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DIAZ v. SILVER

July 17, 1996

ANGEL DIAZ, DENISE L. MOTLEY, and REYNALDO COHOLO, Plaintiffs, against SHELDON SILVER, in his official capacity as Speaker of the House for the Assembly; JOSEPH L. BRUNO, in his official capacity as President Pro Tem and Majority Leader of the Senate of the State of New York; GEORGE E. PATAKI, in his official capacity as Governor of the State of New York; and OWEN T. SMITH, EVELYN J. AQUILA, and HELENA M. DONAHUE, in their official capacities as commissioners of the BOARD of ELECTIONS of THE STATE of NEW YORK; and JOHN DOES 1 THROUGH 50, the names of such defendants being fictitious and unknown to plaintiffs, and referring to those persons who are responsible in their official capacities for the enforcement of the legislation that created New York's federal congressional districts; Defendants.

PER CURIAM:

 In June 1995, plaintiffs, Latino and African-American residents and voters brought this action alleging that the Twelfth Congressional District (12th CD), in which they reside, was unconstitutionally drawn.

 
New York State's adoption of the [1992 Congressional Redistricting] Plan and the 12th CD causes plaintiffs to be treated differently under the law on account of race, and so violates plaintiffs' Fourteenth Amendment constitutional right to the equal protection of the laws. New York State's adoption of the . . . Plan violates plaintiffs' Fifteenth Amendment constitutional right to vote, free of abridgment on account of race, in a color-blind electoral process.

 Id. at PP 66-67. Consequently, plaintiffs seek to enjoin any election under the present lines because the mere holding of an election under such an improperly drawn, racially based, districting plan is a constitutional violation which irreparably harms them.

 Background

 In 1992, when the New York State Legislature failed to enact a Congressional redistricting plan based upon the 1990 Census, a lawsuit was brought in Supreme Court State of New York, Kings County, requesting that the court draw up a Congressional redistricting plan in light of the Legislature's failure to do so. Reid v. Marino, Index No. 9567-92 (Kings Co. 1992), Ex. X of defendant-intervenors. The state court appointed three referees who then developed a districting plan which created the 12th CD. The State Supreme Court adopted the referees' plan, Final Report of Referees, Ex. C of defendant-intervenors, which it found to be "complete and valid under the Constitution of the United States and the State of New York as well as the Federal Voting Rights Act." Reid v. Marino, Ex. X at 3-4.

 In their report, the referees explicitly stated that, when they were drawing up their plan, compliance with the Voting Rights Act ("VRA") was the highest goal after meeting the one person/one vote requirement. Referees' Report, Ex. C at 15. In their own words, the referees used the following criteria: "The one person, one vote standard of the United States Constitution; the Voting Rights Act of 1965; public interest criteria including contiguity, compactness, traditional boundaries in the State, communities of interest, and political fairness." Id. The referees determined: "Federal law mandates that Congressional districting plans must meet two primary requirements: the one person, one vote standard and the racial fairness standard." Id. at 17. The other criteria were described as secondary which "may" be considered. Id. at 24. Indeed, it was made clear that compactness was a weak consideration, at best. At a hearing conducted by the state court, Professor Alan Gartner, the Director of Research for the Graduate School and University Center, the City University of New York who was an expert retained to aid the referees, explained that "looking at the concentration maps, if you're not bound by antiquated notions of compactness. . . an additional Hispanic seat . . . [the] so-called 'Tri-County Seat'" can be created. June 2 Tr., Pltff. Ex. 6, at 123 (emphasis added).

 Furthermore, the referees provided a district by district analysis of the racial composition of the minority districts. Id. at 34-40. For each district, the only characteristic discussed is the voters' race. See also Pltff. Ex. 5, chart entitled "Congress plan state racial breakdown." The referees described the 12th CD as follows:

 
Our Plan includes a newly created tri-county Hispanic district which although not aesthetically compact, was drawn in a manner to ensure an effective concentration of Hispanic voters that can elect the candidate of their choice.

 Referees' Report, Ex. C at 26. And, in a footnote, the referees explained how they gathered the racial data and utilized the information in a computer program.

 Id. at 33, n. 32.

 It is of significance that a special master who was at the same time drawing up a redistricting plan for a federal court followed the same criteria in the same order of priorities as the referees -- complying with his understanding that the VRA had priority over traditional districting criteria. Special Master Report, Ex. B of defendant-intervenors, at 37. The plan he created also included a tri-county majority-Latino Congressional district similar to the 12th CD. See Puerto Rican Legal Defense & Education Fund (PRLDEF) v. Gantt, 796 F. Supp. 681 (E.D.N.Y. 1992). *fn1"

 Both the special master and the referees created a plan that had seven minority districts. Referees' Report, Ex. C, at 51. The federal court ordered that unless the New York State Legislature adopt a plan approved by DOJ, then its plan would be used for the 1992 election. Thus, acting under a time constraint, the Legislature, which openly acknowledged a concern for incumbents, adopted the referees' plan. Once signed into law by the Governor on June 11, 1992, the legislation together with the Referees' Report was sent to the Department of Justice (DOJ) for pre-clearance pursuant to the Voting Rights Act. DOJ subsequently precleared the redistricting plan. See Ex. B of Graber Decl. Elections ...


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