the decision in its voting rights case.

U.S. District Judge Stephen Robinson ruled Jan. 17 that Port Chester’s system of at-large voting denies Hispanics a fair shake in local politics. He has yet to rule on what system should replace the existing one.

The village and the Justice Department are due to submit their proposed remedies today.

Under the Justice Department plan, six new districts would have a roughly equal number of residents. One district would have a Hispanic voting majority. The population size in each district is generally allowed to vary by 10 percent – or more if there’s a good explanation.

Lawyers for the village, which will propose a different solution, argue that the Hispanic-majority district would have far fewer citizens eligible to vote, and so their votes would carry far more weight in an election than others. The number of people in each district might vary by just 6 percent, but the number of voting-age citizens would vary by 77 percent. The attorneys argue that this violates the nation’s “one person, one vote” principle, effectively “devaluing” votes in voter-heavy areas.

“Want to talk about fairy tales? That’s a fairy tale,” said Randolph McLaughlin, a Pace University law professor and an attorney for one of the plaintiffs. “They want to turn voting rights litigation on its head.”

McLaughlin represents Cesar Ruiz, who ran unsuccessfully for village Board of Trustees in 2001. Despite support from Hispanics, Ruiz came in last. At least 22 percent of voting-age citizens and nearly half the residents in Port Chester are Hispanic.

McLaughlin said the accepted procedure is to draw political maps, from congressional districts on down to city council wards, based on the overall population regardless of immigrants.

“Do you think undocumented workers just started coming here in the year 2007? They were here in 1965, when the Voting Rights Act was passed,” he said. “They’ve been here all for the last 40 years of Voting Rights Act litigation, in California, in Texas, in Alabama. … No judge has accepted this radical idea that they’re trying to push forward.”

The idea – drawing district maps based on a citizen-only population – would be a major change in the law, said Jon Greenbaum, a former Justice Department attorney who works for the Lawyers Committee for Civil Rights Under Law. It would be a chaotic process, he said. For one thing, the data on citizenship come out a year or two after the decennial U.S. census.

Greenbaum knew of no jurisdiction that follows such a process. In two legal cases, one from Houston and one from Los Angeles County, the Supreme Court declined to take up the issue, he said.

Blum, who was a plaintiff in the Texas case Chen v. Houston, said the time might be ripe for that to happen. Courts of appeals have issued conflicting opinions on the issue, he said, and Supreme Court Justice Clarence Thomas indicated that he thought the court should provide guidance. With two new Supreme Court justices and a new reapportionment coming after the 2010 census, the time has come, he said.

Blum’s organization is offering to pay for Port Chester’s appeal if the village contributes just $25,000.

Robinson, in his decision, addressed the population issue in a footnote.

“While this argument raises important legal questions deserving of full analysis, we believe it is inappropriate to address those questions at this stage of the litigation,” the judge wrote. “Defendant’s ‘devaluation’ concerns only become an issue at the remedy stage.”

With that stage at hand, Port Chester will pitch a solution that would avoid the issue altogether and preserve its at-large system. Its proposal is to have voters elect all six trustees in the same year, instead of staggering them two at a time.

And voters would be allowed to cast some or all of their six votes for a single candidate. This “cumulative voting” strategy would be intended to help any group band together behind a candidate.

“We don’t want to craft a remedy which is going to dilute the votes of other voters and citizens in the village,” said Anthony Piscionere, the village’s lead counsel. “It will give everybody the opportunity to have a voice in the village of Port Chester, whether they’re Hispanic or otherwise.”

It remains to be seen whether Robinson will accept that idea. McLaughlin had this assessment of the odds: “Slim to none, and Slim left town.”

Sidebar: Why Port Chester?

A federal judge found last month that Port Chester was in violation of Section 2 of the Voting Rights Act, saying Hispanics were being denied equal participation in local elections. What was different about Port Chester?

For one thing, the village elects its trustees to serve at large rather than representing a particular zone. No Hispanic person has ever been elected to public office in the village, despite a population that is nearly half Latino.

But to prove a voting rights violation, the Justice Department provided evidence that certain conditions prevented Hispanics from electing the candidate of their choice.

U.S. District Judge Stephen Robinson found that the case met three “preconditions” for finding a violation:

Based on voting trends in the past few years, the court found that voting in Port Chester was polarized by ethnicity, and that Hispanics routinely banded together for candidates who ultimately were defeated in a village-wide vote. Two Hispanics have run for village board and came in last, despite support from Latino voters.

Further, the judge found evidence of a “racial appeal” that marred political campaigns. He cited an anti-Hispanic flier circulated during the 2007 mayoral race.