In order to aid the court in its task of redistricting the State of New York from 34 to 31 congressional districts, as mandated by the 1990 federal census, this three-judge court appointed the Hon. Frederick B. Lacey as special master on May 12, 1992. Two weeks later, on May 26, 1992, Judge Lacey presented a plan of 31 congressional districts with a report recommending that this court adopt the plan as submitted. For the following reasons, this three-judge court agrees with Judge Lacey and conditionally adopts his proposed plan as the congressional districts for New York based on the 1990 federal census. This opinion includes the three-judge court's findings of fact and conclusions of law. Fed. R. Civ. P. 52(a).
A. The 1990 census, legislative deadlock and judicial intervention.
In 1990, the Bureau of the Census conducted a census of the United States. See U.S Const. art. I, § 2, cl. 3. When the results of his census were released, in early 1991, it became apparent that New York's population had not grown as fast as had other states'; as a result, New York lost three seats in the House of Representatives, reducing its congressional delegation from 34 to 31 members. The New York Legislative Task Force on Demographic Research and Reapportionment (Task Force) was charged with the task of preparing a redistricting plan for New York's congressional seats; however, because of political differences, the Task Force, which had been "studying, discussing and negotiating the issue for nearly a year" was "not even close" to an agreement as of March 24, 1992. Kevin Sack, Albany at Impasse in Redrawing Map of House Districts, N.Y. Times, Mar. 25, 1992, at A1 (referenced in complaint of Puerto Rican Legal Defense and Education Fund (PRLDEF) at P 26).
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, however, was transferred to this court by the three-judge court convened in the Western District (Circuit Judge Van Graafeiland, Chief District Judge Telesca, and District Judge Larimer) on April 9, 1992; Waring and PRLDEF were thereafter consolidated pursuant to Fed. R. Civ. P. 42(a).
Certain of the state court defendants removed the Reid action to this court on April 7, 1992; since all defendants did not join in this motion, Reid was remanded to the Supreme Court of New York, Kings County on April 17.
On May 5, 1992, this court issued a memorandum and order which, inter alia, declined to abstain in favor of the state court proceeding and granted various parties' motions to enjoin the parties in the state court from proceeding with that litigation. PRLDEF v. Gantt, No. CV-92-1521, slip op. (E.D.N.Y. May 5, 1992). That injunction was stayed by order of the United States Supreme Court on May 13, 1992. Gantt v. Skelos, 118 L. Ed. 2d 534, 112 S. Ct. 1926 (1992).
B. Appointment of Special Master Lacey.
As it became obvious that the political processes had broken down, it became the "unwelcome obligation" of this three-judge court to supervise development of a redistricting plan that would satisfy the requirements of federal law. Connor v. Finch, 431 U.S. 407, 415, 52 L. Ed. 2d 465, 97 S. Ct. 1828 (1977). By order of May 12, 1992, this court appointed the Hon. Frederick B. Lacey as Special Master, pursuant to Fed. R. Civ. P. 53. We instructed the Special Master, inter alia, as follows:
1. The Special Master shall be empowered and charged with the duty to prepare and recommend to the court for adoption a redistricting plan for the State of New York, dividing the state into thirty-one congressional districts in accordance with the 1990 federal census.
2. In developing the plan, the Special Master shall adhere to and, where possible, reconcile the following guidelines:
(a) Districts shall be of substantially equal population, compact, and contiguous.
(b) The plan shall comply with 42 U.S.C. § 1973(b) and with all other applicable provisions of the Voting Rights Act.
3. The court is acutely aware of the pressing need for having a redistricting plan in place as soon as possible, preferably by June 9, 1992, which is the earliest date established by the New York Election Law for obtaining signatures on designating petitions. Accordingly, the court requests the Special Master to submit his plan for redistricting to the court on May 26, 1992, or as soon thereafter as he is able to complete a plan that meets the requirements of the law and of this order.
PRLDEF v. Gantt, No. CV-92-1521(SJ), at 2-3 (E.D.N.Y. May 12, 1992) (order appointing special master).
C. Work of the Special Master.
In view of the limited time available to him, Special Master Lacey immediately determined that it would be necessary to hire an expert familiar with the process of districting, the comparison of districting plans, the requirements of the Voting Rights Act, and racial and partisan patterns in voting. After contacting numerous persons familiar with these processes, the Special Master retained Professor Theodore S. Arrington of the Department of Political Science at the University of North Carolina-Charlotte. The Special Master also retained James Ford, a candidate for the Master of Public Policy and Administration degree at Columbia University, to assist Dr. Arrington. Dr. Ester Fuchs of Barnard College was later retained by the Special Master as a consultant on the political and ethnic geography of New York.
Pursuant to his authority under Fed. R. Civ. P. 53(c) and this court's order, Special Master Lacey invited the parties, intervenors, and numerous other interested persons to attend a meeting on May 18, 1992, to address their concerns. Approximately sixty people attended that meeting, which included presentations of various redistricting proposals, responsive comments, and questioning by the Special Master.
On May 26, 1992, Special Master Lacey filed his proposed plan with the clerk of the United States District Court for the Eastern District of New York. Consistent with the order appointing Special Master Lacey, this court received written objections to the proposed plan, and convened a hearing on June 3, 1992 to hear argument on those objections as well as on other matters pertinent to this court's redistricting task.
D. The State Supreme Court and its Work.
Once the Reid action had been remanded to the New York Supreme Court, that court appointed a panel of three "referees", which engaged in its own redistricting effort. The result of the referees' work was another plan of redistricting, which was distributed on June 4. In a five-page "Memorandum" order and judgment, a justice of the New York Supreme Court, Kings County, drew the following conclusions:
Reid v. Marino, No. 9567/92, slip op. at 3-4 (N.Y. Sup. Ct., Kings Cty., June 8, 1992). The judgment of the New York Supreme Court appears to have been largely mooted by the legislature's passing of the referees' redistricting plan on June 9, 1992, and the governor's approval thereof.
E. Approval of the Special Master's Plan.
On June 11, 1992, this three-judge court entered the following order:
On June 3, 1992, this three-judge court heard objections to and arguments concerning the congressional redistricting plan submitted by Special Master Frederick B. Lacey. On that date, respective counsel for the senate majority and for the assembly majority both represented to us that by Wednesday, June 10, 1992, the legislature would approve (1) a congressional redistricting plan other than the one submitted by the Special Master, and (2) an amendment to the New York Election Law that would provide, inter alia, that the process of gathering signatures on designating petitions shall begin on July 9, 1992, rather than June 9, 1992. Compare N.Y. Elec. Law §§ 6-134(6) and 6-158(1) (McKinney Supp. 1992).
This court indicated, on June 3, 1992, that it would, soon after June 10th, enter an appropriate order with respect to the interrelationship between, and effect of, the Special Master's plan and the state plan.
Both houses of the state legislature have now approved a bill adopting a reapportionment plan and a bill adopting the promised changes in the election laws. Both bills have now been signed by the governor.
"A decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act", Connor v. Johnson, 402 U.S. 690, 691, 29 L. Ed. 2d 268, 91 S. Ct. 1760 (1971) (per curiam), thus, preclearance of the Special Master's plan by the Department of Justice is not required. However, a legislatively-approved plan requires preclearance by the Department of Justice, see, e.g., McDaniel v. Sanchez, 452 U.S. 130, 149, 68 L. Ed. 2d 724, 101 S. Ct. 2224 (1981). Of course, preclearance of the state plan may not occur, or it may be delayed. Since all parties agree that a redistricting plan must be in place before the signature-gathering process starts, so that candidates can know the boundaries of the districts they hope to represent, we hereby ORDER the following:
1. The Special Master's plan as submitted is hereby accepted and approved by this court as an appropriate and proper apportionment of New ...