such injury is likely before the other requirements will be
This case has a unique posture in that plaintiffs are both
too early and too late for the relief they desire. Plaintiffs
ultimately seek to dissolve the village. In that sense, they
are too late because the village has been legally
incorporated. With their fear of exclusionary zoning,
plaintiffs are too early because no state actions have been
taken suggesting that such zoning laws are imminent.
Recognizing this dilemma, plaintiffs wish to stop the election
because the effect would be to render the village a nullity
since, without officials, it would be unable to function
pursuant to state law.
Their argument is necessarily premised on the irreparable
harm that would accrue as a result of holding the election. To
that end, plaintiffs contend that violations of fundamental
constitutional rights constitute per se irreparable harm for
the purposes of determining whether injunctive relief should
issue, regardless of the brevity of the time period during
which such violations continue. There is no question that if
constitutional interests are threatened or in fact being
impaired at the time injunctive relief is sought, a preliminary
injunction is appropriate. Elrod v. Burns, 427 U.S. 347,
373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976) (threat
of discharge if plaintiff refused to support Democratic Party
warrants injunctive relief to prevent irreparable harm); Foster
v. Kusper, 587 F. Supp. 1191, 1194 (N.D.Ill. 1984) (voters would
suffer irreparable harm to their constitutional right to
freedom of association and their corollary right to vote if the
candidate garnishing the second highest number of votes were
seated as committeeman).
Plaintiffs argue that their right to vote as protected by
the Fourteenth Amendment, see Whitcomb v. Chavis, 403 U.S. 124,
149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971); Wright v.
Rockefeller, 376 U.S. 52, 56, 84 S.Ct. 603, 605, 11 L.Ed.2d 512
(1964), will be violated if the election is not enjoined and
this constitutes irreparable harm. "[T]he right of suffrage is
a fundamental matter in a free and democratic society . . .
[and] since the right to exercise the franchise in a free and
unimpaired manner is preservative of other basic civil and
political rights, any alleged infringement of the right of
citizens to vote must be carefully and meticulously
scrutinized." Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct.
1362, 1381, 12 L.Ed.2d 506 (1964). However, no one is impinging
on plaintiffs' right to vote and indeed, three slates of
candidates, only one of which is supported by ACA, have been
presented to the Airmont voters. The plaintiffs are contending
that the village should not exist and therefore no elections
should be held. If they can prevent the election, they will
have achieved de facto the ultimate relief sought — the
elimination of the village.
Plaintiffs claim that the borders of Airmont were selected
on the basis of religious and cultural animus, chosen to
exclude groups of Orthodox Jews from the village. Any
redistricting for invidious purposes is illegal. Gomillion v.
Light-foot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960);
see Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d
1012 (1982). Thus, they contend, though facially lawful, the
incorporation of Airmont would be unlawful if done to
accomplish an unlawful end. United States v. Reading Co.,
226 U.S. 324, 357, 33 S.Ct. 90, 98, 57 L.Ed. 243 (1912). The
unacceptable result, plaintiffs contend, is dilution of their
vote in violation of the constitution. Gomillion, 364 U.S. 339,
81 S.Ct. 125, 5 L.Ed.2d 110.*fn7 Initially,
we note little evidence of gerrymandering as the term is
usually understood. The village is compact, circumscribed and
virtually as large as the maximum allowed. What plaintiffs
object to is the formation of a village in the southern part
of the unincorporated town where there is a minimal Orthodox
Jewish presence. (Among the other eleven villages are some
that were formed precisely because they had a large Orthodox
Jewish population which wished to control local politics.)
Irreparable harm must be shown by the moving party to be
imminent, not remote or speculative. Tucker Anthony Realty
Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989).
Plaintiff's argue that a voter should not be subjected to an
election which is unconstitutional and in this case, since they
argue the village should not be in existence, the mere holding
of this election is the constitutional violation and,
therefore, irreparable harm.*fn8
Plaintiffs' premise fails here, precisely because of the
fact that we are considering a preliminary injunction. In
order to demonstrate irreparable harm, a plaintiff must prove
that the disputed plan was "`conceived or operated [as] a
purposeful device to further racial discrimination.'"
Mobile v. Bolden, 446 U.S. 55, 70, 100 S.Ct. 1490, 1501, 64
L.Ed.2d 47 (1980) (plurality opinion) (quoting Whitcomb v.
Chavis, 403 U.S. at 149, 91 S.Ct. at 1872); see Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265,
97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). In addition, the
Supreme Court has expressly stated that disproportionate
effects alone do not establish a violation of equal protection.
Id. 446 U.S. at 67, 100 S.Ct. at 1499; Washington v. Davis,
426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Plaintiffs
indicated at oral argument that they would require at least 60
days to prepare for an evidentiary hearing necessary to
establish the constitutional violation involved in the
Village's incorporation. Thus, the clear proof of the
constitutional violation necessary to establish irreparable
harm does not exist at this juncture.*fn9 A possible
constitutional violation is not irreparable harm for the
purposes of a preliminary injunction. See Elrod v. Burns, 427
U.S. at 373, 96 S.Ct. at 2690 (noting that "it was clear that
First Amendment interests were either threatened or in fact
being impaired at the time relief was sought.")
To support their alternative argument as to how they will
suffer irreparable harm if the election is not enjoined,
plaintiffs look forward, hypothesizing that the election will
set in motion a series of events that will necessarily
perpetuate and permit further gross violations of the
plaintiffs' civil rights. Memorandum of Law in Support of
Plaintiffs' Motion for Injunctive Relief, at 36. These events
can be summarized as follows:
— the passing of zoning ordinances which would
preclude local houses of worship such as the one
Rabbi Sternberg wishes to establish in his
professional home office;
— a negation of their political influence over
— reduced migration of Orthodox Jews into Airmont
resulting in persistent disparity
in the ratio of Orthodox Jews to other residents
of the Village.
All of these harms, while possible, can only be
characterized as speculative and not imminent for several
reasons. First, while it may very well be that candidates
supported by ACA would pass zoning laws which would negatively
impact the Orthodox Jewish way of life, we must note that
there are three slates of candidates on the election ballot on
May 16, 1991 and some of the candidates are Jewish. It is
inappropriate for this court to speculate on the outcome of an
election. Moreover, it would be equally presumptuous for us to
predict what actions would be taken by the incoming officials
with respect to zoning. Davis v. Bandemer, 478 U.S. 109, 132,
106 S.Ct. 2797, 2810, 92 L.Ed.2d 85 (1986).
Additionally, participation in zoning decisions is not
limited to the electoral process. Any proposed zoning laws
must be the subject of a public hearing before being passed.
N Y Village Law § 7-706. Thus, the Orthodox Jewish community
would have the opportunity to publicly voice their opposition
to any zoning ordinances which would negatively impact them.
And though we may be naive, we would hope that the village
officials would be cognizant of their duty, not only to the
majority, but to the minorities within the village and of their
higher duty to obey the laws of this land. Davis v. Bandemer,
478 U.S. at 132, 106 S.Ct. at 2810 ("an individual . . . who
votes for a losing candidate is usually deemed to be adequately
represented by the winning candidate and to have as much
opportunity to influence that candidate as other voters in the
district. We cannot presume in such a situation, without actual
proof to the contrary, that the candidate elected will entirely
ignore the interests of those voters.") Indeed, "[a] citizen's
constitutional rights can hardly be infringed simply because a
majority of the people choose that it be." Lucas v.
Forty-Fourth General Assembly of State of Colo., 377 U.S. 713,
736-37, 84 S.Ct. 1459, 1474, 12 L.Ed.2d 632 (1964).
Looking forward, plaintiffs also argue that if this election
takes place, their franchise is affected. They contend that
they will no longer be able to vote in Town elections where
Orthodox Jews have some political power. Instead, they will be
voting in Airmont elections where proportionately, their
numbers have been substantially reduced. However, their right
to vote in Town elections and the influence of voters in the
unincorporated area on matters pertaining to the village would
not be affected by enjoining village elections — only
dissolution of the village could accomplish that. Moreover,
there is no right to community recognition in any redistricting
process. Mirrione v. Anderson, 717 F.2d 743 (2d Cir. 1983),
cert. denied, 465 U.S. 1036, 104 S.Ct. 1308, 79 L.Ed.2d 706
(1984). Voting is a personal right and in the absence of
invidious discrimination, voters of an ethnic community are not
entitled to be grouped together in a single election unit. Id.
at 745. See United Jewish Organizations of Williamsburgh, Inc.
v. Wilson, 510 F.2d 512 (2d Cir. 1974), aff'd on other grounds
sub nom., United Jewish Organizations of Williamsburgh, Inc. v.
Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). This
evidence is lacking at this stage of the litigation.
As to plaintiffs' contention that Orthodox Jews would choose
not to move into Airmont, this is a remote hypothetical
resting upon a yet to happen chain of events. Thus, this
concern cannot be the basis for finding irreparable harm.
Finally, we note that, the election notwithstanding, should
discriminatory intent be found at the root of Airmont's
incorporation after a full trial of the issues, the
incorporation could be declared null and void. Any adverse
impact resulting from the election could be quickly
This is an application for a preliminary injunction and as
such, we have only addressed the issue of whether a status quo
must be maintained in the newly incorporated Village of
Airmont in order to prevent irreparable injury to the
Our opinion here should not be construed as any evaluation of
the merits of this case. The issue of whether discriminatory
intent has been at the root of the formation of the Village of
Airmont will be resolved after the full development of
evidence in the course of this litigation.
Plaintiff's motion for a preliminary injunction is denied.