The opinion of the court was delivered by: STEWART
The plaintiffs are predominantly black, Puerto Rican
and Chinese residents of Community School District One in Manhattan ("District One") and the Coalition for Education in District One, an unincorporated association of parents, teachers and community residents. They bring this action challenging the legality of the May 1, 1973 election of members to the District One school board, claiming that numerous actions and omissions of the defendants resulted in the election being held in a racially discriminatory manner. The defendants are principally the members, employees and agents of the New York City Board of Education and Board of Elections.
The plaintiffs seek a judgment declaring the May 1 election invalid and ordering a new school board election in District One.
The defendants, while admitting that certain irregularities occurred in the May 1 election, contend that positive steps were taken to encourage minority participation in this election; that there were no more irregularities than caused by usual human fallibility in all elections; that the irregularities were in no way discriminatory; and that, even if some discrimination was shown, it was not sufficient to set aside an otherwise valid election.
This matter originally reached the hearing stage on a motion for a preliminary injunction to enjoin certain actions of the allegedly illegally elected school board. At the conclusion of an extensive evidentiary hearing, which continued for eight days and at which numerous exhibits were introduced, the parties stipulated, and it was so ordered, that the hearing should constitute a full hearing on the merits of the plaintiffs' claim as to the election.
We are therefore faced with two questions:
1) Was the May 1 election conducted generally in a manner which either demonstrated a racially discriminatory purpose by the defendants and their agents or which resulted in a racially discriminatory impact on the voting rights of black, Puerto Rican and Chinese voters and any potential voters,
and therefore illegal?
2) If so, is a new election a necessary and proper remedy?
Prior to the May 1 election, a group representing Puerto Rican and Chinese voters city-wide, some of whom are also plaintiffs in this case, brought suit to secure their rights to multilingual school board elections. Lopez v. Dinkins, 73 Civ. 695 (S.D.N.Y. 1973). Various orders were stipulated to regarding a multilingual pre-election nomination process. On March 21, 1973, this Court issued an Order concerning the May 1 election requiring the defendants, who are essentially the same as in this case, to:
1. prepare ballots with instructions in Spanish as well as English;
2. prepare and distribute sample ballot placards with instructions in Spanish and Chinese as well as English;
3. prepare and distribute separate instruction sheets in Spanish and Chinese, as well as English;
4. provide at least one person who was bilingual in English and Spanish or English and Chinese to act as an interpreter at each school polling site where there were, respectively, more than 5% Puerto Rican or more than 5% Chinese students enrolled.
5. inform Spanish-speaking and Chinese-speaking voters of all forms of bilingual assistance available.
This Order, which was reached through negotiation by the parties, was not appealed.
Plaintiffs in this case contend that neither the letter nor the spirit of the Lopez Order was complied with on May 1, 1973, and that the failures to comply were among the numerous failures by the defendants which resulted in a discriminatory election.
Defendants contend that in addition to complying fully, they went beyond the letter of the Lopez Order, to which they had essentially stipulated, and provided language assistance in other languages in addition to Spanish and Chinese.
In September, 1973 another group allegedly representing Puerto Rican voters city-wide came before this Court to secure bilingual assistance for the general elections of November 6, 1973 and all future elections. Torres v. Sachs, 73 Civ. 3921 (S.D.N.Y. 1973). Concluding that "[the] conduct of an election in English only violates plaintiffs' rights under the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. and the Voting Rights Amendments of 1970, 42 U.S.C. § 1973aa et seq., which enforce the Fourteenth Amendment to the Constitution of the United States and the Civil Rights Act of 1871, 42 U.S.C. § 1983," this Court signed an Order on September 26, 1973, granting plaintiffs a preliminary injunction guaranteeing for the November 6 election to all Puerto Rican voters in New York City essentially the same language assistance which Puerto Ricans and Chinese had been granted for the school board elections earlier this year. The provision for interpreters' assistance at the polls was spelled out in greater detail than in the Lopez Order:
Said translators [Spanish and English speaking persons] shall be permitted to approach Spanish speaking voters for the purpose of offering assistance and shall be permitted to go behind the guard-rails for purposes of providing assistance.
This Order which was also reached through negotiation by the parties, was not appealed. The question of bilingual assistance for all future elections is pending before this Court on the Torres plaintiffs' motion for summary judgment.
I. Background: May 1 election.
Pursuant to New York Education Law § 2590-c, each of the thirty-two community school districts in New York City is governed by an elected board. Elections were held throughout the city for positions on each of the boards for the first time in 1970, and then again on May 1, 1973.
Procedures for New York City school board elections in general, and the May 1 school board election in particular, are different from regular New York City election procedures in at least three substantial ways.
First, in school board elections, there are two categories of eligible voters: all regularly registered voters, plus parents of public school children (hereinafter referred to as "parent voters").
Parents who are not regularly registered voters must register specially, and regularly registered voters living outside a particular school district, but having children in that district's schools, must register specially as parent voters in order to vote in the school board election for the district in which their children attend school. Since each voter is entitled to only one vote, a voter who is regularly registered and lives within the boundaries of one school district, but who has a child attending public school in another district, may elect to vote in one, but only one, of the two districts.
Second, while regular elections are conducted using voter registration "buff cards" which enable inspectors to compare the signature of the voter at the poll with the signature of the person who originally registered, the May 1 school board election was not conducted in this fashion. For some reason which does not appear on the record, computer print-out sheets bearing the names and addresses of the voters were, in the case of regularly registered voters, used in place of buff cards.
Thus, on May 1, inspectors were not able to authenticate regularly registered voters' signatures at the polls. Also for an unexplained reason, buff cards similar to those used in regular elections were used on May 1 for parent voters.
Finally, the school board elections, unlike others, are conducted under a system of proportional representation. While this system is meant to increase minority representation while guaranteeing majority control, it has at least two other ramifications for this case. First, it complicates the balloting process. Voters may vote for one or more candidates up to the number of vacant seats on the board, but in some manner they must express a preference. The instructions call for the placing of numbers next to the name of each candidate voted for in order of preference, e.g., one for the voter's first preference, two for his next preference, and so on. Thus, for example, a ballot containing "X" marks next to the names of each of nine candidates (the number of seats vacant on the District One board) would be an invalid ballot, since the voter failed to show a preference. While this system is not so complex as to be unexplainable under ordinary circumstances, in an election where there are an unusual number of uninitiated voters, many of whom speak, read or understand little or no English, this balloting process is quite likely to create confusion, if instructions are not clear, consistent, and multilingual.
Secondly, the tabulation of ballots under a proportional representation system makes it impossible for the Court to determine the number of additional or amended ballots necessary to change the outcome of the election. Ballots are counted in random order, and each voter's first preference is noted. On the basis of this first count, candidates having received enough votes mathematically to guarantee their victory are declared victorious. (The number of votes so required is referred to as "quota".) In District One on May 1, a candidate receiving 1260 first place votes on the first count was deemed to have reached quota and therefore to have won. After a candidate reaches quota on this first count, any subsequent ballots which indicated a first preference for that candidate are redistributed and counted for the voter's second indicated preference. Exactly which ballots are so redistributed is determined by the random order of count, determined by lot. Next, the candidate with the lowest number of first-place votes is deemed to have lost, and ballots on which he is the first preference are redistributed to the second indicated preference on each ballot. This process is repeated until such time as there remain only as many candidates as seats to be won.
Thus, while the difference between the candidates who finished ninth and tenth in the balloting, after all of the redistribution, was 266 votes,
it is impossible to know the significance of that figure. It is quite possible that a change in the outcome of the election would have resulted if, after the first count, an additional or different one or two candidates had reached quota, and thus had their surplus ballots redistributed to the second preference indicated. On this theory, somewhere between 108 or 143 changed or additional ballots could very well have changed the outcome.
It is most likely that the exact figure which indicates the number of changed or amended ballots necessary to change the outcome of the election lies somewhere between 108 and 266. All this Court can do at this time, in determining whether the outcome of the elections could possibly have been affected by discrimination, is to indicate the order of magnitude with which we are concerned.
II. Background: District One.
District One is located on the Lower East Side of Manhattan, bounded on the North by East 14th Street, on the East and South by the East River, and on the West by Fourth Avenue and the Bowery in the northern half and Clinton and Rutgers Streets and Pike Slip in the southern half.
Census figures indicate that approximately 41.4% of the residents of District One are black or Puerto Rican, but that this percentage is not uniform in each neighborhood of the District. Some neighborhoods are virtually all white, such as the Grand Street area which contains several middle-income cooperatives, and the middle-income housing development along First Avenue between East 3rd and East 6th Streets. Other areas are virtually all black or Puerto Rican, in particular the area east of Avenue B, from Houston to East 14th Streets. Because of this disparity in the racial composition of neighborhoods, some of the thirty-three polling sites used on May 1 serviced predominantly white voters, while other sites serviced predominantly black or Puerto Rican voters. A table listing the District One polling sites on May 1 and providing census data on the racial makeup of the election districts located at each site as well as other data discussed below is set forth in an appendix to this opinion.
The school population in District One has a much higher proportion of minority members than the resident population. Over 92% of the children attending District One schools are black, Puerto Rican, Oriental or American Indian.
Because the proportion of minority members in District One's school population is much higher than the proportion of minority members in District One's resident population,
the proportion of minority members among District One's parent voters is significantly higher than the proportion of minority members among District One's regularly registered ...