Opinion
No. 03-CV-502, (NAM/DRH)
July 7, 2003
DerOHANNESIAN DerOHANNESIAN, PAUL DerOHANNESIAN II, ESQ., Albany, New York Attorney for Plaintiffs
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, CARA FINEMAN, ESQ., Washington, D.C., Attorney for Plaintiffs
MICHAEL C. LYNCH, ESQ., Albany County Attorney, County Office Building Albany, New York, Attorney for Defendants
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) by an order filed June 12, 2003. Docket No. 20.
Plaintiffs commenced this action on April 22, 2003 alleging that defendants' redistricting plan for Albany County following the 2000 census violated § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. Presently pending is plaintiffs' motion for a preliminary injunction enjoining defendants from conducting elections for the Albany County Legislature until a new redistricting plan is adopted. See Order filed June 19, 2003 (Docket No. 21) at 1 n. 1. For the reasons which follow, it is recommended that plaintiffs' motion be granted.
Plaintiffs assert three causes of action in their complaint. They seek a preliminary injunction only on the first cause of action under the Voting Rights Act. See Pls. Reply Mem. of Law (Docket No. 18) at 1 n. 1.
I. Background
The parties submitted sworn statements in support of and opposition to plaintiffs' motion for a preliminary injunction. See Docket Nos. 4, 5, 10, 12-17, 24, 25. In addition, both the complaint (Docket No. 1) and the answer (Docket No. 9) are verified and, therefore, both may also be considered as sworn statements. The parties were afforded the opportunity to cross-examine any adverse declarant at a hearing on June 25, 2003 (Docket No. 21), but all parties declined that opportunity. Tr. of Hearing (Docket No. 27) at 3-4. Thus, the facts found and related herein are those set forth in the complaint, answer and other sworn statements submitted in connection with the pending motion.
Albany County ("County") is comprised of eighteen cities, towns and villages, the largest of which is the City of Albany ("City"). The County is governed by a County Executive and the County Legislature ("Legislature"). The Legislature consists of single members elected from each of thirty-nine districts in the County. Compl. at ¶ 21. Elections to the Legislature are held every four years with the next election scheduled for November 4, 2003. The thirty-nine districts are defined by local law and are comprised of approximately equal numbers of residents based on data supplied by the United States Census Bureau. Defs. Mem. of Law (Docket No. 11) at 1-2. Thus, the County must redistrict itself following each decennial national census. Id.
The 1990 Census reported that the total population of the County was 292,594, the total population of blacks was 24,068 (8.2%), and the total population of Hispanics was 5,311 (1.8%). Consent Decree (Docket No. 1, Ex. B) at ¶ 6. Following the 1990 Census, the Legislature enacted a redistricting plan which created a single district in the City containing a majority of minorities in the population ("majority/minority" district) but which contained several other districts with a minority population of up to 48%. Compl. at ¶ 52 Ex. B. A lawsuit was commenced in which the plaintiffs alleged that this plan diluted the voting strength of minorities and sought a plan which included additional majority/minority districts. See NAACP v. Albany County, No. 91-CV-1288 (CGC) (N.D.N.Y. filed Nov. 7, 1991). That lawsuit was resolved with the entry of a consent decree which vacated the County's redistricting plan and mandated creation of a new plan which included three majority/minority districts, or 7.7% of the County's districts. Compl. at ¶ 57 Ex. B, p. 7. The plan thereafter adopted by the Legislature included as majority/minority districts Districts 2, 3 and 5, all in the City, and minority legislators were thereafter elected from each of those districts. Compl. at ¶ 58. District 4 had a minority population exceeding 40%. Chonigman Decl. (Docket No. 10) at ¶ 21. Districts 2, 3, 4 and 5 were all located wholly within the eastern portion of the City.
As used herein, "blacks" refers to individuals who identified themselves in a Census as non-Hispanic blacks or African Americans.
As used herein, "Hispanics" refers to individuals who identified themselves in a census as Hispanic or Latino.
The 2000 Census reported that the population of Albany County had increased to 294,565, the black population had increased to 31,514 (approximately 10.7%) and the Hispanic population had increased to 9,079 (approximately 3.1%). Cooper Decl. (Docket No. 5) at ¶ 6 Ex. A. Based on this census, the Legislature adopted Local Law J on December 2, 2002 which redistricted the County according to the 2000 Census. Lynch Aff. (Docket No. 10) at ¶ 4. The County Executive approved Local Law J on December 20, 2002 and it was filed with the New York Secretary of State on January 31, 2003 as Local Law No. 1 for 2003. Id.
Unlike the 1990 Census, the 2000 Census allowed respondents to identify themselves as being "of two or more races." U.S. Dep't of Justice Guidance Concerning Redistricting Retrogression Under Section 5 of the Voting Rights Act, 66 Fed. Reg. 5412 (Jan. 18, 2001); Cooper Decl. at Ex. A; Tr. of Hearing at 7-8, 49-50. Thus, individuals of multiple race who identified themselves as black in the 1990 Census could choose to identify themselves as of multiple race in the 2000 Census. It appears that this population comprised approximately 1.4%, or 4,044 people, of the County's population in 2000. Cooper Decl. at Ex. A. The percentages of minorities in the districts at issue in this case may be increased by as much as 5% if these categories are included as minorities. See Cooper Decl. at Ex. E. The United States Department of Justice allocates any individual who self-reported as white and one of the five other categories of races to the minority race. 66 Fed. Reg. 5412; Cooper Decl. at Ex. E. It appears, however, that the County did not count such individuals as minorities in its Plan. See Tr. of Hearing at 32, 49-50.
To satisfy the constitutional mandate of one person, one vote, Local Law No. 1, or the County Plan, redrew the boundaries of the districts to achieve an ideal population in each district of approximately 7,553 (County population of 294,565 divided by 39). Chonigman Decl. at ¶ 8. Districts 2, 3 and 5 remained majority/minority districts but were augmented principally by portions of District 4 to achieve the necessary total population. Id. at ¶ 19. Five other districts wholly or partially within the City, including District 4, contained minority populations of 30-39%. Compl. at ¶ 66; Ans. at ¶ 9. The County Plan included only blacks in its definition of "minorities." Compl. at ¶ 20. District 4, however, was redrawn to join the substantial minority population of the former District 4 in the City "with the predominantly white, affluent suburban community of Loudonville in the Town of Colonie." Compl. at ¶ 68; Ans. at ¶ 19. Thus, with a black population of approximately 10.7% and a Hispanic population of approximately 3.1%, the County Plan continued the number of majority/minority districts at three, or 7.7%, the number of majority/minority districts under the 1990 Census when 8.2% of the population was black and 1.8% was Hispanic. Plaintiffs are two unincorporated membership organizations formed to advance the interests of blacks and other minorities. Compl. at ¶¶ 6-9. The three individual plaintiffs are City residents and self-identified as being of two or more races (Aaron Mair), Hispanic (Maryam Mair) and black (Mildred Chang). Compl. at ¶¶ 11, 14, 15; Mair Decl. (Docket No. 14) at ¶¶ 1, 4. Chang is a resident of District 4. Compl. at ¶ 16. Plaintiffs contend that by maintaining the existing number of majority/minority districts at three despite the increase in minority population in the 2000 Census, the County Plan violated the Voting Rights Act by failing to create a fourth majority/minority district. Four majority/minority districts would constitute 10.3% of the thirty-nine districts in the County. Plaintiffs seek an injunction compelling the County to adopt a new plan creating such a district.
II. Discussion A. Preliminary Injunction Standard
The standard for the issuance of a preliminary injunction in the Second Circuit is well settled. A party is entitled to such relief only if
the party seeking the injunction establishes that 1) absent injunctive relief, it will suffer irreparable harm, and 2) either a) that it is likely to succeed on the merits, or b) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party.
Wright v. Guiliani, 230 F.3d 543, 547 (2d Cir. 2000) (internal quotation marks omitted) (citations omitted).
Where, as here, a plaintiff seeks to enjoin a "'government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction will be granted only if the moving party meets the more rigorous likelihood-of-success standard.'" No Spray Coalition, Inc. v. City of N.Y., 252 F.3d 148, 150 (2d Cir. 2001) (quoting Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999)). "When such an injunction against the government 'will alter rather than maintain the status quo, the movant must show . . . [a] substantial likelihood of success.'" Montano v. Suffolk County Legislature, ___ F. Supp.2d ___, No. 03-CV-1506, 2003 WL 21433315, at *13 (E.D.N.Y. June 21, 2003) (quoting No Spray Coalition, 252 F.3d at 150). Here, the relief requested by plaintiffs would alter the status quo because the defendants would be required to vacate the County Plan and implement a new redistricting plan. Thus, plaintiffs must establish a substantial likelihood of success.
B. Irreparable Harm
Plaintiffs contend that they will be irreparably harmed because they will be denied their rights under the Voting Rights Act. "Irreparable harm" means injury for which a monetary award cannot provide adequate compensation. Ford v. Reynolds, 316 F.3d 351, 355 (2d Cir. 2003). The abridgement or dilution of the right to vote is an irreparable harm. Montano, 2003 WL 21433315, at *14. Therefore, plaintiffs have satisfied their burden as to this element of their motion.
C. Likelihood of Success on the Merits 1. Standing
As a threshold matter, defendants contend that none of the five plaintiffs have demonstrated standing to maintain this action.
Article III of the Constitution confers jurisdiction on federal courts over only "cases" and "controversies." Lee v. Board of Governors of the Fed. Reserve Sys., 118 F.3d 905, 910 (2d Cir. 1997). Several distinct doctrines have developed to determine what constitutes a case or controversy for purposes of Article III. Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir. 1994). "Foremost among these is the doctrine of standing." Id.; see also Allen v. Wright, 468 U.S. 737, 750 (1984) (standing "is perhaps the most important of these doctrines."). Standing, therefore, is a prerequisite to jurisdiction and federal courts lack subject matter jurisdiction to hear and decide claims brought by litigants without standing. In re United States Catholic Conference, 885 F.2d 1020, 1023 (2d Cir. 1989); Craft v. McNulty, 875 F. Supp. 121, 124 (N.D.N.Y. 1995) (McAvoy, C.J.). Reduced to its constitutional minimum, standing requires that a plaintiff demonstrate (1) an injury in fact, (2) the injury is fairly traceable to the challenged activities of the defendant, and (3) the injury is such that it may be redressed through the relief sought. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Rockefeller v. Powers, 74 F.3d 1367, 1375-76 (2d Cir. 1995). The injury-in-fact standard requires the "invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical." N.E. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663 (1993) (internal quotation marks omitted).
Chang is black, a registered voter and a resident of District 4, which is outside any of the existing three majority/minority districts. Compl. at ¶¶ 15, 16. As such and assuming proof of her claim, Chang will suffer an impairment of her rights under the Voting Rights Act as a result of the County Plan, an injury which may be remedied through this action. Chang thus satisfies the requirements for standing to bring this action. See United States v. Hays, 515 U.S. 737, 744-45 (1995) (holding that a plaintiff has standing who resides in a non-majority/minority district which is the focus of a challenge to redistricting on equal protection grounds).
Because at least one plaintiff satisfies the requirements for standing, the standing of any other plaintiff need not be resolved on this motion. Defendants' argument on this ground for purposes of this motion must be rejected.
2. Voting Rights Act
The Voting Rights Act provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. . . ." 42 U.S.C. § 1973(a). It further provides that
[a] violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.42 U.S.C. § 1973(b).
To establish a claim of unlawful dilution of minority voting strength under § 1973, a plaintiff must first demonstrate three preconditions:
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single member district. . . . Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed — usually to defeat the minority's preferred candidate.
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). These preconditions apply to challenges to single member districts. Growe v. Emison, 507 U.S. 25, 40-41 (1993). Each precondition must be proven by a preponderance of the evidence. Reed v. Town of Babylon, 914 F. Supp. 843, 863 (E.D.N.Y. 1996).
If a plaintiff satisfies the three preconditions, he or she must then establish that based on the totality of the circumstances, the minority group does not have equal access to the political process. This inquiry focuses on nine factors, which overlap in certain respects with themselves and with the three Gingles preconditions, as typically relevant to vote dilution:
the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.
Gingles, 478 U.S. at 44-45; see also Goosby v. Town Bd. of Hempstead, 180 F.3d 476, 491 (2d Cir. 1999). The inquiry may additionally consider any evidence that "elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the . . . political subdivision's use of the contested practice or structure is tenuous." Gingles, 478 U.S. at 45; Goosby, 180 F.3d at 491-92. These factors are "neither exclusive nor comprehensive," no particular factor is conclusive and a plaintiff need not establish a majority of or a particular number of factors. Goosby, 180 F.3d at 492. Rather, these factors serve as guideposts in the analysis of the totality of the circumstances of a claim of vote dilution. Id.
a. Preconditions
As noted above, plaintiffs must first satisfy the three Gingles preconditions before the remaining factors may be considered. Goosby, 180 F.3d at 491. Defendants contend that plaintiffs have failed to establish any of the three.
i. Size and Geographical Compactness of Minority Group
To satisfy the first precondition, the plaintiffs "[m]ust show it is possible to create more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its own choice." Johnson v. De Grandy, 512 U.S. 997, 1008 (1994). The failure to maximize the number of majority/minority districts is not a basis for a voting rights act violation. Id. at 1017.
A. Sufficiently Large
A minority group is sufficiently large if it comprises more than 51% of the population of a voting district. See, Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d 1109, 1117 (5th Cir. 1991) (52.8%) (finding that an overwhelming majority is not required if the potential exists to elect candidate of choice); Goosby v. Town Bd. of the Town of Hempstead, 956 F. Supp. 326, 348 (E.D.N.Y. 1997), aff'd, 180 F.3d 476 (52.57%); Hastert v. State Bd. of Elections, 777 F. Supp. 634, 647-48 (N.D.Ill. 1991) (59.33% and 59.29%) (finding that 60% of voting age population is threshold for creating a safe majority/minority district). Courts also consider voter registration and voter turnout.
Plaintiffs contend, and defendants challenge, that the black population should be considered together with the Hispanic population for purposes of this analysis. Although the Supreme Court has yet to define what constitutes a "minority group" under the Voting Rights Act, the Court has assumed that two separate groups may join to form a single minority group to establish a Voting Rights Act violation. See De Grandy, 512 U.S. 997 (Hispanics and African Americans); Growe, 507 U.S. at 25 (same). The Fifth and Eleventh Circuits are the only circuit courts of appeals to hold that two groups may join to constitute a protected group under the Voting Rights Act if such a coalition meets the three Gingles preconditions. See Concerned Citizens of Hardee County v. Hardee County Bd. of Comm'rs, 906 F.2d 524, 526 (11th Cir. 1990) (blacks and Hispanics); Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988) (same). Other courts, including the Second Circuit, have also assumed that different minority groups can form a coalition under the Voting Rights Act. See Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271, 276 (2d Cir.), vacated and remanded on other grounds, 512 U.S. 1283 (1994); Badillo v. City of Stockton, 956 F.2d 884, 891 (9th Cir. 1992); France v. Pataki, 71 F. Supp.2d 317, 327 (S.D.N.Y. 1999); Romero v. City of Pomona, 665 F. Supp. 853, 858 (C.D.Cal. 1987); but see Nixon v. Kent County, 76 F.3d 1381, 1383 (6th Cir. 1996) (finding that neither the plain language nor the legislative history of the Voting Rights Act allows for a coalition of minority groups). Accordingly, blacks and Hispanics may be considered as a single minority group under the Voting Rights Act if the coalition meets the three Gingles preconditions.
Although drawn from the same 2000 Census, the statistics cited by the parties differ for the County's minority population. The statistical disparities arise from several differences in the parties' analyses. First, as noted, plaintiffs include Hispanics in their definition of "minority" while defendants do not. This issue is considered infra in subsection (ii). Second, plaintiffs appear to include in their definition of minority individuals who identified themselves as multiple race. See note 6 supra. This assumption is supportable here only to the extent that the multiple races included black or Hispanic. See U.S. Dep't of Justice Guidance Concerning Redistricting Retrogression Under Section 5 of the Voting Rights Act, 66 Fed. Reg. 5412 (Jan. 18, 2001). To the extent black or Hispanic is not included in a multiple race identification (e.g., white and Asian or white and American Indian), inclusion here of such an identification is unsupportable. Plaintiffs have offered no evidence as to the number of multiple race identifications in their statistical analyses which included black or Hispanic and no reasonable basis appears on the record of this motion for estimating such a number. Accordingly, multiple race identifications are not included in the definition of minority for purposes of this motion. Finally, the parties disagree over whether the appropriate population is the general population or the voting age population. The voting age population contains a slightly lower percentage of blacks and Hispanics than does the general population. Because the differences in the statistical analyses for these two population groups are immaterial for purposes of the instant motion on the facts of this case, statistics for both population groups are considered and it is unnecessary on this motion to determine which population group provides the appropriate basis for analyses.
Defendants accepted the general population as the appropriate population group in the 1991 Consent Decree. See Consent Decree at ¶¶ 15, 21 Decretal ¶ 2.
Here, given the existence of three majority/minority districts, the question presented is whether the minority population is sufficiently large to warrant the creation of a fourth majority/minority district. The total population of blacks in the County is 31, 514 (21,020 voting age) and the Hispanic population is 9,079 (5,861 voting age). Cooper Decl. at ¶ 6 Ex. A. The total voting age black population of Districts 2, 3 and 5 under the County Plan is 9,178 and the total voting age Hispanic population in those three districts is 1,844. Cooper Decl. at Ex. E. This leaves a voting age population of blacks in the County outside these three districts of 11,842 and a Hispanic voting age population in the County outside these three districts of 1,844. Id. Given the ideal total population of 7,553 for a district, the number of voting age blacks outside Districts 2, 3 and 5, even by itself, is sufficiently large in the County and in the area of existing District 4 to warrant the creation of a fourth majority/minority district. Joining blacks and Hispanics, plaintiffs, of course, have satisfied this requirement.
It is unclear from the record whether the numbers for the Hispanic population in these three districts is total population or voting age population. In the context of Exhibit E to the Cooper Declaration, it appears that the population of Hispanics in each district refers to the voting age population since that is the category reported in the adjoining columns for non-Hispanic Blacks and for minorities. Therefore, the figures for the Hispanic population in that exhibit will be considered as those for the voting age population.
B. Geographically Compact
Because not all members of a minority group reside in the same geographical area, the Voting Rights Act requires analysis of the residential patterns of the minority group in question to determine whether the group is sufficiently geographically compact in the area in question to allow creation of a majority/minority district. Here, the question is whether a fourth geographically compact, majority/minority district in the area of existing District 4 could be drawn. Relevant to this inquiry is whether the proposed fourth district is the same as the existing district and conforms to the boundaries of existing municipalities and communities or overlaps two or more existing municipalities or communities. See Goosby, 956 F. Supp. at 349.
This requirement is established here for at least three reasons. First, the 2000 Census reported that over 77% of the blacks in the County reside within the City. Cooper Decl. at ¶ 6. Moreover, five districts immediately adjoining the three majority/minority districts, Districts 1, 4, 6, 7 and 8, contain a total voting age population of blacks of 5,659 and a total voting age population of Hispanics of 2,150. Cooper Decl. at Ex. E. These eight districts, from which a fourth majority/minority district would be created, constitute 21% of the total number of districts but contain 59% of the total voting age population of blacks in the County and 47% of the total voting age population of Hispanics in the County. Id.
See Albany County Redistricting Plan (Compl. at Ex. C).
Second, District 4 under the County Plan overlaps the community in the northeastern portion of the City which contains a substantial number of blacks and Hispanics with the predominantly white population of Loudonville in the Town of Colonie. While a map indicates that the two communities are geographically contiguous, a map does not reveal the geographical chasm between the two communities created by a valley and an interstate highway passing directly across the district between the two communities. Moreover, the two communities share virtually nothing in common. Among other things, they are governed by different municipalities, they are policed by different departments, fire and other emergency response teams come from different organizations, and community organizations and youth sports teams are separately operated. The children attend different public schools. Loudonville is predominantly white and affluent. The adjoined northeastern Albany area is not. The redistricting which led to the anomalous creation of existing District 4 underscores the geographical compactness of the black and Hispanic population within the eastern part of the City. See Goosby, 956 F. Supp. at 349.
Third, plans proposed by plaintiffs demonstrate that a fourth majority/minority district could be created in the area of existing District 4. See Compl. at ¶¶ 77, 78 Ex. C; Cooper Supp. Decl (Docket No. 12) at ¶¶ 9-19 Exs. A-F. These plans illustrate the feasibility of creating a fourth majority/minority district in the area of existing District 4 and further support plaintiffs' contention that blacks and Hispanics are geographically compact within the eastern portion of the City.
Thus, plaintiffs have established that the black and Hispanic populations in the area of existing District 4 are sufficiently large and geographically compact to support the creation of a fourth majority/minority district. Plaintiffs have, therefore, satisfied with ample evidence the first Gingles precondition.
ii. Political Cohesiveness of Minority Group
A minority group is politically cohesive when "[its] members . . . tend to prefer the same candidates." Holder v. Hall, 512 U.S. 874, 904 (1994). "A showing that a significant number of minority group members usually vote for the same candidates is one way of proving political cohesiveness." Gingles, 478 U.S. at 56. Courts may consider voting patterns in past elections, including races that are not being challenged in the instant lawsuit. Montano, 2003 WL 33, at *23 (finding that blacks and Hispanics voted in a politically cohesive fashion in state senatorial races in case involved county legislature elections); France v. Pataki, 71 F. Supp.2d 317, 327 (S.D.N.Y. 1997) (finding racial bloc voting by each minority group but noting that both blocs voted along Democratic Party lines); Rollins v. Fort Bend Indep. Sch. Dist., No. 02-CV-3399, 1996 WL 560295, at *14-15 (S.D.Tex. June 30, 1994). Courts should remain mindful that "it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important." Gingles, 478 U.S. at 68 (emphasis in original).
Black and Hispanic groups are politically cohesive when most members of the two groups vote for the same candidates in most elections. League of United Latin Am. Citizen Council v. Clements, 999 F.2d 831, 864 (5th Cir. 1993) (focusing on elections with minority candidates). Courts have also considered whether black groups and Hispanic groups have worked together to form political coalitions and to promote the same candidates. Concerned Citizens of Hardee County, 906 F.2d at 527; Rollins, 1996 WL 560295, at *15. However, "anecdotal testimony regarding individual instances where [H]ispanic voters supported and worked for black candidates" is insufficient to demonstrate the requisite level of political cohesion in the absence of statistical or other evidence of voting patterns. Concerned Citizens of Hardee County, 906 F.2d at 527; see also Johnson v. Hamrick, 155 F. Supp.2d 1355, 369-70 (N.D.Ga. 2001).
The most probative evidence of cohesiveness, or the absence thereof, is statistical evidence of voting patterns in elections held in the district at issue. See Goosby, 180 F.3d at 497 (citing Clark v. Calhoun County, Miss., 88 F.3d 1393, 1397 (5th Cir. 1996)). Statistical evidence from exogenous elections, those not involving the particular district at issue, may also be considered. Id. Here, while plaintiffs have offered statistical evidence regarding the third Gingles precondition, no such evidence has been offered on the issue of cohesiveness.
Nevertheless, the political cohesiveness of blacks and Hispanics in the County and in the area of existing District 4 is demonstrated by other evidence. First, a fair reading of the Consent Decree reflects that in November 1991, defendants stipulated that the black and Hispanic groups in the County were cohesive and should be considered as one group for purposes of the Voting Rights Act. In agreeing to resolve that action with the creation of two additional majority/minority districts, defendants agreed that "[e]ach of these districts would contain a combined black and Hispanic population of at least 63%," "[t]he proposed redistricting plan will include three districts in the area of the City of Albany, equal to or greater than a combined black and Hispanic population of at least 63%" and "[t]he county agrees to adopt a legislative redistricting plan that shall include three majority Black and Hispanic legislative districts. . . ." Consent Decree at ¶¶ 15, 21, 24; see also Decretal ¶ 2 (same). The Consent Decree was "approved as to form and content" by the County's authorized representative. Id. at 8.
At a minimum, the Consent Decree constitutes an admission under Fed.R.Evid. 801(d)(2) that as of November 1991, the black and Hispanic populations in the City were cohesive for purposes of the Voting Rights Act. The probative value of that admission could be obviated or mitigated by, for example, evidence that such a coalition had ended or weakened, statistical evidence of voting patterns since the Consent Decree which are inconsistent with cohesiveness between the two groups, or other such evidence. Defendants have proffered no such evidence. See Tr. of Hearing at 28-30. Thus, defendants' admission in the Consent Decree further supports a finding of cohesiveness.
It appears that the City has also treated the same black and Hispanic populations as cohesive for purposes of the Voting Rights Act. See Mair Decl. at ¶ 5.
Second, leaders in the black and Hispanic communities in the County attest without contradiction to the ways in which black and Hispanic groups in the County have joined together to further each other's political and social interests. Mair Decl.; Dukes Decl. (Docket No. 15); Alfonso Decl. (Docket No. 16). According to these witnesses, blacks and Hispanics have jointly participated in and supported various events and projects of interest to one or the other group, including festivals, Puerto Rican rights and youth sports. They also jointly publish a bilingual community newspaper. Mair Decl. at ¶ 6; Alfonso Decl. at ¶¶ 4, 8, 9. Anecdotal evidence has also been offered of past instances where blacks and Hispanics joined to support candidates preferred by one group or the other. See Mair Decl. at ¶ 4; Alfonso Decl. at ¶¶ 5, 7. Defendants have not rebutted or refuted this evidence nor offered any contradictory evidence.
Given the geographical compactness of the black and Hispanic populations in the County and in the area of existing District 4, defendants' 1991 admission of such cohesiveness and the anecdotal evidence of political and social cohesiveness, the conclusion is compelled that plaintiffs have satisfied their burden of demonstrating the political cohesiveness of the black and Hispanic populations in the County and in the area of existing District 4. Therefore, the two populations are politically cohesive.
iii. Majority Voting Pattern and Success
To satisfy the third Gingles precondition, a plaintiff must show that "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Goosby, 180 F.3d at 491. A candidate is minority-preferred when he or she receives support from more than 50% of the minority voters. Id. at 493. However, a candidate who received support from more than 50% of the minority voters is not a minority-preferred candidate if "another candidate receiv[ed] greater support in the primary [but] failed to reach the general election . . . or another candidate receive[d] significantly higher support." Id.
"[I]n general, legally significant white bloc voting exists where the white bloc vote normally will defeat the combined strength of minority votes plus white 'cross-over' votes for minority-preferred candidates." Gingles, 478 U.S. at 56. A court should consider
the nature of the allegedly dilutive electoral mechanism; the presence or absence of other potentially dilutive electoral devices, such as majority vote requirements, designated posts, and prohibitions against bullet voting; the percentage of registered voters in the district who are members of the minority group; [and] the size of the district. . . .
Id. However, the cause for the white bloc voting is irrelevant in analyzing the third precondition, although causation remains relevant to the totality of the circumstances. Goosby, 180 F.3d at 493.
The unrebutted evidence of racially polarized voting in the County takes several forms. First, it appears that no minority candidate has ever been nominated to run for County-wide office. Compl. at ¶ 44. Therefore, no evidence exists as to whether white voters County-wide supported a minority-preferred candidate. Moreover, only once has a minority candidate been endorsed by a major political party for election in a white-majority district. Compl. at ¶ 46. These facts supports an inference that the white majority will vote for the opposing candidate in sufficient numbers to defeat any minority-preferred candidate. See also Mair Decl. at ¶ 10 (attesting that when Aaron Mair sought the nomination to run City-wide for a seat on the Board of Education, he was told by the party screening committee that he "would have little chance of being elected citywide as a minority").
Second, only one election has been held in District 4 since its creation in 1991. In that year, a minority candidate opposed a white candidate in the Democratic primary election. At the time the district included a minority population exceeding 40%. Chonigman Decl. at ¶ 21. The white candidate prevailed with 73% of the vote while the minority candidate received 26%, indicating that the white majority voting bloc succeeded in defeating the minority-preferred candidate. Liu Preliminary Report (Docket No. 13) at 2-3; Lynch Supplemental Aff. (Docket No. 24) at Ex. A.
Finally, plaintiffs' expert political scientist, Baodong (Paul) Liu, has analyzed data related to five City Board of Education elections between 1995 and 2001. Those elections were City-wide. According to the 1990 Census, the total black and Hispanic population of the City was then approximately 25%. In these elections, fourteen candidates were black. Liu's analysis of voting patterns revealed that white voters consistently voted as a bloc for candidates other than the black candidates who were minority-preferred. Id. at 3-4 Exs. 3, 4; Lynch Supplemental Aff. at Ex. B.
At the hearing, counsel for defendants proffered that in at-large elections for nine seats on the City Board of Education between 1999 and 2002, four minority candidates were successful. Tr. of Hearing at 38; Lynch Supplemental Aff. at Ex. B C. However, the question is whether a white voting bloc usually defeats a minority-preferred candidate, not whether it always does so. Goosby, 180 F.3d at 491.
This evidence strongly supports the conclusion that the white majority in the County and in the area of existing District 4 "votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51. Plaintiffs have thus met their burden of establishing the third and final Gingles precondition.
b. Totality of the Circumstances
Having satisfied the three Gingles preconditions, plaintiffs must then demonstrate by the totality of the circumstances that: "(1) the political processes for nomination and election (2) are not equally open to participation by members of the protected class (3) because the class members have less opportunity than others to participate and elect their representatives of choice." Goosby, 180 F.3d at 490 (citing 42 U.S.C. § 1973). The following nine factors, described above, are relevant to an analysis of the totality of the circumstances.
i. History of Voting-Related Discrimination
The first factor is "the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process. . . ." Gingles, 478 U.S. at 36-37, 44-45 (quoting S.Rep. No. 97-417, 97th Cong.2nd Sess. 28-29 (1982), U.S. Code Cong. Admin. News 1982, pp. 177, 205 (hereinafter S.Rep.)). Plaintiffs must establish a history of discrimination whereby the challenged jurisdiction denied a specific minority group access to the political process. Reed, 914 F. Supp. at 885.
As discussed above, the minority group here is the black and Hispanic population in the County. The record on this motion establishes the following. Since the County was incorporated in 1788, no minority has ever been elected to a County-wide office. Compl. at ¶¶ 42, 43, 86. No minority has ever been nominated by a major political party to run for a County-wide office. Id. at ¶ 44. On only one occasion has a major political party endorsed a minority candidate in a majority-white legislative district. Id. at ¶ 46. Only once has a minority ever been appointed to head any of the nineteen departments that constitute the County's government. Id. at ¶¶ 47, 48. The history of the County thus demonstrates that except for elections in majority/minority districts, minorities have been effectively excluded from meaningful participation in County elections and governance.
ii. Pattern of Racially Polarized Voting
Substantially for the reasons set forth above in subsection (a)(iii), voting in the County and in the area of existing District No. 4 has been characterized by racially polarized voting.
iii. Dilution Enhancing Voting Practices or Procedures
The third factor is "the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group. . . ." S.Rep. 28-29 (footnotes omitted), cited in Gingles, 478 U.S. at 36-37, 44-45. No evidence of any such practices or procedures has been offered here.
iv. Exclusion of Minority Group From Candidacy
The fourth factor focuses on candidate slating by the major political parties and "whether the members of the minority group have been denied access to that process. . . ." S.Rep. at 28-29 (footnotes omitted), cited in Gingles, 478 U.S. at 36-37, 44-45. "'The term 'slating' is generally used to refer to a process in which some influential non-governmental organization selects and endorses a group or 'slate' of candidates, rendering the election little more than a stamp of approval for the candidates' selected.'" Reed, 914 F. Supp. 843, 887 (E.D.N.Y. 1996) (quoting Westwego, 946 F.2d at 1116, n. 5).
Little evidence has been presented on this motion concerning slating processes. However, the results of those processes reveal, as noted above, that no minority has ever been nominated by a major political party to run for a County-wide office. Id. at ¶ 44. On only one occasion has a major political party endorsed a minority candidate in a majority-white district. Id. at ¶ 46. Only in the majority/minority districts have minorities otherwise obtained nominations. Moreover, there is anecdotal evidence supporting the conclusion that minorities have been excluded from candidacy. See Mair Decl. at ¶ 10. The evidence thus demonstrates that minorities have generally been excluded from candidacy for County offices except in majority/minority districts.
v. Effects of Past Discrimination
The fifth factor is "the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process. . . ." S.Rep. at 28-29 (footnotes omitted), cited in Gingles, 478 U.S. at 36-37, 44-45. An analysis of the 2000 Census data indicates that minorities continue to lag behind the white majority in the County in virtually all socio-economic categories, including education, employment, housing, income and mobility. Cooper Decl. at 6-10 Exs. B, C. The record on this motion thus demonstrates that minorities in the County continue to bear the effects of discrimination to varying degrees in most such areas.
vi. Use of Racial Appeals
The sixth factor is "whether political campaigns have been characterized by overt or subtle racial appeals. . . ." S.Rep. at 28-29 (footnotes omitted), cited in Gingles, 478 U.S. at 36-37, 44-45. Plaintiffs have presented anecdotal evidence of such appeals. See Mair Decl. at ¶ 11; Dukes Decl. (Docket No. 15) at ¶¶ 3-7. However, that evidence consists largely of inadmissible hearsay and, where based on personal knowledge, the evidence is so conclusory and so vague as to dates, times, places and people as to be void of probative value. Accordingly, there is insufficient evidence from which to conclude that political campaigns in the County have been characterized by racial appeals.
vii. Past Election of Minority Group Members
The seventh factor is "the extent to which members of the minority group have been elected to public office in the jurisdiction. . . ." S.Rep. at 28-29 (footnotes omitted), cited in Gingles, 478 U.S. at 36-37, 44-45. This factor and the extent of racially polarized voting are the most important factors. Gingles, 478 U.S. at 48 n. 15; Niagara Falls, 65 F.3d at 1022. Outside the majority/minority districts, the record demonstrates that the election of minority group members in the County has been non-existent. In the history of the County, no minority has ever been elected to County-wide office and no minority has ever been elected to office from a County district except in the majority/minority districts. Compl. at ¶¶ 42, 43, 86.
viii. Responsiveness to Needs of Minorities
The eighth factor is "'whether there is a significant lack of responsiveness on the part of the elected officials to the particularized needs of the members of the minority group. . . ." S. Rep. at 29. The implementation of programs and efforts to address the needs of a minority group aids in the determination of responsiveness. France, 71 F. Supp.2d at 333. Here, plaintiffs have offered no evidence of the kind considered sufficient by courts in other cases. See, e.g., Goosby, 180 F.3d at 495 (finding of unresponsiveness based on lack of an affirmative action policy, failure to act on a complaint of racial slurs in the workplace, failure to act on complaints of race discrimination in employment, failure to fund requests for community centers in minority neighborhoods and other incidents). Thus, plaintiffs have failed to demonstrate that the County has been unresponsive to the needs of minorities.
ix. Policy Underlying Redistricting
The final factor is "whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous." S. Rep. at 29. The policy at issue here is the County's determination in its Plan not to create a fourth majority/minority district. Defendants assert that the black population alone did not justify creation of a fourth majority/minority district. The populations of the three existing majority/minority districts were significantly below the ideal population of 7,553. Former District 4 contained the largest number of minorities from which the populations of the three majority/minority districts could be enlarged while preserving their majority/minority character. Therefore, portions of former District 4 were added to the existing majority/minority districts and the remainder of former District 4 was joined with a geographically contiguous portion of Loudonville to create existing District 4. Chonigman Decl. at ¶¶ 8-26.
Former Districts 2, 3 and 5 had respective populations of 6538, 6654 and 6291. See Lynch Aff. at Ex. 2.
The tenuousness of the policy underlying the County Plan appears from numerous facts. First, defendants' method of counting minorities for purposes of the Plan minimizes the percentage of minorities in the relevant population groups at every opportunity, even where doing so runs counter to defendants' previous positions or to accepted or recommended practices. The County Plan counts only blacks as the relevant minority group and excludes Hispanics from that definition. However, blacks and Hispanics were considered as a single minority group by defendants in 1991. Defendants now contend that the voting age population, which contains lower percentages of blacks and Hispanics, is the relevant group for analysis, but in 1991, defendants based their plan on the general population. Defendants appear not to have included any of the multiple race population in their definition of minority, but the recommended practice is to include as blacks or Hispanics those in that group who included either race in their multiple race self-identification. These unsupported assumptions have served to minimize the percentages of minorities in the population.
Second, retaining three majority/minority districts out of thirty-nine is substantially disproportional to the percentage of minorities in the County's population. In 1991, the County created the three majority/minority districts, 7.7% of the total number of districts, where the minority population totaled 10% (8.2% black and 1.8% Hispanic). A strict proportionality between minority population and percentage of majority/minority districts is not required. See De Grandy, 512 U.S. at 1013-14. However, while the minority population of the County has grown to at least 13.8% (10.7% black and 3.1% Hispanic), the percentage of majority/minority districts remains at 7.7%. This substantial disproportionality belies the validity of the policy underlying the County Plan.
Third, the County Plan significantly enlarges the number of minorities in each of the three majority/minority districts beyond even the 63% majority to which the parties agreed in the 1991 Consent Decree. The three districts under the County Plan have minority voting age populations of 65.8%, 66.5% and 67.7%. Cooper Decl. at Ex. E. However, a majority/minority district requires only a minimum of 51% minority population and the plaintiffs in the 1991 action and defendants agreed then that a 63% minority population (including multiple race) was sufficient to constitute a majority/minority district. Moreover, defendants assert that it was sufficient to maintain a majority/minority district if such district contained "60% of the overall population and 50% of the voting-age population." Chonigman Decl. at ¶ 16. Finally, four other districts surrounding Districts 2-5 contained substantial minority populations from which adjustments could have been made to increase the populations of the existing majority/minority populations, and the County Plan diluted the minority population of District 4, previously a near majority/minority district, to enlarge the three existing majority/minority districts. These facts constitute substantial support for plaintiffs' argument here that the County Plan "packed" minorities into the three existing majority/minority districts to avoid creation of a fourth such district.
Inclusion of all residents who identified themselves as multiple race would increase the percentages of minorities in each of these three district by three to five percent. Cooper Decl. at Ex. E.
Finally, the anomalous results in the County Plan belie the asserted goals of the Plan. Defendants assert that in adopting the County Plan, they endeavored essentially to achieve, in order of priority, districts approximately equal in population, to maintain the three existing majority/minority districts with minority populations of at least 60% general population and 50% voting age population, to create other majority/minority districts, to maintain existing district boundaries to the maximum extent possible and to maintain the integrity of existing communities. Chonigman Decl. at ¶ 16. The County Plan achieved the primary goals of apportioning the population equally among the districts and of maintaining the three existing majority/minority districts. However, the County Plan redrew those three districts to include minorities in percentages significantly beyond the stated goal. It also failed to create any other majority/minority district although such was justified by the Census figures and was feasible. Further, as to District 4, the County Plan substantially changed the boundaries, reduced its minority population and joined it with a predominantly white community with which there exist virtually no common ties or interests.
The policies and practices underlying the County Plan are, therefore, substantially tenuous.
c. Weighing of Factors
The Voting Rights Act guarantees protected classes meaningful participation in the electoral process and protects for minorities the fair opportunity to elect representatives of their choosing. See League of United Latin Am. Citizens v. North East Indep. Sch. Dist., 903 F. Supp. 1071, 1089-84 (W.D. Texas 1995). The facts that no minority has ever been elected to County-wide office, no minority has ever been elected by a County voting district except in a majority/minority district and the racially polarized voting present in the County constitute the most important factors in this analysis. See Gingles, 478 U.S. at 48 n. 15; Niagara Falls, 65 F.3d at 1022. Here, these factors combine to establish that in the County, blacks and Hispanics can reasonably expect to elect their preferred candidates only in districts in which they constitute a majority of the population. Thus, the Voting Rights Act requires here that majority/minority districts be created in fair proportion to the population of minorities in the County. See De Grandy, 512 U.S. at 1017 (holding that strict proportionality is not required by that proportionality may nevertheless be considered).
Rather than creating a fourth majority/minority district as would have appeared mandated by the significant increase in the minority population in the City in the 2000 Census, the County Plan continued the number of majority/minority districts at three. Further, it enlarged the number of minorities in those three districts substantially beyond what was necessary to maintain their character as majority/minority, dispersed substantial numbers of minorities among five other white-majority districts, reduced the near-majority population of minorities in former District 4, and joined the still substantial minority population in former District 4 with a predominantly white community.
The record on this motion and these factors establish beyond a preponderance of the evidence that there exists a substantial likelihood that plaintiffs will prevail on the merits of their Voting Rights Act claim at the trial of this case. With respect to the elements of that claim, plaintiffs have demonstrated that by failing to create a fourth majority/minority district, the County Plan created a process for the election of County legislators which is not equally open to participation by blacks and Hispanics because these minorities, owing to their exclusion from the electoral process in white-majority districts, "have less opportunity than others (whites) to participate and elect representatives of their choice." Goosby, 180 F.3d at 497. Thus, plaintiffs have proven their claim that by failing to create a fourth majority/minority district, the County Plan dilutes the vote of blacks and Hispanics in the County.
D. Public Interest
Having established irreparable harm and a substantial likelihood of success on the merits, "the Court must . . . consider whether it is against the public interest to grant injunctive relief faced with an impending election." Montano, 2003 WL 21433315 at *13. Notwithstanding the impendency of an election, injunctive relief is usually not precluded unless the plaintiff waited until the eve of election to move for an injunction. Id. When considering the public interest, a court should be mindful that:
[U]nder certain circumstances, such as where an impending election is imminent and a State's election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. Thus, even where an existing districting scheme was found invalid, the Supreme Court maintained that the state need not interfere with election machinery which was already "in gear."
Diaz v. Silver, 932 F. Supp. 462, 466 (E.D.N.Y. 1996) (quoting Roman v. Sincock, 377 U.S. 695, 709-710 (1964)). A court should also consider if implementing a new redistricting plan would be logistically difficult and impracticable at this point in the election process. Coleman v. Board of Educ. of City of Mount Vernon, 990 F. Supp. 221, 227 n. 15 (E.D.N.Y. 1997).
Defendants contend first that plaintiffs were dilatory in commencing this action and bringing this motion. The County Plan was adopted by the Legislature on December 2, 2002, signed by the County Executive on December 20, 2002, and filed with the New York Secretary of State on January 31, 2003. Lynch Aff. at ¶ 4. The complaint herein was filed on April 22, 2003 and the pleadings supporting the instant motion on May 2, 2003. Docket Nos. 1, 4-6. The research and analyses prepared and submitted by plaintiffs in their complaint and moving papers are voluminous and reasonably required at least the 80-120 days following adoption of the County Plan by the Legislature and its filing with the Secretary of State. The claim that plaintiffs were dilatory in commencing this action and bringing this motion is without foundation.
Plaintiffs' actions were, of course, triggered by adoption of the County Plan, which did not occur until December 2002-January 2003. A redistricting plan and a law suit and settlement thereof were completed following the 1990 Census by November 13, 1991, over one year earlier than occurred following the 2000 Census. Consent Decree at 8. The record contains no explanation for the longer period required following the 2000 Census and there has been presented no evidence that defendants were dilatory in enacting the County Plan.
Defendants next contend that granting a preliminary injunction at this stage would unreasonably disrupt the ongoing County election process. That process commenced on June 3, 2003 when candidates for the Legislature were authorized to begin collecting signatures on designating petitions. Graziano Decl. (Docket No. 17) at ¶¶ 7, 8. This initial process is scheduled to conclude on or about July 24, 2003. Id. at ¶ 13. A primary election is scheduled for September 9, 2003 and the general election for November 4, 2003. This expedited report is being filed on July 7, 2003 but cannot be considered by the district court until at least July 22, 2003. See 28 U.S.C. § 636(b) (parties have ten days to file objections to report); Fed.R.Civ.P. 6(a) (excluding Saturdays, Sundays and holidays from ten day period). Thus, if a preliminary injunction is granted, the ongoing electoral process will necessarily be disrupted to permit time for redistricting and to recommence the designating petition process. Such disruption cannot be minimized as it affects, among others, the candidates in all County districts in their efforts to obtain nominations, the Legislature in having to reconsider a new redistricting plan under severe time constraints, and the Board of Elections in administering the election process.
Nevertheless, for at least three reasons, the equities weigh strongly in favor of granting the preliminary injunction. First, one of the two chief elections officers of defendant Albany County Board of Elections has offered the unchallenged opinion that if a new redistricting plan is in place by July 21, 2003, there will be minimal disruption to the election process. Graziano Decl. at ¶¶ 16-18. He further states without challenge that "in extraordinary cases, the petition process can be shortened further by reducing the number of signatures required or by allowing political parties to designate candidates without petitions." Id. at ¶ 20. Thus, while commencement of the petitioning process in the event of an injunction is not possible by July 21, 2003, it is not unreasonable to conclude that if this report-recommendation is accepted, a new redistricting plan could be adopted shortly thereafter and the petitioning process commenced, albeit with substantial effort by those involved. If the procedures for shortening the petition process suggested by Commissioner Graziano are implemented, there would be no need to disrupt the primary or general elections.
Second, the disruption to the electoral process must be weighed against the deprivation of the rights of blacks and Hispanics in the County if the injunction is not granted. The extent of anticipated disruption is described above. If not enjoined, the impending election will result in the selection of legislators for four year terms commencing in January 2004. Thus, the number of majority/minority districts would remain at three until the 2007 elections for the term beginning January 2008 and any redistricting which creates a fourth majority/minority district would be in effect for only one election cycle before the 2010 Census. To continue the status quo until the terms commencing in 2008 would continue for an unacceptable duration the dilution of voting rights which plaintiffs have demonstrated on this motion. The interests of plaintiffs in obtaining equal voting rights in the County outweigh the interests of defendants in avoiding disruption of the ongoing electoral process.
It is an additional option that the ongoing election process be permitted to continue to completion pending the outcome the trial of this case. However, if, as is likely, plaintiffs prevail at the trial, the likely remedy would include a permanent injunction requiring (1) redistricting to create a fourth majority/minority district, and (2) a special interim election to elect legislators for the remainder of the 2004-07 term from the redrawn districts. The disruption and cost which such an eventuality would entail appears substantially greater than that which would result from requiring redistricting now.
Third, disrupting and delaying ongoing Legislature election processes is not unprecedented in the County. The parties agreed in the 1991 litigation to delay the election of County legislators scheduled for November 1991 until 1992 until a new redistricting plan had been adopted by the Legislature creating additional majority/minority districts. Consent Decree at ¶¶ 26, 27 Decretal ¶¶ 3, 5. Special elections were then held in conjunction with the November 1992 general election for terms to run for the remaining three years. Id. Thus, precedent exists in the County for delaying elections for the Legislature to bring a redistricting plan into compliance with the Voting Rights Act.
On balance, therefore, the public interest here weighs strongly in favor of granting a preliminary injunction enjoining the County election of legislators pending adoption of a new redistricting plan which creates a fourth majority/minority district and otherwise complies with the Voting Rights Act. .
IV. Remedies
Once a violation of the act has been admitted or proved, a remedial districting plan should restore these opportunities to minority voters. This may be accomplished through the creation of a majority-minority voting district that maximizes the opportunity of members of the affected group to elect representatives of their choice to government office.
Kimble v. County of Niagara, 826 F. Supp. 664, 670 (W.D.N.Y. 1993). "The [challenged jurisdiction] itself will have the first opportunity to fashion a remedial plan. . . ." Goosby v. Town Bd. of the Town of Hempstead, 981 F. Supp. 751, 755 (E.D.N.Y. 1997) (citing Wise v. Lipscomb, 437 U.S. 535, 540, (1978)); see also Diaz, 932 F. Supp. at 469 (finding that the municipality should have the first opportunity to remedy the violation); McDaniels v. Mehfoud, 702 F. Supp. 588, 596 (E.D.Va. 1998) (same); Dillard v. Baldwin County Bd. of Elections, 686 F. Supp. 1459, 1469 (M.D.Ala. 1988) (same). A court should afford the challenged jurisdiction's plan substantial deference when determining if the plan meets the standards under the Voting Rights Act. Goosby, 981 F. Supp. at 755.
This places a court centrally in the redistricting process, an otherwise exclusively legislative and political process. Congress has mandated such involvement in the Voting Rights Act, however, when, as here, a violation of that act is established. Plaintiffs urge that the County be required to adopt one of the alternative plans which they have offered. See Compl. at ¶¶ 77, 78 Ex. C; Cooper Supplemental Decl. at ¶¶ 9-19 Exs. A-F. As noted, though, defendants must be afforded the opportunity to develop a new redistricting plan here. It is recommended that if this report-recommendation is adopted, a conference be held among the parties and the undersigned to establish a schedule for the submission of such a plan and a hearing to resolve any objections to defendants' proposed plan.
V. Conclusion
For the reasons stated above, it is hereby
RECOMMENDED that an order be entered:
1. Enjoining the 2003 election of County legislators pending adoption by the Legislature of a new redistricting plan which creates a fourth majority/minority district and otherwise complies with the Voting Rights Act; and
2. Referring this case to the undersigned to establish a schedule in consultation with the parties for defendants to submit a proposed, revised redistricting plan and for a hearing to consider any objections to such revised plan; and
IT IS ORDERED that the Clerk forthwith provide copies of this report-recommendation to counsel for all parties.
Pursuant to 28 U.S.C. § 636(b)(1), the parties 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).
IT IS SO ORDERED.