the referees used to create the plan. Second, the primacy of race is apparent on the face of the plan, and as such the Legislature ought be held accountable for such race-based redistricting. Third, recent Supreme Court cases reveal that in cases of racial gerrymandering, such as the one before this court, a legislature will be held responsible for the resulting constitutional violations in spite of contentions that the legislature was merely attempting to comply with the perceived maximization requirements of the Justice Department.
The DOJ preclearance procedures require the legislature to explain the development of its redistricting plan. The only evidence that Senator Skelos and Assemblyman Gantt (the signatories of New York's § 5 submission) provided to fulfill this requirement was the referees' report. See Ex. 4 of Popper Decl., DOJ Submission. Specifically, the Legislature's preclearance submission to the DOJ stated that the referees' report "explains in detail the background leading up to the development of this plan by the referees for the State Supreme Court." Id. Under the circumstances, where this is the only document used to justify the Legislature's action, this submission binds the Legislature as an adoptive admission to all of the statements and policies contained therein.
See Grundberg v. Upjohn Co., 137 F.R.D. 365, 369-71 (D. Utah 1991) (finding that drug protocol reports used by defendant when seeking FDA approval are admissible as adoptive admissions in product liability action). By using the referees' report, the Legislature authorized the referees to speak for it with regard to the methodology and development of the redistricting plan.
Moreover, the fact that this was the only document submitted to DOJ by the Legislature is significant not only for its affirmative reliance on this race-based report, but also for the absence of any explicit discussion of the primary role of incumbency. Courts have given weight to such omissions in submissions for § 5 preclearance. In Vera v. Richards, 861 F. Supp. 1304, 1339 (S.D. Tex. 1994), aff'd, Bush v. Vera, 517 U.S. 952, 135 L. Ed. 2d 248, 116 S. Ct. 1941 (1996), the district court noted that "if incumbent protection was as important to the process as the State witnesses testified . . . it is surprising that the State offered virtually no such evidence . . . in its voluminous § 5 preclearance submission to the Justice Department." The same can be said here. Moreover, plaintiffs emphasize that, under Fed. R. Evid. 801(d)(2)(B), the referees' report and court transcripts are statements in which the Legislature has "manifested an adoption or belief in its truth."
PRLDEF takes issue with plaintiffs' use of the referees' report and their experts' testimony to impute racial motivations to the Legislature's adoption of the 12th CD. PRLDEF argues that because the Legislature did not create the plan itself or make an affirmative statement of adoption, such a conclusion cannot be reached here on summary judgment. See PRLDEF Mem. Opp. Sum. Judg. at 42-44. However, because the referees' and their experts' statements are admissions here, PRLDEF's argument fails. Moreover, the record that incumbency was always subordinated to race cannot be gainsaid. As discussed, infra at section (D)(1), the creation of the 12th CD prevented the protection of an additional incumbent. In addition, none of the defendants has offered, in their affidavits or memoranda, any description of the evidence that they would present at a trial to contradict this conclusion. The Legislature cannot distance itself from its race-based plan and now honestly assert that race was a secondary consideration to incumbency.
Furthermore, the Legislature should be held accountable for the racial intent embodied in the redistricting plan because such intent is apparent on the face of the statute passed by the Legislature. As plaintiffs argue, the Legislature may be held liable for the referees' intent since a state actor may be charged with otherwise private discrimination by seeking to enforce it. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177-79, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972); Shelley v. Kraemer, 334 U.S. 1, 17-20, 92 L. Ed. 1161, 68 S. Ct. 836 (1948) (holding that state enforcement of otherwise private restrictive covenants violated Equal Protection Clause). Here, of course, the referees were not private actors, but private individuals fulfilling a public function.
Defendants also argue that the Legislature ought not be held accountable for the racial premise of the plan because it was merely trying to act in accordance with perceived DOJ preclearance policy. We acknowledge that the redistricting process clearly forced the New York Legislature to perform the difficult task of walking a tightrope between the perceived requirements of the VRA and the Equal Protection Clause of the Constitution. Nevertheless, we cannot absolve the Legislature of its responsibility because it was acting according to the misguided and unlawful directions of DOJ. Although DOJ had not rejected a congressional districting plan in New York, in 1991 DOJ objected to the redistricting of the New York City Council, see Ex. P of PRLDEF Opp. Prelim. Inj., DOJ Ltr. dated July 19, 1991, and in 1992 objected to a proposed Assembly redistricting plan because of its treatment of "the northern Manhattan area." Ex. Q of PRLDEF Opp. Prelim. Inj., DOJ Ltr. dated June 24, 1992. There is no question that New York's legislators were cognizant of and concerned about the strictures of DOJ's interpretation of the VRA. See Ex. Q of Silver Opp. Sum. Judg., Assembly Tr. at 3; Ex. R of Silver Opp. Sum. Judg., Senate Tr. at 79, 85-89.
New York thus found itself in a position similar to the other states performing redistricting. Similar state action, based on prior DOJ expressions, have been rejected by the Supreme Court. The Supreme Court has found that DOJ had unlawfully interpreted the VRA to require the maximization of majority-minority districts. "Instead of grounding its objections [to districting plans] on evidence of a discriminatory purpose, it would appear the Government was driven by its policy of maximizing majority-[minority] districts. Although the Government now disavows having had that policy, the . . . well-documented factual finding was that the Department did adopt a maximization policy . . . ." Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 2492, 2494, 132 L. Ed. 2d 762 (1995) (rejecting such a policy as "a shortsighted and unauthorized view of the Voting Rights Act"). All of these legislatures have labored to develop their redistricting plans against the background of multiple preclearance objections and rejections by DOJ based on this misguided interpretation. See 515 U.S. 900, 115 S. Ct. at 2493; Johnson v. Mortham, 926 F. Supp. 1460, 1486 (N.D. Fla. 1996). In fact, most of these majority-minority district plans were initially created in response to prodding by the Department of Justice. See, e.g., Miller, 515 U.S. 900, 115 S. Ct. at 2483-84; United States v. Hays, 515 U.S. 737, 115 S. Ct. 2431, 2433-34, 132 L. Ed. 2d 635 (1995); Shaw v. Reno, 509 U.S. 630, 633, 125 L. Ed. 2d 511, 113 S. Ct. 2816 (1993).
But the Supreme Court has not responded kindly to legislators' arguments that DOJ's interpretation of the VRA compelled their race-based redistricting plans. The Supreme Court has pointed out that the state legislatures could have requested a declaratory judgment from the District Court for the District of Columbia to resolve the issue. See, e.g., Miller v. Johnson, 115 S. Ct. at 2484.
Bush v. Vera, 517 U.S. 952, 135 L. Ed. 2d 248, 116 S. Ct. 1941 (1996), provides facts most similar to the present case. Like the situation before this court, it was a "mixed motive case" in which the legislature conceded that one of its objectives was to create additional majority-minority districts, but also explained that competing goals (including protection of incumbents) impacted its redistricting. 517 U.S. 952, 116 S. Ct. at 1952. The district court reviewed three basic factors. First, it considered the irregular shape of the three districts in question, noting that in 1980 Texas's plan ranked average in compactness and in the 1991 plan ranked among the worst in the nation in "compactness and regularity of its district shapes." Id. Second, the court perused the legislature's transcripts, finding explicit references to assuring majority-minority districts. See 517 U.S. 952, 116 S. Ct. at 1952-53. Finally, the court contemplated the computer program that aided the creation of the plan by "permitting redistricters to manipulate district lines on computer maps, on which racial and other socioeconomic data were superimposed." 517 U.S. 952, 116 S. Ct. at 1953. The district court then concluded that race was the "predominant factor" affecting the creation of the districts. The Supreme Court affirmed the district court's decision in Bush, noting that "the direct evidence of racial considerations, coupled with the fact that the computer program used was significantly more sophisticated with respect to race than with respect to other demographic data, provides substantial evidence that it was race that led to the neglect of traditional districting criteria here." Id. Despite the conceded desire of the legislature to protect incumbents, these indicators of the supremacy of racial considerations (including a race-sensitive computer districting program) led the Supreme Court to find the Bush district unconstitutional.
Plaintiffs are, therefore, correct in their argument that the New York State Legislature must be held responsible for the intent embodied in the redistricting legislation that it has passed. "Even if it acts under pressure, it has chosen to act." Pltff Mem. Sup. Sum. Judg. at 14. The Legislature must bear responsibility for the constitutional violations in its plans, even if its actions were a consequence of pressure imposed by DOJ's erroneous interpretation of the VRA.
(D) Subordination of Traditional Factors to Race in the Plan
Aside from the overwhelming - and essentially uncontested - affirmative evidence that race was the predominant factor, defendants and intervenors have offered nothing to contradict the equally-powerful evidence that traditional, non-racial factors were also subordinated to race in the referees' creation and the legislature's enactment of the plan. As a preliminary matter, since we are dealing with issues of intent, the significance of the referees' repeated statements in their report that they considered "traditional criteria" only after considering race cannot be overstated. While the implementation of their plan confirms their intent, these statements alone demonstrate that all traditional districting criteria, including incumbency, were subordinated to race in the drawing of the 12th CD.
Defendant-intervenor PRLDEF relies upon the fact that the referees' plan protected incumbents to argue that the 12th CD was not the product of race-based districting. See PRLDEF Mem. Opp. Sum. Judg. at 40-42. There is no doubt that the peculiarities of some district lines reveal that protection of incumbents substantially affected the shape of the districts in the referees' plan. Yet while incumbency took priority over all other traditional criteria in the creation of the districts, nevertheless it was at all times still secondary to race. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees' Report at 15, 30.
The referees' report does make mention of and pay deference to the notion of "displacement," a term we view as a proxy for incumbent protection.
According to the referees' report:
For the constituents in each of the five present minority districts, the Referees' Final Plan displaces the least number.
On the average, the Master's Final Plan "displaces" 58% of the constituents, while the Referees' Final Plan "displaces" only 25%.