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CECERE v. COUNTY OF NASSAU

July 31, 2003

MICHAEL J. CECERE, III, CHRISTINE A. NAGY, WILLIAM ODOL, CAROLYN DELVECCHIO AND DONALD
v.
PUPKE, JR., PLAINTIFFS, V. THE COUNTY OF NASSAU, THE NASSAU COUNTY LEGISLATURE, JUDITH JACOBS, AS PRESIDING OFFICER OF THE NASSAU COUNTY LEGISLATURE, AND NASSAU COUNTY BOARD OF ELECTIONS, JOHN A. DEGRACE, IN HIS OFFICIAL CAPACITY AS A COMMISSIONER OF THE NASSAU COUNTY BOARD OF ELECTIONS, ERIC S. BROWN, IN HIS OFFICIAL CAPACITY AS A COMMISSIONER OF THE NASSAU COUNTY BOARD OF ELECTIONS, DEFENDANTS.



The opinion of the court was delivered by: Denis Hurley, District Judge.

MEMORANDUM AND ORDER

Pending before the Court are (1) defendants' motion for an order dismissing the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and (2) plaintiffs' motion for reconsideration of their motion for expedited discovery.

For the reasons provided infra, defendants' motion is granted and plaintiffs' is denied as moot.

BACKGROUND

1. Complaint

The five plaintiffs, who reside in various Nassau County legislative districts, brought suit against the County of Nassau, the County Legislature, Judith Jacobs, as presiding officer of the Legislature and against the Board of Elections and its Commissioners. The relief sought includes a declaration by this Court that the redistricting plan adopted by the Nassau County Legislature on June 27, 2003, with respect to the County's nineteen legislative districts violates the Fourteenth Amendment of the United States Constitution, as well as various provisions of state law.

The complaint contains 285 numbered paragraphs. Reduced to its essentials, plaintiffs complain that (1) the Democratic majority used its ten-to-nine advantage to enact a redistricting plan to advance its political agenda, (2) the resulting map is essentially a hodgepodge of misshapen districts in which various towns, villages and communities are unnecessarily divided and (3) that the Democratic legislators did not make a good faith effort "to reduce the total population deviation to as low a deviation as practicable." (Compl., ¶ 250.)

With respect to item 1, viz., that the redistricting plan is the product of the Democratic legislators' political agenda, the following paragraphs of the complaint are illustrative: Local Law "2-2003 was promulgated for political reasons, to wit, to strengthen Districts represented by Democratic legislators, to increase the chances of Democratic candidates to prevail in Districts currently represented by Republican Legislators, and to weaken districts presently represented by Republican Legislators where Democratic candidates had a viable chance to succeed" (id. ¶ 244); "[t]he design of the Democratic Legislators was to satisfy a political agenda" (id. ¶ 251); "[u]nder the final map, many registered Democrats were purposefully placed in the districts of Republican legislators Salvatore Portillo, Norma Gonsalves and John Ciotti so as to give Democratic candidates a better chance of winning in those districts" (id. ¶ 233); a Democratic appointee to the Temporary Districting Advisory Commission "conceded" that the redistricting proposal that was the basis for Local Law 2-2003 "was motivated by an effort to strengthen Democratic candidates in many districts" (id. ¶ 234); the chair of the Nassau County Democratic Party "acknowledged that the final map `gives us [the Nassau County Democratic Party] a more competitive chance and minimizes the impact of the Republican machine'" (id. ¶ 235).

The following paragraphs of the complaint are representative of those which speak of towns, villages and communities being unnecessarily divided: "members of the public who spoke at the December 30th and 31st public hearing, overwhelming expressed the desire that the proposed map not differ significantly from the 1994 [i.e., the prior] map" (id. ¶ 131); "[t]he final map enacted by the Nassau County Legislature increased by 33% the number of Village lines split" (id. ¶ 220); [t]he final map enacted by the Nassau County Legislature increases by over 50% the number of communities split" (id. ¶ 221); [t]he final map enacted by the Nassau County Legislature increases by 100% the number of Town lines crossed" (id. ¶ 222); "[i]n order to achieve a constitutional districting plan, only five district lines would have been needed to be changed from the [1994 map]" (id. ¶ 230); and "[u]nder the final map, all nineteen districts were substantially re-drawn" (id. ¶ 231).

Finally, with respect to the allegations in the complaint alleging that defendants did not endeavor to enact a plan with the lowest deviation rate practicable, consider the following paragraphs: "[t]he Democratic Legislators did not make good faith efforts to reduce the total population deviation to as low a deviation as practicable" (id. ¶ 250); "[t]he objective of the Democratic Legislators was to create nineteen districts with a total population deviation of less than 10% regardless of the practicality and ease of reaching a lower percentage of deviation" (id. ¶ 252); "[t]he Legislature could have, with great practicality, come much closer to equal population for each district" (id. ¶ 255); Local Law 2-2003 "was not the result of an honest and good faith effort to construct districts as nearly equal in population as practicable" (id. ¶ 257); "[t]he Legislature did not make any reasonable effort to minimize the maximum total deviation" (id. ¶ 259).

2. Position of Parties

A. Plaintiffs' Position

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.

DISCUSSION

1. Preliminary Observations:

A. Significance of ...


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