Opinion
No. 03-CV-502 (NAM/DRH)
September 17, 2003
PAUL DerOHANNESIAN II, ESQ., DerOHANNESIAN DerOHANNESIAN, Albany, New York, CARA FINEMAN, ESQ., LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C., MITCHELL A. KARLAN, ESQ., MARK E. BINI, ESQ., GIBSON, DUNN CRUTCHER LLP, New York, New York, Attorneys for plaintiffs.
MICHAEL C. LYNCH, ESQ., Albany County Attorney, Albany, New York, Attorney for Defendants.
THOMAS MARCELLE, ESQ., Delmar, New York, for Intervenors.
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Docket Nos. 37, 40.
In an order filed August 18, 2003, United States District Judge Norman A. Mordue granted plaintiff's' motion for a preliminary injunction requiring defendants to adopt a remedial redistricting plan which included a fourth election district for the Albany County Legislature in which a majority of the population was black and Hispanic. Docket No. 38; see also Memorandum-Decision and Order (Docket No. 40) [hereinafter "MDO"]. The matter was referred to the undersigned to consider defendants' proposed remedial plan and any objections thereto, Id. A hearing was held on September 8-10, 2003 to determine (1) what remedial redistricting plan should be included in the preliminary injunction granted to plaintiff's, and (2) what procedures for the 2003 elections for the Albany County Legislature should be established as part of that injunction. What follows constitutes the Court's findings of fact, conclusions of law and recommendations concerning those issues.
The district court adopted the report-recommendation of the undersigned filed July 7, 2003. Docket No. 28 [hereinafter "RRO"]. Familiarity is assumed with the report-recommendation and with the MDO.
I. Background
Following entry of the preliminary injunction, Albany County ("County") adopted a revised redistricting plan, identified both as "Plan 3-B" and as "Local Law E" (hereinafter "County's remedial plan"). Ex. D-2. That plan amended the County's redistricting plan which was the subject of the injunction. Ex. D-1. The County's remedial plan created four majority/minority districts, altering the boundaries of a total of ten of the thirty-nine districts in the prior redistricting plan. The County included in its calculation of the minority populations in the majority/minority districts not only blacks but Hispanics and those of mixed race who included either black or Hispanic as one of their races.See RRO at nn. 4-6. The four districts, Districts 2-5, are generally located in the eastern portion of the City of Albany ("City"). Ex. D-3. These four districts include the following populations:
"Ex." followed by a letter and number refers to exhibits received in evidence during the hearing on September 8-10, 2003.
Total Total Total Voting Total Voting District Population Minorities (%) Age Population Age Minorities (%)
2 7,380 65.89 5,208 58.53 3 7,441 65.09 5,412 57.54 4 7,365 67.40 4,930 60.79 5 7,347 67.07 5,113 59.71 Exs. D-5-[a],-[b]; P-2.Plaintiff's also proposed a remedial redistricting plan. Exs. P-4(a)-(c) ("plaintiff's' remedial plan"). That plan also included four majority/minority districts in Districts 2-5, also in the eastern portion of the City, Id. plaintiff's' remedial plan would alter the boundaries of thirty-eight of the thirty-nine districts from the County's prior redistricting plan. plaintiff's' remedial plan include the following populations: Total Total Total Voting Total Voting District Population Minorities (%) Age Population Age Minorities (%)
2 7,258 71.87 5,036 65.39 3 7,252 71.81 5,292 64.87 4 7,253 68.70 5,180 60.60 5 7,259 75.40 4,936 68.64 Ex. P-3.II. Choice of a Remedial Redistricting Plan
The injunction here requires that a remedial redistricting plan be adopted "which creates a fourth majority/minority district determined to be compliant with the Voting Rights Act." MDO at 34: see also Kimble v. County of Niagara, 826 F. Supp. 664, 670 (W.D.N.Y. 1993). The choice of a remedial redistricting plan, however, does not simply permit a court to select a plan from among those proposed or to devise its own plan. Rather, the choice of a plan requires that the jurisdiction whose redistricting plan has been found deficient first have the opportunity to correct the deficiencies in a remedial plan. See Wise v. Lipscomb, 437 U.S. 535, 540, (1978); Goosby v. Town Bd. of the Town of Hempstead, 981 F. Supp. 751, 755 (E.D.N.Y. 1997). A court should afford the jurisdiction's remedial plan substantial deference when determining if that remedial plan meets the standards under the Voting Rights Act. Goosby, 981 F. Supp. at 755. Only if the jurisdiction's remedial plan is found deficient under the Constitution and the Voting Rights Act may a court consider other proposed remedial plans or devise a plan of its own. See Citizens for Good Gov't v. City of Quitman, Miss., 148 F.3d 472, 475 (5th Cir. 1998) (noting that redistricting is a legislative function which federal courts should avoid preempting); Cane v. Worcester County, Md., 35 F.3d 921, 927 (4th Cir. 1994); Neal v. Coleburn, 689 F. Supp. 1426, 1437-39 (E.D. Va. 1988) (adopting remedial plan proposed by plaintiff's after jurisdiction failed to offer its own plan, asserting that no adequate remedial plan could be devised).
Thus, unless the County's remedial plan violates the Constitution or the Voting Rights Act, that plan should be incorporated in the injunction here. The sufficiency of a proposed remedial plan requires analysis of the plan in light of the preconditions and factors set forth in Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). See MDO at 8-10; RRO at 9-10. plaintiff's contend, as follows, that the County's remedial plan remains deficient in several respects under the Voting Rights Act.
A. Inclusion of Hispanics in Minority Population
Under the County's remedial plan, Hispanics constitute 10.19% of the general population and 8.47% of the voting age population in District 2, 6.03% and 5.16% in District 3, 6.69% and 5.27% in District 4, and 7.27% and 6.10% in District 5. Exs. D-5-[a],-[b]; P-2. plaintiff's contend that Hispanics should not be included in calculating the minority populations of the majority/minority districts.
This contention is at best disingenuous. In moving here to enjoin the 2003 County Legislature elections, plaintiff's contended, inter alia, that the County's original redistricting plan was defective because it failed to include Hispanics in the population of minorities, a position with which the Court agreed. See MDO at 16-19; RRO at 16-19. After the Court granted plaintiff's' motion for an injunction and in reliance on the Court's ruling and plaintiff's' argument, the County adopted its remedial plan which included Hispanics in the population of minorities. Ex. D-5-[a],-[b]; P-2. Having relied on this position in prevailing on the preliminary injunction, plaintiff's now reverse their position in challenging the County's remedial plan. plaintiff's contend now that because there is no sufficient data on the voting behaviors of Hispanics, such as rates of voter registration or voter turnout, the Hispanic population of a majority/minority district should not be included in assessing the sufficiency of the size of the minority population in a majority/minority district.
First, whether Hispanics should be included has already been decided in this case. See MDO at 11-14; RRO at 11-13. Under the law of the case doctrine, when a court rules on an issue, "'that decision should generally be adhered to by that court in subsequent stages in the same case.'" United States v. Crowley, 319 F.3d 401, 420 (2d Cir. 2003) (quoting United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991)). Reconsideration of whether Hispanics should be included in the minority population is thus foreclosed here.
Second, the conclusion that Hispanics should be counted with blacks in determining the minority population in this case remains correct. plaintiff's' contention that there exists insufficient data to assess the voting behavior of Hispanics and that Hispanics should therefore be excluded in determining the population of minorities, is unpersuasive. The general and voting age populations of Hispanics in each legislative district are known. See, e.g., Exs. D-5-[a],-[b]; P-2. plaintiff's' assert, however, that some Hispanics are citizens of other countries and, therefore, ineligible to vote and that it is unknown in what percentages Hispanics register or turn out to vote. plaintiff's have offered no evidence as to the country of origin of any Hispanic or any group of Hispanics within any of the four majority/minority districts as would support the conclusion that any such individuals are ineligible to vote. See, e.g., Ketchum v. Byrne, 740 F.2d 1398, 1414 n. 17 (7th Cir. 1984) (noting that the Hispanic residents in one ward were predominantly natives of Mexico and thus unlikely to be eligible to vote while the Hispanic residents of another ward were predominantly natives of Puerto Rico and thus eligible to vote). The contention that Hispanics in the County are ineligible to vote for any reason or will not register or turn out to vote is speculative at best, unsupported by any evidence and should, therefore, be rejected.
Moreover, as discussed infra in subsection B, the provision for a supermajority of minorities in a majority/minority district takes into account the reduced voter registration and turnout of minority voters. No evidence has been offered that the rate of voter registration or turnout of Hispanics differs materially from that of blacks or other minorities. Such a showing could support the contention that the population of minorities in a majority/minority district should be increased to insure minorities a realistic opportunity to elect candidates of their choice. In the absence of such evidence, the provision for a supermajority suffices to insure that minorities in a majority/minority district have sufficient voting strength to elect their preferred candidates.
Plaintiff's' objection to the County remedial plan on the ground that it includes Hispanics in the minority populations of the majority/minority districts should be rejected.
B. Sufficiency of Minority Population in Majority/Minority Districts
Plaintiff's next contend that the percentages of minorities in the populations of the four majority/minority districts are insufficient to insure that minorities will have a fair opportunity to elect the candidates of their choice.The Voting Rights Act guarantees the rights of members of protected classes to equal participation in the electoral process. Where, as here, the Gingles preconditions and factors exist, a jurisdiction must apportion its districts in a plan that allows members of the protected class a majority voice in a sufficient number of districts to insure that their right to participate equally in the electoral process of the jurisdiction is protected. Thus, majority/minority districts must be created which permit the protected class a fair and reasonable opportunity to elect its preferred candidates. The act protects the equal right to elect preferred candidates. It thus guarantees fair opportunity, not particular results. See Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d 1109, 1117 n. 9 (5th Cir. 1991).
The question presented here, therefore, is whether the four majority/minority districts in the County's remedial plan include a sufficient number of minorities to guarantee the fair opportunity assured by the Voting Rights Act. If all protected classes and others had the same percentage of eligible voters in their total populations and those eligible voters in every district registered and voted in every election, a simple majority of voters from the protected class would suffice to insure a fair opportunity. However, it is well settled that, generally speaking, blacks and Hispanics have a younger-than-average population and that they register and turn out to vote at lesser rates than whites. See, e.g., Ketchum, 740 F.2d at 1413-14. Thus, a simple majority of either the general population or the voting age population is insufficient to assure a reasonable opportunity to elect preferred candidates in a majority/minority district. A population of minorities greater than a simple majority — a super majority — must exist in a majority/minority district to protect effectively the rights guaranteed by the Voting Rights Act.
Plaintiff's contend that the majority/minority districts here should be comprised at a minimum of minority populations totaling 65% of the general population and 60% of the voting age population. These percentages for majority/minority districts have been adopted as guidelines in the Seventh and Eighth Circuits and cited as references by other courts. See African American Voting Rights Legal Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1348 n. 4 (8th Cir. 1995); Ketchum, 740 F.2d at 1415-16 (collect cases); Fund for Accurate Informed Representation, Inc. v. Weprin, 796 F. Supp. 662, 672 (N.D.N.Y. 1992) (three-judge court), affd, 506 U.S. 1017 (1993) (referring in dictum to "the 65% rule of thumb"). The additional 15% over a simple majority is generally calculated by adding 5% each for young population, low voter registration and low voter turnout. See, e.g., Villa, 54 F.3d at 1348 n. 4. Thus, when assessing voting age populations, the 5% added on for young population would be deducted, "leaving something in the vicinity of 60% of voting age population as the target percentage." Ketchum, 740 F.2d at 1398.
The Second Circuit has specified no such guideline percentages for majority/minority districts. Courts in the Second Circuit and elsewhere have upheld redistricting plans ranging upward from 52%. See, e.g., City of Westwego, 946 F.2d at 1117 (total population of 59.1% and voting age population of 52.8% found sufficient); Goosby, 981 F. Supp. at 761 (upholding majority/minority district with a total minority population of 55.45% and a minority voting age population of 52.57%).
The percentages are reported in the court's earlier decision at 956 F. Supp. 326, 333 (E.D.N.Y. 1997), affd, 180 F.3d 476 (2d Cir. 1999), which is incorporated by reference in its later decision.
It thus appears that while a supermajority of minorities in a majority/minority district is required by the Voting Rights Act, the exact percentage of that supermajority required for a particular plan depends on the facts and circumstances of the particular case. Here, the percentage of minorities in the total population in all four majority/minority districts exceeds the 65% threshold urged by plaintiff's. However, only in District 4 does the percentage of voting age minorities exceed the 60% threshold urged by plaintiff's. For at least three reasons, however, the percentages of voting age minorities in those districts remains sufficient.
First, while voting age population is the most relevant population to assess and while those populations in Districts 2, 3 and 5 range from 57.54% to 59.71%, those populations are sufficiently close to the 60% guideline urged as a threshold by plaintiff's. The cases which adopt 60% of the voting age population as a guideline describe the number as a "guideline." See Ketchum, 740 F.2d at 1415, or as "a rule of thumb." See Weprin, 796 F. Supp. at 672; see also Villa, 54 F.3d at 1348 n. 4 ("Obviously, if voting age population statistics are used, . . .something in the vicinity of 60% of voting age population [is] thetarget percentage") (emphasis added) (quoting Ketchum, 740 F.2d at 1415). The voting age populations in Districts 2, 3 and 5 are sufficiently "in the vicinity" of 60% to provide the minority populations in those districts with reasonable opportunities to elect their preferred candidates. Compare City of Westwego, 946 F.2d at 1117 (voting age population of 52.8% found sufficient); Goosby, 981 F. Supp. at 761 (voting age population of 52.57% found sufficient).
Atthe hearing, plaintiff's' expert in political science, Dr. Baodong Liu, testified that assuming no aberrant voter registration or turnout, a minority voting age population of 58% in the four majority/minority districts would suffice to provide minorities in those districts with effective, reasonable opportunities to elect their preferred candidates. Tr. 413-15 (see note 6 infra).
Second, according to the testimony at the hearing of defendants' expert in political science, Dr. Michael McDonald, it remains clear that the voter turnout rate for minorities remains less than that of whites in election districts where whites constitute a majority of the voters. However, Dr. McDonald observed a different pattern in majority/minority districts. In those districts, the minority population and the white population turned out to vote at similar rates. Tr. 439-44; see also Ex. P-19. The opinions and bases therefor of Dr. McDonald on this point were highly credible and are accorded substantial weight. Thus, the generally lower voter turnout rates for minorities upon which plaintiff's rely in part in urging a 60% voting age threshold do not obtain in assessing the sufficiency of the voting age minority population in majority/minority districts here. The voting age populations in Districts 2, 3 and 5 suffice at their existing percentages to create reasonable opportunities for minorities in those districts to elect their preferred candidates.
"Tr." followed by a number refers to the pages of the transcript of the hearing held September 8-10, 2003.
Finally, in 1991, as the result of a consent decree, the County adopted a redistricting plan which created three majority/minority districts with total minority populations of at least 63%. RRO at 3-4. Minority preferred candidates have been elected to the County Legislature in each election since their creation. The minority populations in each of the four majority/minority districts created in the County remedial plan each exceed 65%. Thus, the history of the three majority/minority districts in existence since 1991 further supports the conclusion that the four districts in the County's remedial plan are effective and sufficient.
The County's remedial plan, therefore, creates four majority/minority districts which include a sufficient majority of minorities to afford reasonable opportunities for minorities to elect their preferred candidates. plaintiff's' objection to that plan on this ground should be rejected.
C. Splintered and Misjoined Communities
Plaintiff's next contend that the manner in which the County's remedial plan is drawn splinters existing communities into separate districts and misjoins communities in single districts which have nothing in common. For example, a portion of the minority community in the City which, plaintiff's contend, could have been included in the majority/minority District 2 has instead been placed in District 1 and joined with a portion of the predominantly white, suburban Town of Bethlehem. The County's remedial plan also included in the majority/minority District 4 a portion of the white, suburban Town of Colonie. plaintiff's contend that these aspects dilute the voting rights of minorities.
Mt. Hope Drive, the Port of Albany area and the Pearl Street extension.
The division of communities of interest and the joinder of disparate communities are both factors which a court must consider in assessing whether a redistricting plan violates the Voting Rights Act. See generally, RRO at 15. Where such division and joinder occur, however, they must be assessed in light of the requirements and totality of the plan. Here, the County Legislature is divided into thirty-nine single-member districts comprised of eighteen municipalities and countless neighborhoods and communities of interest. It is inevitable that a plan would include boundaries which divide certain areas which should otherwise be unified and join other areas with little in common in order to satisfy the constitutional mandate of one person, one vote. The fact that the County's remedial plan includes such division and joinder in certain respects does not, however, render that plan violative of the Voting Rights Act in these circumstances.
First, the instances in this plan of division and joinder are not unreasonable when viewed in the context of the totality of the plan. Second, plaintiff's overstate the extent and effect of such division and joinder. The Port of Albany area is largely commercial with limited numbers of residents. Its inclusion or exclusion from any district has little effect. Moreover, the configuration of District 1, a white majority district, has no impact on the four majority/minority districts and, therefore, has little or no relevance to the sufficiency of those four districts. Finally, the portion of the Town of Colonie included in District 4 is comprised of a total of approximately 250 residents approximately 3% of the total population of District 4. The number of voters is, therefore, negligible. Further, while predominantly white, those residents are not unduly removed from the socioeconomic interests of the other residents of District 4.
Thus, while the County's remedial plan divides and misjoins communities in certain respects, those instances are neither so numerous nor so egregious as to rise to the level of a violation of the Voting Rights Act. plaintiff's' objection to the County's remedial plan on these grounds should be rejected.
D. Conclusion
There exists little doubt that others could create a remedial plan with four effective majority/minority districts which satisfies the standards of the Constitution and the Voting Rights Act and which avoids many of the objections raised here by plaintiff's. plaintiff's have in fact done so in their proposed remedial plan. Ex. P-4(a)-(c). The issue presented for resolution here, however, is not which plan appeals to the Court as most rational and most effective. The creation of a redistricting plan for the County is vested in the elected representatives of the residents of the County, the County Legislature. The threshold issue here, therefore, is whether the County's remedial plan creates four majority/minority districts which afford the minority residents of those districts a reasonable opportunity to elect their preferred candidates and which otherwise satisfies the requirements of the Constitution and the Voting Rights Act. The County's remedial plan meets these requirements and should be approved.III. 2003 Election
Proceedings for the quadrennial election of County legislators were enjoined pending adoption of a remedial plan. Docket Nos. 37, 40. Defendants request that as part of the injunctive relief ordered herein, the Court order expedited election procedures to permit the election of legislators to be held as part of the regularly scheduled general election on November 4, 2003. Lynch Letter dated Aug. 20, 2003. plaintiff's take no position on defendants' request other than to urge that whatever proceedings are ordered apply equally to all potential candidates. A hearing concerning defendants' request was held on September 10, 2003 after public notice. See Docket No. 39. At that hearing, the Albany County Republican Committee and the Republican Caucus of the Albany County Legislature ("intervenors") were granted leave to intervene in this action for the limited purpose of presenting their position on defendants' request. The position of the intervenors was presented and thereafter summarized in a letter to the Court. Marcelle Letter dated Sept. 12, 2003. Generally, the intervenors join in the request of defendants but disagree with certain requests and contend that it is not possible to complete proceedings for the general election for the County Legislature by November 4, 2003 and that a special election cannot be scheduled before December 2003.
The Democratic Party holds a majority of the seats in the County Legislature.
The letters of both defendants and intervenors have been filed in the docket of this case.
The procedures and schedule for elections to the County Legislature are generally governed by state and county law. Those laws establish procedures and times for, inter alia, nominations of candidates by political parties, acceptances and declinations of party nominations, gathering signatures for nominating petitions and filing petitions with the County Board of Elections, challenges to signatures, review of challenges to signatures by the Board of Elections and judicial review thereof, pre-primary election campaigning, a primary election, challenges to and certification of primary results and judicial review thereof, campaigning for the general election, the general election itself, and challenges to and certification of the results of the general election and judicial review thereof. Time is also required for the Board of Elections to print the voting machine inserts for each of the thirty-nine districts listing the candidates and parties and for the candidates to review and make objections to those inserts prior to their final printing. Moreover, provisions must be made and time allowed for absentee and military ballots to be distributed, received, counted and challenged. See Lynch Letter; Marcelle Letter. Under normal circumstances, these procedures occur over the course of five months, commencing in June and concluding in November.
This report-recommendation is being filed on September 17, 2003. The deadline for objections will be ten business days thereafter, or October 1, 2003. See 28 U.S.C. § 636(b)(1) (allowing ten days for parties to file and serve objections); Fed.R.Civ.P. 6(a) (excluding weekends and holidays from time periods of ten days or less). Even assuming the district court were to rule on the objections immediately, this would allow only one month to complete the procedures described above for which over five months is normally allowed. The procedures and schedule proposed by defendants and the intervenors would truncate time periods and reduce or remove certain other requirements, such as numbers of signatures required on nominating petitions and the right to challenge signatures on those petitions. While many of the procedures and schedules proposed by plaintiff's and the intervenors appear workable without prejudice to any candidate or party, others do not. In particular, the proposed procedures and schedules would limit candidates to less than two weeks to campaign before the primary elections and to less than two weeks before the general election. This would unfairly restrict the ability of candidates, particularly those of limited resources, to present their candidacies to the electorate and for the electorate to consider those candidacies.
More importantly, an injunction incorporating any or all of the procedures and schedules proposed by defendants and the intervenors would undermine principles of federalism and comity. The Voting Rights Act mandates federal courts to review state and local redistricting plans to protect against discrimination in voting. See United Jewish Org. of Williamsburgh, Inc. v. Wilson, 510 F.2d 512, 524 (2d Cir. 1974), aff'd on other grounds sub nom. United Jewish Org. of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977). It is assumedarguendo that this Court has jurisdiction to grant injunctive relief in this case altering the schedule and procedures established by state and County law for the 2003 County Legislature elections. However, the schedule and procedures for such elections are more properly considered by the state and county officials charged with the responsibility for administering those elections. See Watkins v. Fordace, 791 F. Supp. 646, 648 (S.D. Miss. 1992) (rejecting request for imposition of a special election schedule and deferring question to requirements of state law). State law provides for special elections, see, e.g., N.Y. Elec. Law § 4-106 (McKinney 1998) (certification of offices to be filled at special elections), and the County conducted a special election for the County Legislature following entry of the Consent Decree in 1991. See Consent Decree (Docket No. 1, Ex. B) at 7 (directing that the special election be held as part of the general election the following year).
Thus, the procedures and schedules for the election of County legislators should remain with those in state and County government charged with authorizing and administering those elections. The requests of the defendants and intervenors for injunctive relief directing certain special procedures and schedules for the 2003 elections of County legislators should be denied.
IV. Conclusion
For the reasons stated above, it is hereby
RECOMMENDED that:
1. The County's remedial plan be APPROVED and incorporated by reference in the preliminary injunction previously granted by the Court; and
2. The request of defendants and the intervenors for inclusion in the preliminary injunction of special procedures and schedules for conducting the 2003 elections of County legislators be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties and intervenors have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court in Syracuse, New York. The failure to object to this report within ten days will preclude appellate review. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).