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October 20, 1997

DOROTHY GOOSBY, SAMUEL PRIOLEAU, XAVIER MORALES, and MILADYS MORALES, Plaintiffs, against TOWN BOARD OF THE TOWN OF HEMPSTEAD, NEW YORK, GREGORY P. PETERSON, RICHARD A. ZAGARINO, CURTIS FISHER, JOSEPH RA, ANTHONY SANTINO, JOSEPH KEARNEY, in their official capacities as members of the Town Board of the Town of Hempstead, NASSAU COUNTY BOARD OF ELECTIONS, JOHN DeGRACE and STEVEN SABBETH, in their official capacities as Commissioners of Elections of Nassau County, Defendants.

The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 Plaintiffs brought this action against the Town Board of the Town of Hempstead ("the Town Board") and other defendants alleging violations of Section 2 of the Voting Rights Act of 1965 and the United States Constitution. On February 20, 1997, I concluded that the at-large system used for electing members of the Town Board operates to invidiously exclude black voters from effective participation in political life in the Town of Hempstead ("the Town"), in violation of Section 2. I ordered the Town Board to submit a remedial plan that divides the Town into six single-member voting districts. See Goosby v. Town Board of the Town of Hempstead, 956 F. Supp. 326, 356 (E.D.N.Y. 1997).

 On May 16, 1997, the Town Board submitted two proposals. The first, which it urges me to adopt, is a highly unusual two-district plan. One of the two districts is a single-member majority-minority district that is identical to the majority-minority district proposed by plaintiffs at trial. However, under the Town Board's two-district plan, the rest of the Town is a single, multi-member district for the election of the remaining five members of the Town Board. A rough map of the two-district plan is appended to this decision at A-1.

 The second proposed plan, which the Town advances only in the event I reject the first, is a six-district plan that is substantially similar to the plan proposed by plaintiffs at trial. A rough map of the plan is appended at A-2; a precise description of the plan by Census tract and block follows at A-3 through A-10.

 Plaintiffs oppose the two-district plan, contending that it violates the Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 of the Voting Rights Act of 1965. They have no objection to the six-district plan proposed in the alternative.

 For the reasons set forth below, I conclude that the two-district plan proposed by the Town Board is unconstitutional, and thus may not be implemented to remedy the Section 2 violation. The Town Board's alternative proposal -- the six-district plan -- is constitutional, and I hereby order that it be implemented. The implementation of this remedial plan is stayed pending appeal. Plaintiffs' recently filed motion to enjoin the upcoming election is denied.


 Redistricting is a legislative task that federal courts "should make every effort not to pre-empt." Wise v. Lipscomb, 437 U.S. 535, 539, 57 L. Ed. 2d 411, 98 S. Ct. 2493 (1978). Where a court has struck down a voting system, it must give the appropriate elected body an opportunity to propose a remedial plan. See id. at 540. If it submits such a plan, the court must accord the proposal substantial deference. It does not matter whether the court considers the proposal the "best" plan, and it may not reject the plan to adopt what it considers to be a better one. Rather, the court's role is only to consider whether the plan proposed by the elected body is legally acceptable, i.e., whether it comports with the requirements of the Voting Rights Act and the Constitution. See Upham v. Seamon, 456 U.S. 37, 42-43, 71 L. Ed. 2d 725, 102 S. Ct. 1518 (1982).

 A. The Scope of Review

 The first step in assessing a proposed Section 2 remedy is determining whether it is legislative or judicial. This categorization affects the scope of review. For example, a judicially crafted remedy may not employ multi-member districts "'absent insurmountable difficulties'" in using single-member districts. Chapman v. Meier, 420 U.S. 1, 18, 42 L. Ed. 2d 766, 95 S. Ct. 751 (1975) (quoting Connor v. Johnson, 402 U.S. 690, 692, 29 L. Ed. 2d 268, 91 S. Ct. 1760 (1971)); see McDaniel v. Sanchez, 452 U.S. 130, 139, 68 L. Ed. 2d 724, 101 S. Ct. 2224 (1981). Also, since "'reapportionment is primarily the duty and responsibility of the State,'" the Supreme Court has tolerated "greater flexibility" in applying the one-person, one-vote requirement to legislatively crafted plans. Id. at 139 (quoting Chapman, 420 U.S. at 27). A court-crafted plan, on the other hand, "'must ordinarily achieve the goal of population equality with little more than de minimis variation.'" Id. (quoting Chapman, 420 U.S. at 26-27). *fn1"

 The key factor in determining whether a proposed remedy is legislative or judicial is whether the proposal reflects "the policy choices of the elected representatives of the people." McDaniel, 452 U.S. at 153. The legislative body's legal authority to enact a reapportionment plan is not dispositive. See id. at 152. Rather, "the essential characteristic of a legislative plan is the exercise of legislative judgment." Id. "The fact that a reapportionment plan was crafted in response to an order of a federal court does not change its essential character as a legislative plan." Id. at 146.

 Although proposed in compliance with an order of this Court, the plans proposed by the Town Board clearly reflect the policy choices of its members. The Town Board employed an expert, Dr. Harold W. Stanley, to devise its proposals. The six-district back-up plan draws on the proposal made by plaintiffs at trial, but does not adopt it wholesale. In developing its plans, the members of the Town Board, acting as elected representatives of the people of the Town, *fn2" placed their imprimatur on the plans. I conclude that the plans reflect policy choices made by the Town Board and as such must be considered legislative plans.

 B The Constitutionality of the Plans

 A reapportionment plan adopted in order to remedy a violation of Section 2 of the Voting Rights Act must be constitutional. In reviewing the plans proposed by the Town Board, two constitutional requirements are relevant: the one-person, one-vote requirement and the prohibition on improper use of race in districting.

 1. One-Person, One-Vote

 The Equal Protection Clause requires that apportionment be based on the general principle of population equality, i.e., "one-person, one-vote." Reynolds v. Sims, 377 U.S. 533, 568, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). This principle applies to apportionment for local elections as well as state and federal elections. See Abate v. Mundt, 403 U.S. 182, 185, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971). In some circumstances, precise equality of population is required. See Karcher v. Daggett, 462 U.S. 725, 744, 77 L. Ed. 2d 133, 103 S. Ct. 2653 (1983) (congressional districting plans that are not "functionally equal" in population violate Equal Protection Clause; districts varied 0.6984% in population). However, plans for the election of state legislators are accorded greater flexibility in the application of the one-person, one-vote rule. The Supreme Court has held that such apportionment plans generally satisfy the one-person, one-vote requirement if they have a maximum population deviation among districts of less than 10%. See Brown v. Thomson, 462 U.S. 835, 842, 77 L. Ed. 2d 214, 103 S. Ct. 2690 (1983); see also White v. Regester, 412 U.S. 755, 764, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973). The Court also has recognized that "slightly greater percentage deviations may be tolerable for local government apportionment schemes." Abate, 403 U.S. at 185 (approving population deviation of 11.9% for local government in Rockland County, New York).

 The Town of Hempstead has a total population of 725,639. The ideal district population for a six-district plan would be 120,939. The total population in District 1, the proposed majority-minority district, would be 117,884, a deviation of 2.53% from the ideal. The total population of the proposed multi-member district 2 would be 607,755, which would deviate from the ideal by .51%. Given the "greater flexibility" accorded state and local governments, McDaniel, 452 U.S. at 138, I conclude that these deviations from the ideal population are constitutional.

 The Town Board's six-district plan also satisfies the one-person, one-vote requirement. District 5 is the smallest district, with a population of 117,751; District 4 is the largest district, with a population of 124,754. The total population deviation is therefore 7,003 -- a total deviation of 5.79% from the ideal district size. This population deviation is well within the limits established by the Supreme Court.

 2. "Wrongful Districting"

 In Shaw v. Reno, 509 U.S. 630, 125 L. Ed. 2d 511, 113 S. Ct. 2816 (1993) ("Shaw I "), the Supreme Court recognized a new cause of action, under the Equal Protection Clause of the Fourteenth Amendment, that places limits on the use of race in districting. Specifically, "a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification." Id. at 649. This cause of action has been referred to as "wrongful districting." See Pamela S. Karlan, "Still Hazy After All These Years: Voting Rights In The Post-Shaw Era," 26 Cumb L. Rev. 287, 290 (1996).

 In recognition of the fact that districting is virtually always race-conscious, a plurality of the Supreme Court has observed that the "strict scrutiny" envisioned by Shaw I does not apply to all districting schemes in which race is a factor, even if they result in the intentional creation of majority-minority districts. Rather, for strict scrutiny to apply, plaintiffs must show that "race was the predominant factor motivating the legislature's decision," that is, "that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations." Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 2488, 132 L. Ed. 2d 762 (1995); see Bush v. Vera, 517 U.S. 952, 135 L. Ed. 2d 248, 116 S. Ct. 1941, 1954 (1996); Shaw v. Hunt, 517 U.S. 899, 135 L. Ed. 2d 207, 116 S. Ct. 1894, 1902 (1996) ("Shaw II "). If a challenge to a districting plan meets this threshold burden of proving that race was the predominant factor motivating the legislature, strict scrutiny applies; unless the challenged features of the plan are narrowly tailored to serve a compelling state interest, the plan must be invalidated as unconstitutional. See Bush, 116 S. Ct. at 1951.

 The foregoing arguably oversimplifies the state of this new cause of action. The members of the Supreme Court are divided in several critical respects. For example, at least three justices apparently believe that strict scrutiny should be applied to all cases in which majority-minority districts are intentionally created. See id. at 1971-72 (Kennedy, J. concurring); id. at 1972-74 (Thomas, J., concurring). The Court is similarly divided over the question of whether compliance with Section 2 of the Voting Rights Act of 1965 is a compelling state interest that justifies race-conscious districting. It has assumed that to be the case without deciding the issue, see, e.g., id. at 1960, but Justice O'Connor's separate concurring opinion in Bush v. Vera, expressing her view that such compliance is a compelling state interest, was not endorsed by the justices who joined her plurality opinion, see id. at 1968-70.

 These are difficult issues, and the deep divisions within the Supreme Court have prevented it from providing much-needed guidance to lower courts "as they toil with the twin demands of the Fourteenth Amendment and the Voting Rights Act." Id. at 1968 (O'Connor, J., concurring). I nonetheless conclude that there is no view of race-conscious districting that would fail to subject the two-district plan proposed here to strict scrutiny. I also conclude that even if a legislature's effort to remedy an actual violation of Section 2 entitles it to greater leeway in considering race, the two-district plan must be rejected as unconstitutional.

 As for the six-district alternative plan, it does not warrant strict scrutiny; even if it did, it would survive constitutional attack.

 a. The Two-District Plan

 (i) The Nature of the Proposed Plan

 The Town Board seeks to defend its proposed two-district plan with several arguments. One is its assertion that courts, including the Supreme Court, have consistently upheld as constitutional electoral schemes "consisting of a mixture of single-member and multi-member districts." Memorandum at 8. *fn3" The Town Board seeks support from a number of cases in which such plans have been approved, and proclaims that the proposed two-district plan is "functionally indistinguishable from" the plan upheld by the Fourth Circuit in Hines v. Mayor & Town Council of Ahoskie, 998 F.2d 1266 (4th Cir. 1993). Reply Memorandum at 6. This argument is misleading. The Town Board's description of its two-district plan as a "mixed" electoral scheme akin to those in the cases it cites obscures a critical distinguishing feature of the Town's proposed plan. In fact, a more careful examination of the proposed scheme reveals that it is quite unusual.

 There are three electoral formats commonly used by municipal governments in the United States: at-large systems, single-member district systems, and mixed systems. In an at-large system, all members of the legislative body are elected from a district that includes all members of the electorate. In a single-member district system, the legislators are elected from compact, contiguous and essentially equipopulous districts. In a mixed system, some members of the legislature are elected from single-member districts, while other members, usually a smaller number, are elected at large. *fn4" In a typical mixed system, the districts cover the entire municipality. Thus, each voter is represented both by one or more legislators elected from a district and one or more legislators elected at large.

 As noted above, the Town Board relies on several cases involving these mixed systems. *fn5" Hines, for example, endorsed an election plan that divided the Town of Ahoskie, North Carolina into two districts, one majority-black and the other majority-white. Two Town Council members would be elected from each district by a plurality vote, and a fifth member of the Town Council would be elected at-large form the entire town population. See Hines, 998 F.2d at 1269; see also Baird, 976 F.2d 357 at 358 (the challenged electoral plan included 25 single-member districts and four representatives elected at-large); Tallahassee Branch of NAACP, 827 F.2d 1436 at 1437 (five single-member districts and two at-large seats); James, 611 F. Supp. 25 at 27 (three multi-member districts for election of three representatives per district and two at-large representatives). In all of those cases, all voters were treated the same in this respect: each voter would cast a vote for one or more representatives of the voter's district and one or more at-large representatives.

 The two-district plan proposed here is not such a system. If adopted, the voters in the Town of Hempstead will not be treated the same. They will not receive a combination of district and at-large representation on the Town Board. To the contrary, the plan seeks to carve the Town into two groups of voters: one-sixth of the Town will have a district representative, whereas the remainder of the population will receive the quasi-at-large representation of five members who represent the other five-sixths of the Town.

 Irrespective of one's view of the "much mooted" comparative merits of the single-member versus at-large approach to local representation, Whitcomb v. Chavis, 403 U.S. 124, 154 n.33, 29 L. Ed. 2d 363, 91 S. Ct. 1858 (1971), there is no dispute that these approaches result in different forms of representation. The two-district plan advanced by the Town Board thus distinguishes itself from the cases cited above by providing different forms of representation to the people in the Town of Hempstead. This feature of the proposed plan makes it extremely unusual. The Town Board's suggestion that it is a typical "mixed" electoral scheme of the sort that has been consistently upheld, see Memorandum at 8, is thus inaccurate.

 I recognize that this unusual mixture of single-member and multi-member districts is not unprecedented. For example, plaintiffs rely on Simkins v. Gressette, 631 F.2d 287, 290 (4th Cir. 1980), in which a reapportionment plan for the South Carolina legislature included three single-member districts and thirteen multi-member districts for the election of from two to five members each. However, the court in Simkins emphasized that there was not the "slightest evidence" of racial motivation in the classification of the voters into the different types of districts. Id. at 292 (quoting McCollum v. West, No. 71-1211 (D.S.C. Apr. 7, 1972)). Moreover, I have found no case involving a challenge to a hybrid plan like the one proposed here, i.e., one single-member district and one multi-member district. In short, the precise electoral plan advocated by the Town Board would be highly unusual, perhaps unique, in the annals of municipal electoral formats in this country. I have no doubt that, if accepted, it would be the only electoral scheme with a highly distinctive feature attributable solely to a racial classification. *fn6"

 The sole basis for this extraordinary system -- for this formal political division of the people in the Town of Hempstead -- is race. *fn7" There has been no attempt to justify it by reference to a single traditional districting principle. Although the Town Board makes passing reference to its belief that local government "operates better when elected officials must answer to the entire electorate," and to the preference in New York State for the "at-large system" of town government, Memorandum at 17, those principles obviously played no role in the proposed system. If the Town Board has its way, no member of the Town Board would "answer to the entire electorate," and none would be elected at-large. *fn8"

 Rather, it has proposed a system that it grudgingly admits in is reply memorandum is "atypical," Reply Memorandum at 2, based solely on racial considerations. The Town Board does not even deny plaintiff's claims that the two-district plan evokes images of apartheid, and resembles India's reserved seats for scheduled castes. Instead, it places the blame for this on plaintiffs: "If the plan smacks of apartheid, or resembles the 'set aside' seats of India, it is because District 1 was drawn along racial lines, at plaintiffs' insistence, and not because there is only one other district instead of five." Reply Memorandum at 5 (citation omitted). In short, strict scrutiny must be applied to the two-district plan because race is not merely the predominant factor motivating the classification of the voters, it is the only factor.

 (iii) Plaintiffs' "Standing" to Challenge the Two-District Plan

 The Town Board contends that once plaintiffs get their majority-minority district, the electoral plan for the rest of the Town is none of their business. *fn9" The Town Board does not explicitly contend that plaintiffs lack standing to challenge the two-district plan. Nor could it; as residents of the district that the Town Board seeks to isolate from "town-wide" representation on racial grounds, plaintiffs obviously have the standing to allege wrongful districting. See United States v. Hays, 515 U.S. 737, 115 S. Ct. 2431, 2436, 132 L. Ed. 2d 635 (1995) (plaintiffs residing in a racially gerrymandered districts "may suffer the special representational harms racial classifications can cause" and thus have standing to challenge them). However, the Town Board's argument suggests that plaintiffs, having received their remedy for the vote dilution that violated Section 2, have no cognizable objection to the unusual hybrid electoral plan created to afford them that relief.

 This argument misapprehends the nature of the cause of action identified in Shaw I. The new, "analytically distinct" claim of wrongful districting does not require proof that plaintiffs were denied the right to vote or that their votes were diluted. Shaw I, 509 U.S. at 632; see Pamela S. Karlan, "Still Hazy After All These Years: Voting Rights In the Post-Shaw Era," 26 Cumb. L. Rev. 287, 290 (1996). The wrongful districting cause of action prohibits the excessive use of race in drawing district lines not because of any discrete harm to particular voters, but because it "injures voters in other ways. It reinforces racial stereotypes and threatens to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole." Shaw I, 509 U.S. at 650. Shaw I thus affords relief under the Equal Protection Clause for what has been termed "expressive harms" -- harms that result "from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about." Richard J. Pildes & Richard G. Niemi, "Expressive Harms, 'Bizarre Districts,' And Voting Rights: Evaluating Election District Appearances After Shaw v. Reno," 92 Mich. L. Rev. 483, 506-07 (1993). Therefore, even if the Town Board is correct in asserting that plaintiffs do not suffer individual, concrete harm, that does not defeat their constitutional challenge to the two-district plan.

 It is difficult to conceive of a districting proposal that inflicts greater "expressive harm" than the one at issue here. The single-member district in the proposed two-district plan would of course be viewed as the seat reserved for African-Americans, while the other district would be viewed as the domain of the white voters. The separation of nearly all black citizens into one single-member district and nearly all whites into a large multi-member one "bears an uncomfortable resemblance to political apartheid." Shaw I, 509 U.S. at 647. The plan also creates the risk of pitting the member of the Town Board from the "black district" against the five members elected from the "white district." This kind of division threatens to "balkanize us into competing racial factions" and "carry us further from the goal of a political system in which race no longer matters -- a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." Id. At 657. In short, I conclude that the Town Board's two-district proposal is the type of districting plan that Shaw I intended to prohibit.

 Moreover, I cannot conclude that plaintiffs would suffer only these "expressive" harms if the two-district plan is adopted. There is a troubling aspect of this case that is not present in other wrongful districting cases. Other wrongful districting cases generally involve challenges to districts created to benefit minorities. Over time, these challenges will help demarcate the boundaries between appropriate and inappropriate race-consciousness in districting. For now, it appears that when such districting otherwise complies with "traditional" districting principles, it is considered constitutionally appropriate to ensure evenhanded treatment; but when race has been "singled out for exceptionally preferential treatment," the districting has been transformed from nondiscrimination into impermissible affirmative action. Richard H. Pildes, "Principled Limitations on Racial and Partisan Redistricting," 106 Yale L.J. 2505, 2510-11 (1997).

 This case is different because the challenged conduct is not the creation of the majority-minority district itself, but of the highly unusual electoral plan in which the Town Board has embedded it. It is also different because the challenged conduct was not intended to be "preferential" treatment. Indeed, it seems like an effort to punish the black communities in the Town for successfully breaching what the Town Supervisor described as the "oneness" of the "suburban mentality" in the Town. Goosby, 956 F. Supp. at 346. The unusual hybrid government would likely remedy the illegal vote dilution, but it would also punish the black communities by isolating them and their elected representative. In addition to the "expressive" harm this inflicts, the trial testimony leads me to conclude that it is designed to facilitate a concrete harm as well. Specifically, the creation of the unusual multi-member district for the remainder of the Town appears designed to enhance the ability of the Town Board to act as the Town Supervisor predicted it would act if plaintiffs prevailed in this case: parochially, in ways that will permit it to do the "wrong thing" politically with respect to the newly created "zone." Id. at 347. In sum, even if plaintiffs' standing to challenge the two-district plan required a showing of concrete harm, I would find that such a showing has been made.

 (iv) The Compelling State Interest

 To survive strict scrutiny, a redistricting plan must be narrowly tailored to meet a compelling state interest. See Bush, 116 S. Ct. at 1960. As noted above, the Supreme Court has yet to address directly the question whether compliance with Section 2 of the Voting Rights Act is a compelling state interest sufficient to overcome strict scrutiny. See id. at 1960. However, it appears that a majority of justices agree that it is. See id. at 1969 (O'Connor, J., concurring); id. at 1989 (Stevens, J., joined by Ginsburg and Breyer, JJ., dissenting); id. at 2007 (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting). Lower courts have repeatedly held that Section 2 is itself constitutional, suggesting that satisfying Section 2 would be a compelling state interest. See id. at 1968 (O'Connor, J., concurring) (collecting cases). "The results test of § 2 is an important part of the apparatus chosen by Congress to effectuate this Nation's commitment 'to confront its conscience and fulfill the guarantee of the Constitution' with respect to equality in voting." Id. at 1969 (O'Connor, J., concurring) (quoting S. Rep. No. 97-417 (1982), at 4, reprinted in 1982 U.S.C.C.A.N. 177, 181). As Justice Souter has observed, holding that Section 2 is not a compelling state interest would "bring the Shaw cause of action to what would be the cruelly ironic point of finding in the Voting Rights Act of 1965 (as amended) a violation of the Fourteenth Amendment's equal protection guarantee." Id. at 2007 (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting). Accordingly, I hold that remedying a violation of Section 2 of the Voting Rights Act of 1965 is a compelling state interest.

 (v) The Requirement of Narrow Tailoring

 In complying with my order to propose a remedy for the Section 2 violation, the Town Board was permitted to elevate race as a districting principle no more than was reasonably necessary to supply the remedy. See Bush, 116 S. Ct. at 1961. The two-district plan clearly fails to meet this requirement. As I found in my prior decision, a majority-minority district can readily be created in the Town even if race is subordinated to the traditional districting principles of one-person, one-vote, compactness, and conformance with existing political geography. See Goosby, 956 F. Supp. at 333, 350. The plan plaintiffs proposed at trial accomplished that result, as does the six-district plan proposed as an alternative by the Town Board. In light of the ready availability of these remedies, there was no need to create the bizarre hybrid two-district electoral plan the Town Board proposed, and it is difficult to fathom why the Town Board would strain so hard to create such a divisive proposal. In any event, the unusual ...

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