Fund for Accurate and Informed Representation, Inc. v. Weprin, 796 F. Supp. 662 (N.D. N.Y. 1992) (per curiam) aff'd, 506 U.S. 1017 (1992) (mem.)

The Fund for Accurate and Informed Representation (FAIR) challenged the redistricting plan for the New York Assembly. The complaint alleged that the plan adopted by the Assembly: (1) violated the one-person, one-vote requirement of the Fourteenth Amendment; (2) comprised a partisan gerrymander that discriminated against Republican voters; (3) diluted minority voting strength; and (4) violated the Fourteenth Amendment by fragmenting cohesive communities of interest and political subdivisions between Assembly districts.

After a summary trial, the Court concluded that the "challenges raised in plaintiffs' complaint are without merit."   However, during the course of the trial the Department of Justice interposed an objection to two Assembly districts in Manhattan.  Since the Legislature was unable to adopt a timely remedy, the Court directed the "Special Master to draw new district lines for them and for such contiguous districts as may thereby be affected, to bring those districts into compliance with the Voting Rights Act.  With respect to the remaining districts in the Assembly plan and the entire Senate plan, we defer to the legislature's plan and adopt its apportionment of those districts."

One Person, One Vote

The maximum population deviation in the Assembly plan, as  conceded by the plaintiffs, was 9.43 percent.  The Court held that "[t]his concession is fatal to the one person, one vote claim because, absent credible evidence that the maximum deviation exceeds 10 percent, plaintiffs fail to establish a prima facie case of discrimination under that principle sufficient to warrant further analysis by this Court."

The Court rejected "plaintiffs' contention that the state must justify an apportionment plan even though it creates a maximum deviation under 10 percent.  While plaintiffs' argument may be correct in the context of state apportionment of Congressional districts . . . it has no application to apportionment of state legislative districts."

Partisan Gerrymandering

The Court also rejected plaintiffs' partisan gerrymandering claim.  Since Republicans control the New York Senate,  Republican voters cannot establish that the "Assembly apportionment plan deprives Republicans of an opportunity to influence New York State's political process as a whole."

Intentional Racial Discrimination

Plaintiffs argued that the Assembly plan violated the Fourteenth and Fifteenth Amendments.  Although plaintiffs conceded that the Assembly "harbored no design or purpose to discriminate against minorities," they contended that "a racially discriminatory motive [may be] inferred from an ultimate objective of keeping certain white incumbents in office."

The Court held that this claim failed for two reasons: (1) "Plaintiffs failed to demonstrate any linkage between the alleged fragmentation of minority communities in Monroe, Nassau, Erie or Westchester Counties, and an alleged intent to preserve the incumbency of certain white incumbents" and, (2) "Examining areas with substantial minority communities elsewhere in the state, we find apportionment that appears to consolidate minority populations - possibly in the interests of maximizing minority influence - rather than discriminatory fragmentation."

Voting Rights Act

The Court held that the plaintiffs failed to establish a voting rights violation. The Court initially noted that a state's redistricting law is ordinarily accorded deference as a constitutionally compliant enactment.
The plaintiffs argued that the Assembly plan created too few majority-minority districts because it used too high a percentage of minority population to create an effective district.  (The Assembly plan included nine districts with Black populations greater than 65 percent).  The Court was not convinced that these districts were unlawfully packed.

The plaintiffs also claimed that § 2 of the Voting Rights Act requires that in areas where minorities are not sufficiently numerous to constitute a majority in a district, they should be consolidated into a single district to maximize their ability to influence elections.  The Court declined to determine whether § 2 requires the creation of influence districts.  Instead, the Court reasoned that even if influence districts are required, plaintiffs failed to sustain their burden of proof on the issue.

Scaringe v. Marino, No. 92-CV-593 (N.D. N.Y.), consol. with FAIR v. Weprin

Norman v. Cuomo, 796 F. Supp. 654 (N.D. N.Y. 1992) (per curiam) (filed in N.Y. Sup. Ct., Kings County, removed to E.D. N.Y., transferred to N.D. N.Y. and consolidated with FAIR v. Weprin)

Reid v. Marino, No. 9567/92 (N.Y. Sup. Ct., Kings County, June 8, 1992) (congressional plan adopted; later enacted by legislature and precleared by Justice Department)

Wolpoff v. Cuomo, Order, No. 14757-1922 (N.Y. Sup. Ct., Bronx County, May 14, 1992) (removed to federal court), 792 F. Supp. 964 (S.D. N.Y. 1992) (remanded to state court), Order, No. 14757-1922 (N.Y. Sup. Ct., Bronx County, June 12, 1992)

Two separate challenges alleged that the legislative redistricting plan adopted by the New York State Senate violated article III, § 4 of the New York State Constitution.  Article III, § 4 provides:

Each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and may be in as compact form as practicable, and . . .  shall at all times consist of contiguous territory, and no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county.

The Senate  Majority Leader sought to  remove the Wolpoff case to federal district court pursuant to 42 U.S.C. § 1443(2).  However, the federal district court remanded the case back to the state court.  792 F. Supp. 964 (S.D. N.Y. 1992).

Following argument, the Court struck down the Senate redistricting plan as violative of the State Constitution.  The Wolpoff court held that the plan "excessively, gratuitously and without supervening need dictated by federal law, disregards the integrity of county boundaries in the creation of Senatorial districts."

Wolpoff v. Cuomo, 80 N.Y.2d 70, 587 N.Y.S.2d 560, 600 N.E.2d 191 (1992)

The Senate Majority Leader filed an appeal in the New York Court of Appeals.  Although acknowledging that the "Senate redistricting plan technically violates the express language of the State Constitution," the Court nevertheless declared that the Senate "complied with the State Constitution as far as practicable" and upheld the plan.

State Constitution (Integrity of County Boundaries)

The Court held that the Senate's plan and all plans submitted by the plaintiff's technically violated the State Constitution.  However, the Court reasoned that plaintiffs must show more than a technical violation of the State Constitution to succeed on their claim.  The Court elaborated on the proper standard of review:

[W]e examine the balance struck by the legislature in its effort to harmonize competing Federal and State requirements.  The test is whether the legislature has "unduly departed" from the State Constitution's requirements regarding contiguity, compactness and integrity of counties . . . in its compliance with Federal mandates.  It is not our function to determine whether a plan can be worked out that is superior to that set up by [the Legislature].  Our duty is . . . to determine whether the legislative plan substantially complies with the Federal and State Constitutions . . . .   A strong presumption of constitutionality attaches to the redistricting plan and we will upset the balance struck by the Legislature and declare the plan unconstitutional "only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that every reasonable mode of reconciliation of the statute with the constitution has been resorted to, and reconciliation has been found impossible."

The Court noted that all the plans submitted by the plaintiffs split fewer counties but contained higher population deviations.  According to the Court:

We are here to decide whether in complying with Federal mandates, the Legislature unduly undermined article III, § 4 of the State Constitution.  That an alternative plan might have been devised that conflicted less with article III, § 4 but did greater violence to the equal representation principle is no basis for rejecting the Senate plan.

We find that the [Senate Majority Leader] has put forth more than enough evidence to support his argument that any such violation was minimized and that the district lines were drawn as they were in order to comply with federal statutory and constitutional requirements.  The Senate plan indeed compromises the integrity of 23 counties . . . .  But [the Senate Majority Leader] has countered [plaintiffs'] allegations with a detailed defense of the proposed plan that is grounded in a complex analysis of population trends and voting patterns, and the way in which both must be accommodated in order to comply with federal requirements.

As a result of the 1990 census and subsequent apportionment, New York was entitled to 31 congressional seats, a loss of 3 seats. Because the New York Legislature appeared unable to timely enact a new congressional redistricting plan, several suits were filed requesting that a court redraw the congressional boundaries.  On March 26, 1992, a group of plaintiffs filed suit in the U.S. District Court for the Western District of New York (Waring v. Gantt, No. CV-92-1776).  Also on March 26, 1992, another group of plaintiffs filed suit in New York Supreme Court, Kings County (Reid v. Marino, No. 9567/92).  Finally on March 31, 1992, this case was filed.  Waring was consolidated with this case and a three-judge court was named.

The Assembly defendants requested that the Federal Court abstain and allow the state case to proceed.  The Senate defendants, joined by the plaintiffs, argued against abstention and in favor of the Court enjoining the state court proceeding.

The Court declined to abstain and instead enjoined the state court from proceeding.  The Court reasoned that only a plan drawn by a federal court could satisfy New York's election schedule.   Under New York law, all congressional candidates were required to file signed petitions by July 16, 1992.  In addition, Brooklyn, Manhattan and the Bronx are covered by § 5 of the Voting Rights Act and require preclearance from the Department of Justice before any redistricting plan for these areas is effective.  A plan drawn by a federal court, however, is not always subject to the preclearance requirement.

Abstention

In declining to abstain in favor of the state court proceeding, the Court reasoned that there were no disputed state law matters at issue and that adjudicating the dispute in state court would increase the likelihood of delay.  A decision by the state court could be appealed to the appellate division, then to the New York Court of Appeals, and then to the U.S. Supreme Court.  In contrast, a decision by a three-judge federal court could be appealed directly to the U.S. Supreme Court.  Moreover, the Court said that a plan drawn by a federal court did not need to be precleared by the Department of Justice under § 5.  The Court concluded that the Assembly defendants had failed to submit any court precedent that would require the Puerto Rican Legal Defense and Education Fund (PRLDEF) court to abstain.

The Court further held that to avoid duplicative litigation, "an injunction of the state redistricting case is both necessary and appropriate to protect our jurisdiction."

The Assembly defendants appealed the ruling to the U.S. Supreme Court and the U.S. Supreme Court stayed the injunction pending final resolution of the appeal.

Puerto Rican Legal Defense and Education Fund v. Gantt, 796 F. Supp. 681 (E.D. N.Y. 1992)

Following the U.S. Supreme Court decision staying the federal district court's injunction of the state court's proceedings, Gantt v. Skelos, 504 U.S. 902 (1992) (mem.), the state court appointed three referees to develop a congressional redistricting plan.  Concurrently, the three-judge federal court appointed a Special Master to prepare and recommend a congressional redistricting plan.  On May 26, the Special Master presented his proposed plan to the Court.  The Court received written objections to the plan and convened a hearing on June 3, 1992, to hear the challenges to the Special Master's plan.  On June 5, 1992, the state court approved the plan that had been prepared by the three referees.

Subsequently, the Legislature adopted the state court‘s congressional redistricting plan and the governor signed the legislation.  The plan was then submitted to the U.S. Department of Justice for preclearance.

Although the State had adopted a redistricting plan, the federal court proceeded to adopt the Special Master's plan as the temporary congressional redistricting plan for the State of New York.  The Court reasoned that a redistricting plan prepared by a federal court was not subject to the preclearance requirement of § 5 of the Voting Rights Act.  Therefore, if preclearance of the State's plan were denied or delayed, the Special Master's plan would serve as the congressional redistricting plan for the State of New York.  The Court concluded that unless an approved redistricting plan were in place by July 8, 1992, the Special Master's plan would serve as the congressional redistricting plan for the 1992 elections.

Review of Special Master's Plan

In reviewing the Special Master's plan, the Court reasoned that under federal law a redistricting plan must comply with two mandatory criteria, population equality and racial fairness. The Court also noted that the permissive criteria of contiguity, compactness, respect for traditional boundaries, maintenance of communities of interest and encouraging party competition may also be considered.

The Court was satisfied that the Special Master's plan complied with the mandatory criteria.  The plan contained a population deviation of less than .001 percent (two persons separated the largest and smallest district).  The plan, according to the Court, fairly reflected minority-voting strength.  The Court was satisfied that the African American and Hispanic districts that were created, although comprising less than 60 percent African American or Hispanic population, were sufficient to provide the African American and Hispanic communities, respectively, the opportunity to elect a candidate of their choice.

Preclearance of  Federal Court Plan

The Court reasoned that a court-drawn legislative redistricting plan is not subject to preclearance unless the plan reflects the exercise of legislative judgment.  As the Court explained, "the essential characteristic of a legislative plan is the exercise of legislative judgment, [i.e.,] a proposal reflecting the policy choices of the elected representatives of the people."

The Court concluded that the Special Master's plan does not reflect the exercise of legislative judgment.  This conclusion was supported, according to the Court, by "the legislature's vehement dislike for [the Special Master's] plan, expressed through their virtually-immediate adoption of the plan drawn by the state court referees."

Puerto Rican Legal Defense and Education Fund v. Gantt, 796 F. Supp. 698 (E.D. N.Y. 1992), judgment vacated and remanded with instructions to dismiss appeal as moot sub nom. Gantt v. Skelos, 506 U.S. 801 (1992) (mem.)

Following the Court's decision in 796 F. Supp. 681, the Department of Justice precleared the congressional redistricting plan adopted by the New York Legislature.  The Department of Justice declared that "it is satisfied that the redistricting legislation was neither designed to discriminate against minority voters nor does it have a retrogressive effect on their voting rights."

Notwithstanding preclearance, the PRLDEF plaintiffs asked the Court to enjoin implementation of the State's congressional redistricting plan and instead impose the plan recommended by the Special Master.  The PRLDEF plaintiffs argued that the State's congressional redistricting plan did not sufficiently remedy prior dilution of the voting rights of Latinos and therefore violated § 2 of the Voting Rights Act.  The defendants argued that since a congressional redistricting plan had been adopted and precleared this action was moot.  If PRLDEF wished to challenge the congressional redistricting plan, they should file a new action.

The Court declined to grant PRLDEF's motion for a preliminary injunction and dismissed the action as moot.  The Court, however, did not "express or imply any opinion as to the merits of plaintiff's claim that the state redistricting plan violates section 2 of the Voting Rights Act by diluting the voting power of the New York City Latino community."

City of New York v. United States Department of Commerce, 822 F. Supp. 906 (E.D. N.Y. 1993) vacated and remanded 34 F.3d 1114 (2nd Cir. Aug. 8, 1994), rev'd sub nom. Wisconsin v. City of New York, 517 U.S. 1 (1996)

The Census Bureau has long acknowledged that its decennial count of the population misses some people. After each recent census, the Bureau has done a postenumeration survey of limited areas designed to determine the degree to which the census may have undercounted the total population. If the undercount were uniform across states and among racial and ethnic groups, it would not present a problem for reapportionment and redistricting, since those tasks are based not on absolute population but on relative population. But the postenumeration surveys have showed that some populations are more likely to be undercounted than others. In particular, they have showed that racial and ethnic minority populations are more likely to be undercounted than the White population.

In anticipation of another "differential undercount" in the 1990 census, the City of New York and several other plaintiffs sued the Department of Commerce, demanding that the Department make a statistical adjustment to the 1990 census count to increase the total population to the number suggested by a postenumeration survey, and also to increase the population within each state, city, precinct, and block. The Department of Commerce agreed to conduct the postenumeration survey and prepared adjusted counts for the entire United States, but declined to adopt the statistically adjusted counts as the official census. The adjusted counts would have caused Wisconsin to lose one congressional seat, which would have been shifted to Arizona. The City of New York challenged the Department's decision not to adjust, and the State of Wisconsin intervened to support the Department.

In Wisconsin v. City of New York, 517 U.S. 1 (1996), the Supreme Court upheld the decision of the Department of Commerce not to make the statistical adjustment. The Court found that, while the Constitution requires that there be a census, the particular mode of conducting the census is delegated to the Congress, which in turn has delegated it to the Secretary of Commerce. The decisions of the Secretary of Commerce on how to conduct the census "need only bear a reasonable relationship" to accomplishing the "actual enumeration" required by article I, section 2, clause 3. The decision of the Secretary not to adjust was based on the Secretary's determinations that "distributive accuracy" of the census had historically been more important than "numerical accuracy," that is, that the relative populations of various areas have been more important than their absolute populations; that the unadjusted census data would be most "distributively" accurate; and that an adjustment based on the postenumeration survey would not improve the "distributive" accuracy of the census. The Court found these bases were reasonable and well within the Secretary's discretion.

Torres v. Cuomo, No. 92 Civ. 5811 (JSM), 1993 WL 33639 (S.D. N.Y. Feb. 3, 1993) (motion to dismiss challenge to 1992 congressional plan denied)

Diaz v. Silver, 932 F. Supp. 462 (E.D. N.Y. 1996)

Following the 1990 census and congressional reapportionment, New York was apportioned 31 congressional districts - a decrease of three seats. The Republican-controlled New York State Senate and Democratic-controlled New York State Assembly were unable to timely reach agreement on a new congressional redistricting plan. As a result, suits were filed in federal and state court requesting that the courts develop a congressional redistricting plan. Subsequently, a three-judge federal district court and a state court each developed its own redistricting plan.

The primary difference between the competing court-drawn plans concerned their treatment of minority districts and incumbents. Under the existing plan, African American voters were a majority in five districts, Latino voters were a majority in one district. The federal court plan created two majority-Latino districts, reduced the number of majority-African-American districts to four and declined to consider incumbency in the development of the plan. The state court plan, on the other hand, created one majority-Latino district, retained the five majority-African-American districts and sought to preserve the core of existing congressional districts and protect incumbents, to the extent possible, by avoiding placing more than one incumbent in a district.

The state court’s plan, drawn by a panel of three referees, was adopted on June 5, 1992.  Reid v.Marino, No. 9567-92 (N.Y. Sup. Ct. Kings Cty. 1992).  Subsequently, the federal court issued an order declaring that, unless any alternative redistricting plan were precleared by the Department of Justice under Section 5 of the Voting Rights Act by July 8, 1992, the federal court plan would serve as the redistricting plan for the 1992 elections.  To avoid the possibility of the federal court plan taking effect, the Legislature then enacted the state court plan.  The plan was precleared by the Department of Justice under Section 5 of the Voting Rights Act on July 2, 1992.
 

The three-judge federal court assumed for purposes of a motion for a preliminary injunction that the plaintiffs had shown both irreparable harm and a likelihood of success on the merits, but denied the motion because it would "adversely affect the public interest." The adverse effect was because there was not sufficient time to create a new plan in the few months between the proposed preliminary injunction in July and the fall elections. Plaintiffs had not presented an alternative plan that met the requirements of the Voting Rights Act, there was not sufficient time for the Legislature to draw a new plan, and the court was reluctant to impose a plan without providing the Legislature an opportunity to develop a remedial plan.

Diaz v. Silver, 978 F. Supp. 96 (E.D. N.Y.1997), aff'd sub nom. Silver v. Diaz, 118 S. Ct. 36 (1997) (No. 96-1680), Acosta v. Diaz, (No. 96-1904), Lau v. Diaz, (No. 96-2008) (mem.)

Following the 1996 election, plaintiffs and defendant-intervenor Puerto Rican Legal Defense and Education Fund ("PRLDEF") moved for summary judgment. PRLDEF argued that, although the state court referees who drew the plan might have intended to segregate the districts by race and might have drawn districts that were not compact, the predominant motive of the Legislature was not racial but rather to protect incumbents and to embody communities of interest. They also argued that the several noncompact districts included in previous legislative and congressional plans showed that compactness was not a traditional districting principle in the State of New York.

Applicability of Strict Scrutiny

To succeed on a racial gerrymandering claim, plaintiffs must first prove that "race was the predominant factor motivating the legislature's redistricting decision." If plaintiffs satisfy this burden-- i.e. that all other legitimate redistricting principles were subordinated to race-- then the application of the strict scrutiny standard of judicial review is appropriate. Under strict scrutiny, the State is required to prove that the use of racial classifications in the challenged legislation was narrowly tailored to further a compelling state interest. Strict scrutiny imposes a very heavy burden on a jurisdiction; a burden few, if any, jurisdictions can ever satisfy.

Since the redistricting plan was drafted by the state court, the federal court reviewed the record of the state court proceeding, including the testimony and reports of the court's experts, to determine whether race was the motivating factor for the boundaries of the 12^th District. Following this review, the court held that the plaintiffs satisfied their initial burden--that race was the predominant factor in the state court's creation of the plan. The court also reasoned that in addition to the state court record and testimony of the state court's experts, the irregular or bizarre shape of the 12^th Congressional District "is perhaps the most telling evidence of the predominant role of race in the formulation [of] the district's lines."

The court rejected the Legislature's argument that because non-racial considerations, particularly incumbency protection, motivated the Legislature's acceptance of the state court plan, the Legislature is not bound by the fact that race was the predominant factor in the creation of the 12^th District by the state court. The court found, however, that based on statements by legislators during the legislative debate for the redistricting plan, the alternative plans and recommendations submitted to the courts by the Legislature and the preclearance submission to the Department of Justice, race was also paramount in the Legislature's enactment of the plan. Nonetheless, even if race were not the motivating factor for the Legislature, the "Legislature must bear responsibility for the constitutional violations in its plans, even if the actions were a consequence of pressure imposed by the Department of Justice [or a state court's] erroneous interpretation of the Voting Rights Act."

The court held that "while incumbency took priority over all other traditional criteria in the creation of the districts, nevertheless it was at all times secondary to race." Furthermore, "the need to comply with the perceived requirement of maximization of majority-minority districts was the predominant motive in the Legislature's adoption of the [state court] plan, overriding any other concern including incumbency." The plaintiffs, therefore, satisfied their initial burden and the burden shifted to the State to prove that the 12^th District was narrowly tailored to further a compelling state interest.

Compelling State Interest

The defendants argued that compliance with Sections 2 and 5 of the Voting Rights Act was a compelling state interest that justified the use of racial classifications. The court, relying on the Supreme Court decision in Vera v. Bush, determined that a "majority of the [Supreme Court] justices support the position that compliance with the Voting Rights Act is a compelling state interest." The court, therefore, assumed for the purpose of the pending summary judgment motion that compliance with the Voting Rights Act is a compelling state interest.

The court then reviewed whether the district was narrowly tailored to further the compelling state interest.

Narrowly Tailored

Section 2 of the Voting Rights Act

• the minority group must be able to establish that it is sufficiently large and geographically compact to constitute a majority in a single-member district;

 
• the minority group must be able to show that it is politically cohesive; and

 
• 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 . . . to defeat the minority's preferred candidate.

The court reasoned that "no one looking at a map of the 12^th district could reasonably suggest that the district contains a geographically compact population of any race." In reaching this conclusion, the court rejected the argument that for the purpose of the first prong of Gingles, "the compactness of the district in question must be compared to the average compactness of the state's [other] districts to determine if there is a substantial deviation." The court held that "the fact that New York, in general, is guilty of having non-compact districts does not abrogate the gross non-compactness of the 12^th district for Gingles purposes. The court also noted that the state failed to offer any substantive evidence that the Latino voters of the 12^th District satisfied the first prong of Gingles.

The 12^th District was not, therefore, narrowly tailored to further the compelling state interest of complying with Section 2 of the Voting Rights Act.

Section 5 of the Voting Rights Act

Since the prior plan contained five majority-African-American districts and one majority-Latino district, "there would have been no retrogression, and thus no section 5 violation, had the legislature created only 6 majority minority districts rather than the 7 they did create." The 12^th District was not, therefore, narrowly tailored to further the compelling state interest of complying with Section 5 of the Voting Rights Act.

Conclusion

In granting summary judgment to the plaintiffs, the court determined that race was the predominant motivating factor for the creation of the 12^th District. The court found that the 12^th District was not compact, "probably violates the compactness criterion of New York law," did not contain a community of interest, was not required under the Voting Rights Act and was drawn solely to elect a minority representative.

Although the State did have a compelling state interest to comply with the Voting Rights Act, the 12^th District was not narrowly tailored to meet this compelling interest. The court ordered the State to develop a new congressional redistricting plan before July 30, 1997.  The State complied.
 

 State Contacts
 

Lewis Hoppe  Co-Executive Director  Reapportionment Task Force  250 Broadway, 20th Floor  New York, NY 10007-2563  212/417-4222 voice  212/417-3127 fax

Debra Levine  Executive Director  Reapportionment Task Force  250 Broadway, 20th Floor  New York, NY 10007-2516  212/417-4222 voice  212/417-3127 fax