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August 22, 2003


The opinion of the court was delivered by: Norman Mordue, District Judge



Plaintiffs commenced this action on April 22, 2003, alleging that a legislative [ Page 2]

redistricting plan adopted by defendant Albany County following the 2000 Census violated § 2 of the Voting Rights Act of 1965, ("VRA") as amended, 42 U.S.C. § 1973. Plaintiffs' motion for a preliminary injunction enjoining defendants from conducting elections for the Albany County Legislature until a new redistricting plan is adopted was referred to the Hon. David R. Homer, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). After finding that plaintiffs had demonstrated the subject redistricting plan was likely to be held violative of the VRA, Magistrate Judge Homer recommended that plaintiffs' motion for a preliminary injunction be granted. Defendants filed timely objections to the Report-Recommendation. Plaintiffs did not object.

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part of a magistrate judge's report-recommendation to which a party specifically objects. However, "[w]hen parties make only frivolous, conclusive or general objections, the court reviews the report-recommendation for clear error." See Brown v. Peters, 1997 WL 599355 at *2 (N.D.N.Y.1997) (Pooler, J.) (citing Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.1992)); see also Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y.1997). Failure to object timely to any portion of a magistrate's report-recommendation operates as a waiver of further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of Health & Human Serv., 892 F.2d 15, 16 (2d Cir. 1989).


The alleged facts on which the present motion is based are set forth in the Report-Recommendation [ Page 3]

prepared by Magistrate Homer which this Court adopts:

Albany County ("County") is comprised of eighteen cities, towns and villages, the largest of which is the City of Albany ("City"). The County is governed by a County Executive and the County Legislature ("Legislature"). The Legislature consists of single members elected from each of thirty-nine districts in the County. Compl. at ¶ 21. Elections to the Legislature are held every four years with the next election scheduled for November 4, 2003. The thirty-nine districts are defined by local law and are comprised of approximately equal numbers of residents based on data supplied by the United States Census Bureau. Defs. Mem. of Law (Docket No. 11) at 1-2. Thus, the County must redistrict itself following each decennial national Census. Id.
The 1990 Census reported that the total population of the County was 292,594, the total population of blacks was 24,068 (8.2%), and the total population of Hispanics was 5,311 (1.8%). Consent Decree (Docket No. 1, Ex. B) at ¶ 6. Following the 1990 Census, the Legislature enacted a redistricting plan which created a single district in the City containing a majority of minorities in the population ("majority/minority" district) but which contained several other districts with a minority population of up to 48%. Compl. at ¶ 52 & Ex. B. A lawsuit was commenced in which the plaintiffs alleged that this plan diluted the voting strength of minorities and sought a plan which included additional majority/minority districts. See NAACP v. Albany County, No. 91-CV-1288 (CGC) (N.D.N.Y. filed Nov. 7, 1991). That lawsuit was resolved with the entry of a consent decree which vacated the County's redistricting plan and mandated creation of a new plan which included three majority/minority districts, or 7.7% of the County's districts. Compl. at ¶ 57 & Ex. B, p. 7. The plan thereafter adopted by the Legislature included as majority/minority Districts 2, 3 and 5, all in the City, and minority legislators were thereafter elected from each of those districts. Compl. at ¶ 58. District 4 had a minority population exceeding 40%. Chonigman Decl. (Docket No. 10) at ¶ 21. Districts 2, 3, 4 and 5 were all located wholly within the eastern portion of the City.
The 2000 Census reported that the population of Albany County had increased to 294,565, the black population had increased to 31,514 (approximately 10.7%) and the Hispanic population had increased to 9,079 (approximately 3.1%). Cooper Decl. (Docket [ Page 4]
No. 5) at ¶ 6 & Ex. A. Based on this Census, the Legislature adopted Local Law J on December 2, 2002, which redistricted the County according to the 2000 Census. Lynch Aff. (Docket No. 10) at ¶ 4. The County Executive approved Local Law J on December 20, 2002, and it was filed with the New York Secretary of State on January 31, 2003, as Local Law No. 1 for 2003. Id.
To satisfy the constitutional mandate of one person, one vote, Local Law No. 1, or the County Plan, redrew the boundaries of the districts to achieve an ideal population in each district of approximately 7,553 (County population of 294,565 divided by 39). Chonigman Decl. at ¶ 8. Districts 2, 3 and 5 remained majority/minority districts but were augmented principally by portions of District 4 to achieve the necessary total population. Id. at ¶ 19. Five other districts wholly or partially within the City, including District 4, contained minority populations of 30-39%. Compl. at ¶ 66; Ans. at ¶ 9. The County Plan included only blacks in its definition of "minorities." Compl. at ¶ 20. District 4, however, was redrawn to join the substantial minority population of the former District 4 in the City "with the predominantly white, affluent suburban community of Loudonville in the Town of Colonie." Compl. at ¶ 68; Ans. at ¶ 19. Thus, with a black population of approximately 10.7% and a Hispanic population of approximately 3.1%, the County Plan continued the number of majority/minority districts at three, or 7.7%, the number of majority/minority districts under the 1990 Census when 8.2% of the population was black and 1.8% was Hispanic.
Plaintiffs are two unincorporated membership organizations formed to advance the interests of blacks and other minorities. Compl. at ¶ 6-9. The three individual plaintiffs are City residents and self-identified as being of two or more races (Aaron Mair), Hispanic (Maryam Mair) and black (Mildred Chang). Compl. at ¶¶ 11, 14, 15; Mair Decl. (Docket No. 14) at ¶¶ 1, 4. Chang is a resident of District 4. Compl. at ¶ 16. Plaintiffs contend that by maintaining the existing number of majority/minority districts at three despite the increase in minority population in the 2000 Census, the County Plan violated the Voting Rights Act by failing to create a fourth majority/minority district. Four majority/minority districts would constitute 10.3% of the thirty-nine districts in the County. Plaintiffs seek an injunction compelling the County to adopt a new plan creating such a [ Page 5]


After setting forth the appropriate standard for issuance of a preliminary injunction, and determining that plaintiffs' claim of potential abridgment or dilution of their voting rights was an irreparable harm, the Magistrate Judge also concluded that at least one plaintiff — Mildred Chang — had standing to raise the VRA claim.*fn2 Magistrate Judge Homer discussed in detail each of the three preconditions to raising a claim of minority vote dilution under the VRA as set forth by the United States Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986) as well as nine additional factors for evaluating the "totality of circumstances" which allegedly denies minorities in Albany County equal access to the political process. After conducting an evidentiary hearing and reviewing all evidentiary submissions and arguments of the parties, Magistrate Judge Homer found that plaintiffs had demonstrated that there was a substantial likelihood they would succeed in establishing that the County's redistricting plan — adopted following the 2000 Census — unlawfully diluted minority votes in violation of § 1973 of the VRA. Based thereupon, the Magistrate Judge recommended that this Court issue a preliminary injunction enjoining defendants from conducting elections for the Albany County legislature pending adoption of a new redistricting plan which creates a fourth majority/minority district and otherwise complies with the VRA.

Having conducted a de novo review of the record, the Court agrees with the determination of the Magistrate Judge that plaintiffs' motion for a preliminary injunction should be granted. [ Page 7]


A. Standard of Review

1. Preliminary Injunction Standard

A party seeking preliminary injunctive relief must show that: 1) absent such relief it will suffer irreparable harm; and 2) either that it is likely to succeed on the merits, or that there are "sufficiently serious questions" going to the merits, and that the balance of hardships tips decidedly in favor of the moving party. Wright v. Guiliani, 230 F.3d 543,547 (2d Cir. 2000) (internal quotation marks and citations omitted). However, when a plaintiff seeks to enjoin government action and alter the "status quo" of the parties pending resolution of the merits of the litigation, the movant must satisfy the more rigorous "likelihood-of-success" standard. No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (quoting Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999). In this case, plaintiffs are asking the County to discard its current redistricting plan and adopt a new one to include a fourth majority/minority district and to cease all county election activity until the revised plan has been adopted. Clearly these actions would disrupt the status quo, thus triggering plaintiffs' obligation to demonstrate substantial likelihood of success on the merits. No party suggests that Magistrate Judge Homer applied the wrong standard in this case.

2. Likelihood of Success on the Merits

The VRA provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [ Page 8]
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973 (a)-(b) (emphasis in original). It is well-settled and undisputed that the Supreme Court's decision in Gingles controls in cases involving a claim of unlawful dilution of minority voting strength under § 1973 of the VRA. Under Gingles, a litigant making such allegations must first demonstrate three preconditions:
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single member district. . . . Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed — usually to defeat the minority's preferred candidate.
Gingles, 478 U.S. at 50-51 (1986). Each of the three preconditions must be proven by a preponderance of the evidence. Id. at 50. These preconditions essentially ask whether the court can fashion a remedy for a demonstrated abridgement of Section 2 of the VRA; no remedy would exist under Section 2 for a group that lacks the population or political cohesiveness, or is too geographically dispersed, to benefit from single-member districts. Id at 51, n. 17. [ Page 9]

The report of the United States Senate which accompanied the 1982 amendments to the VRA emphasized that the "right" question to ask in a voting dilution case is whether "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." S. Rep. No. 97-417, 97th Cong.2nd Sess. 28 (1982), U.S. Code Cong. & Admin. News 1982, pp. 177, 205 (hereinafter S. Rep.). "To answer this question, a court must assess the impact of the contested structure or practice on minority electoral opportunities `on the basis of objective factors.'" Gingles, 478 U.S. at 44 (quoting S. Rep. at 27, U.S. Code Cong. & Admin. News 1982, p. 205.)

The Senate Report specifies factors which typically may be relevant to a § 2 claim: the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.
Id. at 44-45 (citing S. Rep. at 28-29).
The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous may have probative value. The Report stresses, however, that this list of typical factors is neither [ Page 10]
comprehensive nor exclusive. While the enumerated factors will often be pertinent to certain types of § 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered. Furthermore, the Senate Committee observed that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Rather, the Committee determined that "the question [of] whether the political processes are `equally open' depends upon a searching practical evaluation of the `past and present reality,'" and on a "functional" view of the political process.
Id. (citations omitted). Courts have held these enumerated factors to be "guideposts" for factual analysis of a voting dilution claim. Goosby v. Town Bd. of Hempstead, 180 F.3d 476, 492 (2d Cir. 1999).

B. Gingles Preconditions

The Magistrate Judge made careful factual findings*fn3 in determining that plaintiffs had satisfied the three Gingles preconditions to raising a VRA claim. Defendants first contend that the Magistrate Judge erred by improperly assuming that the County was required to [ Page 11]

maximize the number of majority/minority districts. As evidence of the alleged improper assumption, defendants point out that Magistrate Homer, after analyzing voting age percentages of minorities in districts adjoining the three majority/minority districts in the County redistricting plan, "effectively concluded `what could have been done . . . should have been done.'" Defendants' Objection 3, p. 2 (citing Johnson v. DeGrandy, 512 U.S. 997, 1009 (1994) (trial court reversed after erroneous determination that evidence establishing three Gingles preconditions "without more" satisfied "totality of circumstances" analysis for voting dilution claim). It is clear from review of the Magistrate Judge's lengthy and detailed Report-Recommendation that he did not make any improper assumptions concerning the County's obligations in this case. In contrast to defendants' contention, the Magistrate Judge did not conclude that the County was required to maximize the number of majority/minority districts. Rather, Magistrate Judge Homer clearly stated that the VRA required the County to create majority/minority districts in fair — not direct — proportion to the population of minorities in the City of Albany. Furthermore, unlike the trial court in DeGrandy, Magistrate Judge Homer found evidence which demonstrated unequal access to the political process for minorities in Albany County in addition to the evidence which supported plaintiffs' satisfaction of the three Gingles preconditions.

1. Size and Geographic Compactness

Under the framework set forth in Gingles, plaintiffs must first demonstrate that there are minority groups living outside existing majority/minority districts that are sufficiently large and geographically compact to create additional majority/minority districts. As a threshold matter, Magistrate Judge Homer had to decide what constitutes a "minority group" [ Page 12]

for the purpose of the Gingles analysis. The Magistrate Judge noted that while plaintiffs included Hispanics along with non-Hispanic blacks in their definition of minority, the County did not.*fn4 Given existing law in the Circuit Courts, including the Second Circuit, which assumes diverge minority groups can be combined to meet VRA litigation requirements (see Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271, 276 (2d Cir.) vacated and remanded on other grounds, 512 U.S. 1283 (1994)), it was entirely appropriate for the Magistrate Judge to combine black and Hispanic populations in his analysis.*fn5

Defendants object to the Magistrate Judge's alleged misapprehension of data in Exhibits "A" and "E" attached to the affidavit of plaintiffs' expert, William Cooper. To wit, Magistrate Judge Homer concluded that based on the figures in Exhibit "A," the total number of blacks in the County is 31,514 (of which 21,020 are of voting age) and the total number of Hispanics is 9,079 (of which 5,861 are of voting age). According to figures in Exhibit "E" — unchallenged by defendants and derived from 2000 Census data — the total number of voting age blacks in majority/minority districts 2, 3 and 5 of the County plan is 9,178. Each of these districts has significantly more blacks (55.8%, 59.18% and 60.48% respectively) than is needed to justify the majority/minority classification. Given the number of voting age blacks — 11,842 — living outside of districts 2, 3 and 5 and in the vicinity of existing majority white [ Page 13]

district 4, the Magistrate Judge noted correctly that the black population alone outside of the existing majority/minority districts was sufficiently large to warrant ...

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