b. Voting Rights Act.
Congress responded to the Supreme Court's Bolden opinion by amending § 2 of the Voting Rights Act to restore the "effects" standard used by many lower courts prior to 1980. See S. Rep. No. 97-417, at 36 (1982); Tribe § 13-8, at 1079. The amendment made clear that a violation of the Voting Rights Act could be shown by proving discriminatory effect alone, and adopted as the appropriate legal standard the test enunciated by the Supreme Court in Whitcomb v. Chavis, 403 U.S. 124, 29 L. Ed. 2d 363, 91 S. Ct. 1858 (1971) and White v. Regester, 412 U.S. 755, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973). It is against this backdrop that the major objections to the Special Master's plan fall.
At its June 3 hearing, this three-judge court asked any parties wishing to challenge the Special Master's plan to submit an expert witness affidavit containing a written offer of proof by June 5, 1992. Four affidavits were timely filed, and we are convinced that none of the affidavits proffers evidence that even if assumed to be true would be sufficient to overturn the Special Master's findings. In reviewing those findings, we address the objections raised in the offers of proof.
i. Section 2.
As we have noted above, to sustain a § 2 claim, a complainant must show the existence of the three Gingles preconditions (size and compactness, political cohesion, and majority bloc voting) before its claim can be evaluated against the "totality of the circumstances" test. Similarly, as we have noted, the typical § 2 claim is vote dilution, which occurs when a minority's population is too "fragmented" or too "packed". See Affidavit of Dr. Theodore S. Arrington PP 28-29, at 13. See generally Derfner, Racial Discrimination and the Right to Vote, 26 Vand. L. Rev. 523, 553 (1973) (noting possible methods of vote dilution as "submerging", "fracturing", and "packing" potential voting age majorities). We find and conclude that those groups purporting to represent the African-American and Latino voters have established their initial burden under Gingles.
The court received the following submissions in response to its June 3 order:
1. Affidavit of Esmeralda Simmons, counsel for the Majority Coalition for Fair Reapportionment.
2. Affidavit of Wayne C. Winborne, consultant for and member of the Majority Coalition for Fair Reapportionment.
3. Affidavit of Luther Blake, consultant for plaintiff-intervenor African American Political Action Committee.
4. Affidavit of Paul Wooten, counsel to plaintiff-intervenors Major R. Owens, Carl B. Morgan and Penelope F. Willgrodt.
In addition, Intervenors Madison Homeowners Association, et al., made a request for an evidentiary hearing, but that submission contained no affidavit.
As the Special Master recognized in his response to these affidavits, the positions of the various affiants could be summarized in the following manner:
1. Districts 5, 7, and 15 in the Special Master's Plan dilute the minority vote because the African-American VAP is no greater than 59% in any of those districts. (Affidavit of Wayne C. Winborne PP 4,8).
2. Districts 10, 14, and 16 weaken Latino voting strength because the Latino VAP is no greater than 59% in any of those districts. (Affidavit of Wayne C. Winborne PP 5, 8).
3. African-American registration may be overestimated in districts 5 and 7; if it is, that feature of those districts, combined with turnout rates for African-American voters that are lower than those for white voters, jeopardizes the opportunity of African-American voters in those districts to participate in the political process and elect their candidates of choice. (Affidavit of Luther Blake PP 15-19; Affidavit of Paul Wooten P 21).
4. The Special Master did not use appropriate or reasonably accurate election data to analyze the likely results of elections in the minority "control or influence" districts he proposes. (Affidavit of Wayne C. Winborne PP 7, 12; Affidavit of Esmeralda Simmons PP 12, 13; Affidavit of Paul Wooten PP 17-18, 20).
5. The Special Master did not conduct an appropriate analysis before drawing his proposed districts. (Affidavit of Wayne C. Winborne PP 6, 12).
6. The, Special Master ignored relevant differences between African-American voters within New York City and in neighboring suburban communities. (Affidavit of Wayne C. Winborne PP 9, 10; Affidavit of Paul Wooten PP 19, 22).
7. The Special Master did not link clusters of Asian-American voters in New York City. (Affidavit of Wayne C. Winborne P 11).
The first and second concerns, i.e., the claimed dilutions of African-American and Latino voting strength through the use of an insufficient VAP, are meritless. Some litigants have contended that a 65% minority population and a 60% VAP are required to provide a reasonable opportunity to exercise political control over that district. See, e.g., United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 164, 51 L. Ed. 2d 229, 97 S. Ct. 996 (1977). However, as Professor Arrington pointed out, because minority communities today may be better organized and minority citizens mode likely to register and vote, "it is not always necessary to have a 60 percent African-American VAP district to assure African-Americans the opportunity to elect candidates of their choice." Affidavit of Dr. Theodore S. Arrington P 31, at 14 (citing Brace, Grofman, Handley and Niemi, Minority Voting Equality: The 65 Percent Rule in Theory and Practice, 10 Law & Pol'y 43 (1988)). The Special Master agreed with this conclusion and drew his plan accordingly.
The Special Master's plan created four African-American districts (CDs 5, 7, 8, and 15) and three Latino districts (CDs 10, 14, and 16). All seven have over a 55% VAP of the relevant minority. Affidavit of Dr. Theodore S. Arrington P 40, at 19. The VAP of each of those districts is as follows:
District % Afr-Amer % Hispanic % White
CD 7 57.90 13.53 (8.73) 24.65
CD 15 57.27 18.95 (16.7) 21.48
CD 8 56.17 10.61 (7.61) 29.51
CD 5 55.13 8.92 (3.69) 33.75
CD 14 22.3 59.3 (37.22) 14.46
CD 16 22.58 58.25(45.04) 13.11
CD 10 17.71 55.47 (42.4) 18.59
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