argue] the Constitution requires a good faith effort to achieve a deviation as low as practicable, not an arbitrary, secretive process that attempts to achieve a deviation as close to 10% as possible that violates every districting principle but enhances the political power of the controlling political party." Pls.' Mem. Supp. at 26.
B. Defendants' Position
Preliminarily it should be noted that plaintiffs acknowledge that the current map "has an estimated total deviation rate of 8.94%" (Compl., ¶ 218).*fn2 That brings into play the so-called 10% rule applicable to state and local elections. Marylanders for Fair Representation v. Schaefer, 849 F. Supp. 1022, 1030 (D.Md. 1994). If the deviation rate is less than 10%, the difference is considered to be a "minor deviation" (Brown v. Thomson, 462 U.S. 835, 842-43, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983)) and the redistricting plan is presumptively valid. Marylanders for Fair Representation, 849 F. Supp. at 1031. Conversely, a plan with a deviation of more than 10% "creates a prima facie case of discrimination and therefore must be justified by the state." Brown v. Thomson, 462 U.S. at 842-43, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983).
Having discussed the 10% rule, attention will now be directed to defendants' argument in support of their motion to dismiss the complaint under Rule 12(b)(6). In essence, defendants' argument is that plaintiffs, given that the maximum deviation rate is less than 10%, must plead facts which, if ultimately established, would indicate that the "minor" deviation in the redistricting plan is a result of the promotion of an unconstitutional or irrational state policy.
The gravamen of the complaint is that the map was drawn to favor Democrats, resulting in the unnecessary division of town, villages and communities. In defendants' view, that conduct simply is not violative of the equal protection clause of the Fourteenth Amendment, i.e., it may not be equated with the promotion of an unconstitutional or irrational state policy.
3. Standard for Determining Rule 12(b)(6) Motion
On a motion to dismiss made pursuant to Rule 12(b)(6), the Court may dismiss the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citation omitted). When considering a Rule 12(b)(6) motion, a court must accept the truth of, and draw all reasonable inferences from, the wellpleaded factual allegations contained in the complaint. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (internal quotations omitted). Therefore, the Court only considers the allegations of the complaint,*fn3 drawing all inferences in the plaintiffs' favor. Id.
1. Preliminary Observations:
A. Significance of Deviation Rate
Given that the deviation rate is under 10%, the plan is presumptively constitutional. For plaintiffs to rebut that presumption, plaintiffs must prove that the deviation, albeit small, is nonetheless constitutionally unacceptable. See Abate v. Rockland County Legislature, 964 F. Supp. 817, 819 (S.D.N.Y. 1997) ("Where a state or local apportionment plan deviates from equality by less than 10%, it is presumptively constitutional, and a challenger has the burden of proving that even such a `minor deviation' is the result of discriminatory state action"); Marylanders for Fair Representation, 849 F. Supp. at 1032 ("[A]lthough there is some language in several decisions indicating that plans with less than a ten percent deviation are essentially per se constitutional, none of those decisions expressly so states, and it appears that the plaintiffs in those cases did not raise any arguments that the minor deviation was the result of an unconstitutional or irrational purpose.").
B. Reynolds v. Sims Must be Read in Conjunction With Such Cases as Brown v. Thomson and Gaffney v. Cummings
In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court held that the:
"Equal Protection Clause requires that a State make
an honest and good faith effort to construct
districts . . . as nearly of equal population as is
Id. at 577, 84 S.Ct. 1362. That excerpt, applied literally, might suggest that any plan, even those with a deviation of under 10%, would be subject to a successful attack if the person claiming to be aggrieved could proffer a feasible alternate plan producing greater population equality among districts. Although population equality to the extent practicable may be the goal, "an individual's right to vote for state legislators [as distinct from congressional representatives] is [not] unconstitutionally impaired [unless] its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State." Reynolds v. Sims, 377 U.S. at 568, 84 S.Ct. 1362 (emphasis added). Moreover, as explained by Justice Brennan in his dissent in Brown v. Thomson, almost twenty years after Reynolds v. Sims, "[o]ur cases since Reynolds have clarified the structure of the constitutional inquiry into state legislature apportionments setting up what amounts to a fourstep test," with the first step being a determination of whether the deviation is above or below 10%. 462 U.S. at 852, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (Brennan, J. in dissent). A deviation rate under 10% "will ordinary be considered de minimis." Id. And Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (which involved deviation rates under 10%) instructs that judicial involvement in the inherently political and legislative process of apportionment "must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally `better' when measured against a rigid and unyielding population-equality standard. The point is, that such involvements should never begin." 412 U.S. at 750-51, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973).
In sum, a plaintiffs burden, both as to pleading and ultimate proof, is formidable when, like here, a pure "one vote, one person" claim is advanced, devoid of any racial or other protected status claim, or of a Davis v. Bandemer political gerrymandering cause of action.
The question is whether the complaint, construed most favorably to the nonmovants, sets forth facts which, if established, would prove that one or more plaintiffs will be deprived of his or her right to equal protection under the Fourteenth Amend ment should Local Law 2-2003 be permitted to stand.
As noted, the complaint speaks of the current map being the product of rank partisanship by the Democratic majority with a resulting inordinate division of towns, villages and communities. But, for the reasons to be provided, infra, such conduct, although perhaps a violation of state law, is not violative of the Fourteenth Amendment.
2. Even if Local Law 2-2003 was Promulgated for Political Reasons (i.e., to Benefit Democratic Candidates and Disadvantage Republican Candidates), as Plaintiffs Allege, That Alone is not Violative of the Fourteenth Amendment
Gaffney v. Cummings involved a reapportionment plan for the Connecticut General Assembly and Senate Districts. "The maximum deviation [under the challenged plan] between any two [General Assembly] districts [was] 7.83%." 412 U.S. at 737, 93 S.Ct. 2321. The corresponding rate for the Senate was 1.81%. Id.
In Connecticut, towns, not counties, are the basic unit of local government. The Democratic and Republican Party leaders in the State Legislature appointed an equal number of members to a bipartisan Apportionment Board. The Board, using "party voting results in the preceding three statewide elections . . . created what was thought to be a proportionate number of Republican and Democratic legislative seats." Id. at 738, 93 S.Ct. 2321. In the process, "the Board cut the boundary lines of 47 of the State's 169 towns" (id.), with some town lines "cut more than once." Id., n. 3, 93 S.Ct. 2321.
Shortly after the Board filed its reapportionment plan, an action was brought in federal district court seeking declaratory and injunctive relief. Among the claims advanced were that "an excessive number of towns [were divided] in forming assembly district[s]" due to the Board endeavoring to achieve a "smaller deviation from population equality than required by the Fourteenth Amendment." Id. at 739, 93 S.Ct. 2321 (emphasis added). Additionally, it was alleged that the plan "contained `a built-in bias in favor of the Republican Party.'" Id.
The three judge district court which decided the case found for plaintiffs,*fn4 concluding that "`the deviation from equality of population of the Senate and House districts [was] not justified by any sufficient state interest and that the Plan denie[d] equal protection of the law in the districts of greater population. . . .' . . . . More particularly, the court found that the `partisan political structuring . . . cannot be approved as a legitimate reason for violating the requirement of numerical equality of population in districting.'" Id. at 739-40, 93 S.Ct. 2321.
In reversing, the Supreme Court explained:
We think that appellees' showing of numerical
deviations from population equality among the Senate
and House districts in this case failed to make out a
prima facie violation of the Equal Protection Clause
of the Fourteenth Amendment, whether those deviations
are considered alone or in combination with the
additional fact that another plan could be conceived
with lower deviations among the State's legislative
districts. Put another way, the allegations and proof
of population deviations among the districts fail in
size and quality to amount to an invidious
discrimination under the Fourteenth Amendment which
would entitle appellees to relief, absent some
countervailing showing by the State.
Id. at 740-41, 93 S.Ct. 2321.
The rationale for its holding that plaintiff-appellees had failed to, inter alia, make out a prima facie violation of the Fourteenth Amendment is found in the following excerpts from the opinion:
The very essence of districting is to produce a
different — a more "politically fair" —
result than would be reached with elections at large,
in which the winning party would take 100% of the
legislative seats. Politics and political
considerations are inseparable from districting and
apportionment. The political profile of a State, its
party registration, and voting records are available
precinct by precinct, ward by ward. These
subdivisions may not be identical with census tracts,
but, when overlaid on a census map, it requires no
special genius to recognize the political
consequences of drawing a district line along one
street rather than another. It is not only obvious,
but absolutely unavoidable, that the location and
shape of districts may well determine the political
complexion of the area. District lines are rarely
neutral phenomena. They can well determine what
district will be predominantly Democratic or
predominantly Republican, or make a close race
likely. Redistricting may pit incumbents against one
another or make very difficult the election of the
most experienced legislator. The reality is that
districting inevitably has and is intended to have
substantial political consequences.
412 U.S. at 753, 93 S.Ct. 2321. In that context, the Court said:
[T]he goal of fair and effective representation [is
not] furthered by making the standards of
reapportionment so difficult to satisfy that the
reapportionment task is recurringly removed from
legislative hands and performed by federal courts
which themselves must make the political decisions
necessary to formulate a plan or accept those made by
reapportionment plaintiffs who may have wholly
different goals from those embodied in the official