We are not persuaded that the alleged "packing" of minority districts effected in the Assembly plan rises to the level of a Voting Rights Act infirmity. Plaintiffs argue the plan creates too few minority control districts because it uses too high a percentage of minority population to create an effective control district. For instance, the Assembly plan includes 9 districts with black populations greater than the 65% rule of thumb adopted in United Jewish Orgs., Inc. v. Carey, 430 U.S. 144, 162-65, 97 S. Ct. 996, 51 L. Ed. 2d 229 (1977). The higher minority concentrations are needed, defendants claim, principally due to various lower voter turnout, registration and voting age population figures among minorities as compared to the non-Hispanic white community, and due to the geographic concentrations of minorities in certain areas.
We are unpersuaded that these districts are unlawfully packed. Plaintiffs have not convinced us that the state legislature's decision to heighten the minority population in certain Assembly districts is a pretext for an unworthy goal. Moreover, under some circumstances, the use of a lower population threshold for minority districts may lead to ineffective minority control districts. This choice is a matter of judgment, and we cannot say on this record that the legislature exercised its judgment unlawfully.
This result is not inconsistent with the Attorney General's decision preclearing all Assembly districts in the new plan except A.D. 71 and A.D. 72 under § 5 of the Voting Rights Act. As to those two districts, the Justice Department's withholding of preclearance will require that they be redrawn. Accordingly, we have no need to make an independent determination whether they violate § 2.
Plaintiffs also claim § 2 of the Act requires that in areas where minorities are not sufficiently large and compact to constitute a majority of voters in a single district, they should be consolidated into a single district to maximize their ability to influence elections. Whether influence districts are required under the Voting Rights Act has not been expressly determined by the Supreme Court. See Thornburg, 478 U.S. at 46-47 n.12; Chisom, 111 S. Ct. at 2365 n.24. Compare Armour, 775 F. Supp. at 1052 (influences districts required under Section 2) with Turner v. Arkansas, 784 F. Supp. 553, 571 (E.D. Ark. 1991) (influence districts not required), aff'd, 119 L. Ed. 2d 220, 112 S. Ct. 2296 (1992); Hastert v. State Bd. of Education, 777 F. Supp. 634 (N.D. Ill. 1991) (same). We need not answer this question because even assuming the Act requires that influence districts be provided, plaintiffs failed to sustain their burden of proof on this issue. Evidence regarding the cohesiveness of minority voting and the racial polarization of white majority voters in the areas of New York where an influence district claim might apply is lacking in plaintiffs' proof. In the event influence districts are necessary, Thornburg's requirements of racial polarization and minority cohesiveness must be met to sustain such a challenge.
Finally, we turn to the question of how today's ruling, when considered in conjunction with the myriad other activities that have transpired during the past week, affects the Senate apportionment plan. As noted in earlier decisions and orders, no party before this Court has challenged the state's 1992 Senate apportionment plan. The Scaringe case only challenges the 1983 Senate districts in light of the 1990 census, and raises no substantive challenge to the 1992 districts. Scaringe was undoubtedly brought in anticipation of the 1992 Senate plan being declared invalid, so as to prevent the state from administering the coming election under the 1983 apportionment plan. As noted above, we granted plaintiff's motion for summary judgment in Scaringe thereby declaring the 1983 Senate districts invalid in light of the 1990 census.
At first glance, the recent decision by the New York State Court of Appeals would seem to moot the Scaringe action because the 1992 Senate apportionment plan has now been adjudicated valid on its merits by New York's highest court, as well as having been precleared by the Attorney General. Nonetheless, the case is not moot. Administration of an election under the 1992 Senate apportionment plan is foreclosed by the fact that the Attorney General refused to preclear the 1992 Assembly plan, thereby rendering the Assembly plan invalid. Because Article Three, Section 5 of the New York Constitution requires that valid Senate and Assembly plans must be enacted in the same legislation, any continuing invalidity of the Assembly apportionment plan necessarily invalidates the Senate plan. In re Orans, 15 N.Y.2d 339, 351, 258 N.Y.S.2d 825, 206 N.E.2d 854, app. dismissed, 382 U.S. 10, 86 S. Ct. 75, 15 L. Ed. 2d 13 (1965). Thus the Attorney General's rejection of the Assembly plan therefore invalidates the Senate plan, even though the Attorney General (and the New York Court of Appeals) approved the Senate plan on its merits. New York State is currently without a valid Assembly or Senate apportionment plan for the 1992 election.
Although we granted plaintiff's motion for summary judgment in Scaringe, in an order dated June 24, 1992, we retained jurisdiction so as to fashion an appropriate remedy. Given the imminence of the 1992 election season and the absence of a valid Senate or Assembly apportionment plan to govern the elections, an appropriate remedy in this case is obviously the issuance of an apportionment plan to govern the upcoming elections. With respect to the Senate election, implementation of such a plan is not difficult. We may simply order the identical Senate apportionment plan precleared by the Attorney General be utilized for the 1992 election season. The plan has survived all challenges mounted against it and would be valid but for the state constitutional provision that requires its enactment in the same bill as a valid Assembly plan. By ordering the election to occur in accordance with the state's Senate plan, we adhere to our obligation to "follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution . . . ." White v. Weiser, 412 U.S. at 795; accord Upham v. Seamon, 456 U.S. 37, 41-43, 71 L. Ed. 2d 725, 102 S. Ct. 1518, reh'g denied, 456 U.S. 938, 72 L. Ed. 2d 461, 102 S. Ct. 2001 (1982).
Intervenor-defendants Ohrenstein and Masiello have forcefully argued that this Court is without jurisdiction to order implementation of a new apportionment plan in Scaringe. The Senate defendants in Scaringe later made a similar motion on July 1, 1992 claiming the Court is without the power to fashion a new Senate plan. Although intervenor-defendants have since withdrawn their argument, we consider these challenges to our jurisdiction serious enough to be deserving of an explanation of our action in the Scaringe case. Intervenor-defendants' contended that plaintiff requested such relief only "in the event the Attorney General objects to . . . [the] Senate [plan] . . . ." Intervenor-defendants urged that since the condition-precedent to relief under this clause, to wit, an objection by the Attorney General, did not occur, the Court is not empowered to direct the use of an apportionment plan with respect to the Senate.
Yet, the remedy we fashion today is not issued pursuant to the clause of the complaint upon which these intervenor-defendants exclusively relied. Rather, relief is ordered pursuant to the clause that requests the Court to "grant such other and further relief as the Court deems just and proper under the circumstances," a clause that we believe allows us to act without regard to the Attorney General's preclearance of the Senate plan. Consequently, the complaint invokes this Court's jurisdiction to afford a remedy in this case, and we do so for the sake of ensuring a fair, timely election in New York State this Fall.
After reviewing the proof following the summary trial of the F.A.I.R. action, the Court concludes that the challenges raised in plaintiffs' complaint to New York's Assembly redistricting plan are without merit. No constitutional or statutory violation is found by this Court except for the Attorney General's refusal to preclear A.D. 71 and A.D. 72 under the Voting Rights Act. With respect to those two districts, we have directed the Special Master to draw new district lines for them, and for such contiguous districts as may thereby be affected, to bring those districts into compliance with the Voting Rights Act. With respect to the remaining districts in the Assembly plan and the entire Senate plan, we defer to the legislature's plan and adopt its apportionment of those districts. See Upham, 456 U.S. at 40-41. We will implement the Special Master's plan, as accepted and approved by this Court, as the apportionment of New York's Senate and Assembly districts, unless the legislature has in place a precleared plan before July 9, 1992.
Richard J. Cardamone, Circuit Judge
United States Court of Appeals
Neal P. McCurn, Chief Judge
United States District Court
Howard G. Munson, Senior Judge
United States District Court
Dated: Utica, New York
July 2, 1992