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COLEMAN v. BOARD OF EDUC. OF MT. VERNON

May 1, 1997

GLORIA T. COLEMAN and THE COALITION FOR THE EMPOWERMENT OF PEOPLE OF AFRICAN ANCESTRY, on behalf of its African-American members who are registered voters, Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE CITY OF MOUNT VERNON; M. GRACE ANKER, DONALD P. AUGUSTINE, JOSEPH A. CARVALHO, BENJAMIN CONSOLAZIO, ANTHONY M. MOSCA, LEONARD SARVER and MARYANN TARTAGLIA, in their capacities as the Trustees of the Board of Education of the City of Mount Vernon; and ELIA C. DeBENEDICTUS, in his capacity as Clerk of the Board of Education of the City of Mount Vernon, Defendants.



The opinion of the court was delivered by: JONES

 BARBARA S. JONES, United States District Judge:

 Plaintiffs Gloria Coleman and the Coalition for the Empowerment of People of African Ancestry ("CEPAA") ask this Court to enjoin the Board of Education of Mount Vernon ("the School Board"), its Trustees, and its Clerk from violating state and federal law during the upcoming May 6, 1997 election for five of nine Trustee seats on the School Board. Plaintiffs also ask this Court to issue an order, pursuant to 42 U.S.C. § 1973a, authorizing the appointment of federal examiners to monitor the election.

 After considering the parties' submissions and the testimony taken over three days, and for the reasons discussed below, the Court denies plaintiffs' requests.

 FACTS

 According to plaintiffs, the City of Mount Vernon has a population of approximately 70,000, of whom approximately 55% are African-American and 25% are white. Hispanic and other minority groups make up the remaining 20%. Verified Complaint ("Verif. Compl.") PP 10, 14.

 Historically, voters in Mount Vernon have elected African-American candidates in municipal, county, and state elections. Specifically, African-American candidates have prevailed in races for Mayor, Comptroller, the Board of Estimate, the City Council, Westchester County positions, the New York State Assembly, the New York State Senate, and the School Board. Verif. Compl. P 12. Plaintiffs contend, however, that the School Board remains a "bastion of white power." Plaintiffs' Memorandum of Law, dated April 1, 1997, 4.

 CEPAA was founded in 1993 as a volunteer organization of African-American residents from Mount Vernon interested in education issues. Among other activities, CEPAA endorses African-American candidates in various School Board elections. Verif. Compl. P 4. Plaintiff Gloria Coleman chairs CEPAA's Civil Rights and Political Action Committee. Aff. of Gloria T. Coleman ("Coleman Aff."), dated March 31, 1997, P 1.

 The School Board Election Process

 As Clerk of the School Board, Elia DeBenedictus ("DeBenedictus") supervises School Board elections; his staff is responsible for administering them. Aff. of Elia DeBenedictus ("DeBenedictus Aff."), dated April 14, 1997, 2; Tr. 127. *fn1" DeBenedictus and several School Board Trustees are members of the Italian Civic Association ("ICA"), an organization in Mount Vernon that endorses Italian-American candidates for the School Board. Tr. 132. The ICA may have once, during the 1970's, endorsed an African-American candidate; CEPAA has never endorsed a white candidate. Tr. 56, 133.

 Although voters are assigned to specific school board election districts, *fn2" the voting for School Board elections is at large. Tr. 213. In 1996, a total of 10,211 people voted in the School Board election. In 1995, the figure was 6,571. Pl. Ex. 3.

 The School Board's voter register is based upon the Westchester County Board of Elections Registry ("County Registry"). The School Board prepares a separate "buff card" for each voter on the County Registry and places these cards in separate notebooks, one for each school election district. Tr. 148, 206. A buff card contains a voter's name, address, and signature. *fn3" See Def. Ex. A (sample buff card).

 Before a person can vote at a polling site in any particular year, that person's buff card must first be located by a poll inspector. The person must then sign his or her buff card, and the signature is compared to that already on the buff card. Tr. 224. If the signature matches, the person proceeds to vote using the voting machines.

 If no buff card is found, the voter may vote by using paper ballots -- "affidavit ballots" -- that are kept at the polling sites. Tr. 237; Affidavit of Frank Luiso ("Luiso Aff."), dated April 14, 1997, 4.

 Alternatively, a voter may vote by absentee ballot obtained prior to election day. Voters receive absentee ballots if they (1) appear on the Westchester County Permanently Sick and Disabled ("PSD") List, *fn4" see Def. Ex. AA (PSD List), or (2) fill out an application requesting an absentee ballot and qualify to receive one. *fn5" Tr. 176-77, 231.

 Each candidate is permitted to send two to three poll watchers of his or her choice to each polling site to observe the elections. These poll watchers also oversee the opening of absentee and affidavit ballots. N.Y. Educ. Law §§ 2611, 2035 (McKinney 1995).

 Plaintiffs' Claims

 Plaintiffs maintain that the School Board's electoral practices discourage or dilute the effect of minority voting. Specifically, they claim that the School Board elections are marked by: irrational election districts, inaccurate voting registers, the failure to send absentee ballots to minority voters, bias and inadequate assistance at southside *fn6" polling places, racist campaign appeals, an inadequate system for challenging voters' registration status, and failure to keep persons without official election functions from within 100 feet of polling places. At least some of these practices, plaintiffs allege, cause long lines and voter confusion, resulting in lost minority votes.

 Despite these alleged irregularities -- which plaintiffs maintain have existed for many years, Tr. 76, 79, 85-86, 403, -- at least two African-American candidates were elected to the School Board prior to 1992, and CEPAA-backed candidates won four of the five open seats during the 1994 and 1995 elections. Tr. 25, 60; DeBenedictus Aff., 4-5. *fn7"

 When CEPAA-backed candidates did not prevail in 1993, CEPAA unsuccessfully sought to stay the election results in state and municipal courts. *fn8" CEPAA then sought a stay of and challenged the results in an appeal to the New York State Commissioner of Education. In that appeal, CEPAA raised many of the same issues presented in this case, including long lines at polling places, improper administration of affidavit ballots, and inaccurate voting registers. See DeBenedictus Aff., Ex. A. The Commissioner denied CEPAA's application for a stay and dismissed its appeal, finding that the petitioners did not meet their burden of proof to establish facts upon which they sought relief. DeBenedictus Aff., 3 & Ex. A.

 CEPAA did not challenge the 1994 or 1995 elections, in which CEPAA-endorsed candidates prevailed.

 After the CEPAA-backed candidates lost their bids for election in 1996, CEPAA appealed to the Commissioner of Education in order to challenge the results. *fn9" The Commissioner denied CEPAA's initial application to stay the seating of the elected candidates; the Commissioner's final decision on the appeal is still pending. DeBenedictus Aff., Ex. D.

 The plaintiffs now turn to federal court for relief. On April 1, 1997, they filed a Verified Complaint alleging violations of the Voting Rights Act, 42 U.S.C. § 1971 et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Fourteenth and Fifteenth Amendments. The next day, plaintiffs moved for a preliminary injunction. A hearing began on April 18, 1997, but was halted on consent of all parties in order to pursue settlement efforts. When negotiations broke down, the hearing resumed on April 28, 1997 and concluded April 29, 1997.

 DISCUSSION

 I. Standards for Granting a Preliminary Injunction

 In order to prevail in their request for preliminary injunctive relief, plaintiffs must demonstrate (1) irreparable harm, and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271, 274 (2d Cir. 1994) (citing Jackson Dairy v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979)). A preliminary injunction is an extraordinary remedy, and should not be routinely granted. See Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986).

 The deprivation or dilution of voting rights constitutes irreparable harm. See Puerto Rican Legal Defense & Education Fund, Inc. v. City of New York, 769 F. Supp. 74, 79 (E.D.N.Y. 1991); see also Reynolds v. Sims, 377 U.S. 533, 561-62, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964) ("The right of suffrage is a fundamental matter in a free and democratic society . . . any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized"). *fn10"

 There is authority that parties seeking a preliminary injunction in the context of election challenges must meet the more rigorous "likelihood of success" standard. See Able v. United States, 44 F.3d 128, 130-31 (2d Cir. 1995) (citing Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)) (more rigorous standard applies where moving party seeks to stay governmental action taken in the public interest pursuant to a statutory scheme); Diaz v. Silver, 932 F. Supp. 462, 465 (E.D.N.Y. 1996) (applying "likelihood of success" standard); LeBlanc-Sternberg v. Fletcher, 763 F. Supp. 1246, 1249 (S.D.N.Y. 1991) (same). *fn11"

 The Court need not reach the issue of which standard applies, however, as plaintiffs have not sufficiently shown either likelihood of success on the merits or sufficiently serious questions going to the merits of their claims.

 II. The Voting Rights Act

 In order to maintain an action under § 2 of the Voting Rights Act, plaintiffs must prove that (1) a "standard, practice, or procedure" (2) impairs the ability of minority voters to participate equally in the political process and to elect candidates of their choice. 42 U.S.C. § 1973(b); Thornburg v. Gingles, 478 U.S. 30, 47, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986); United States v. Jones, 57 F.3d 1020, 1023 (11th Cir. 1995). No showing of discriminatory intent is required to prove a violation of § 2. Chisom v. ...


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