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March 15, 2004.

ERIC RODRIGUEZ et al., Plaintiffs, -against- GEORGE E. PATAKI et al., Defendants; HOWARD T. ALLEN et al., Plaintiffs, -against- GEORGE E. PATAKI et al., Defendants

Per Curiam





  These consolidated actions include constitutional and statutory challenges to the State Senate and congressional redistricting plans enacted by the New York State Legislature in April 2002 (following the 2000 census) and precleared by the United States Department of Justice in June 2002. Seven of the eight counts in the Joint and Consolidated Amended Complaint, dated January 24, 2003 ("Complaint"), pertain to the 2002 New York State Senate redistricting plan ("Senate Plan"), and one count pertains to New York's 2002 congressional redistricting plan ("Congressional Plan"). Two of the eight counts raise constitutional challenges under the Fourteenth Amendment, U.S. Const, amend. XIV, § 1: a one-person, one-vote challenge to the Senate Plan as a whole and a racial gerrymandering challenge to Senate District ("SD") 36. Six counts raise challenges under section 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973(b) (the "VRA"), including challenges by the lead plaintiffs to redistricting in the Bronx, Long Island, and the state as a whole, as well as challenges by plaintiffs-intervenors to SD 31 and Congressional District ("CD") 17.

  On November 6, 2003, this three-judge District Court concluded that the plaintiffs had raised no triable issues of material fact with respect to Counts I, n, IV, VI, and VIII of the Complaint and granted summary judgment to the defendants on those claims. We indicated that an opinion explaining the decision would follow. Following trial, the Court has concluded that the plaintiffs have failed also to establish the claims set forth in Counts III, V, and VII by a preponderance of the evidence. Our opinion with respect to those counts on which we granted summary judgment together with our findings of fact and conclusions of law with respect to all counts are detailed below, but some of the overarching considerations that inform our decision are as follows: Page 5

  First New York's 2002 redistricting laws are well within the purview and political prerogative of the State Legislature. See, e.g., Miller v. Johnson, 515 U.S. 900, 915 (1995) ("Federal-court review of districting> legislation represents a serious intrusion on the most vital of local functions. . . . Electoral districting> is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests."); see also Georgia v. Ashcroft, 123 So. Ct. 2498, 2511-12 (2003); Md. Comm. for Fair Representation v. Tawes, 377 U.S. 656, 676 (1964).

  Second, the 2002 Senate Plan reflects traditional districting> principles including: maintaining equality of population, preserving the "cores" of existing districts>, preventing contests between incumbents, and complying with the requirements of the Voting Rights Act. See Marylanders for Fair Representation. Inc. v. Schaefer, 849 F. Supp. 1022, 1056 (D. Md. 1994) (three-judge court); see generally Larios v. Cox, No. 03-CV-693, 2004 WL 299082 (N.D. Ga. Feb. 10, 2004) (three-judge court).

  Third, the 2002 redistricting continues New York's check and balance in its bicameral Legislature. In the State Assembly, which has been dominated by Democrats since 1974, six seats were gained by Democrats in 2002 and the balance of Democratic to Republican assemblypersons changed from 97/53 to 103/47. In the State Senate, which has been dominated by Republicans since 1966, the balance of Republican to Democratic senators shifted from 36/25 to 38/24, including the post-election change in party affiliation (from Democratic to Republican) of one senator.

  Fourth, the Senate Plan reflects less than a 10% deviation in population between any two Senate districts>. See Brown v. Thompson, 462 U.S. 835, 842 (1983) ("[A]n apportionment plan with a maximum population deviation under 10% falls within [the] category of minor Page 6 deviations.") — The plaintiff's do not assert that racial discrimination accounts for the population deviation. (See Transcript of Oral Argument of Motions for Summary Judgment, dated Nov. 4, 2003, at 65 ("Summ. J. Tr.").) Rather, they argue that the Senate Plan discriminates geographically, favoring underpopulated "upstate" districts> over overpopulated "downstate" districts>, and that the single Senate seat added by the Legislature in 2002 should have been located south of Putnam County.*fn1

  Fifth, politics surely played a role in redistricting in New York in 2002 — as it does in most every jurisdiction. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 753 (1973) ("Politics and political considerations are inseparable from districting> and apportionment. . . . The reality is that districting> inevitably has and is intended to have substantial political consequences."). For example, the Republicans' 62-seat Senate Plan, which became the plan that was enacted, paired four incumbent Democrats to run against each other. The plan initially proposed by the Democrats for a 61-seat Senate paired twenty incumbents, seventeen of whom were Republican. At the same time, the Senate and Assembly joined political forces in developing the State's 2002 Congressional Plan (which was required by the census returns to reflect the loss of two seats from New York's congressional delegation) to pair two Democrats and two Republicans, resulting in the loss of one member from each party.

  Sixth, the Senate Plan achieves substantial proportionality of minority representation in the Bronx. "[D]ilution may be found to be absent under the totality of the circumstances when Page 7 the protected minority groups `constitute effective voting majorities in a number of districts> . . . substantially proportional to their share in the population.'" Session v. Perry, No. 03-CV-354, 2004 WL 42591, at *16 (E.D. Tex. Jan. 6, 2004) (quoting Johnson v. De Grandy, 512 U.S. 997, 1024 (1994)). Four of the five Bronx Senate districts> are majority-minority districts>, including three Hispanic districts> and one black district. Hispanics and blacks combined are 76.1% of the Bronx citizen voting age population ("CVAP") and 77.5% of the voting age population ("VAP").*fn2

  Seventh, the relief sought by the plaintiffs in this case cannot be justified under the Voting Rights Act. For example, in Suffolk County, the plaintiffs propose to create a new minority-coalition "influence" district, even though blacks and Hispanics would constitute only 40.2% of the VAP and 33.7% of the CVAP in the proposed district and the plaintiffs concede that the proposed district would not provide minorities with the ability to elect candidates of Page 8 choice.*fn3 In Nassau County, the plaintiff's propose to create a new "ability to elect" district by gathering substantially all of the county's black population in one district. Nonetheless, in the proposed Nassau County district, blacks would constitute less than 37% of the VAP and CVAP and, we conclude, would still not have the ability to elect candidates of their choice. The plaintiffs propose to create a fifth majority-minority district in the Bronx by reducing the minority populations in all four majority-minority districts> and dismantling the only majority-white district. They argue that the Voting Rights Act requires that this additional majority-minority district be created even though minorities have more than substantially proportionate representation in the Bronx. The claims by the plaintiffs-intervenors similarly seek to create a super-majority Latino district and a Hispanic-black minority-coalition district, respectively, but cannot satisfy the prerequisites for showing vote-dilution under section 2.

  In short, the plaintiffs have failed to establish their claims that the 2002 State Senate or congressional redistricting plans violated the Fourteenth Amendment of the United States Constitution or the Voting Rights Act.


  Based upon the 2000 census results, which reflected New York's lower population growth relative to that of other states, the State Legislature was required to reduce the State's congressional seats from 31 to 29. See Act of June 5, 2002, 2002 N.Y. Laws 86; see also U.S. Const, art. I, § 4; 2 U.S.C. § 2a. The 2000 census figures, which showed population gains in some New York counties and losses in others (see Pls.' Ex. ("PX") 6 tbl. 3), also obligated the Legislature to "readjust" State Senate and Assembly districts> so that each district would contain, Page 9 consistent with applicable districting> principles, "an equal number of inhabitants, excluding aliens, and be in as compact form as practicable." N.Y. Const, art. III, § 4.

  The entity responsible for developing redistricting plans for the New York State Legislature is the State Legislative Task Force on Demographic Research and Reapportionment ("LATFOR"), which was initially created in 1978.*fn4 In connection with the 2002 redistricting, LATFOR began holding public hearings throughout the State, including hearings held in Syracuse, Binghamton, each of the five boroughs of New York City, Suffolk County, Westchester County, Rochester, and Buffalo, in May-July 2001, and received written comments and proposals from the public regarding Senate, Assembly, and congressional districts>. During March 2002, LATFOR received additional public comment during a second round of hearings throughout the State (Stip. ¶ 13), including hearings held in Buffalo, Rochester, Brooklyn, Queens, the Bronx, Manhattan, Suffolk County, and Albany. Despite its efforts, by the end of 2001, LATFOR had not yet proposed plans for the state legislative or congressional districts>.

  On January 25, 2002, the plaintiffs, who include black, Hispanic, and white New York voters, filed companion lawsuits against various New York State officials, including Governor George E. Pataki, in the New York State Supreme Court, New York County ("Alien" case), and Page 10 in this Court ("Rodriguez" case), seeking declaratory and injunctive relief against the use of the State's then-existing congressional and state legislative districts>. (Stip. ¶¶ 8-9; Allen v. Pataki, No. 101712/02 (N.Y. Sup. Ct.) (Cahn, J.); Rodriguez v. Pataki, No. 02-618 (S.D.N.Y. filed Jan. 25, 2002). The lawsuits alleged, among other things, that, "based on the 2000 Census, those districts> violate the United States Constitution and the Voting Rights Act of 1965 as amended." (See Rodriguez, Compl. ¶ 1 (Jan. 25, 2002).)*fn5 The plaintiffs requested that each court "set a reasonable deadline for state authorities to enact redistricting plans and obtain [United States Department of Justice] pre-clearance thereof and adopt and promulgate new districts> in the event of a failure by the Legislature to act in time for the 2002 elections. (Id. at 17.)

  The two cases proceeded along parallel tracks until approximately May 20, 2002 when Alien was removed to this Court and then consolidated with Rodriguez. The cases have been heard by this three-judge Court because of the assertion of interrelated constitutional and Voting Rights Act claims. See 28 U.S.C. § 2284(a); Order at 1, Rodriguez, No. 02-618 (Apr. 8, 2002) (granting "plaintiffs' request for the appointment of a three-judge district court pursuant to 22 U.S.C. § 2284(a), which provides that `[a] district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts> or the apportionment of any statewide legislative body'"); see also Page v. Bartels, 248 F.3d 175, 190 (3d Cir. 2001) ("[B]ecause statutory Voting Rights Act challenges to statewide legislative apportionment are generally inextricably intertwined with constitutional challenges to Page 11 such apportionment, those claims should be considered a single `action' within the meaning of § 2284(a).").

  Meanwhile, on February 14, 2002, LATFOR publicly released preliminary proposals for new Senate and Assembly districts> — but not for congressional districts>. (Stip. ¶ 10.) The Senate Plan, which was developed and supported by the Republican Senate majority and which was ultimately enacted, proposed to increase the size of the Senate from 61 to 62 seats. It also added three new majority-minority districts> within New York City: a majority-Hispanic district principally in Manhattan (with part in the Bronx), a majority-black district in Brooklyn, and a majority-Hispanic district in Queens. The Senate Plan's ideal population for each district is 306,072 persons; its maximum deviation — that is, the difference between the most populated and the least populated districts> — is 9.78%; and the average deviation from the ideal district size is 2.22%. (Stip. ¶¶ 44-45, 47.) Senate Democrats devised two alternative plans, one of which was a 61-seat plan prepared by the Senate Minority and submitted to LATFOR in late 2001 and early 2002 ("the Senate Minority 61-seat plan") (see Aff. of Mark Burgeson, dated Nov. 12, 2003, ¶ 3 ("Burgeson Aff."),*fn6) and the other was a 62-seat plan first made public by (then) LATFOR Co-Chairman and Democratic Sen. Richard Dollinger immediately prior to the enactment of the Senate Plan on April 8, 2002 ("Dollinger 62-seat plan").*fn7 The Dollinger 62-seat plan proposed Page 12 adding a fifth majority-minority district in the Bronx (44.8% Hispanic VAP; 18.9% black VAP; 27.4% white VAP) (Stip. ¶ 73; Def. Ex. ("DX") 67) and eliminating the majority-white district included in the Senate Plan. At the public hearings in the Bronx both before and after the LATFOR Task Force released its redistricting plan for public comment in February 2002, no speaker had ever suggested the creation of an additional Hispanic district in the Bronx or a majority-Hispanic/black "coalition" district in Bronx/Westchester; and prior to April 8, 2002, no one had ever publicly suggested a fourth Hispanic district. (Stip. ¶ 72, 151.)

  The 2002 Assembly Plan ("Assembly Plan") was developed by the Democratic Assembly. It maintains the number of Assembly districts> at 150. The Assembly Plan's maximum deviation is 9.43% and its average deviation is 2.67%. (Id. ¶¶ 46, 48.) In the Assembly Plan, the seven majority-Hispanic districts> in the Bronx have an average Hispanic VAP of approximately 59%. (Id. ¶ 158.) In March 2002, Thomas Doty et al. filed a petition in the New York State Supreme Court, Tioga County, challenging the proposed Assembly districts>. Justice Herman Cahn of that court ordered that the Doty action be consolidated with the Alien action, and the issues involved in Doty's application appear to have been resolved prior to the removal of Alien to federal court.*fn8 Page 13

  At a public meeting held on April 8, 2002, LATFOR adopted final proposals for Senate and Assembly districts>. (Id. ¶ 16.) At the same meeting, Sen. Dollinger stated that he was not, in fact, submitting his 62-seat plan as a proposal for the LATFOR Task Force to consider and adopt: "I do not intend to move its adoption. If I can convince you that you should adopt this plan's underlying principles, you will still undoubtedly wish to make many changes. The plan I put before you is a legal benchmark." (DX 133 (Tr. of LATFOR Public Meeting, dated Apr. 8, 2002, at 17).)

  Two days later, on April 10, 2002, the Legislature enacted Assembly Bill No. 11014, which incorporated LATFOR's proposed new Senate and Assembly districts>. All three Hispanic senators representing Bronx districts> (Sens. Olga Mendez (SD 28), Pedro Espada (SD 32), and Efrain Gonzalez (SD 31)) voted in favor of the Senate Plan (see DX 135), along with Sen. Guy Velella (SD 34), who is white. Sen. Ruth Hassell-Thompson, the only black senator from the Bronx, did not vote in favor of the Senate Plan but testified before the vote that she "supported the lines that were drawn that would configure her district." (Stip. ¶ 107.) On April 22, 2002, the Legislature passed Senate Bill No. 7300, which included certain chapter amendments to the redistricting legislation. Governor Pataki signed Assembly Bill No. 11014 into law (Chapter 35 of the Laws of 2002) on April 22, 2002, and he signed Senate Bill No. 7300 into law on April 24, 2002 (Chapter 38 of the Laws of 2002). (Id. ¶¶ 17-19.)

  On April 25, 2002, the plaintiffs amended their complaint to challenge the newly enacted Senate Plan and also to seek judicial intervention with respect to the looming congressional redistricting impasse. (Id. ¶ 20.) See Rodriguez, Am. Compl. ¶¶ 215, 277-78 (Apr. 25, 2002). On the same day, the Alien plaintiffs moved in state court for a preliminary injunction prohibiting the use of the Senate Plan for the 2002 elections and seeking to impose a court — Page 14 ordered plan in its place. (Stip. ¶ 21.) On May 9, 2002, following a hearing, Justice Cahn denied the plaintiffs' application in Allen, finding that neither injunctive relief nor an expedited trial was warranted. See Alien, Order at 2, 5 (May 9, 2002).

  By order dated April 26, 2002, this Court appointed former United States District Judge Frederick B. Lacey as Special Master, pursuant to Fed.R.Civ.P. 53, to assist in developing a redistricting plan dividing New York into 29 congressional districts>. Rodriguez. Order at 2 (Apr. 30, 2002) ("[T]he `eleventh hour' is upon us, if indeed it has not already passed. It is therefore necessary . . . to prepare for the possibility that this Court will be required to adopt an appropriate [congressional] redistricting plan.").*fn9 Following a series of comprehensive public hearings, and after conferring with leading redistricting experts, on May 13, 2002, Special Master Lacey filed his Report and Plan for congressional redistricting with this Court ("Lacey Plan"). On May 20, 2002, Referee Kenneth Bialkin filed a similar congressional redistricting plan in the state court action. See Rodriguez v. Pataki., Nos. 02-618 & 02-3239, 2002 WL 1058054, at *3 (S.D.N.Y. May 24, 2002) (three-judge court). On May 24, 2002, this Court adopted the Lacey Plan and ordered its use for the 2002 congressional elections, stating "Special Master Lacey's Plan meets all applicable legal requirements and . . . its immediate adoption is required to ensure a timely and orderly New York State Congressional election process." Id. at *4. The Court specifically noted that it was "willing, even eager, to accommodate timely state action and . . . open to the possibility of withdrawing the Plan we are adopting if the State were to enact an appropriate and lawful plan of its own that allows for a full, fair, and orderly election process." Id. at *8. Shortly thereafter, on June 5, 2002, the Legislature did adopt a congressional redistricting plan of its own and Page 15 passed Senate Bill No. 7356, which Governor Pataki signed into law the same day (Chapter 86 of the Laws of 2002).*fn10


  Because several New York counties, namely, New York, Bronx, and Kings (Brooklyn) Counties, are "covered" jurisdictions under section 4(b) of the Voting Rights Act, 42 U.S.C. § 1973b(b), the legislature's 2002 Senate, Assembly, and Congressional Plans were each submitted to the United States Department of Justice for "preclearance."*fn11 (See, e.g., PX 27 at 1 ("The 2002 Senate districts> in [the covered] boroughs, as well as those in non-covered jurisdictions, were designed to avoid any retrogression in minority voting strength. By increasing the number of electable districts> without compromising minority electoral opportunities in the pre-existing districts>, the 2002 plan clearly enhances minority voting strength.").) On June 17, 2002, the Page 16 Department of Justice precleared the Senate and Assembly Plans, including specifically the increase in Senate districts> from 61 to 62. (See, e.g., DX 138.) The Department of Justice precleared the Congressional Plan on June 25, 2002. (Stip. ¶ 35.) After the Congressional Plan was precleared, this Court withdrew the Lacey Plan. See Rodriguez. Order at 1 (June 25, 2002) (three-judge court).*fn12

  In November 2002, the first New York elections were held under the new state legislative and congressional redistricting plans. The Democrats had a net gain of six seats in the Assembly, giving them a 103/47 majority. The Republicans had a net gain of one seat in the Senate (in addition to the post-election change to the Republican party of Sen. Mendez), increasing their majority to 38/24. The congressional redistricting, which had paired two incumbent Democrats (Reps. Louise Slaughter and John LaFalce) and two incumbent Republicans (Reps. Benjamin Gilman and Sue Kelly), resulted in the loss of one Democratic congressional seat and one Republican congressional seat after Reps. LaFalce and Gilman each decided to retire rather than run against another incumbent.*fn13

  The Joint and Consolidated Amended Complaint

  On January 24, 2003, the plaintiffs and plaintiffs-intervenors*fn14 filed a Joint and Consolidated Amended Complaint ("the Complaint") that stated the following causes of action: Page 17

• Count I — the Senate Plan violates the "one person, one vote" requirement of the Fourteenth Amendment (Compl. ¶ 278 (`The Legislature did not make an honest or good-faith effort to construct Senate districts> as nearly of equal population as is practicable."));
• Count II — the Senate Plan violates section 2 of the Voting Rights Act (Id. ¶ 299 ("By failing to draw additional districts> in which minority voters would have the opportunity to elect the candidate of their choice, the State Senate Plan dilutes the votes of African-American and Latino voters."));
• Count III — Bronx-based Senate districts> violate section 2 of the Voting Rights Act (Id. ¶ 305 ("Three discrete discriminatory practices resulted in the Legislature's failure to draw a majority-minority district in northern Bronx and southern Westchester counties."));
• Count IV — SD 31 in Manhattan/Bronx violates section 2 of the Voting Rights Act (id. ¶ 314 (`The 31st district in the State Senate Plan has the result and effect of denying or abridging the right of Latinos to vote. . . ."));
  • Count V — Nassau County Senate districts> violate section 2 of the Voting Rights Act (id. ¶ 316 ("By fragmenting into multiple districts> politically cohesive, compact Page 18 African-American and Latino communities in Nassau County, who are sufficiently numerous to form a majority-minority district, the State Senate Plan has the result of diluting the voting power of [these] voters. . . ."));
• Count VI — Suffolk County Senate districts> violate section 2 of the Voting Rights Act (id. ¶ 323 ("By fragmenting into multiple districts> the politically cohesive, compact African-American and Latino communities in Suffolk County, who are sufficiently numerous to form a district in which minority voters would have the opportunity to elect the candidate of their choice, the State Senate Plan has the result of diluting the voting power of [these] communities. . . ."));
• Count VII — SD 34 in the Bronx/Westchester is a racial gerrymander in violation of the Fourteenth Amendment (Id. ¶ 336 ("The predominant purpose of-the lines of Senate District 34 was to include non-Hispanic white persons on the basis of race and segregate those non-Hispanic white persons from minority communities in adjoining majority-minority districts>.")); and
  • Count VIII — CD 17 in the Bronx, Westchester, and Rockland counties violates section 2 of the Voting Rights Act (Id. ¶ 347 ("As drawn and implemented, the newly enacted Congressional District 17 has the result and effect of diluting the voting strength of Black voters . . . in Bronx County and throughout the City of New York.")).*fn15 Page 19

  The defendants filed their Answer to the Complaint on July 18, 2003, denying each of the plaintiffs' claims.

  On March 7, 2003, the defendants moved to dismiss Counts I, II, VI, VIII, and IX of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). On June 24, 2003, following extensive briefing and oral argument, the Court denied the motion. Rodriguez v. Pataki, 274 F. Supp.2d 363, 364 (S.D.N.Y. 2003) (three-judge court) (`Taking the allegations in the . . . Complaint as true as the Court must upon a motion to dismiss, it is appropriate to allow discovery to proceed rather than to resolve these counts at this time. The Court is not here ruling upon the ultimate merits of the parties' respective claims." (citations omitted)). Extensive discovery ensued and was completed on or about September 26, 2003.

  Summary Judgment Motion

  On October 3, 2003, the defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56 with respect to all pending claims, and the plaintiffs thereafter cross-moved for summary judgment on Count I. In addition to the extensive briefing,*fn16 the Court heard lengthy Page 20 oral argument on November 4, 2003. On November 6, 2003, the Court granted summary judgment in favor of the defendants with respect to Counts I, n, IV, VI, and VIII of the Complaint, and advised the parties that a full opinion incorporating the counts decided on summary judgment would issue following the trial of Counts III, V, and VII. Rodriguez. Nos. 02-618 & 02-3239, 2003 WL 22853022, at *1 (S.D.N.Y. Nov. 6, 2003) (three-judge court).


  The trial was held before this Court between November 20 and November 25, 2003. It was preceded by the submission of extensive written filings by all parties which included, among other things, some 273 proposed exhibits; 252 stipulated facts (with subparts); legal memoranda; and proposed findings of fact and conclusions of law. Because no jury was involved, and in order to expedite the trial, the parties also submitted 243 pages of direct testimony by affidavit or declaration in advance of trial.*fn17 Page 21

  The plaintiffs' witnesses included: Professor Michael P. McDonald, an expert on voting behavior; Professor Andrew A. Beveridge, an expert on demographics and statistically-based social science data; Professor Ronald Hayduk, an expert on voter participation; Dr. Lisa Handley, an expert on redistricting and voting rights; Professor John Powell, an expert on the socioeconomic status of minorities; State Senator and Minority Leader David A. Paterson; Councilwoman Dorothy L. Goosby, Town of Hempstead (Nassau County); Roger Corbin, Nassau County Legislator; former New York State Assemblywoman Barbara Patton; and Donald Shaffer, a civil rights attorney. The defendants' witnesses included: Professor Harold W. Stanley, an expert on voting behavior and elections; Professor Stephan Thernstrom, an expert on social, political, historical, and economic issues; and Mark Burgeson, an expert on redistricting and the assistant to the (Republican) Co-Chairman of LATFOR.*fn18

  Following trial, on December 8, 2003, the parties submitted 454 pages of additional proposed findings of fact and conclusions of law; on December 11, 2003, they filed responses to each other's post-trial submissions. The parties also submitted letters describing recent redistricting decisions in other jurisdictions.*fn19 Our decision is based upon a close review of the extensive record.

  Legal Standards for Summary Judgment and Trial

  With respect to Counts I, n, IV, VI, and VIII, we have applied the standards for granting summary judgment based on the papers submitted to the Court and the record developed with Page 22 respect to the motions for summary judgment. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

  In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). But summary judgment is appropriate "when the nonmovant fails to demonstrate that there is sufficient summary judgment evidence to allow a reasonable fact finder to find in its favor on all essential issues as to which it would bear the burden of proof at trial." Chen v. City of Houston, 206 F.3d 502, 505 (5th Cir. 2000) (discussing summary judgment standards in context of racial gerrymandering claim); see also Marylanders for Fair Representation. Inc. v. Schaefer, 849 F. Supp. 1022, 1030 (D. Md. 1994) (three-judge court) (explaining that to survive summary judgment dismissal plaintiff must show "there is sufficient evidence from which a reasonable factfinder could find in its favor").

  The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). In the context of voting rights cases, a court's summary judgment analysis should account for "the sensitive nature of redistricting and the presumption of good faith" owed to state legislatures. See Miller v. Johnson, 515 U.S. 900, 916 (1995); see also id at 916-17 (cautioning courts, in context of racial gerrymandering claim, to "recognize these principles, and Page 23 the intrusive potential of judicial intervention into the legislative realm, when assessing under the Federal Rules of Civil Procedure the adequacy of a plaintiff's showing at the various stages of litigation" (citing Fed.R.Civ.P. 56; Celotex, 477 U.S. at 327)); Chen, 206 F.3d at 505.

  With respect to the claims in this case, Count I is a "one person, one vote" challenge under the Equal Protection Clause. For such claims, where the population deviation in the legislature's plan is sufficiently minor and the plan is prima facie constitutional — as, for the reasons explained herein, it is in this case — the plaintiffs must produce evidence that raises a genuine issue of fact as to whether the plan was adopted based on `'unconstitutional or irrational" reasons. Marylanders, 849 F. Supp. at 1032; see also Baines v. Masiello, 288 F. Supp.2d 376, 386-87 (W.D.N.Y. 2003). Counts II, IV, VI, and VIII are vote-dilution claims under section 2 of the Voting Rights Act. On a motion for summary judgment, such claims are viewed in light of the three threshold requirements articulated in Thornburg v. Gingles, 478 U.S. 30 (1986). See Marylanders, 849 F. Supp. at 1045 (explaining that three "Gingles preconditions" act as threshold for summary judgment).

  With respect to Counts III, V, and VII, which were tried, we have carefully reviewed the extensive record and assessed the demeanor and credibility of the witnesses at trial. Our decision with respect to those counts includes our Findings of Fact and Conclusions of Law as required by Fed.R.Civ.P. 52(a). The plaintiffs bear the burden of proving their claims by a preponderance of the evidence. See, e.g., Easley v. Cromartie, 532 U.S. 234, 258 (2001) (providing standard for burden of proof in racial gerrymandering claim); Miller, 515 U.S. at 916; see also Voinovich v. Quilter, 507 U.S. 146, 155-56 (1993) (finding district court in error, in section 2 vote-dilution claim, for placing burden of justifying apportionment on State); Id. at 157 (stating that, under Gingles, "plaintiffs claiming vote dilution . . . must prove three threshold conditions," and Page 24 "plaintiffs can prevail on a dilution claim only if they show that, under the totality of the circumstances, the State's apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class") —


  A. Legal Standards

  The "one person, one vote" principle is grounded in the Equal Protection Clause of the Fourteenth Amendment. Reynolds v. Sims. 377 U.S. 533 (1964). It prohibits the dilution of individual voting power by means of state districting> plans that allocate legislative seats to districts> of unequal populations and thereby diminish the relative voting strength of each voter in overpopulated districts>. In Reynolds, the Court held that "the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." The Court required states to "make an honest and good faith effort to construct districts> . . . as nearly of equal population as is practicable." Id. at 577.

  While the Supreme Court has held that absolute population equality is required for congressional districts>, Karcher v. Daggett, 462 U.S. 725, 732-33 (1983), districting> plans for state legislative seats require only "substantial" population equality. See Gaffney v. Cummings, 412 U.S. 735, 748 (1973). The Court has recognized that minor deviations from absolute population equality may be necessary to permit states to pursue other legitimate and rational state policies. See Reynolds, 377 U.S. at 577-81: see also Mahan v. Howell, 410 U.S. 315, 321-22 (1973). Particular state policies that justify minor deviations from absolute population equality generally include "making districts> compact, respecting municipal boundaries, preserving the cores of prior districts>, and avoiding contests between incumbent Representatives." Karcher, 462 U.S. at 740. Page 25

  Because the promotion of these important state policies will often necessitate "minor deviations" from absolute population equality, the Court has held that such minor deviations, alone, are insufficient to establish a prima facie case of invidious discrimination. Voinovich v. Quilter, 507 U.S. 146, 160-62 (1993). In Brown v. Thomson, 462 U.S. 835, 842 (1983), the Court held that redistricting plans with a maximum population deviation below ten percent fall within the category of minor deviations that are insufficient to establish a prima facie violation of the Equal Protection Clause. "Thus, a redistricting plan with a maximum deviation below ten percent is prima facie constitutional and there is no burden on the State to justify that deviation." Marylanders for Fair Representation. Inc. v. Schaefer, 849 F. Supp. 1022, 1031 (D. Md. 1994) (three-judge court); see Holloway v. Hechler, 817 F. Supp. 617, 623 (S.D. W. Va. 1992) (three-judge court), aff'd mem., 507 U.S. 956 (1993); Fund for Accurate & Informed Representation, Inc. v. Weprin, 796 F. Supp. 662, 668 (N.D.N.Y.) (three-judge court), aff'd mem., 506 U.S. 1017 (1992); Gorin v. Karpan, 788 F. Supp. 1199, 1201 (D. Wyo. 1992) (three-judge court); Cosner v. Dalton, 522 F. Supp. 350, 357 n.11 (E.D. Va. 1981) (three-judge court).

  Compliance with Brown's "ten percent rule" does not end the inquiry. There is still a question of how the "ten percent rule" dovetails with Reynolds and its progeny, which require a "good faith effort" by the state to achieve "as nearly of equal population as is practicable." Reynolds, 377 U.S. at 577. For example, a three-judge court in Hastert v. State Board of Elections, 777 F. Supp. 634, 645 (N.D. Ill. 1991), suggested that "minute population deviations remain legally significant." The court in Corbett v. Sullivan, 202 F. Supp.2d 972, 987 n.7 (E.D. Mo. 2002) (citing Karcher, 462 U.S. at 738-40), held that "[e]ven deviations smaller than the census margin of error must be the result of a good faith effort to achieve population equality." Page 26

  The defendants' summary judgment brief argued, in substance, that the `ten percent rule" effectively creates a "safe harbor" that forecloses all challenges to redistricting plans in which the maximum deviation is below that percentage. Supporters of this per se rule point to the fact that nearly no state districting> plan with a maximum deviation below ten percent has ever been struck down by a court as violating population equality. Moreover, the language of some recent decisions seem to support the per se rule. The Weprin court, for example, indicated that plaintiffs who fail to demonstrate a maximum population deviation in excess often percent cannot survive a motion to dismiss. See Weprin, 796 F. Supp. at 668 ("[A]bsent credible evidence that the maximum deviation exceeds 10 percent, plaintiffs fail to establish a prima facie case of discrimination under [the one-person, one-vote] principle sufficient to warrant further analysis by this [c]ourt."). But see Cecere v. County of Nassau, 274 F. Supp.2d 308, 311-12 (E.D.N.Y. 2003) (finding claims where deviation is less than ten percent justiciable if some other discriminatory purpose is shown over and above obvious political motivations); Licht v. Quattrocchi, 449 A.2d 887 (R.I. 1982) (striking plan with five-percent deviation).

  The plaintiffs concede that if the maximum population deviation between districts> in a redistricting plan is under ten percent, the state has no burden to justify that deviation. The plaintiffs argue, however, that they may successfully challenge a plan with a maximum deviation below ten percent if they can prove that the "minor deviation" does not result from the promotion of other legitimate state policies, but rather from an impermissible or irrational purpose. We think that Brown. Mahan Gaffney, and Abate v. Mundt, 403 U.S. 182, 187 (1971), lend support to the proposition that the "ten percent rule" is not meant to protect a state that is systematically disadvantaging groups of voters with no permissible rational justification for the disproportion. Page 27

  We conclude, with Marylanders, 849 F. Supp. at 1032, that a plan within the `ten percent rule" is not per se immune from judicial review. No decision explicitly adopts the per se rule. Weprin — the case that comes closest to stating the rule — did not involve a plaintiff claiming unconstitutional or irrational state policies. See Weprin, 796 F. Supp. at 668. Thus, "if the plaintiff can present compelling evidence that the drafters of the plan ignored all the legitimate reasons for population disparities and created the deviations solely to benefit certain regions at the expense of others," a one-person, one-vote action will lie even with deviations below ten percent. See Legislative Redistricting Cases, 629 A.2d 646, 657 (Md. 1993); see also Licht 449 A.2d at 887 (finding deviation of five percent to violate one-person, one-vote requirement because deviation "negate[d] the effects of reapportionment").

  Moreover, in light of recent technological changes, there is a reason not to allow the state systematically to dilute the votes of certain classes of citizens simply because the state is able to keep its discrimination within a ten-percent deviation. The powerful computer programs of today allow states to manipulate districting> lines to alter voting patterns within a district with a high degree of precision. Under these circumstances, we see no reason to give a state operating within the ten-percent margin immunity from all review as to whether it is acting irrationally or undertaking invidious discrimination. The benefit of flexibility to pursue legitimate state policies that states receive under the "ten percent rule" since Brown carries with it a responsibility not to use the rule to frustrate the very purpose of the decennial census and systematically discriminate against a group of voters.

  Appropriate review can be achieved under the burden-shifting regime upheld in Marylanders where

  a plaintiff [can], with appropriate proof, successfully challenge a redistricting plan with a maximum deviation below ten percent. To prevail, though, the plaintiffs have the burden Page 28 of showing that the deviation in the plan results solely from the promotion of an unconstitutional or irrational state policy. Thus, the plaintiffs . . . must demonstrate . . . that the asserted unconstitutional or irrational state policy is the actual reason for the deviation. See Karcher, 462 U.S. at 740-44. In addition, the plaintiff must prove that the minor population deviation is not caused by the promotion of legitimate state policies.

 Marylanders, 849 F. Supp. at 1032 (emphasis added). If the burden on the plaintiffs in minor-deviation cases were anything less than this substantial showing, then the plaintiffs would be able to challenge any minimally deviant redistricting scheme based upon scant evidence of ill will by district planners, thereby creating costly trials and frustrating the purpose of Brown's "ten percent rule."

  B. Analysis

  The maximum deviation between Senate districts> in the Senate Plan is 9.78%, while the average deviation of the Senate districts> from the ideal district population is 2.22%.*fn20 Because the plaintiffs have failed to establish a prima facie case of unconstitutional discrimination under Brown, the defendants have no burden to justify the plan's minor deviation. Marylanders, 849 F. Supp. at 1033 (citing Voinovich, 507 U.S. at 160; Brown, 462 U.S. at 842-43).

  We denied the defendants' initial motion to dismiss this count of the Complaint, see Rodriguez v. Pataki, 274 F. Supp.2d 363 (S.D.N.Y. 2003), to give the plaintiffs an opportunity to meet their burden to show that the minimal deviation results solely from an unconstitutional or irrational state purpose rather than from other state policies recognized by the Supreme Court to be appropriate reasons for deviations. Such policies, announced in Karcher include "making Page 29 districts> compact, respecting municipal boundaries, preserving the cores of prior districts>, and avoiding contests between incumbent [r]epresentatives." Karcher, 462 U.S. at 740. Following discovery, the defendants moved for summary judgment, arguing that the plaintiffs have failed to raise disputed issues of fact that, if resolved in their favor, could support a finding that they carried their burden. The plaintiffs cross-moved for summary judgment on this count, arguing that they have met their burden with uncontradicted evidence.

  The plaintiffs assert that the Senate redistricting scheme impermissibly and arbitrarily discriminates against "downstate" residents (defined by the plaintiffs as Senate Districts> 10-38 — notably excluding the Long Island-based districts>, Senate Districts> 1-9) by systematically overpopulating all of those districts> and systematically underpopulating all of the "upstate" districts> (defined by the plaintiffs as Senate Districts> 39-62). These discriminatory actions, the plaintiffs allege, result in a single Senate district being retained by voters located in the "upstate" area when it should have been eliminated and an additional "downstate" district created.*fn21 The plaintiffs maintain that this qualifies as invidious discrimination because Reynolds itself disallowed discrimination against rural as opposed to urban residents of the state and thus made "regional discrimination" actionable. The plaintiffs also argue, as they must to meet their burden, that the defendants' systematic overpopulation and underpopulation lacked any rational or constitutionally permissible purpose. By implication, the plaintiffs suggest that racial bias may have animated the plan because all fourteen majority-minority Senate districts> were Page 30 overpopulated and are "downstate," where most of the state's minority population lives.*fn22 Finally, the plaintiffs urge that the defendants made no "honest and good faith effort," as required under Reynolds, to achieve real population equality, but rather adhered to the "ten percent rule" (just barely) because they believed it to be a "safe harbor."

  It is effectively undisputed that in their redistricting plan the defendants were plainly mindful of the "ten percent rule," as demonstrated by various memoranda of the chief architect of the plan, Mark Burgeson. No invidious purpose can be inferred from such conduct alone; indeed, Brown invites adherence to the "ten percent rule." Consistent with Marylanders and Farnum v. Burns, 561 F. Supp. 83, 93 (D.R.I. 1983) (three-judge court), we find that an express objective of staying within a ten-percent deviation while pursuing other legitimate goals provides no support to the plaintiffs' claim of invidious or arbitrary discrimination or of bad faith. See Marylanders, 849 F. Supp. at 1034 (reasoning that objective of staying within ten-percent window rather than achieving absolute population equality "merely recognize[s] the flexibility that the State had in order to accommodate other legitimate state policies" and "demonstrates nothing more than the objective of crafting a plan with constitutional population equality").

  To be sure, Vigo County Republican Central Committee v. Vigo County Commissioners, 834 F. Supp. 1080 (S.D. Ind. 1993), held that merely trying to stay below ten-percent deviation could not be considered good faith. But Vigo arose under idiosyncratic facts, where the plan's total deviation when the litigation started was 37%; only to avoid losing in court did the planners Page 31 consciously try to eliminate pre-existing bad faith by drawing a plan within the ten-percent parameter. See id at 1085-86. The Vigo court essentially found that the defendants there did too little too late — a finding inapposite here. In sum, in the case before us, the defendants' conscious use of the `ten percent rule" cannot, without more, support an inference that no legitimate state policies accounted for a minor deviation in a districting> plan or that adherence to the "ten percent rule" was a mere pretext for impermissible considerations.

  The plaintiffs have not produced evidence of irrational or unconstitutionally discriminatory behavior by the Legislature, notwithstanding their reliance and emphasis upon Burgeson's memorandum of July 20, 2001, which the plaintiffs claim reveals the defendants' intention to discriminate against the "downstate" region. (Netburn Decl., Ex. 39 (Memorandum from Mark Burgeson to Sen. Skelos, dated July 20, 2001).) In that memorandum, Burgeson expresses a preference against increasing the Senate to 63 seats; he suggests that the only place to add a district to a 62-seat plan would be on Long Island to "combine politically undesirable areas." (Id. at 1.) He further emphasizes that an extra seat cannot be added "upstate" because those districts> are already drawn "light, to avoid migration downstate." (Id.) The plaintiffs argue vigorously that the memorandum's references to "politically undesirable" areas prove invidious discrimination.

  Putting aside the plaintiffs' questionable assumption that Burgeson's motives are a proxy for those of the Legislature, a fair reading of the memorandum reveals many permissible redistricting considerations. The memorandum shows that LATFOR was interested in contiguity, compactness, preserving the cores of existing districts>, desiring not to pit incumbents against one another, respecting then-current political subdivisions and county lines, and staying within the ten-percent-deviation parameter of Brown. (See generally Id.): cf. Marylanders, Page 32 849 F. Supp. at 1034.*fn23 Indeed, this contemporaneous memorandum assists the defendants at least as much as it assists the plaintiffs because it plainly invokes the permissible policies that Karcher contemplates. Moreover, to the extent that it refers to areas that would be represented by Democrats as "politically undesirable," we cannot understand what invidious discrimination this phrase supposedly signals: there is no political or racial gerrymandering claim embedded in this count, nor is it surprising that a memorandum to the Republican State Senate in control of redistricting would describe a potential Democratic district as comprised of "undesirable" voters. Finally, it was plainly Democrats on Long Island in Senate Districts> 1-9 who were potentially disadvantaged by this decision, not people in the "downstate" region, defined by the plaintiffs as Districts> 10-38. Accordingly, the memorandum does not help the plaintiffs meet their burden; it evinces permissible motives and fails to show that the deviations resulted solely from impermissible considerations. Page 33

  On the record before us, still other reasons support summary judgment in favor of the defendants apart from the fact that the plaintiffs failed to show that the deviation was not caused by the promotion of court-approved state policies. First and foremost, the plaintiffs only beg the question in repeatedly asserting that the pattern of overpopulation and underpopulation "reflects an illegitimate effort to overrepresent an entire region of the State in order to maintain its ascendancy in the Senate, at the expense of another large region which the 2000 Census data showed had grown much more substantially over the past decade." (Pls. Mem. at 9.) How can we conclude, given the "ten percent rule" we reaffirm today, that the minimal underpopulation of "upstate" districts> was driven by regional discrimination rather than other permissible considerations? Just as in the racial context where courts must deal with the overlap of racial identity and partisan identification and still conclude that the districting> is racially — and not simply politically — drawn to find an equal protection violation, see, e.g., Easley v. Cromartie, 532 U.S. 234 (2001), so in the one-person, one-vote context must the plaintiffs who challenge a plan with less than a ten-percent deviation present some evidence that the districting> can be traced to impermissible considerations. In New York State, the traditional correlation between "upstate" districts> and Republican political identification (21 out of 24 incumbent Senators upstate are Republican) means that the plaintiffs here needed to proffer more than a mere assertion of a Senate conspiracy for "upstate" ascendancy to meet their burden of showing a violation of the one-person, one-vote principle.*fn24

  Second, to the extent that the plaintiffs seek to use the regional aspect of their claim as a proxy for a claim to that a group of voters were systematically disadvantage, their proposed Page 34 definitions of "upstate" and "downstate" are self-serving and defective. Cf. Reynolds, 377 U.S. at 562 (stating that principle of population equality in districting> is aimed to protect citizens and not geographic areas: "Legislators are elected by voters, not farms or cities or economic interests."). The plaintiffs identified the "downstate" region as Districts> 10-38, including New York City, Rockland County, most of Westchester County, and two towns in Orange County. (Compl. ¶ 106.) They defined upstate as Districts> 39-62, including the northern portion of Westchester, most of Orange County, and all of the counties north and west of Westchester and Orange Counties. (Id.) We are unable to discern why certain border counties that reach north of New York City — and why only portions of two of those counties — are classified as "downstate" on any basis other than that they are overpopulated. Moreover, the Long Island districts> (1-9), while decidedly "downstate" geographically, are conveniently excluded from plaintiffs' "downstate" calculus because they are not overpopulated; they are populated at close to the ideal level. The deposition of the plaintiffs' witness, Todd Breitbart, confirmed that at least he is "not aware of any generally accepted practice for defining upstate and downstate." (Stip. ¶ 51.) In sum, the plaintiffs have offered no persuasive basis for embracing their selective definition of state regions, which appears to be tailored to suit their litigation strategy.

  Finally, the affidavits on summary judgment establish that if every district were apportioned with perfect equality, the difference in "downstate" representation from what was accorded under the enacted plan would be insignificant. New York City would have been entitled to 26.2 seats as compared with the 26 seats accorded to New York City under the enacted plan (with a seat defined as representing a district controlled or predominantly controlled by city-based voters). See Marylanders, 849 F. Supp. at 1035 n. 12 (discussing concept of Page 35 "regional discrimination" and dismissing argument where county "control[led] precisely the number of State Senators that its population indicates it should control").

  We consider one final point. The defendants, in response to the plaintiffs' allegation of systematic "downstate" overpopulation, urge us to reassess this allegation in light of population variants: citizen voting age population ("CVAP") and voting age population ("VAP"), instead of total population (which includes ineligible voters). Using these alternative counting methods, both parties stipulate that the New York City districts> within the "downstate" districts> would then be substantially underpopulated rather than overpopulated. According to the plaintiffs' CVAP figures, the New York City districts> in the Senate Plan are underpopulated by 12.0% and "upstate" districts> are overpopulated by 15.4%. With respect to registered voters, the weight of one New York City resident's vote, depending on the district of comparison, is worth 29.9% to 63.6% more than an "upstate" citizens vote. (See Stip. ¶¶ 16-17, 22.) Although total population figures are the generally accepted basis for redistricting calculations, the practical effect of the Senate Plan on those who actually vote shines a very different light on the plaintiffs' argument that the Senate Plan discriminates against New York City and its voters: the underpopulated "upstate" districts> have more eligible citizens and actual voters. The practical effect of the Senate Plan, then, is to dilute the votes of "upstate" residents, not those who reside "downstate."

  It does not appear that the New York legislature employed CVAP data in creating its 2002 Senate Plan,*fn25 and thus the issue is not whether the court should defer to the state's decision Page 36 to use a measure other than total population. See, e.g., Burns v. Richardson, 384 U.S. 73, 94-96 (1966) (upholding Hawaii's use of registered voter statistics in apportionment because "[t]otal population figures may . . . constitute a substantially distorted reflection of the distribution of state citizenry" and because use of registered voter statistics "substantially approximated [the apportionment that] would have appeared had state citizen population been the guide"). This is also not a situation where a state's apportionment plan is within the ten-percent window under one measure but is challenged for being beyond it under a different measure. See Daly v. Hunt, 93 F.3d 1212, 1222 (4th Cir. 1996) (involving issue of "the determinative statistic for measuring compliance with the one person, one vote principle" where plan complied with total-population proportionality, but it allegedly "produced an unacceptably high deviation in terms of voting-age population"). In raising the issue of the CVAP distribution in New York State, we are not attempting to promote any particular theory of proportional representation.*fn26 We simply find that under the circumstances of this case, including the fact that the plan is prima facie constitutional, we do not need to ignore the reality that the overpopulation of New York City districts> has not, in fact, diluted the voting strength of "downstate" voters.

  Even accepting the plaintiffs' argument that the Senate Plan was designed to draw upstate districts> "light, to avoid migration [of a Senate seat] downstate" (see Netburn Decl. Ex. 39, at 1 (Burgeson Memo, dated July 20, 2001)), we find no constitutional harm. The overall population Page 37 deviation is within the ten-percent margin of Brown, and the plan is prima facie constitutional. The plan promotes the traditional principles of maintaining the core of districts> and limiting incumbent pairing. In this case, the overall effect of the deviation is only one seat (actually, two-thirds of a seat) in a 62-seat Senate.*fn27 Accordingly, we granted the defendants' motion for summary judgment on Count I, the population equality count of the Complaint, and we denied the plaintiffs' cross-motion for summary judgment on the same count. No genuine issues of material fact warranted a trial on this count, and the plaintiffs failed to meet their burden.


  The Complaint asserts six separate claims of vote dilution pursuant to section 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973, including five State Senate district challenges and one congressional district challenge. The State Senate claims, in the order discussed herein, relate to Suffolk County (Count VI); Nassau County (Count V); the Bronx and a small portion of Westchester County (Count III); the Senate Plan in its entirety Page 38 (Count II); and Manhattan and a small portion of the Bronx (Count IV). The congressional claim relates to CD 17, which is located in Bronx, Westchester, and Rockland Counties (Count VIII).

  A. Section 2 Legal Standard

  Section 2(a) of the Voting Rights Act ("VRA") provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . 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 [or membership in a language minority group]." 42 U.S.C. § 1973(a).*fn28 Section 2(b) provides that a "denial or abridgement" occurs where,
based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State . . . 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 . . . 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.
§ 1973(b). To establish a section 2 violation, plaintiffs must first establish by a preponderance of the evidence three threshold conditions articulated in Thornburg v. Gingles, 478 U.S. 30 (1986):
(1) that the minority group is "sufficiently large and geographically compact to constitute a majority in a single-member district";
(2) that [the minority group] is "politically cohesive"; and
(3) that "the white majority vot[es] sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate."
Growe v. Emison, 507 U.S. 25, 40 (1993) (quoting Gingles, 478 U.S. at 50-51). Page 39

  With respect to the first Gingles precondition, "[t]he reason that a minority group . . . must show, as a threshold matter, that it is sufficiently large and geographically compact to constitute a majority in a single-member district is this: Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." Id. at 50 n.17. "Because the very concept of vote dilution implies — and, indeed, necessitates — the existence of an `undiluted' practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark `undiluted' practice." Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480 (1997); accord Holder v. Hall, 512 U.S. 874, 881 (1994).

  With respect to the second Gingles precondition, "if the minority group is not politically cohesive, it cannot be said that the [challenged structure, practice, or procedure] thwarts distinctive minority group interests." Gingles, 478 U.S. at 51. Proof of cohesion in actual elections is required. See Sanchez v. Colorado, 97 F.3d 1303, 1312 (10th Cir. 1996); Gomez v. City of Watsonville, 863 F.2d 1407, 1415 (9th Cir. 1988); see also NAACP v. City of Niagara Falls, 65 F.3d 1002, 1018 (2d Cir. 1995).

  With respect to the third Gingles precondition, a plaintiff must demonstrate that elections are racially polarized — that `there is a consistent relationship between the race of the voter and the way in which the voter votes," Gingles, 478 U.S. at 53 n.21 (internal quotations marks and alterations omitted) — and that "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51; see also Id. at 55-58, 63; Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1123 (3d Cir. 1993) ("The correct question is not whether white voters demonstrate an unbending or unalterable hostility to whoever may be the minority group's representative of choice, but whether, as a Page 40 practical matter, the usual result of the bloc voting that exists is the defeat of the minority-preferred candidate.").

  The three Gingles preconditions are necessary — but not sufficient — to establish a section 2 violation. "[I]f Gingles so clearly identified the three [preconditions] as generally necessary to prove a § 2 claim, it just as clearly declined to hold them sufficient in combination, either in the sense that a court's examination of relevant circumstances was complete once the three factors were found to exist, or in the sense that the three in combination necessarily and in all circumstances demonstrated dilution." Johnson v. De Grandy, 512 U.S. 997, 1011 (1994). Rather, a plaintiff asserting vote dilution must also show "that, under the totality of the circumstances, the State's apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class." Voinovich v. Quilter, 507 U.S. 146, 157 (1993). The relevant inquiry may include the list of factors set forth in the United States Senate Judiciary Report ("Senate Report") accompanying the 1982 bill amending section 2 of the Voting Rights Act, S. Rep. No. 97-147, at 2 (1982) ("Senate Factors"), but this is neither a "comprehensive nor exclusive" list. Gingles, 478 U.S. at 44-45; See S. Rep. No. 97-147 at 28-29, 1982 U.S.C.C.A.N. 177, 206-07 ("[The Senate Factors] often will be the most relevant ones, [but] in some . . . cases other factors will be indicative of the alleged dilution").*fn29 "[T]he ultimate conclusions about Page 41 equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts." De Grandy, 512 U.S. at 1011.

  B. Long Island: Nassau County and Suffolk County (Counts V and VI)

  The plaintiff's have brought section 2 vote-dilution claims challenging the Senate Plan with respect to two counties on Long Island: Nassau County and Suffolk County. The plaintiffs contend that in each county, despite the fact that the minority population has been rapidly growing, district lines continue to divide minority communities. Thus, the plaintiffs claim, the districts> in Nassau and Suffolk Counties present a classic case of "cracking," where minority voting strength is diluted by dividing the minority population across several districts> and thus submerging in each district the minority community in a white majority.

  While the black and Hispanic populations have indeed grown significantly on Long Island, particularly during the decade prior to the 2000 Census, in neither Suffolk County nor Nassau County is either minority group large enough itself to form a majority in a Senate district. The plaintiffs proposed two districts>, one in Suffolk County and one in Nassau County, as black-Hispanic coalition districts>. The first district was Plaintiffs' Proposed District 4 in Suffolk County, which would encompass minority populations from portions of the current SDs 3, 4, and 8.*fn30 It would have a white VAP of 56.4%, a non-Hispanic black VAP of 17.5%, a Hispanic VAP Page 42 of 22.7%, and a combined black and Hispanic VAP of 40.2%. See infra Table 1. Plaintiffs' Proposed District 8 would include sections from all four Nassau County Senate districts> — SDs 6, 7, 8, and 9 — and would have a white VAP of 40.7%, a non-Hispanic black VAP of 34.5%, a Hispanic VAP of 19.8%, and a combined black and Hispanic VAP of 54.3%. Id. However, the combined black and Hispanic CVAP would be only 47.6% because in those districts> almost half of Hispanics of voting age are not citizens. Id.

  The voting age populations of the Senate districts> under the 2002 Senate Plan that comprise Plaintiffs' Proposed Districts> 4 and 8 are as follows:
District*fn32 Non-Hispanic White VAP Non-Hispanic Black VAP*fn33 Hispanic VAP Hispanic Black VAP 2002 Senate Plan SD 3(S) 74.25% 7.09% 15.59% 22.68% SD 4(S) 76.41% 8.77% 11.92% 20.69% SD 6(N) 69.04% 15.87% 11.15% 27.02% SD 7(N) 73.07% 8.36% 9.26% 17.62% SD 8 (N/S) 71.85% 15.06% 10.31% 25.37% SD 9(N) 81.44% 5.67% 8.48% 14.15%
Suffolk County: Proposed District 4*fn34 56.38% 17.53% 22.65% 40.19% (CVAP) (603.94%) (18.11%) (15.61%) (33.72%)
Nassau County: Proposed District 8*fn35 40.65% 34.51% 19.81% 54.32% (CVAP) (48.20%) (36.85%) (10.76%) (47.61%)
Page 43

 *fn31 See PX 6 tbl. 11 (VAP data for the 2002 Senate Plan), tbl. 16 (VAP data for the Revised Plaintiffs' Plan), tbl. 28 (CVAP data for the Revised Plaintiffs' Plan). For CVAP data for the 2002 Senate Plan, see id. tbl. 27.

 *fn32 (S) indicates a Suffolk County district and (N) indicates a Nassau County district.

 *fn33 The Census collects information for people who identify as non-Hispanic black and Hispanic black. The experts in this case generally referred to the non-Hispanic black population statistics when discussing African-Americans or blacks as a distinct minority group.

 *fn34 Comprised of portions of SDs 3, 4, and 8.

 *fn35 Comprised of portions of SDs 6, 7, 8 and 9.

  As pleaded, the plaintiffs' Long Island vote-dilution claims face a number of obstacles in their attempt to satisfy the first Gingles precondition, which, when read literally, requires that a minority group constitute a majority of the relevant population in a single-member district. Gingles, 478 U.S. at 49 ("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.").

   The first problem arises from the fact that the Complaint treated blacks and Hispanics as the equivalent of a single minority group by aggregating the populations of the two minority groups to meet the majority-in-a-district requirement. While the defendants argue that minority groups cannot be aggregated for purposes of a section 2 claim, the Supreme Court has left the question open. See Growe v. Emison, 507 U.S. 25, 41 (1993). The Court of Appeals for the Second Circuit, however, has permitted blacks and Hispanics to be combined for the purposes of complying with the first Gingles precondition, provided the groups are shown to be politically cohesive. See Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 27 L 276 (2d Cir.), vacated and remanded on other grounds, 512 U.S. 1283 (1994); see also Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 281 F. Supp.2d 436, 445 (N.D.N.Y. 2003) (citing Bridgeport in stating that Second Circuit law "assumes diverse minority groups can be combined to meet VRA litigation requirements" crafted by Gingles). But see Nixon v. Kent County, 76 F.3d 1381, 1390-92 (6th Cir. 1996) (en banc) (ruling against aggregating minority groups to meet first Gingles condition). In any event, it is plain that to the extent minorities can be aggregated, cohesion between groups cannot be presumed, and the plaintiffs bear the burden of proving such cohesion. See Growe, 507 U.S. at 41. Page 44

   The more substantial legal question for the purposes of the Nassau and Suffolk County claims is whether a vote-dilution claim can succeed if the relevant minority population is not a majority in the plaintiffs' proposed districts>. That is, the Nassau and Suffolk County claims raise the issue of whether "coalition" or "influence" claims are cognizable under the VRA. Gingles addressed a claim where "the plaintiffs alleged and attempted to prove that their ability to elect the representatives of their choice was impaired by the selection of a multimember electoral structure." Gingles, 478 U.S. at 46 n.12. The Court declined "to consider whether section 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district, alleging that the use of a multimember district impairs its ability to influence elections." Id. As Justice O'Connor pointed out in her Gingles concurrence, the plurality opinion left open a question about the nature of the distinction between majority-minority districts> and "influence" districts>, as well as whether plaintiffs could make a claim where they showed an ability to elect candidates of choice without being a majority of the population. Id. at 89 n.1 (O'Connor, J., concurring). Since Gingles, the Supreme Court has three times declined to reach the issue of whether vote-dilution claims are viable when the minority group is less than a majority of voters in a proposed district. See Johnson v. De Grandy, 512 U.S. 997, 1008-09 (1994); Voinovich v. Quilter, 507 U.S. 146, 158 (1993); Growe, 507 U.S. at 41 n.5.*fn36 Page 45

   Although courts often use the term "influence-dilution" or "influence district" to refer to any district where the minority group would not be a majority of voters, there are two kinds of districts> that are conceptually different. A "coalition" or "crossover" district is one where members of the minority group are not a majority of the relevant voting population but nonetheless have the ability to elect representatives of their choice with support from a limited but reliable white crossover vote. See Hall v. Virginia, 276 F. Supp.2d 528, 533-34 & nn.7-10 (E.D. Va. 2003) (defining terms and contrasting "coalition districts>" with "influence districts>").*fn37 Coalition or crossover districts> are also referred to as "performance" districts>, "effective" districts>, or "ability to elect" districts>. See Id. at 533 nn.7-9. An "influence" district is where Page 46 minority voters may not be able to elect a candidate of choice but can play a substantial, although not decisive, role in the electoral process. See id at 534 n.10; see also Georgia v. Ashcroft 123 S.Ct. 2498, 2513 (2003). Both of these districts> are distinct from majority-minority districts>, which a literal reading of Gingles requires. Most courts have adopted the literal reading of Gingles and have rejected claims where the minority group does not constitute a majority of voters in a single-member district. See Hall 276 F. Supp.2d at 536, 538 (listing cases and stating that bright-line majority-in-a-district rule is well-established).

   Plaintiffs' Proposed District 4 in Suffolk County was presented as a pure influence-dilution claim, where no ability for minorities to elect candidates of choice was alleged, even if the black and Hispanic populations are aggregated. For the reasons we will explain, this Court follows the clear majority of courts and therefore rejects the Suffolk County influence-dilution claim. We thus granted summary judgment dismissing Count VI.

   In Plaintiffs' Proposed District 8 in Nassau County, blacks and Hispanics, if aggregated, would constitute 54.3% of the VAP and 47.6% of the CVAP — thus straddling the Gingles majority threshold. See supra Table 1. In Count V of the Complaint, the plaintiffs alleged that blacks and Hispanics should be aggregated and that together they had the ability to elect candidates of their choice in Proposed District 8. (Compl. ¶ 317.) The Court denied summary judgment dismissing Count V of the Complaint both before trial and when the motion was renewed at trial. All parties presented evidence on this claim at trial. At trial, the plaintiffs abandoned their contention that blacks and Hispanics voted cohesively in Nassau County, and they reframed their argument to treat Proposed District 8 as a black-only "ability to elect" district with a 34.5% black VAP. Even assuming, for the sake of argument, that such a crossover claim Page 47 could be cognizable, we find that the plaintiffs have failed to prove that the Senate Plan violated section 2 of the VRA with respect to the districting> scheme in Nassau County.

   1. Suffolk County (Count VI)

   The proposed Suffolk County district would connect a stretch of minority communities from the Nassau/Suffolk border eastward through Islip. (See PX 1 map 15.) Plaintiffs' Proposed District 4 would encompass the minority population currently distributed across three Senate districts>, including: the minority population in the eastern part in the Town of Islip in SD 3; the minority population in the greater part of the Town of Babylon, which is now in SD 4; and the minority community in the western part of the Town Babylon, which is currently in SD 8, a district that bridges Nassau and Suffolk Counties. (Compare Id. map 14c (Black and Hispanic Population and Senate Plan 2002), with Id. map 15 (Black and Hispanic Population and Revised Plaintiffs' Plan).) Proposed District 4 would have a white VAP of 56.4%, a non-Hispanic black VAP of 17.5%, a Hispanic VAP of 22.7%, and a combined black and Hispanic VAP of 40.2%. See supra Table 1. The CVAP of blacks and Hispanics combined would be 33.7%. See id

   At the argument of the motions for summary judgment, the plaintiffs conceded that they could not satisfy the majority-in-a-district requirement. (See Summ. J. Tr. at 44.) The plaintiffs stated that their proposed district in Suffolk County would be an "influence district." They admitted that the case for a violation was weaker for influence districts> than for crossover districts> under the VRA, but they argued that because there is evidence of intentional discrimination, the influence claim should be allowed. However, we find no basis for concluding that the creation of such a district is required, nor that the Senate Plan violated section 2 of the VRA because it failed to create a minority "influence" district. Moreover, the plaintiffs have failed to present any evidence to support a finding of intentional discrimination. Page 48

   Although the Supreme Court has left the issue open, federal courts have nearly unanimously interpreted the first Gingles precondition strictly and have rejected any claim where the minority group does not constitute a majority of the relevant population in the proposed district.*fn38 The Courts of Appeals for the Sixth, Seventh, and Ninth Circuits, have expressly rejected "influence" claims while the Courts of Appeals for the Fifth and Eleventh Circuits have similarly enforced a strict majority-in-a-district requirement. See Cousin v. Sundquist, 145 F.3d 818, 828 (6th Cir. 1998) (announcing that section 2 violations cannot "consist of an impairment of the minority's ability to influence the outcome of the election rather than determine it"); Romero v. City of Pomona, 883 F.2d 1418, 1424 & n.7 (9th Cir. 1989) (refusing to reopen case decided prior to Gingles in order to consider ability-to-influence claim, and stating, "We are aware of no successful section 2 voting rights claim ever made without a showing that the minority group was capable of a majority vote in a designated single district."), overruled on other grounds, Townsend v. Holman Consulting Corp., 914 F.2d 1136 (9th Cir. 1990); McNeil v. Springfield Park Dist. 851 F.2d 937, 947 (7th Cir. 1988) (describing Gingles majority-minority threshold as having "the apparent objective of sharpening section 2's focus," and refusing to consider claim that plaintiffs' ability to influence, rather than win, elections was impaired); see also Valdespino v. Alamo Heights Indep. Sch. Dist. 168 F.3d 848, 851-53 (5th Cir. 1999) Page 49 (calling Gingles factors "a bright line test" requiring proof that minority group "constitute[s] more than 50% of the relevant population in their demonstration district," and denying "ability to elect" claim for district with approximately 48% Hispanic CVAP); Negrón v. City of Miami Beach, 113 F.3d 1563, 1569 (11th Cir. 1997) (requiring that minority group constitute majority of citizen voting age population and rejecting districts> where Hispanics had voting age majority but were 41 to 48% of CVAP). But see Vecinos de Barrio Uno v. City of Holyoke, 72 F.3d 973, 979 n.2, 990-91 (1st Cir. 1995) (noting that first Gingles factor may need to be reconfigured for influence claims and directing district court to address plaintiffs' influence-dilution claim because "potential influence is relevant to a determination of whether the [minority] group lacks a meaningful opportunity to participate in the electoral system").

   Several district courts have also found that Gingles prohibits influence-dilution claims. See, e.g., DeBaca v. County of San Diego, 794 F. Supp. 990, 996-97 (S.D. Cal. 1992) (rejecting influence claims), aff'd, 5 F.3d 535 (9th Cir. 1993); Turner v. Arkansas, 784 F. Supp. 553, 568-72 (E.D. Ark. 1991) (three-judge court) (citing McNeil, 851 F.2d at 947, and refusing to accept "ability to influence" claim because doing so would undermine Gingles preconditions), aff'd mem., 504 U.S. 952 (1992); Hastert v. State Bd. of Elec., 777 F. Supp. 634, 652-54 (N.D. Ill. 1991) (three-judge court) (emphasizing utility of objective rule and refusing to accept plaintiffs' argument for "adoption of a definition of minority influence district that has no statistical bounds as to voter group size"); cf. Fund for Accurate & Informed Representation, Inc. v. Weprin, 796 F. Supp. 662, 672 (N.D.N.Y.) (three-judge court) (declining to resolve issue because plaintiffs could not meet burden of proof on cohesion and racial bloc voting preconditions), aff'd mem., 506 U.S. 1017 (1992). Page 50

   We agree with the nearly universal opinion of federal courts that section 2 of the VRA does not require the creation of influence districts> where minority voters will not be able to elect candidates of choice. Section 2(b) of the VRA protects the ability of minority groups "to participate in the political process and to elect representatives of their choice" VRA § 2(b), 42 U.S.C. § 1973(b) (emphasis added). While Gingles left open the possibility of influence claims, Justice Brennan's plurality opinion emphasized: "Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." Gingles, 478 U.S. at 50 n.17; see also id at 48 (requiring plaintiffs to "prove that the use of a [voting practice or procedure] operates to minimize or cancel out their ability to elect their preferred candidates") — If a minority population is too small to elect candidates of choice in a reconfigured district even with the assistance of reliable crossover voters, then it is the size of the population and not the voting practice or procedure that is preventing the minority group from electing representatives of their choice. Dilution of the ability to influence representatives is not an injury cognizable under section 2(b) of the VRA. See Id. at 50 n. 17.

   In addition to being at odds with the structure of the statute, the plaintiffs' influence claim, as presented, has no standards and would be judicially unmanageable. "Influence" cannot be clearly defined or statistically proved. See, e.g., Hastert, 777 F. Supp. at 652-54 (refusing to open "Pandora's box" by accepting influence claims where influence is poorly defined and has no adjudicable standards). As Justice Souter recognized in De Grandy, "some dividing [of minorities] by district lines . . . is virtually inevitable." De Grandy, 512 U.S. at 1015. Allowing influence claims would open the door for a legal challenge any time a minority population could be shifted to increase the minority population in a nearby district. It would open the door for Page 51 cases like this one, where the plaintiffs are arguing that the defendants had an affirmative obligation to create a district that has never existed in order to unite all minority communities in a particular region to maximize the proportion of a minority in at least one district.

   Moreover, this would be a particularly inopportune case to recognize influence claims under section 2 because there is no evidence that the failure to create a district such as Plaintiffs' Proposed District 4 has diluted meaningful influence for minority voters in Suffolk County. While blacks and Hispanics combined would be 40.2% of the VAP and 33.7% of the CVAP in Plaintiffs' Proposed District 4, see supra Table 1, the plaintiffs cannot prove that blacks and Hispanics vote cohesively in Suffolk County.*fn39 Even if the groups were cohesive, statistics offered by the plaintiffs' own expert undermine any viable argument that blacks and Hispanics could form a meaningful and influential voting bloc.

   The plaintiffs' expert, Dr. Michael McDonald, examined Suffolk County State Senate elections from 1996-2002 and estimated the turnout rates for whites, blacks, and Hispanics in each election for the three districts> constituting Plaintiffs' Proposed District 4. (See Netburn Page 52 Decl. Exs. 5, 6 (raw data and summaries of analysis by Dr. McDonald).) Dr. McDonald estimated that whites turned out to vote for those elections at an average estimated rate of 43.0%. (See Id. Ex. 6 (first Electability Analysis table).) The average estimated turnout rate for blacks was 12.0% and for Hispanics it was only 1.4%. (See Id.) Based on these turnout rates and the demographics for Proposed District 4, whites would, on average, constitute an estimated 90.0% of the actual voters in the proposed district. Blacks would constitute an estimated 7.9% of voters, and Hispanics would constitute only 1.2% of voters. Combined, the minorities would be 9.1% of the voters in elections in the proposed district. (See Defs. SOF ¶ 175; Pls. SOF Response ¶ 175 (disputing defendants' calculations only insofar as they used average turnout rates over sixteen elections instead of maximum black and Hispanic turnout rates).) The minority groups would not be able to form a voting bloc large enough to have meaningful influence. This is particularly true because the Republican incumbents for SD 3 and 4 — one of which would likely run in the proposed district — have obtained an average of approximately 65% of the vote in the last several elections. (See Netburn Decl. Ex. 5 app. 3, at 1, 8, 16-17, 24-25 (reporting election results).)

   The plaintiffs argue that the Gingles factors should be relaxed to allow the influence claim for Suffolk County because there was intentional discrimination in drawing the district lines. See Garza v. County of Los Angeles, 918 F.2d 763, 770-71 (9th Cir. 1991) (relaxing Gingles conditions where there was evidence of intentional discrimination but stating that plaintiffs must still prove injury). Although the 1982 Amendments to the VRA directed courts to look at the effects of redistricting, the plaintiffs argue that Congress did not employ an effects test at the expense of prohibiting practices that were intentionally discriminatory. Page 53

   Even if intentional discrimination were a basis for relaxing the Gingles preconditions, the plaintiffs have presented no evidence of intentional discrimination. The thrust of the plaintiffs' argument is not that the drawing of the Senate district lines in Suffolk County was based on intentional discrimination. It is plain that with minor exceptions, the district lines did not change between the 1992 and 2002 redistricting plans. (Compare Netburn Decl. Ex. 1 map 14c, with Id. map 15.) Indeed, the lines affecting the minority population have not changed since the 1980s districting> plan. (Compare Id. map 13c, with Id. maps 14c, 15.) The plaintiffs' argument, then, is that the defendants discriminated by refusing to change the district lines to unite the minority communities that have grown over time.

   The plaintiffs rely again on the memo to Sen. Skelos from Mark Burgeson, head of the Majority Redistricting Office. (See Netburn Decl. Ex. 39 (Memorandum from Mark Burgeson to Sen. Skelos, dated July 20, 2001) ("Burgeson Memo"); Summ. J. Tr. at 45-46.) In that memo, discussed earlier with respect to Count I, Burgeson discussed various options for creating a new district that would bring the total number of Senate districts> to 63. One option involved creating a majority-minority district by connecting minority areas in Elmont, which is on the west border Nassau County, through Brentwood in the Town of Islip in the middle of Suffolk County. (Burgeson Memo at 1.) This district, Burgeson noted, would be vulnerable to an attack for racial gerrymandering under Shaw v. Reno and would also not be useful for Republicans. Burgeson also stated that he received testimony that the minority areas in Hempstead (Nassau County) should be united, and he raised the option of a majority-minority district bridging Nassau and Queens Counties that could accomplish that goal. (Id. at 1-2.)

   The memo, however, ultimately recommended against a 63-seat plan. Burgeson found that "the only reason to go to 63 is to strengthen the Long Island delegation by combining Page 54 politically undesirable areas in the extra district." (Id. at 1.) He explained that there is no other place where it would be possible to strengthen the surrounding districts> solely by adding another district. Plainly, the political majority would have been strengthened in existing districts> by removing voters not of that party from current districts> and placing them in a new district. However, Burgeson concluded that adding another district could have resulted in the loss of a Republican incumbent depending on how it was done, and it probably would not have provided an extra Republican seat. The memo therefore shows only that Burgeson was considering options that he later rejected, largely for reasons of politics and redistricting demographics.

   The plaintiffs deduce an alleged intent to discriminate primarily from two phrases in the memo. (See Summ. J. Tr. at 38-42.) Burgeson refers to a possible district uniting minority populations in Nassau County as "carving out politically undesirable areas and at the same time demonstrat[ing] sensitivity to testimony" received at public hearings. (Burgeson Memo at 1.) He later commented that the majority-minority district stretching from the border of Nassau and Queens Counties into Suffolk County would not include most minority areas in Hempstead, and thus those areas "would still need attention." (Id. at 2.) It is clear from the memo that the districting> was politically motivated and that Burgeson was conscious of the impact on minority groups. But consciousness of minority groups is not evidence of intentional discrimination. Sec Miller v. Johnson, 515 U.S. 900, 916 (1995) ("Redistricting legislatures will . . . almost always be aware of racial demographics; but it does not follow that race predominates in the redistricting process.") Indeed, it would be impossible in the face of the Voting Rights Act not to be aware of how redistricting affects minority populations. Most importantly, the memo was directed to a consideration of whether the redistricting committee should have created an additional district Page 55 under a 63-seat plan — a plan that was never adopted. The memo says nothing about whether the current district lines were drawn or maintained for a discriminatory purpose.

   In sum, the plaintiffs have failed to establish that the current Senate district lines in Suffolk County violate section 2 of the VRA. While they have asserted that an "influence" district should be created, the VRA does not require such districts>. Moreover, the proposed district is of such slight minority influence that Gingles, which left open the possibility, cannot be read to accommodate such a district. The plaintiffs argue that the Gingles preconditions should be relaxed in the face of intentional discrimination, but they have failed to present evidence creating a material issue of fact that there was such discrimination. Summary judgment was therefore granted dismissing the plaintiffs' claim with respect to Suffolk County.

   2. Nassau County (Count V)

   The plaintiffs contend that in Nassau County, the Senate Plan violates section 2 of the VRA because it has "cracked" Nassau County's black population across four Senate districts> — SDs 6 through 9 — thus diluting the vote of black voters. The plaintiffs initially attempted to argue that blacks and Hispanics should be treated as a single, cohesive minority group. But at trial the plaintiffs conceded that they could not prove that blacks and Hispanics voted cohesively. (See Trial Tr. ("Tr.") at 57-60.) The turnout rate for and number of Hispanic voters was too low to make reliable statistical estimates for black and Hispanic cohesion. The plaintiffs thus reframed their claim as based solely on the dilution of black voting strength. Plaintiffs' Proposed District 8 was depicted as an "effective" black district with blacks constituting 34.5% of the VAP and 36.9% of the CVAP. See infra Table 2. Page 56


Nassau County: Proposed District 8 White Black Hispanic Black Hispanic
VAP 40.7% 34.5% 19.8% 54.3% (CVAP) (48.2%) (36.9%) (10.8%) (47.6%)
*fn40 (See PX 6 tbls. 16, 28.)

   (a) The First Gingles Factor: Majority-in-a-District and the Potential to Elect

   In Plaintiffs' Proposed District 8, black voters would not be a majority of the VAP or CVAP. The plaintiffs thus cannot satisfy the literal requirements of the first Gingles precondition. See Gingles, 478 U.S. at 49 ("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." (emphasis added)).*fn41 The plaintiffs argue that their claim should be cognizable because black voters in their proposed district would be able to form an effective coalition district where they would have `the potential to elect representatives" of their choice with crossover votes from the white majority. Id. at 50 n.17. The defendants urge the Court to reject the plaintiffs' Nassau County claim at the threshold because it is now clear that the plaintiffs cannot prove that there is a cohesive minority population that is a majority in the proposed district. Page 57

   As explained earlier, the Supreme Court has declined to rule on whether "coalition/crossover" or "influence" claims are cognizable under the Voting Rights Act. See, e.g., Growe, 507 U.S. at 41 n.5; Gingles, 478 U.S. at 46 n.12. Unlike an influence claim such as the one presented for Suffolk County, a crossover claim at least fits the general structure of section 2(b) of the VRA: It alleges that but for the voting standard or practice, the members of the minority group would have the ability to "elect" representatives of their choice. See VRA § 2(b), 42 U.S.C. § 1973(b); Gingles, 478 U.S. at 48 (explaining that section 2 requires minority members to "prove that the use of a [challenged] electoral structure operates to minimize or cancel out their ability to elect their preferred candidates"). In Voinovich, the Supreme Court noted that if a crossover claim were allowed, the first Gingles factor would have to be modified or eliminated to determine whether the voting practice deprived the protected group of "the possibility of being a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes from the white majority." Voinovich, 507 U.S. at 158 ("[T]he Gingles factors cannot be applied mechanically and without regard to the nature of the claim."); see also De Grandy, 512 U.S. at 1008 (referring to first Gingles condition as requiring "a sufficiently large minority population to elect candidates of its choice"). The plaintiffs thus argue that their vote dilution claim should proceed because blacks in Proposed District 8 would allegedly have the potential to elect candidates of choice.

   Just as with "ability to influence" claims, courts have nearly unanimously rejected "ability to elect" claims and have continued to require that the minority group constitute a majority of voters in a sufficiently compact district. See, e.g., Hall 276 F. Supp.2d at 536, 538 (collecting cases and noting that plaintiffs' coalition claim was distinct from an influence claim, but maintaining "the well-established and objective rule requiring a majority-minority district" Page 58 under the first Gingles precondition); see also Valdespino, 168 F.3d at 852-53 (rejecting plaintiffs' argument that to satisfy first Gingles condition they need to show only a potential to elect); Parker v. Ohio, 263 F. Supp.2d 1100, 1104 (S.D. Ohio 2003) (three-judge court) (dismissing "influence" claim where minority group was alleged to be large enough "to effectively influence elections, getting their candidate of choice elected"), aff'd mem., 124 S.Ct. 574, 2003 WL 22171264 (2003). Only two federal courts to address the issue specifically have taken a "functional" approach allowing "ability to elect" claims, and the validity of both decisions is in serious doubt. See Metts v. Murphy, 347 F.3d 346 (1st Cir.), opinion withdrawn and reh'g en banc granted, No. 02-2204, 2003 U.S. App. LEXIS 24313 (1st Cir. Dec. 3, 2003); Armour v. Ohio, 775 F. Supp. 1044, 1050-52, 1059 & n.19 (N.D. Ohio 1991) (three-judge court) (allowing claim where blacks had ability to elect candidates of choice, but basing its decision in part on finding that Gingles did not apply to single-member districts>);*fn42 see also Martinez v. Bush, 234 F. Supp.2d 1275, 1320 n.56, 1320-23 (S.D. Fla. 2002) (three-judge court) (doubting that first Gingles factor was intended to be "literal, mathematical requirement").*fn43

   Courts adopting the majority-in-a-district requirement have emphasized the need for a bright-line rule to act as a gatekeeper. See, e.g., Valdespino, 168 F.3d at 852; Hall, 276 F. Supp.2d at 538 Page 59 (stating that "objective rule" ensures that judges are not required to make "subjective estimate[s] of minority voter influence"). As the Court of Appeals for the Seventh Circuit explained, the majority-in-a-district requirement provides "a choice of clear rules over muddy efforts to discern equity," and it "reins in the almost unbridled discretion that section 2 gives the courts." McNeil, 851 F.2d at 942. The bright-line rule effectuates the judicial duty to enforce voting rights while at the same time recognizing, as the Supreme Court instructed, that "the Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts>." Growe, 507 U.S. at 34. Without a majority-minority threshold, any redistricting scheme could be challenged whenever disparate minority communities could be pooled together in sufficient numbers to create some potential to elect. See Parker, 263 F. Supp.2d at 1108 (Graham, J., concurring); see also McNeil, 851 F.2d at 942 (stating that Gingles "shields the courts from meritless claims and ensures that clearly meritorious claims will survive summary judgment"); Hastert, 777 F. Supp. at 654.

   Both sides in this case have argued that the Supreme Court's decision in Georgia v. Ashcroft 123 S.Ct. 2498 (2003), proves their point. In Aschroft, the Supreme Court found that Georgia's redistricting plan did not violate section 5 of the VRA even though it broke up safe majority-minority districts> into districts> where minority voters would have to form coalitions in order to elect candidates of their choice. The plaintiffs argue that the decision shows that such coalition districts> are viable under the VRA. Moreover, the plaintiffs argue, as Ashcroft recognized, such districts> reflect the fact that "minority voters are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics." De Grandy, 512 U.S. at 1020, quoted by Ashcroft. 123 S.Ct. at 2512. Page 60

   However, Ashcroft was a section 5 case, and the basis for the Court's decision was that "[s]ection 5 gives States the flexibility to choose one theory of effective representation over the other." Aschroft 123 S.Ct. at 2512. That is, states have the flexibility to choose between safe majority-minority districts>, which guarantee minority representation but tend to isolate minorities by removing them from the remaining areas, and "coalitional" districts>, which provide less security but enable minority groups to establish a broader political base and potentially affect more elections. See id.; Id. at 2512-13 (O'Connor, J., concurring). Ashcroft recognizes that, at times, voting may not necessarily be so polarized so as to require majority-minority districts>. While Ashcroft allows crossover districts> under section 5, its reasoning does not broaden the power of federal courts under section 2 of the VRA to require state legislatures to protect or create such "ability to elect" districts>. See Session v. Perry, No. 03-Civ-354, 2004 WL 42591, at *19-*20 (E.D. Tex. Jan. 6, 2004) (three-judge court).

   The Gingles opinions are directed at a key question in section 2 claims that is left unanswered by the statute: If a section 2 claim is that minority voting strength is being diluted, "how should undiluted minority strength be measured?" Gingles, 478 U.S. at 88 (O'Connor, J., concurring). Gingles generally set that norm in terms of the ability to elect candidates of choice in the absence of the challenged structure or practice. Id. at 50 n. 17 (Brennan, J.). More specifically, the first Gingles precondition set the baseline as when the minority group is sufficiently numerous and compact to form a majority in a district. See id. at 90-91 (O'Connor, J., concurring); Hastert 777 F. Supp. at 653 (explaining that first Gingles factor provides "an objective brightline measure for determining whether an injury has in fact occurred"). In this case, the plaintiffs presented Proposed District 8 as the baseline for measuring vote dilution. With a VAP of 34.5%, the plaintiffs struggled to present evidence that with the right Page 61 combination of turnout and crossover support, blacks in Plaintiffs' Proposed District 8 would have the potential to elect representatives of their choice. The plaintiffs needed to prove electability not just to show that there was an available remedy, but also to prove that there was an injury, namely, the denial of a cohesive minority's ability to elect a candidate of its choice.

   A more complete description of Plaintiffs' Proposed District 8 and of its derivation illustrates the hazards of deviating from a requirement of the majority-in-a-district benchmark, and it raises questions about whether Proposed District 8 should qualify as the baseline measure for "undiluted" black voting strength in Nassau County. The theory of the vote-dilution claim in Nassau County identifies cracking as the unlawful voting practice. At the core of the plaintiffs' claim is the contention that Senate redistricting plans have fragmented the black community into four Senate districts>, thus dividing and diluting black voting strength. As a descriptive matter, the black communities in Hempstead, Lakeview, Uniondale, Roosevelt, Freeport, and Baldwin have been bisected by the line dividing SDs 6 and 8. Cf. Goosby v. Town Bd., 180 F.3d 476, 484 (2d Cir. 1999) (stating that black population in Town of Hempstead has been concentrated in those six communities). This is evident from the maps showing the districts> and demographics in Nassau County from the 1970s through the current plan. (See PX 1 maps 11, 12a, 13a, 14a.)

   However, the black population in SDs 6 and 8 alone is not large enough to create an effective Senate district. While SDs 6 and 8 account for around 70% of the black population in the plaintiffs' proposed district, there are only about 76,000 members of the black community in the two districts> combined. (See DX 171.) Under the enacted and proposed districting> schemes, Long Island Senate districts> include about 306,000 people. (Id.) If the plaintiffs presented a district that united the black voters from Senate Districts> 6 and 8 but then drew the rest of its population from predominantly white neighborhoods, the black voting age population would be Page 62 closer to 25%. In order to reach a 34.5% VAP, the plaintiffs included Westbury and Elmont from SD 7, as well as the areas of North Valley Stream and Valley Stream from SD 9.

   On its face, there has not been a history of cracking a minority population across four Senate districts>, and traditional redistricting principles do not demand or indicate that the minority communities in all of those areas should be united in one district. Westbury has had a substantial minority population since the 1970s. (See PX 1 map 11.) It is located on the southern border of North Hempstead Town, and for the past thirty years it has been included in SD 7, which has encompassed all of North Hempstead Town in every districting> plan in evidence. (See Id. maps 11, 12A, 13A, 14A; Tr. at 308 (Beveridge).) Elmont, on the border of Queens County, is in the Town of Hempstead and is one of the few areas outside the Town of North Hempstead that the legislature has placed in SD 7. (See PX 1 maps 11, 12A, 13A, 14A.) While Elmont currently has a significant minority population, it was almost entirely white as of 1970, when it was included in SD 7. (See Id. map 11; Tr. at 308 (Beveridge).) Likewise, North Valley Stream and Valley Stream, which have been part of SD 9 since the 1980s redistricting cycle, have a growing minority population that only began to emerge in the 1990s. (See PX 1 maps 12A, 13A, 14A.) It is not reasonable to claim that but for an illicit districting> practice, the black communities in Westbury, Elmont, North Valley Stream, and Valley Stream would be joined with the black communities in and around Hempstead, Roosevelt, and Freeport.

   Rather, the plaintiffs have gathered together in one proposed district substantially all of the black population of Nassau County. (See PX 6 tbl. 16 (showing that black population would not be more than three percent in Plaintiffs' Proposed Districts> 6, 7, and 9); Tr. at 308-09 (Beveridge).) Even so, the plaintiffs still proffer a district with only 34.5% black VAP, which, as will be seen, is not sufficient to show that black voters have the potential to elect candidates of Page 63 choice. This is not the use of section 2 of the Voting Rights Act to remedy a prohibited practice of vote dilution but rather a proposed use of section 2 to maximize minority voting strength in Nassau County.*fn44 As the Supreme Court succinctly stated in De Grandy. "Failure to maximize cannot be the measure of § 2." De Grandy, 512 U.S. at 1017.

   In any event, assuming arguendo, as the Supreme Court has done, that the first Gingles precondition could be satisfied without the minority group constituting a majority in a compact district, the plaintiffs would still be required to prove as part of the first Gingles precondition that the minority group is sufficiently numerous to elect representatives of their choice in that district. The plaintiffs have alleged that blacks in their proposed district would fulfill this requirement. Page 64

   See Voinovich, 507 U.S. at 158 (observing that "the first Gingles precondition . . . would have to be modified" to accommodate crossover claims). When Growe assumed that minority-coalition claims were feasible, it found a "higher-than-usual need for the second of the Gingles showings," and it noted that proof of cohesion across minority groups was "all the more essential." Growe, 507 U.S. at 41. This is because "unless the Gingles preconditions are satisfied, there can be neither an injury nor a remedy." Id. at 40-41. In this case, to demonstrate an injury based on alleged cracking, if the plaintiffs were to be allowed to proceed without meeting the majority-in-a-district threshold, they would nevertheless have to prove that blacks are sufficiently numerous in their proposed district to elect candidates of choice.

   In order to determine whether Plaintiffs' Proposed District 8 fulfills a modified first Gingles precondition requiring a "potential to elect," we must first make findings of fact with respect to the turnout rates and voting patterns of whites and blacks. Because these findings address the issue of minority cohesion and racial polarization in Nassau County voting, we will also address the second and third Gingles factors in the context of those findings. Having done so, we will then consider the plaintiffs' arguments on electability.

   (b) Racial Polarization and the Second and Third Gingles Preconditions

   The second Gingles precondition requires the plaintiffs to show that the minority group is politically cohesive while to satisfy the third Gingles precondition, the plaintiffs must demonstrate that "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51; see Goosby v. Town Bd., 180 F.3d 476, 491 (2d Cir. 1999). The second and third factors are thus related under the concept of racial polarization. To show that white bloc voting usually defeats the minority-preferred candidate, it is usually necessary to show that minority voters are sufficiently cohesive in preferring certain Page 65 candidates. It is then necessary to show that whites similarly vote as a bloc, and in doing so, they usually defeat the minority candidate of choice.

   To satisfy the second and third Gingles preconditions, the plaintiffs relied upon the expert testimony of Dr. Michael McDonald, an assistant professor of government and politics at George Mason University whose research focuses on voting behavior and research methodology. (Decl. of Dr. Michael McDonald ("McDonald Decl.") ¶ 1.) In assessing voting patterns in this case, Dr. McDonald relied primarily on the Ecological Inference ("El") method developed by Dr. Gary King and supplemented that analysis with bivariate ecological regression ("BER"), and extreme case analysis (also called homogenous precinct analysis). (Id. ¶ 3.) The El and BER methods are related ways for political scientists to ...

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