The Magazine

The Justice Dept. Run Amok

The latest abuse of the Voting Rights Act.

Aug 6, 2007, Vol. 12, No. 44 • By EDWARD BLUM
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While each of the Gingles preconditions has serious flaws worthy of discussion, the first is the most troubling in this case because the Hispanic districts the Justice Department wants Port Chester to adopt have significant deviations in citizen population size from the non-Hispanic districts. For instance, one of the DOJ-proposed Hispanic districts has a 77.27 percent Hispanic voting-age population, but only a 56.27 percent citizen Hispanic voting-age population. Another proposed district has a 51.8 percent Hispanic voting-age population, but only a 28 percent citizen Hispanic voting-age population.

This isn't fair. It means that the Justice Department wants the village to have citizen-underpopulated Hispanic districts and citizen-overpopulated non-Hispanic ones. So, for example, a non-Hispanic district might be drawn with 5,000 persons of voting age, 95 percent of whom are citizens, to be represented by one Port Chester trustee. A Hispanic district, meanwhile, might have 5,000 persons, only 50 percent of whom are citizens. This would result in one village trustee representing 4,750 citizens, while another trustee represented only 2,500 citizens.

This kind of voting scheme violates the legal doctrine of one man, one vote established by the Supreme Court in the early 1960s. Jurisdictions in the Deep South tried similar shenanigans soon after the passage of the Voting Rights Act in 1965 in an attempt to "dilute" the power of the black vote. The courts properly closed this and other loopholes. But the courts back then did not anticipate the effect of waves of noncitizen Hispanic immigration. This inequity goes to the heart of the Equal Protection clause of the Constitution.

So, here's the legal question in Port Chester that needs resolution: Does undersizing the citizen population in the Hispanic voting districts dilute the strength of the voters in non-Hispanic districts? In other words, should 2,500 citizens in one district get one representative, while in a neighboring district, it takes 4,750 people to get one?

The Supreme Court has long held that other than for a state's congressional districts, population deviations between voting districts cannot be greater than 10 percent. Yet, the Court has never defined a critical variable in this equation, namely, what is the relevant "population"?

It is a question that has bedeviled the lower courts. The Fifth Circuit has held that it is "a choice left to the political process" which population to count. The Fourth Circuit similarly held that courts have no business getting into this essentially "political" question. The Ninth Circuit, in contrast, has held that using citizen voting-age population instead of total voting-age population in these contexts would violate the Constitution.

This question needs resolution, either from the courts or, better, from Congress. While the immigration bill appears dead for now, these issues still need to be fixed. And what better way than legislation? After all, how many members of Congress believe U.S. citizens should have their votes for any elective office "diluted" because legal and illegal noncitizens are counted for the purposes of constructing single-member districts?

It's a good question. The people of Port Chester and elsewhere need to find out.

Edward Blum is a visiting fellow at the American Enterprise Institute. He is the author of a forthcoming AEI Press book on the Voting Rights Act.