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KIMBLE v. COUNTY OF NIAGARA

June 30, 1993

RENAE KIMBLE, CYNTHIA BAXTER, HENRY BEAMON, FREDERICK L. BROWN, ALTO BYRD, LENNON J. CARR, BETTY GREEN, JUNE HARRIS, QURRISE HARRIS, JOSEPH JONES, EDDIE L. PALMORE, PAULINE WALKER and DAVID M. YELLEN, Plaintiffs,
v.
COUNTY OF NIAGARA, NIAGARA COUNTY LEGISLATURE and NIAGARA COUNTY BOARD OF ELECTIONS, Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 This action was commenced on May 28, 1993 by the filing of a complaint and a motion for a preliminary injunction. Plaintiffs' complaint alleged eleven causes of action under 42 U.S.C. §§ 1973, 1983 and 1988, as well as supplemental claims under the New York State Constitution and Section 10 of the New York State Municipal Home Rule Law ("MHRL"). Plaintiffs demanded a declaratory judgment that the existing districting plan for elections to the Niagara County Legislature, which was enacted in 1983 with the use of 1980 census figures, violated the Equal Protection Clause of the Fourteenth Amendment; the Fifteenth Amendment; Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973(2); Article I, sections 1 and 2 of the New York State Constitution; and MHRL § 10(1)(ii)(a)(13)(a)(i), (ii). Plaintiffs also sought a permanent injunction against all defendants preventing them from enforcing the existing plan, continuing representation under its district lines, receiving petitions for candidates, and conducting primary and general elections under such existing district lines until such time as this Court implemented a new districting plan. Plaintiffs further demanded that this Court draft and implement a districting plan of reapportionment for the 1993 elections and thereafter, using 1990 census data, which met all constitutional and statutory requirements. Finally, plaintiffs demanded reasonable attorney fees, pursuant to 42 U.S.C. §§ 1973(c) and 1988, together with the costs and disbursements of this action.

 Plaintiffs' complaint arises from the facts that the current districting plan for elections to the Niagara County Legislature was enacted by the Legislature in 1983 with the use of 1980 census data, and that the concentrated African-American population in the County was divided into four separate legislative districts under that plan. Plaintiffs alleged that, due to demographic changes reflected by the 1990 census figures, the nineteen legislative districts have substantially unequal populations, *fn1" and therefore violate the one-person one-vote requirement of the Equal Protection Clause. Moreover, plaintiffs alleged that the dilution of African-American voting strength made it virtually impossible for African-American residents of Niagara County to elect representatives of their choice to the Niagara County Legislature, in violation of the Equal Protection Clause and the Voting Rights Act. Finally, plaintiffs contended that the existing plan failed to comport with MHRL § 10 because of population deviations, and because it improperly divided the Town of Wheatfield into two separate legislative districts.

 HISTORY OF THE CASE

 This lawsuit was precipitated by the failure of the Niagara County Legislature to implement a valid districting plan after the 1990 census. *fn2" Niagara County was last reapportioned in 1983 with the use of 1980 census data. Also enacted at that time was a voter-approved referendum that reduced the number of legislative districts from thirty-one to nineteen. The plan was effective for the first time for the 1985 legislative elections.

 In 1991, the legislature attempted to redistrict the county with the use of 1990 census data. Nonetheless, the 1991 plan was invalidated as the result of a lawsuit in New York State Supreme Court, because the plan was not adopted according to MHRL § 20(4), requiring that no local law be passed unless it is in final form and upon the desks of the legislators at least seven calendar days, exclusive of Sunday, prior to passage. In its opinion, the court also commented that Wheatfield was improperly divided into separate districts. Finally, the court noted,

 
This court is troubled by the computer expert's alleged inability to assist the minorities. We have an opportunity to give the Black community in the City of Niagara Falls a voice in county government. Their population is 9,634 persons -- not an insignificant number when compared with the minimum requirement of 11,039 for a district. A greater effort should be made to give this segment of the population a place in county government.

 Tylec v. Niagara County Legislature (Opinion of Justice Jacqueline Koshian, June 6, 1991, pp. 6-7), aff'd, 175 A.D.2d 676, 572 N.Y.S.2d 600 (4th Dept. 1991).

 The Legislature undertook no further efforts to devise a valid districting plan until early 1993, when a plan was placed on the legislative agenda for April 20, 1993. However, the agenda item was subsequently withdrawn, due to political disagreements. No subsequent efforts were made, because pursuant to MHRL § 10(1)(ii)(a)(13)(e) a plan could not be properly enacted by the Legislature in time for the 1993 county elections. The first day for the circulation of designating petitions was June 8, 1993. Thus, the 1993 elections were scheduled to proceed according to the 1983 plan. Because the legislative process had broken down, plaintiffs turned to the judicial process for relief.

 Counsel for the parties initially appeared before this Court on June 2, 1993 for an expedited status conference. Because there were only four business days remaining before designating petitions would be distributed and circulated, this Court believed that the most productive first step in this litigation would be for counsel to meet to evaluate their differences. Counsel were directed to meet on June 3, 1993 to discuss: (1) whether any factual issues truly existed; and (2) if not, whether counsel could agree on a reapportionment plan for the 1993 election that met all constitutional and statutory requirements. Plaintiffs had already drafted a proposed plan that could be used as a starting point in those discussions.

 On the afternoon of June 3, 1993, this Court conferenced with counsel, who reported that they had tentatively agreed that plaintiffs' proposed plan met all legal requirements. The proposed plan created new election districts with population deviations well within the one-person one-vote requirements, satisfied the Voting Rights Act through the creation of a 57.1% African-American majority-minority district within the City of Niagara Falls, did not improperly divide the Town of Wheatfield, and met other public policy objectives set forth in MHRL § 10.

 This Court reviewed the proposed plan, and made a preliminary determination that it did indeed comply with the relevant constitutional and statutory requirements. Nonetheless, this Court requested that counsel attempt to adjust the boundaries of the proposed majority-minority district to increase moderately the ratio of minority population in order to account for residents who are below voting age, and to address the possible effects of low voter turnout and low voter registration. Counsel met with Richard A. Seekins, the Niagara County Director of Planning, Development, and Environmental Services. Mr. Seekins has extensive training and experience in demographics and computer applications to the fields of demographics and economics. Census blocks were examined on an individual basis, and it was determined that through minor adjustments, the minority population could be increased to 57.56%. Counsel also determined that any further expansion of the proposed majority-minority district would only dilute the minority population, and that there was no additional concentration of minorities in Niagara County that would justify the creation of an additional majority-minority district.

 During a series of additional conferences, counsel were directed to consider the impact that the proposed reapportionment plan would have on the petitions process and on other political races in Niagara County. Furthermore, counsel for the defendants was instructed to request whatever authority he needed from his clients to enter into a stipulation of discontinuance settling the action according to the terms of the proposed plan. On June 9, 1993 the Niagara County Legislature met in a special session and authorized the county attorney, by a vote of 18-1, to settle this action by stipulating to the proposed reapportionment plan. Counsel also consulted with the commissioners of the Niagara County Board of Elections, the New York State Board of Elections, and the New York State Attorney General's office, to determine the impact that the plan would have on the petitions process.

 During the various conferences with this Court, defendants admitted that the existing 1983 plan violated the pertinent constitutional and statutory requirements because it did not provide one-person one-vote, and because it has not enabled African-American residents of Niagara County to elect representatives of their choice to the Niagara County Legislature.

 Although this Court was in daily contact with counsel, it determined that public comment on the proposed plan was appropriate, and should be considered by this Court before any plan was finally implemented. By Order of this Court, public notice of the proposed plan was published in four newspapers of general circulation within Niagara County, together with a map indicating the boundaries of the proposed districts. *fn3" The public were requested to submit their comments to this Court.

 During a conference on June 15, 1993, counsel were directed to prepare a stipulation of discontinuance settling this action. The stipulation was to include a statement of the relevant history of the redistricting problem in Niagara County. The stipulation was also to contain defendants' formal admissions that the existing 1983 plan violated constitutional and statutory law, and that plaintiffs had established at least a prima facie case for the plan's invalidity. The stipulation was to set forth the evidentiary data in support of plaintiffs' case and for the validity of the proposed reapportionment plan, including the parties' evidence that population deviation among the proposed districts was as low as practicable, that any further expansion of the proposed majority-minority district would result in a dilution of minority voting strength, and that no additional concentration of African-American population exists in Niagara County that would warrant the creation of a second majority-minority district. Finally, counsel were directed to include a stipulation regarding the impact of the proposed plan on the petitions process.

 On June 24, 1993, counsel submitted an executed "Stipulation Discontinuing Action and Consenting to Entry of Decree" ("Stipulation"). The Stipulation fully complies with this Court's directions and includes all the information and evidentiary support necessary to resolve this action in accordance with all relevant constitutional and statutory requirements. First, the Stipulation reiterates plaintiffs' allegations and defendants' admissions, which had previously been made on the record in open court, that the existing plan:

 
1. violates MHRL § 10(1)(ii)(a)(13)(a)(ii), in that the Town of Wheatfield is unlawfully divided;
 
2. violates the one-person one-vote principle;
 
3. essentially prevents the African-American community from electing an African-American resident of that community to a position on the county legislature; and
 
4. violates the Voting Rights Act of 1965 as it relates to the creation of majority-minority districts and the denial to the plaintiffs of the opportunity to elect a candidate of their choice from their community; the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by the dilution of minority voting strength; and the Fifteenth Amendment to the United States Constitution as it ...

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