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DIAZ v. SILVER

February 26, 1997

ANGEL DIAZ, DENISE L. MOTLEY, and REYNALDO COHOLO, Plaintiffs, against SHELDON SILVER, in his official capacity as Speaker of the House for the Assembly of the State of New York; 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; THE BOARD of ELECTIONS of THE STATE of NEW YORK; OWEN T. SMITH, EVELYN J. AQUILA, and HELENA M. DONOHUE, 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.


The opinion of the court was delivered by: MCLAUGHLIN

PER CURIAM:

 Plaintiffs, who are Latino and African-American, seek a declaratory judgment and a permanent injunction against the further use of the current configuration of New York State's 12th Congressional District on the ground that it violates their constitutional rights under the Fourteenth and Fifteenth Amendments to the United States Constitution. Before the court is their motion for summary judgment and defendant-intervenor Puerto Rican Legal Defense and Education Fund's cross-motion for summary judgment.

 Background

 (A) The Parties

 Plaintiffs are residents and registered voters of the 12th Congressional District ("12th CD") of New York. See Second Amended Complaint ("Compl.") PP 1-4. Plaintiffs Diaz and Coholo are Puerto Rican. *fn1" Id. P 56. Plaintiff Motley is African-American. Id. P 60. Plaintiff Diaz ran for Congress in the 12th CD in the 1992 general election as a "Republican Conservative." Diaz Decl. P 3.

 Defendants, in their official capacities, are responsible for the enactment or enforcement of the legislation that created the congressional districts in New York. See Compl. PP 5-11. In addition, there are many intervenors in this suit. Delco Cornett is a pro se plaintiff-intervenor. Two Latino voters who live in the 12th CD, Margarita Lopez and Luis Garden Acosta, who are represented by the Puerto Rican Legal Defense and Education Fund ("PRLDEF"), have intervened on behalf of defendants. See PRLDEF Mem. Sup. Intervention at 1. Another group intervening on defendants' behalf consists of: Congressional Representative Nydia Velazquez, who represents the 12th CD; Major R. Owens, who represents an adjoining district which is majority African-American; and voters in the 10th, 11th, and 12th CDs. See Wooten Mem. Sup. Intervention at 4-7. They are being represented by Paul Wooten, Esq.. In addition, the Asian American Legal Defense and Education Fund ("AALDEF") is representing defendant-intervenors Peter Lau and John Kuo Wei Tchen, residents of the 12th CD. See AALDEF Mem. Sup. Intervention at 1. Finally, Congresswoman Carolyn B. Maloney has also intervened, pro se, to have her interests considered, as she the representative of the 14th CD, a tri-county district that adjoins the 12th CD.

 (B) The 1992 Redistricting Process

 (1) An Overviev of the Redistricting Process

 Initial responsibility for congressional redistricting lies with the New York State Legislature. However, because Bronx, New York, and Kings Counties are "covered" jurisdictions under the Voting Rights Act, 79 Stat. 437, as amended, 42 U.S.C. § 1973 et seq. ("VRA"), any legislative alteration of voting procedures, including redistricting, required preclearance by the U.S. Department of Justice ("DOJ") before its implementation. See Compl. P 23.

 DOJ preclearance ensures that proposed redistricting complies with the provisions of the VRA, particularly § 2, which forbids the abridgement of voting rights "on account of race or color." 42 U.S.C. § 1973 (Supp. 1994). Under the VRA, a redistricting plan that provides "less opportunity [to minorities] than other members of the electorate to participate in the political process and to elect representatives of their choice" abridges voting rights. Id.

 DOJ had interpreted this provision to require that a redistricting proposal maximize the number of majority-minority (i.e. non-Caucasian) districts. In 1995, the Supreme Court rejected the maximization interpretation of the VRA. See Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 2492-94, 132 L. Ed. 2d 762 (1995) (rejecting DOJ's maximization policy as "a shortsighted and unauthorized view of the Voting Rights Act").

 The 1990 U.S. census revealed that New York's population growth was slower than other states. Consequently, New York's congressional delegation had to be reduced from 34 to 31 members. See Compl. P 15. In 1991, the New York State Legislature established a task force to create a new congressional districting plan. See Compl. P 16. Both the Senate and Assembly were fully cognizant of the Department of Justice's modus operandi with regard to preclearance and VRA § 2. New York had previously encountered DOJ objections to the proposed redistricting of the New York City Council in 1991, as well as to the proposed redistricting of the State Senate and Assembly in 1992. See Ex. N of PRLDEF Opp. Prelim. Inj., Ltr. of U.S. Ass't Atty. Gen'l, dated June 22, 1982 (finding that New York State's 1982 Legislative plan discriminated against Latino voters); Ex. O of PRLDEF Opp. Prelim. Inj., Leg. History of 1982 VRA Amendments (finding that Latino voters were discriminated against in the redistricting of the New York City Council after the 1980 census); Ex. P of PRLDEF Opp. Prelim. Inj., DOJ Ltr. dated July 19, 1991 at 2 (explaining that Latinos were "unfairly underrepresented on the council. In one area, the proposed configuration of district boundary lines appears to have been drawn in such a way as to minimize Hispanic voting strength"); Ex. Q of PRLDEF Opp. Prelim. Inj., DOJ Ltr. dated June 24, 1992 at 2-3 (objecting to the proposed Assembly redistricting plan and noting that "although incumbency protection is not in and of itself an inappropriate consideration, it may not be accomplished at the expense of minority voting potential").

 By March of 1992 partisan politics had deadlocked the task force. *fn2" See Compl. P 17; Aff. of C. Daniel Chill, Esq., counsel for defendant Silver ("Chill Aff.") P 4. Because New York law mandated that the candidate-petitioning process commence on June 9, 1992, a state court action, Reid v. Marino, No. 9567-92 (N.Y. Sup. Ct. Kings Cty. 1992), was filed on March 26, 1992 "to compel the development of a satisfactory redistricting plan." Compl. PP 17-18; see New York Election Law §§ 6-158(1), 6-134(b), 8-100. On March 31, 1992, a similar action was filed in federal court in the Eastern District of New York, PRLDEF v. Gantt, No. 92-CV-1521 (E.D.N.Y. 1992). See Chill Aff. P 11. This suit alleged "that New York's then existing congressional map denied Latino voters their right to vote in violation of the Voting Rights Act of 1965, as amended, and the Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C. § 1983." Affirmation of Arthur A. Baer, Esq., counsel for PRLDEF, ("Baer Affirm.") P 10.

 The Eastern District three-judge panel appointed Hon. Frederick B. Lacey ("Lacey"), a retired United States District Judge, as special master and ordered him to develop a redistricting plan that would comply with federal law. See PRLDEF v. Gantt, 796 F. Supp. 681, 684 (E.D.N.Y. 1992). Lacey filed his plan with the court on May 26, 1992. See id. The three-judge court adopted this plan in its entirety on June 26, 1992. See id. at 698.

 At about the same time, in Reid v. Marino, the state court appointed a panel of three referees to develop a plan that would comply with federal and state law. The state court adopted the referees' plan on June 8, 1992. See Compl. P 21.

 The special master's plan differed from the referees' plan in the number of majority-Hispanic and African-American districts created. With a statewide Latino population of 12.31%, the special master's plan provided for three majority-Latino districts out of thirty-one districts in New York (9.68%), while the referees' plan proposed two such districts (6.45%). With a statewide African-American population of 15.9%, the special master's plan created four majority-African-American districts (12.90%), while the referees' plan provided five majority-African-American districts (16.12%).

 The New York State Legislature then had to decide whether to enact a bill that incorporated the referees' redistricting plan. In the event that the Legislature failed to do so, the federal special master's plan would take effect. The New York State Legislature enacted the bill incorporating the referees' plan and the Governor signed it soon thereafter. See Compl. P 22. On July 2, 1992, the U.S. Department of Justice precleared the plan, and it became law. See id. P 25.

 (2) The Latino Population in New York City

 According to the 1990 census figures, "there are nearly two million Latinos in New York City, comprising 24.36% of New York City's population." Baer Affirm. PP 2, 25. In addition, Latinos represent 23.07% of New York City's voting age population ("VAP"). See id. P 26. Statewide, Latinos represent 12.31% of the total population and 11.20% of New York State's voting age population. See id. P 27.

 According to PRLDEF, Latino citizens of New York City "bear the effects of historic discrimination in the areas of voting, employment, education, and housing, suffer depressed socio-economic conditions, and have traditionally low voter registration and turn out." Id. P 41; see also Ex. R of PRLDEF Opp. Prelim. Inj., Order in Ortiz, et al. v. New York State Bd. of Elections, et. al., No. 74-CV-455 (W.D.N.Y. July 10, 1975) (holding that New York's English-only election violated Latino voters' voting rights and ordering remedial relief); Ex. U of PRLDEF Opp. Prelim. Inj., "A Call to Action III"; Ex. V of PRLDEF Opp. Prelim. Inj., "Poverty in New York City, 1991: A Research Bulletin"; Ex. W of PRLDEF Opp. Prelim. Inj., "OREA Report" (discussing high school dropout rates); PRLDEF Mem. Opp. Prelim. Inj. at 54-67 (documenting the history of social and economic discrimination of Latinos).

 PRLDEF argues that discrimination has impacted Latino participation in politics. As of 1990, Latinos constituted only 1 of 13 (7.7%) of New York City's congressional delegation, 2 of 25 (8%) of New York City's State Senate delegation, 4 of 60 (6.7%) of New York City's Assembly delegation, and 3 of 35 (8.6%) of New York City's Council members. See Baer Affirm. P 51; Ex. S of PRLDEF Opp. Prelim. Inj., Compendium of Latino Elected Officials in New York City. PRLDEF claims that "Latino electoral candidates in New York City have been historically negatively impacted by polarized bloc voting." Baer Affirm. P 33 Latino voter participation in elections in New York is depressed. See Baer Affirm. P 56. Theodore S. Arrington, a Professor of Political Science at the University of North Carolina, has stated:

 
The social and economic position of African-American citizens and language minorities in New York, particularly those in New York City and surrounding counties, disadvantages them politically. They have had inferior opportunities to participate in the political process as a whole and to elect candidates of their choice. It also appears that compared to other citizens they have lower rates of voter registration and voter turnout, and are less likely to run for office or otherwise participate actively in the political process. When the effects of racially polarized voting are added to these factors, African-Americans, Hispanics, and Asians are confronted with an enormous barrier to equal participation and ability to elect candidates of their choice.

 Ex. K of PRLDEF Opp. Prelim. Inj., Arrington Aff. P 26. *fn3"

 The extent of Latino political cohesion is unclear. Professor Arrington noted the inherent difficulty of combining the many ethnicities that make up the Latino community:

 
Puerto Ricans may have very different concerns and interests than Hispanics from Central or South American countries. There may be disputes and inter-ethnic conflict between these groups. This would suggest that community of interest principles should lead to the formation, if possible, of a Puerto Rican district distinct from a district dominated by Dominicans, Colombians, and other Central and South Americans.

 Id. P 36. Professor Arrington further stated that the Latino community lacks cohesion.

 
The Hispanic population is diverse ethnically and racially, and it sometimes lacks the degree of cohesion that is present in the African-American population. Therefore, it is wise to keep the percentage of Hispanic voting age population in a district relatively high.

 Id. P 32.

 However, PRLDEF argues that the "Latino community in New York City is . . . politically cohesive." Baer Affirm. P 38. Allan J. Lichtman, Professor of History at The American University, who was retained by defendant-intervenors PRLDEF in the federal action PRLDEF v. Gantt, No. 92-CV-1521 (E.D.N.Y. 1992), also analyzed Latino voting patterns and found:

 
The elections examined thus far show a pattern of polarized voting between Latinos and non-Latinos in elections with Latino and non-Latino candidates. The cohesion of Latino voters is extremely strong: almost invariably a substantial majority of Latino voters united behind Latino candidates. The pattern among non-Latino voters is more mixed given the multi-racial character of the non-Latino vote (blacks, Asians, and non-Hispanic whites). Still, a substantial majority of non-Latino voters typically lined up behind non-Latino candidates, especially in city council contests.

 Ex. I of PRLDEF Opp. Prelim. Inj., Lichtman Decl. P 7.

 With respect to the 12th CD, Plaintiff Diaz claims that the district is "very diverse," including "Dominicans, Ecuadorians, Panamanians, Mexicans, Cubans, Colombians, and others," Diaz Decl. P 5, and that "these groups tend to have different political concerns." Id. P 12; see also PP 13-20. Further, plaintiff Diaz states: "In my experience the 12th CD did not contain a single community of interest. The people in Manhattan had obviously different local concerns than the people in Queens and Brooklyn. The voters did not seen to think the 12th CD was a community. Most were confused about whether they resided in the district or not." Id. PP 25-26.

 (3) The Asian Population in New York City

 The 1990 census reported that there were 512,719 Asian Americans living in New York City, of whom 228,085 "did not speak English very well." Affidavit of Michael Shen, President of the Board of Directors of AALDEF ("Shen Aff.") P 21. According to the New York City Voter Assistance Commission, only twenty-six percent of eligible Asian-Americans were registered to vote in 1994. See id. P 20.

 Shen claims that "the lack of bilingual ballots and assistance has been a major impediment for Asian Americans seeking to participate in the political process." Id. P 19. In addition, AALDEF asserts that its monitoring of a variety of polling sites from 1991 to 1993 revealed that Asian-American voters were "harassed by poll workers, haphazardly distributed bilingual materials" and given inaccurate translations of materials. Id. P 25. In 1994, DOJ, pursuant to § 5 of the VRA, required "machine ballots [to] be fully translated into Chinese, including the candidates' names." Id. P 26. *fn4"

 As with the Hispanic population, the degree of political cohesiveness within the Asian-American population is in question. AALDEF has conducted exit polls that "confirm that Asian Americans vote cohesively for Asian Americans when they are on the ballot." Id. P 7. Somewhat contradictorily, however, AALDEF claims that although Asian-Americans have become an "influential minority in New York," id. P 28, "the arbitrary drawing of district lines . . . has inhibited the Asian American community's ability to organize and develop a strong political cohesiveness." Id. P 29.

 AALDEF has also submitted an affidavit from Peter Lau, a defendant-intervenor and President of the Chinatown Voter Education Alliance, stating that he has reviewed official election results and has determined that Asian-American voters in Chinatown and Sunset Park are politically cohesive. See Lau Aff. PP 2, 45-51. Mr. Lau reports that in the November 1991 New York I; City Council general election in District 1, "76% of all Asian Americans voted for one of two Asian American candidates." Id. P 48. *fn5" Mr. Lau suggests that "definitive election analysis would require accumulating additional data, in part because so few Asian Americans have run for elective office, and in part because of their low registration and voter turnout." Id. P 50.

 Mr. Lau also asserts that Chinatown and Sunset Park "are locked together as one community." Id. P 52. "Many cultural ties link the two neighborhoods together." Id. P 54. According to Mr. Lau:

 
Sunset Park is the progeny of Chinatown. According to the 1990 census, although Sunset Park is relatively small, it is a growing community. The Asian-American population in Sunset Park has grown almost 200% since the 1980 Census. Historically, pragmatically, and culturally these two neighborhoods are interdependent. Asian Americans in Sunset Park and Chinatown form a single cohesive community . . . .

 Id. P 55. John Kuo Wei Tchen, now Director of the Asian American Studies Program and Institute at New York University, agrees. He submits that "labor force, limited English proficiency and shared community resources all tie these two neighborhoods together into one community." Tchen Aff. P 18. Many residents of Sunset Park work and shop in Chinatown. See id. PP 20-22. And, "many service industries and community organizations . . . minister to both neighborhoods," including Chinese daily newspapers, medical services and community agencies. Id. PP 25-30. Moreover, residents from both communities came from Hong Kong and Southern China and speak the Cantonese dialect of the Chinese language. See id. P 24.

 (4) The Referees' Plan

 According to plaintiffs:

 
The Referees' Report is the single most important document that explains that district plan. Made contemporaneously with the district plan by the very individuals who were charged with drawing it, the Referees' Report clearly sets out the findings upon which the drafters relied, the interpretation of the Voting Rights Act that guided their thinking, and the methodology they used to configure New York's congressional districts.

 Pltff Mem. for Prelim. Inj. at 12 (footnote omitted).

 In addition to the referees' report and plan, plaintiffs rely upon the court hearings in Reid v. Marino. During these hearings, Professor Alan Gartner, whom the referees retained to draw the districts, "discussed the Referees' Plan in almost exclusively racial terms." Compl. P 36. At the time, Dr. Gartner was Director of Research for the Graduate School and University Center of the City University of New York.

 (a) Racial Criteria in the Creation and Methodology of the Referees' Plan

 According to the referees' report, their redistricting plan incorporated the following criteria: "The one person, one vote standard of the United States Constitution; The Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, et seq.; Public interest criteria including contiguity, compactness, traditional boundaries in the State, communities of interest, and political fairness." Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 15. The referees determined that federal law mandates that congressional redistricting plans must meet two primary requirements: the one person, one vote standard and the racial fairness standard." Id. at 17. They defined "racial fairness" as compliance with §§ 2 and 5 of the Voting Rights Act of 1965. Id. at 19-21.

 The referees explicitly state in their report that they utilized racial data in a computer program to generate the new districts:

 Id. at 33 n.32. The referees first relied the voting-age population ("VAP") to gauge minority voting strength and then refined this analysis using the estimated voter registration by race data and surname analysis to measure voting strength more precisely. See id. at 33.

 During the court hearings in Reid v. Marino, Dr. Gartner described his use of the computer software:

 
One of the things that the computer can do is it can produce maps which translate the Census numbers into geography, showing you, for example, concentrations of particular population groups. And so, we produced a set of maps that show the concentrations of the three so-called "protected classes" in New York City; in Census language: "Non-Hispanic blacks, non-Hispanic Asians," and "Hispanics."
 
In effect, those concentrations tell you how to do the districting, per the Voting Rights Act. And, the order in which I will describe these districts, in effect, reflects our using those concentrations as the basis.

 Ex. 7 of Chill Aff. in Support of Silver Mot. to Dismiss ("Silver Mot. to Dismiss"), June 2 Tr. at 111.

 On June 5, 1992, Dr. Gartner testified that the computer was programmed to permit easy identification of racial concentrations: "the richer the shade (indicating) . . . the more intensive the [racial] population group." Ex. 9 of Silver Mot. to Dismiss, June 5 Tr. at 236. He also described the method in which the districts were drawn:

 
We were concerned with the percent of non-Hispanic whites in a district.
 
We were concerned . . . to keep that percentage down so we do not, in effect, violate the opportunity of a so-called "protected class." Or a group of protected classes in a district to have their rights violated by another group, who may tilt or switch the election.

 Id. 233-34.

 Professor Bernard Grofman, an expert who aided the referees, developed a four-step plan to ensure compliance with the VRA. One step entailed grouping "clusters of minority concentration" to maximize the number of districts having both the required population size to meet the "one person, one vote" standard and "effective minority voting equality." Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 23-24 n.19. Such a scheme maximized the number of new majority-minority districts. The referees themselves specifically asserted that "where the minority populations were large and compact enough, the maximum number of districts which achieve 'effective minority voting equality' have been created." Id. at 3.

 With regard to the factor of compactness, however, the referees acknowledged:

 
Our Plan includes a newly created tri-county Hispanic district [the 12th CD] 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.

 Id. at 26. Moreover, Professor Gartner, discussing the 12th CD in particular, noted 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'" may be developed. Ex. 7 of Silver Mot. to Dismiss, June 2 Tr. at 123 (emphasis added). A few days later he testified: "I believe it [the 12th CD] is the best Hispanic district you could draw, as well as also the best Asian district you can draw. . . . [However,] it is aesthetically unpleasing.'" *fn6" Ex. 9 of Silver Mot. to Dismiss, June 5 Tr. at 243.

 Finally, when the referees compared their plan to those submitted to them, they briefly discussed the population equality standard and then carefully described the plans' racial characteristics. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 40-51. In their final report, the referees provided a compendium of the racial composition of the minority districts. See id. at 34-40. For each district, the only characteristic analyzed was voters' race. See id.; see also Ex. 5 of Declaration of Robert D. Popper, Esq., counsel for Plaintiffs ("Popper Decl."), chart entitled: "Congress Plan State Racial Breakdown."

 (b) Secondary Criteria in the Referees' Plan

 As previously mentioned, the referees considered the "one person, one vote" standard and "racial fairness" primary to their redistricting efforts. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 17. Other factors are described as secondary criteria which "may" be considered:

 
In addition to the two critical statutory and constitutional criteria, several other factors may be considered. These include contiguity, compactness, respect for traditional boundaries (such as county lines), communities of interest, and political fairness.

 Id. at 24.

 This summary, however, clearly does not tell the full story of all of the factors employed when developing the plan. For example, incumbency per se is never explicitly mentioned; it appears only as the veiled term "displacement" of constituents. *fn7" See id. at 51-52. Despite its conspicuous absence from any direct discussion, incumbency appears to have been the unacknowledged third-most-significant factor used when redistricting. It is not contested that the 12th CD was the only district created by the referees in which an incumbent did not reside. Incumbents were "protected" in 87% of the new districts: twenty-seven districts were created with incumbents and three had two incumbents. See State Mem. Opp. Prelim. Inj. at 28; Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 29.

 In addition, the lack of compactness of the new districts evidences that incumbency was the unspoken third criterion. Many of the congressional districts maintained the borders of prior districts and thus are not very compact. Two CDs conjoin nonadjacent communities separated by both land and water. The 5th CD connects northeast Queens with northern Nassau and Suffolk counties, via the Long Island Sound. *fn8" See PRLDEF Mem. Opp. Sum. Judj. at 33. The 8th CD combines the Upper West Side, the West Village, Soho, Tribeca and Battery Park City of Manhattan with the southeastern parts of Brooklyn, including Brighton Beach and Coney Island, as well as Borough Park, in central Brooklyn. See id. at 34.

 Moreover, the 9th CD contains significant portions of Brooklyn and Queens including: Park Slope, Canarsie, Rockaways, Sheepshead Bay, Forest Hills, Howard Beach, Woodhaven, Forest Hills and Kew Gardens. Pieces of the 10th, 11th, and 12th CD intersperse the 9th CD. See id.

 Despite this disregard for compactness, the State Supreme Court found that the referees' proposed plan was "complete and valid under the constitutions of the United States and the State of New York as well as the Federal Voting Rights Act." Ex. X of PRLDEF Opp. Prelim. Inj., Order and Judgment in Reid v. Marino, No. 9567-92 (N.Y. Sup. Ct. Kings Cty. 1992) at 3. According to the state court, the referees' plan was also "the only one presently before any court that fully comports with these requirements and other applicable criteria as set forth in the referees' report." Id. at 4.

 (5) The Special Master's Plan

 Like the referees, the special master considered the population equality and VRA mandates most crucial when creating his plan for the federal court. However, "after complying with constitutional and Voting Rights Act requirements, a redistricting plan may properly consider a 'wide array of secondary or equitable criteria.'" Ex. B of PRLDEF Opp. Prelim. Inj., Special Master's Report at 29 (citation omitted). For these criteria, the special master relied upon Good v. Austin, 800 F. Supp. 551, 554 (E. & W.D. Mich. 1992), which states: "Federal courts have recognized the following as relevant secondary criteria: compactness, contiguity, preservation of the integrity of county and municipal boundaries, maintenance of the cores of existing districts, preservation of cultural, social, and economic communities of interests, and political and racial fairness."

 As did the referees, the special master maintained that he was required not to disperse minorities into districts so that they would constitute an ineffective minority of voters; nor was he required to concentrate minorities into districts so that they would be an excessive majority. See Ex. B of PRLDEF Opp. Prelim. Inj., Special Master's Report at 19. Additionally, although the special master did not explicitly state that he attempted to maximize the number of majority-minority districts, it appears that he did, since he created the same number of such districts as the referees, who specifically proffered maximization as a goal. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 3, 51. Most significantly, the special master and the referees used the same race-sensitive computer program, REAPS, to design their respective plans. See Ex. B of PRLDEF Opp. Prelim. Inj., Special Master's Report at 5-6. This is strong evidence of majority-minority district maximization in the special master's plan as well.

 The special master afforded least weight to the "public interest" factors. See id. at 29. These included the "community of interest," which the special master defined as "'distinctive units which share common concerns with respect to one or more identifiable features such as geography, demography, ethnicity, culture, socio-economic status or trade.'" Id. at 30 (quoting Carstens v. Lamm, 543 F. Supp. 68, 91 (D. Colo. 1982)). In addition, the special master took into account political fairness, described as drawing district lines "so as not to disproportionately advantage or disadvantage one political party or another." Id. at 31. Finally, he considered compactness and contiguity "to the extent that these factors did not impair my ability to comply with constitutional and Voting Rights Act requirements . . . ." Id. at 36. The special master explained that he created districts

 
that are compact and contiguous where satisfaction of the provisions of the Voting Rights Act is not an issue. In New York City, where Voting Rights Act concerns dictated many of my districting decisions, the proposed districts are less compact but nonetheless compare favorably with the districts drawn for New York City by other plan proponents.

 Id. at 37 (citation omitted). *fn9" Following the direction of the court, however, he did not consider protection of incumbents. See id. at 34.

 (6) The Referees' and the Special Master's Plans Compared

 The referees' plan and the special master's plan differ in two essential ways: the number of majority-Latino districts created and the inclusion of incumbency as a factor in redistricting. Importantly, however, both plans do envision a tri-county majority-Latino district.

 Both the special master's and the referees' plans created seven majority-minority districts. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 51. As previously noted, however, the referees' plan, effectively created two Latino districts and five African-American districts, see id. at 34, while the special master's plan created three Latino districts and four African-American districts. Ex. B of PRLDEF Opp. Prelim. Inj., Special Master's Report at 37. With regard to the special master's creation of the third majority-Latino district, the referees wrote:

 
The Special Master draws a third Hispanic district in the Bronx and Manhattan; it is 59% Hispanic, and 40% Hispanic voter registration, including the Washington Heights Dominican community making this marginal Hispanic district less secure because of low citizenship rates. Our plan includes a Bronx/Westchester district, which is 36% African-American VAP [voter age population], 26% Hispanic VAP. and 3% Asian VAP, for a total minority VAP, of 67%.

 Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 54.

 The special master's plan described its creation of seven majority-minority districts:

 
The plan creates seven districts affording majority control to racial and language minorities. Four are African-American districts and three are Hispanic districts. Each of these control districts contains at least 55 percent or more voting age population ("VAP") for a protected minority. In the opinion of Professor Arrington, the Plan performs at least as well and usually better than other plans submitted to the Court in maximizing African-American and Hispanic voting power.

 Ex. B of PRLDEF Opp. Prelim. Inj., Special Master's Report at 37 (citations omitted).

 The second major point of comparison between the two plans is the inclusion of incumbency as a redistricting criterion. Incumbency was the third-most-significant factor in the referees' plan, whereas it played no role in the special master's. This allowed the special master to draw a Latino district in the Bronx and Manhattan that was far more compact and cohesive than that drawn by the referees.

 The referees' report noted the disparity in the number of voters who would be displaced, i.e. whose representative would change, between their plan and the special master's:

 
One of the most striking differences is that the Special Master's Plan splits six of the seven minority district [sic] between two or more counties. Our plan proposes four of its seven minority districts within a single county. . . .
 
The Master's Plan, as compared to our plan, vastly changes the geography and, therefore, the constituencies of the five present minority districts in New York City. . . .
 
. . . On the average, the Master's Final Plan 'displaces' 58% of the constituents, while the Referees' Final Plan 'displaces' only 25%.

  Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 51.

  Additionally, the special master created a tri-county majority-Latino district that was very similar to the one drawn by the referees. The comparable referees' district had additional curves, but the foundation of both plans was the same. Most importantly, as previously mentioned, the state referees and the federal special master used the same race-based computer program to determine the shape of the districts.

  (7) The New York State Legislature

  (a) Legislative Input in the Creation of the State and Federal court Plans

  The Senate and the Assembly submitted their own redistricting plans to both the special master and the referees. The referees noted: "all the proposed plans submitted to the Referees and to Special Master Lacey, include a similar tri-county Hispanic District." Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 26 n.22.

  Legislators also voiced their opinions regarding the redistricting process at a hearing held by the special master. At this hearing, representatives from the Assembly and from the Senate were afforded the opportunity both to present their respective plans and to comment on each other's plan, while the Assembly's spokesperson, Dr. Roman Hedges, made a passing reference to incumbency, see Ex. L of Chill Aff. in Support of Silver Opp. Sum. Judg. ("Silver Opp. Sum. Judg."), Special Master Hrg. Tr., he primarily discussed the creation of majority-minority districts. Comparing the Assembly's plan to the Senate's, he stated:

  
The big differences we think are in regards to treatment of the two Afro-American seats in Brooklyn where one of those two seats has a very substantial high turnout, white population that would significantly endanger the Afro-American seat currently held by Major Owens.
  
We don't see incumbency protection as an issue but we are very much concerned with retrogression. . . .
  
. . . The rest of the differences between our plan and that proposed by the Senate are relatively small scale, and I would note a couple of things that seem to me to be in common with almost every plan, and that is there is the creation of a new Hispanic seat that goes from Brooklyn to Manhattan and to Queens which has a very consistent configuration of the ...

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