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FUND FOR ACCURATE & INFORMED REPRESENTATION

July 2, 1992

THE FUND FOR ACCURATE AND INFORMED REPRESENTATION, INC., JUAN DE SANCTIS, AUGUSTINE C. CHEN, ONEL ALFRARO, MARGARET QUIGLEY, HELEN K. HORN, CALVIN L. WALTON, JUAN L. JIMENEZ, FELIX FIGUEROA, ALFRED HONG, EMORY N. JACKSON and JUAN DE LA CRUZ, BROOKLYN POLITICAL ACTION COMMITTEE, INC., MARTIN CHICON, RONALD TRAVIS, MARTHA HOWLETTE, LOUIS DEGUZMAN, MARION PHILLIPS, BAY RIDGE COMMUNITY COUNCIL, INC., AND GEORGE K. ARTHUR, Plaintiffs, against SAUL WEPRIN, both Individually and as Speaker of the Assembly of the State of New York, DAVID GANTT, both Individually and as Co-Chairman of the Legislative Task Force on Demographic Research and Reapportionment, DEAN SKELOS, both Individually and as Co-Chairman of the Legislative Task Force on Demographic Research and Reapportionment, MARIO CUOMO, both Individually and as Governor of the State of New York, STANLEY LUNDINE, both Individually and as Lt. Governor of the State of New York and as presiding Officer and President of the Senate of the State of New York, THE NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT, THE SENATE OF THE STATE OF NEW YORK, THE ASSEMBLY OF THE STATE OF NEW YORK, and THE BOARD OF ELECTIONS OF NEW YORK STATE, Defendants. CLARENCE E. NORMAN, JR., ANGELO DEL TORO, DAVID F. GANTT, THE NEW YORK STATE ASSEMBLY and SAUL WEPRIN, Plaintiffs, -against- MARIO M. CUOMO, STAN LUNDINE, RALPH J. MARINO, THE NEW YORK STATE SENATE, THE STATE BOARD OF ELECTIONS, CLARENCE D. RAPPLEYEA, JOHN FASO, THE FUND FOR ACCURATE AND INFORMED REPRESENTATION, INC., JUAN DE SANCTIS, AUGUSTINE C. CHEN, ONEL ALFARI, AURELIA GREENE, JAMES F. BRENNAN, ANTHONY S. SEMINERIO and FREDERICK D. SCHMIDT, Defendants. AND GEORGE P. SCARINGE, Plaintiff, -against- RALPH J. MARINO, Majority Leader of the Senate of the State of New York; DEAN SKELOS, Co-Chairman of the New York State Legislative Task Force on Demographic Research and Reapportionment; THE SENATE OF THE STATE OF NEW YORK; SAUL WEPRIN, Speaker of the Assembly of the State of New York; DAVID GANTT, Co-Chairman of the New York State Legislative Task Force on Demographic Research and Reapportionment; THE ASSEMBLY OF THE STATE OF NEW YORK; MARIO CUOMO, Governor of the State of New York; STANLEY LUNDINE, Lieutenant Governor of the State of New York; and THE BOARD OF ELECTIONS OF THE STATE OF NEW YORK, Defendants. ANTHONY MASIELLO and MANFRED OHRENSTEIN, Intervenor-Defendants.


Per Curiam

 Per Curiam:

 It is abundantly clear that legislative reapportionment is a matter primarily for a state's legislative body, and that a federal court may interfere only when that body fails timely to validly reapportion, after having had an adequate opportunity to do so. This is such a case. As of this date, July 2, 1992 -- one week from the commencement of the state's election process -- the legislature has not yet enacted a valid redistricting plan pre-cleared by the United States Department of Justice, with respect to both the Assembly and the Senate. As discussed more fully below, the Senate plan is invalid by operation of Article 3, Section 5 of the New York State Constitution. We must therefore maintain jurisdiction to ensure that the election process in New York may commence in a timely, constitutional and statutorily valid manner.

 BACKGROUND

 The present three-judge court was convened by the Chief Judge of the United States Court of Appeals for the Second Circuit to hear and determine the issues raised in three actions involving the reapportionment of the State of New York based on the 1990 Census. See Fund for Accurate and Informed Representation, Inc., et al. v. Weprin, et al., No. 92-CV-283 (N.D.N.Y.) ("the FAIR action") (challenge to the apportionment of Assembly seats in 1992 N.Y. Laws chs. 76-78); Norman, et al. v. Cuomo, et al., No. 92-CV-720 (N.D.N.Y.) ("the Norman action") (declaration that the 1992 Assembly plan is statutorily and constitutionally valid); Scaringe v. Marino et al., No. 92-CV-593 (N.D.N.Y.) ("the Scaringe action") (challenge to the existing 1983 apportionment of both the Senate and the Assembly). By per curiam order dated June 15, 1992, the three-judge court consolidated the FAIR action and the Norman action. For ease of reference, the court shall group the parties as specified below and refer primarily to the FAIR complaint unless further differentiation is required.

 Parties contesting the 1992 Assembly plan are the Fund for Accurate and Informed Representation, Inc. ("FAIR"), which is a New York not-for-profit corporation, and a variety of other corporate and individual plaintiffs (collectively "plaintiffs"). Parties defending the 1992 plan are the New York State Assembly, its Speaker, the Legislative Task Force on Demographic Research and Reapportionment and one of its Co-Chairmen, who is also a member of the Assembly ("Assembly defendants"), the Senate of the State of New York and a member who is Co-Chairman of the Legislative Task Force ("Senate defendants"), the Governor and Lt. Governor of the State of New York, and the Board of Elections of New York State ("Executive defendants").

 The FAIR complaint alleges three causes of action. The first contains four claims: (1) the Assembly is not presently apportioned -- nor is the 1992 reapportionment plan -- consistent with the required principle of "one person, one vote"; (2) the newly enacted Assembly reapportionment plan comprises a partisan gerrymander which discriminates against citizens who support the Republican Party; (3) the new plan violates the Equal Protection Clause of the Fourteenth Amendment, the Federal Civil Rights Act and the Voting Rights Act of 1965 by diluting minority voting rights and interests; and (4) the new plan violates the Equal Protection Clause of the Fourteenth Amendment by "fragmenting cohesive communities of interest and political subdivisions between Assembly districts." The second and third causes of action assert that defendants' failure to adopt a constitutional reapportionment plan for the Assembly districts in a timely manner prior to the commencement of the 1992 electoral process irreparably harms the plaintiffs and violates the constitutional rights of minority candidates. While plaintiff in the Scaringe action does not challenge the 1992 redistricting plan, he does challenge the continued validity of the 1983 districts in view of the 1990 Census. Plaintiff Scaringe seeks to enjoin defendants from conducting the 1992 elections using the malapportioned 1983 districts. The ultimate relief requested by plaintiffs in these actions is for the court to adopt a constitutionally and statutorily valid redistricting plan in time for the 1992 electoral process scheduled to commence on July 9, 1992.

 A barrage of pretrial motions were addressed by the court prior to the summary trial held in Utica, New York on June 24-25, 1992. Of particular importance here are four pretrial matters. The court, acknowledging that only when state agencies cannot act expeditiously in light of the state's election calendar should a federal court step in to review the validity of the state's redistricting plan, declined defendants' repeated requests to abstain in these cases. E.g., Per Curiam Order dated May 28, 1992, at 7-8, citing White v. Weiser, 412 U.S. 783, 795, 37 L. Ed. 2d 335, 93 S. Ct. 2348 (1973); Chapman v. Meier, 420 U.S. 1, 27, 42 L. Ed. 2d 766, 95 S. Ct. 751 (1975). In the same per curiam order, the second and third causes of action were dismissed on the ground that they were not ripe for adjudication, thus leaving only the first cause of action for trial. After two state courts in parallel actions declared the 1992 redistricting plan unconstitutional under the New York State Constitution, *fn1" leaving the state with no valid plan in effect on the eve of the election schedule, this court proceeded by per curiam order dated June 19, 1992 to appoint pursuant to Fed. R. Civ. P. 53 a special master to apportion the Senate and Assembly districts for the 1992 elections. Prior to the taking of proof at the summary trial on June 24, 1992, the court entertained a motion for partial summary judgment in the Scaringe action on the limited issue of the validity of the 1983 Senate and Assembly districts in view of the 1990 Census. All parties having agreed that the 1983 districts are no longer apportioned in accordance with constitutional and statutory requirements, the court granted plaintiff Scaringe's motion for summary judgment on this limited issue and enjoined defendants from conducting the 1992 elections using the malapportioned 1983 districts. See Final Pre-Trial Order, dated June 24, 1992 (per curiam).

 While the summary trial was in progress, on June 25, 1992 the Attorney General of the United States found that two Assembly districts in the northern part of Manhattan violated the Voting Rights Act of 1965. He precleared the remainder of the Assembly districts and all of the Senate districts in the Bronx, Brooklyn, and Manhattan. This court proceeded with the taking of proof, cognizant of the fact that the state had no valid redistricting plan in place based on both the Attorney General's decision and the New York Supreme Court decisions in Wolpoff and Dixon.

 On June 30, 1992, the New York Court of Appeals reversed the lower courts' decisions in Wolpoff and Dixon, declaring that the 1992 Senate districts represent a balancing of state and federal requirements and that the districts comply with the New York State Constitution as far as is practicable. We turn now to the issues raised at trial.

 DISCUSSION

 I

 We first review plaintiffs' contention that the 1992 Assembly plan violates the "one person, one vote" principle first articulated in Gray v. Sanders, 372 U.S. 368, 379, 9 L. Ed. 2d 821, 83 S. Ct. 801 (1963), which is grounded in the equal protection clause of the Fourteenth Amendment. This principle prevents states from diluting an individual's right to vote and to receive equal representation, which can occur when one is placed in a heavily populated legislative district relative to other state districts. See Reynolds v. Sims, 377 U.S. 533, 568, 12 L. Ed. 2d 506, 84 S. Ct. 1362, reh'g denied, 379 U.S. 870, 13 L. Ed. 2d 76, 85 S. Ct. 12 (1964). To prevent vote dilution, states must "make an honest and good faith effort to construct districts . . . as nearly of equal population as is practicable." Id. at 577.

 Absolute equality in population is not required when to do so ignores state policy concerns that might justify minor deviations in population between legislative districts. See Gaffney v. Cummings, 412 U.S. 735, 748-49, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973); accord, e.g., Connor v. Finch, 431 U.S. 407, 418, 52 L. Ed. 2d 465, 97 S. Ct. 1828 (1977).

 Minor deviations from absolute equality among districts are presumptively valid. A "minor" deviation is defined as a deviation of less than 10 percent. See Brown v. Thomson, 462 U.S. 835, 842, 77 L. Ed. 2d 214, 103 S. Ct. 2690 (1983). A plan that creates a maximum population deviation in excess of 10 percent constitutes a prima facie case of discrimination that must be justified by ...


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