This memorandum and order addresses the following matters: (1) a motion to enjoin, or in the alternative to remove, a state court suit, made by defendants Marino, Skelos, and the New York State Senate ("Senate defendants"); (2) a motion to dismiss, or in the alternative to stay these federal proceedings on abstention grounds, made by defendants Gantt, Task Force, Weprin, and the New York State Assembly ("Assembly defendants"); and (3) a motion to return the Waring v. Gantt case to the United States District Court for the Western District of New York, made by plaintiff Waring.
For the following reasons, the motion to dismiss or abstain is DENIED, the motion to enjoin the state court proceedings is GRANTED, and the motion to return Waring v. Gantt to the Western District is DENIED.
All parties agree that New York's congressional elections cannot proceed based on the districts as currently drawn. New York must be redistricted into 31, rather than the current 34, congressional districts in order to comport with the 1990 census. Since the required redistricting eluded compromise through the political processes, this dispute has found its way into court. On March 26, 1992, one of these consolidated actions, Waring v. Gantt, was filed in the United States District Court for the Western District of New York. That same day, Reid v. Marino, Index no. 9567/92, was commenced in the New York Supreme Court, Kings County. On March 31, the other of these consolidated actions, PRLDEF v. Gantt, was filed in the United States District Court for the Eastern District of New York. Three-judge panels were appointed by the Chief Judge of the Second Circuit in both the PRLDEF and the Waring actions. Waring was transferred to this court by the three-judge panel of the United States District Court for the Western District of New York on April 9, 1992; both Waring and PRLDEF were thereafter consolidated pursuant to Fed. R. Civ. P. 42(a), because the two actions seek substantially the same relief.
The three pending cases can ultimately result only in a single approved congressional redistricting plan for New York State. Consequently, these issues must be resolved in a single forum; two courts simultaneously attempting to redistrict the state would be wasteful, unnecessarily confusing, and inefficient. On this point, both the Senate defendants and Assembly defendants agree; they disagree, however, as to what forum should move ahead on the problem. The Assembly defendants suggest that we should exercise our discretion to abstain under the principles of Scott v. Germano, 381 U.S 407, 14 L. Ed. 2d 477, 85 S. Ct. 1525 (1965) (per curiam) and Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), thereby allowing the state court to handle the case. The Senate defendants (joined by PRLDEF), on the other hand, argue against abstention and in favor of enjoining the state court proceedings, citing our power under the All Writs Act, 28 U.S.C. § 1651.
Our task, therefore, is to determine in which court this dispute should proceed, keeping in mind "the importance and immediacy of the problem", Harman v. Forssenius, 380 U.S. 528, 537, 14 L. Ed. 2d 50, 85 S. Ct. 1177 (1965), as well as notions of "comity" and "Our Federalism" which underly the "desire to permit state courts to try state cases free from interference by federal courts." Younger v. Harris, 401 U.S. at 43-44.
We are faced primarily with a practical problem. The congressional primaries are scheduled for September 15, 1992. See N.Y. Elec. Law § 8-100(1)(a). Under New York's Election Law, candidates for office must file "designating petitions", which require a specific number of signatures, with the state and local election boards. See N.Y. Elec. Law § 6-118. These "designating petitions" must "be filed not earlier than the tenth Monday before, and not later than the ninth Thursday preceding the primary election." N.Y. Elec. Law § 6-158(1). The "ninth Thursday preceding the primary election" this year is July 16, 1992. Moreover, "[a] signature made earlier than thirty-seven days before the last day to file designating petitions for the primary election shall not be counted", N.Y. Elec. Law § 6-134(6); thus, potential candidates may not start collecting signatures any earlier than June 9, 1992.
Furthermore, since Bronx County, Kings County, and New York County are "covered jurisdictions" under § 4(b) of the Voting Rights Act, see 28 C.F.R. § 51.2, any redistricting by the legislative route would be a change affecting voting which must be precleared either by the Attorney General of the United States or by a three-judge court of the United States District Court for the District of Columbia before it has legal force or effect. 28 C.F.R. § 51.9; Clark v. Roemer, 114 L. Ed. 2d 691, 111 S. Ct. 2096, 2099 (1991). Under 28 C.F.R. § 51.9(a), the U.S. Attorney General has 60 days from submission of the proposed change to interpose an objection to the proposed plan.
Thus, if the U.S. Attorney General takes the entire 60-day period available to him in approving any proposed redistricting plan, the State of New York will not have new, approved congressional districts in time for the ...