Selwyn Duke has an article in American Thinker critical of United States v. Port Chester, and the unusual cumulative voting remedy imposed by the district court.  The article generally attacks the remedy and variety of other issues associated with the case.  I believe, however, that the article doesn’t have a firm grasp on some of the well settled legal issues involving this provision of the Voting Rights Act.  In Port Chester, everybody got six votes and could cast them for the same candidate running for one of the seats on the six member board.  Or, they could split up their votes evenly.  It was up to the voter.  This is cumulative voting and it is designed to remedy racial discrimination without resort to dividing up a town through single member districts.  I litigated a similar case in United States v. Lake Park which resulted in a remedy not unlike cumulative voting – but instead used limited voting. Limited voting means each person gets only one vote even if there are multiple seats up at large.

Duke describes the Port Chester remedy “It's "one (minority) man, six votes" -- brought to us courtesy of the U.S. Department of Injustice and a lunkhead of a federal judge named Stephen Robinson.”  This really isn’t accurate.  Cumulative voting was brought as a remedy proposed by Port Chester itself.  Under the Voting Rights Act, the jurisdiction gets to propose the first remedy, and Port Chester wanted limited voting.  You will see in court papers that the Department of “Injustice” vigorously opposed the remedy.  (The Bush DOJ, I should note).  The Court is bound to accept the defendant’s proposed remedy if it is found to be curative.  End of story.

Duke notes: “Now, how this hapless village got on the feds' radar screen, I have no idea. Were Hispanics intimidated into avoiding the polls? Were there literacy tests? Poll taxes? No, this story will not inspire a movie by the name of Port Chester Burning.”  A couple of errors here.  Voter intimidation falls under Section 11(B) of the voting rights act.  The lawsuit against Port Chester was commenced under Section 2.  There is no need under Section 2 to have intimidation.  Nor are literacy tests or poll taxes required.  A Section 2 case is mostly about math.   It is a math puzzle too complicated to explain here.  But to get on the “fed’s radar screen” involves mostly nothing but numbers.

Duke groans: “The Voting Rights Act's purpose was to ensure that everyone would have the opportunity to vote. Yet this ‘judge’ decreed that ‘one man, one vote,’ and the attendant majority rule, violate the act if they don't yield a politically correct result.”  This isn’t exactly right.  With the 1982 Amendments to the Voting Rights Act, the law became about much more than the opportunity to vote.  It became about results, and outcomes.  Whether or not you agree with it, that is the law.

Duke makes some fair points about the extent of the mandated “education campaign” about the new system, but you cannot ignore the fact that Port Chester, the allegedly imposed-upon defendants, requested this cumulative voting scheme.  That opens the door to everything else that follows. 

“That pesky majority rule can be a real bummer, can't it?”  Duke asks.  Well that’s sort of the point of Section 2.  Majority rule can get to be such a bummer that a sizeable portion of the citizenry feels completely disengaged.  Remember, there cannot be a Section 2 case unless race is CAUSING minorities to lose elections.  That’s called Gingles 3 under Gingles v. Thornburg.  And the numbers either show that is the case, or they don’t.  And the lawyers who brought U.S. v. Port Chester are among the best in the business and they knew what they are doing and I am confident the numbers backed it up.  So in this instance, it’s not the “Department of Injustice,” contrary to Duke’s assessment.