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Judge approves plan for June trustee election

by Jananne Abel // Published January 8, 2010 in Port Chester Westmore News

A plan is now in place for the Village of Port Chester to hold its first trustee election in four years. On Dec. 22, United States District Judge Stephen C. Robinson approved a Voting Rights Act Consent Decree agreed upon by the three parties involved in the voting rights lawsuit against the village which paves the way for that election—to be held on June 15, 2010.

Under the Consent Decree, Port Chester will use an at-large cumulative voting system to elect its trustees. All six trustees will be up for election at one time every three years. Under this system, each voter will have six votes to allocate however they choose. A voter may cast all of their votes for a single candidate or allocate votes among the candidates they prefer.

The 23-page Consent Decree includes an extensive voter education plan with education and training provisions to ensure that voters are fully familiar with cumulative voting. It specifically requires:

  • Public voter information and training sessions, six in English and six in Spanish, to ensure that all voters have an opportunity to attend and learn about the new voting system. Each session will allow voters to practice cumulative voting.

  • Educational brochures, public notices and radio and television advertisements describing cumulative voting to be posted and distributed in English and Spanish.

  • Exit polling to be conducted during the 2010 election.

The village will hire a bilingual program coordinator to carry out its obligations under the Consent Decree and after the June 2010 election will establish an Advisory Group to assess the effectiveness of the voter education program.

The Consent Decree also requires bilingual poll workers at each polling place and that all election materials be provided in both English and Spanish. It further specifies that federal observers will monitor each trustee election under the Consent Decree to observe and report on all aspects of the voting process, including bilingual assistance. Additionally, any changes to the voter education plan, polling places and election districts will be subject to the review and approval of the U.S. Department of Justice.

The Consent Decree and all of these voter protection provisions will be in effect for the next three trustee elections—in 2010, 2013 and 2016.

Since Nov. 9, the Consent Decree was hammered out by the village, the U.S. Department of Justice and third party Cesar Ruiz and was presented to Judge Robinson in court in White Plains on Dec. 17. With a few modifications by the judge after their court appearance, the document was signed by the three parties and finally by the judge.

The duration of the court’s oversight was the major point of disagreement among the parties, with the village arguing for the Consent Decree to be in effect for one election cycle and the other parties pushing for three. The judge made the decision on the spot that it would be in effect for three.

The DOJ wanted the opportunity to scrap cumulative voting after one election cycle if it did not have the desired effect. The judge, however, emphasized that because cumulative voting will be new to the village and in fact to the State of New York, if the first trustee election under this system doesn’t have the “best result” for the Hispanic community, it “does not necessarily mean that it has failed. It may mean that there’s more and a longer-term education process than the one we could get in place for this first election could be.” He concluded that it may take more than one election to tell if cumulative voting has a curative effect.

On Nov. 9, in a summary order, Judge Robinson gave the village its remedy of choice, deciding in favor of an at-large cumulative voting scheme with the elimination of staggered terms. A full court decision will come later.

The DOJ’s remedy for Port Chester’s Section 2 Voting Rights Act violation was six single-member districts with one majority Hispanic district.

In January 2008, Judge Robinson found that the Village of Port Chester’s at-large system for electing its trustees violates Section 2 of the Voting Rights Act, disenfranchising Hispanic voters and keeping them from electing representatives of their choice.

The Court ordered that all parties submit proposed remedial plans and conducted a hearing on those plans in July and September 2008. The village waited more than a year for the judge to rule on the remedy.

On Nov. 9, Judge Robinson ordered the parties to draft a Consent Decree detailing all the important elements of the implementation of cumulative voting by Dec. 8. A brief extension was later given.

While this case has been going on, trustee elections have been suspended in the village. There has not been a trustee election since March 2006. Three of the current board members are serving beyond their expired terms, two have been appointed and one seat is vacant.

A collaborative, cooperative effort

All parties interviewed—the mayor, village manager, two attorneys for the village and the attorney representing plaintiff Cesar Ruiz, an unsuccessful 2001 Port Chester trustee candidate, felt the process of crafting the Consent Decree was a collaborative, cooperative effort.

“It’s fair to say that everybody has expressed a true desire to work cooperatively to make this work,” said Anthony Piscionere, counsel for the village.

“It is historic and I think everybody recognizes that,” said cocounsel Aldo Vitagliano.

“(The judge) recognized we were sincere in making this a model,” added Piscionere. “He was happy with the program we’ve all agreed upon.”

“I think that all parties worked very well and very hard together to come up with a novel approach to a cumulative voting program,” said Randolph McLaughlin, Ruiz’s attorney and a Pace University Law School professor. “The voter education program we put together is a model for the rest of the country.”

The Department of Justice was more matter of fact in its remarks via press release.

“This agreement will allow us to closely monitor the Village of Port Chester for compliance with the Voting Rights Act. It is a fundamental and critical right that Port Chester’s Hispanic and Spanish-speaking residents have full and equal access to the electoral process,” said Assistant Attorney General Thomas E. Perez, head of the DOJ’s Civil Rights Division. “We are hopeful that this remedy will be effective and are pleased to have a resolution to a longstanding dispute.

The length of the court’s oversight was not the important factor of disagreement for Piscionere. “The important thing is that everybody understood after the first election if a Hispanic doesn’t win, that doesn’t mean we scrap cumulative voting.”

McLaughlin was more positive about the potential outcome of the first election. “At the end of the day, as a result of the efforts of all of us and the judge, we will have the first Hispanic elected official at the trustee level,” he said. McLaughlin thinks this result will occur in June. “People will be mobilized,” he said. “People who have waited will step forward. I think the Hispanic community will be energized to select someone of their choosing. I’m sure qualified candidates will emerge in this process.”

Because there will be six forums in Spanish as well as English, “the Hispanics will have just as much information as the English speakers,” said McLaughlin. “That’s why this is so novel. I’m really reassured by the commitment the village has. A new day is dawning in Port Chester. It may have taken a long time, but the sun is peaking up over the horizon.”

Mayor Dennis Pilla said it was exciting that this was the first time cumulative voting was being used in New York and also that the village would be using early voting—also possibly for the first time in New York—with set hours the week before the election for people to come in to a central location to vote. He said this part of the program would make voting more convenient and hopefully increase turnout.

“We’re very well positioned in terms of education and I’m very excited to see it all come to be,” said Pilla.

Nonetheless, said the mayor, “the judge’s comments that it can take more than one election for this to work were comforting.”

McLaughlin felt Judge Robinson took a courageous stand in ordering cumulative voting.

“This is the first time a judge has ordered cumulative voting in New York,” he said. “He took a risk we might have taken him to the 2nd Circuit and gotten this reversed.”

Instead, said McLaughlin, “everyone has taken a stance to make this work and that’s for the good of the village.”

Let the education begin

Now it’s time for the education to begin.

“Residents are cautiously optimistic but don’t fully understand it yet,” said Vitagliano, a Port Chester resident himself.

“Now with the Consent Decree signed and agreed to, the village can start to better explain to the residents what this all means,” he said. “It’s a great time for civic awareness.”

“We are in implementation mode right now and the media is going to be a big part of that,” concluded Vitagliano.

All parties are due back in court on Feb. 16 at 2 p.m. for an update on whether paper ballots or voting machines will be used and, if machines, which ones.

“At the end of the day, as a result of the efforts of all of us and the judge, we will have the first Hispanic elected official at the trustee level." —Randolph McLaughlin, lawyer for Cesar Ruiz