this allegation, plaintiffs submitted two campaign letters that were signed by sitting School Board Trustees; the letter warned voters to protect their property values by supporting white ICA-endorsed candidates to the School Board. Pl. Ex. 1.
Likewise, two voters submitted affidavits declaring that they had received phone calls from ICA members requesting support for ICA-backed candidates; the callers warned that if minority candidates were elected, they would undermine the quality of public education in Mount Vernon and would cause a decline in property values. Affidavit of Linda Castro, dated March 27, 1997; Affidavit of George Berger, dated April 18, 1997.
While such campaign tactics are disturbing, they are not electoral "practices or procedures." They were not implemented by any official actor with responsibility for conducting the elections. The Board Trustees do not conduct or supervise elections. Nor did plaintiffs offer any proof implicating DeBenedictus or his election staff in these campaigns, other than mere speculation based on DeBenedictus' ICA membership. See Tr. 136-38. See Welch v. McKenzie, 765 F.2d 1311, 1316 (5th Cir. 1985) (no § 2 violation because fraudulent acts were committed by candidate and his supporters who were not officials responsible for the election).
2. Waiting Time and Level of Confusion at Southside Polling Places
Plaintiffs generally claim that the School Board's practices result in longer lines and greater confusion at southside polling sites, resulting in the loss of minority votes.
As an initial matter, the Court notes that long lines, delays and confusion -- in and of themselves -- do not constitute any "practice or procedure" of the School Board. Indeed, they may reflect nothing more than the ineffectiveness or inefficiency of individual election workers.
Moreover, plaintiffs have not established the existence of longer lines, greater confusion, or less adequate assistance at southside polling locations than at northside polling sites.
While fewer than eight voters and poll inspectors submitted statements or testimony attesting to lines and delays at southside schools,
the testimony of two of plaintiffs' witnesses indicates that they waited, at most, 10 to 20 minutes at southside polling places. Tr. 99, 103, 113. Another statement submitted by plaintiffs indicates there were long lines at Lincoln school, on the northside. Coleman Aff., Ex. H (Statement of Vanessa Fan).
As for their confusion claim, plaintiffs point only to a single voter's experience as a voter who did not vote on account of confusion.
Moreover, plaintiffs submitted two voter statements to the effect that confusion existed at Lincoln and Columbus schools, on the northside. Coleman Aff., Ex. H (Statements of Vanessa Fan and Carla James).
3. Voter Challenges
At the hearing, plaintiffs raised the point that -- this year -- they were not provided the opportunity to view and to challenge the buff cards two weeks before the May 6, 1997 election. See N.Y. Educ. Law § 2606(2).
The School Board has made the buff cards available to plaintiffs, albeit a few days late. Further, it has provided plaintiffs with over 100 challenge forms. Tr. 249-50.
4. Keeping Persons Without Official Election Functions from within 100 Feet of the Polling Places
Plaintiffs claim that the School Board has improperly permitted school administrators and teachers, who allegedly intimidate voters, to be within 100 feet of polling places. New York law prohibits electioneering within 100 feet of polling places. See N.Y. Educ. Law § 2609(4-a)(b) (McKinney 1995).
Plaintiffs, however, offer no evidence that any voter was intimidated by school personnel near the polls, or that anyone without official election functions electioneered within 100 feet of the polls.
Moreover, even if plaintiffs' conclusory allegation were true, plaintiffs have not shown that this is a "procedure or practice" of the School Board.
C. Totality of the Circumstances Analysis
Before determining the strength of plaintiffs' voting rights claims, the Court recognizes that it must consider the "totality of the circumstances." In this regard, the Court has considered the evidence offered by plaintiffs that describes general racial tension in Mount Vernon and disparities in the quality of education between northside and southside schools, and the statistics compiled by plaintiffs' counsel regarding racial bloc voting. See Pl. Ex. 4, 5; Tr. 62, 92; Verif. Compl. PP 17-19 & Ex. B; Coleman Aff. P 6 & Ex. A, B.
The Court also notes that African-Americans in Mount Vernon have been elected to numerous positions of political significance. See Coleman Aff. P 3. Although such success at the polls is not fatal to plaintiffs' claims, Gingles, 478 U.S. at 75, the Court considers it meaningful in assessing the totality of the circumstances, see Niagara Falls, 65 F.3d at 1009 (noting electoral success of black candidates).
Considering these circumstances, and in light of the deficiencies in the plaintiffs' proof as discussed throughout this Opinion, the Court concludes that plaintiffs have failed to raise sufficiently serious questions going to the merits of their voting rights claims in order to warrant the issuance of preliminary injunctive relief.
III. Department of Justice Monitoring
Pursuant to 42 U.S.C. § 1973a, a district court may authorize the appointment of federal examiners to monitor the School Board elections upon a determination that it would be "appropriate" and "necessary" to enforce voting guarantees. 42 U.S.C. § 1973a(a). As previously stated, the Court has found that at this preliminary stage in the proceedings the plaintiffs have been unable to meet their burden in establishing even sufficiently serious questions going to the merits of their claim that voting rights have been violated. Based on the evidence presented by plaintiffs, the Court cannot find that Department of Justice monitoring is either appropriate or necessary.
For the reasons, stated above, plaintiffs' request for injunctive relief is denied. Plaintiffs' request for an order authorizing the appointment of federal monitors is also denied.
BARBARA S. JONES
United States District Judge
DATED: White Plains, NY.
May 1, 1997