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United States v. Village of Port Chester

April 1, 2010

UNITED STATES OF AMERICA, CESAR RUÍZ, PLAINTIFFS,
v.
VILLAGE OF PORT CHESTER, DEFENDANT.



The opinion of the court was delivered by: Stephen C. Robinson, District Judge

OPINION AND ORDER

On January 17, 2008, the Court found that Plaintiffs had demonstrated that the Village of Port Chester's at-large voting system for electing its Board of Trustees violated Section 2 of the Voting Rights Act of 1965. After careful consideration of the parties' proposed remedial plans, the Court issued a summary order on November 6, 2009 concluding that Defendant, the Village, had proposed a legally acceptable remedy and ordered the implementation of at-large elections with cumulative voting. In furtherance of the implementation, the parties were ordered to submit to the Court a Consent Decree detailing the requisite education and outreach program. The Court also lifted the injunction on the Trustee elections, providing that the 2010 elections shall be held in June 2010 on a date agreed to by the parties to give sufficient time for the proper implementation of the new system. This opinion combines the Court's findings in both the liability and remedial phase of the litigation and is the final order in this matter.

I. Procedural Background

The United States of America (the "Government") filed a Complaint on December 15, 2006 against the Village of Port Chester ("Port Chester" or the "Village" or the "Defendant"), alleging a violation of Section 2 of the Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973. The Government claimed that the at-large system used to elect the six members of the Port Chester Board of Trustees denied the Hispanic population of the Village an equal opportunity to participate in the political process and to elect representatives of their choice.

The Government sought a preliminary injunction pursuant to 42 U.S.C. § 1973j(d) to prevent the Village from holding its next election for the Board of Trustees, which was then scheduled for March 20, 2007. The Court issued a preliminary injunction on March 2, 2007, finding: (i) that there would be irreparable harm if the 2007 Trustee election were allowed to proceed under a structural framework that violated the Voting Rights Act; (ii) that the balance of the potential harms weighed in favor of granting an injunction; and (iii) that the Government had demonstrated that it was likely to succeed on the merits of its claim at trial. Accordingly, the Village was enjoined from holding its March 20, 2007 Trustee election pending a trial on the merits in this matter.*fn1

On March 1, 2007, Cesar Ruiz ("Ruiz"; Ruiz and the Government are collectively referred to herein as the "Plaintiffs") filed an Order to Show Cause why he should not be permitted to intervene in this action pursuant to Fed. R. Civ. P. 24. Following an oral argument, this Court granted Ruiz's motion to intervene as a party plaintiff on April 6, 2007.

After settlement negotiations proved unsuccessful, the parties reconvened for a six-day bench trial that concluded on June 5, 2007.*fn2 In lieu of oral closing arguments, the parties were granted until July 9, 2007 to submit post-trial briefs in support of their respective positions. Further, an organization called FairVote-which describes itself as having a mission "to advocate for fair representation through voting systems changes"*fn3 - was given permission to submit an amicus curiae brief. The Court concluded that Plaintiffs have established that Port Chester's system for electing its Board of Trustees violates Section 2 of the Voting Rights Act, and directed the parties to submit proposed remedial plans.

The Court held hearings on the remedial plans on July 17, 28, 29, 2008 and September 22 and 23, 2008. Port Chester proposed a voting scheme called cumulative voting that would give Hispanics greater opportunities to participate meaningfully in elections while maintaining the at-large system. Plaintiffs presented the districting plan developed in the liability phase as its proposed remedial plan. The Court issued a Summary Order on November 6, 2009 announcing its decision to choose Port Chester's proposed plan, ordered the parties to develop an education and outreach program to ensure a thorough and non-discriminatory implementation of the new system, and lifted the injunction on the Trustee elections provided that the 2010 elections were delayed until June to give enough time to educate the community about cumulative voting.

II. Port Chester's Voting Rights Act Violation

A. Legal Framework

1. Section 2 of the Voting Rights Act

Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, reads:

(a) No voting qualification or pre-requisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.

(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection

(a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered; provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

There is no dispute here that Port Chester's at-large system for electing its Board of Trustees is an electoral practice or procedure that is subject to challenge under this statute.

2. Gingles preconditions and Senate Factors

The Supreme Court construed this statute in its amended version for the first time in an action challenging a multi-member at-large districting scheme. See Thornburg v. Gingles, 478 U.S. 30 (1986). In Gingles, 478 U.S. at 34, the Supreme Court set out three "preconditions" that must be met for a challenge under Section 2 of the Voting Rights Act to be successful:

(1) the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district;

(2) the minority group must be politically cohesive and vote as a bloc; and

(3) the White majority must vote sufficiently as a bloc to enable it, in the absence of special circumstances, to defeat the minority's preferred candidate.

No specific showing of discriminatory intent is required to prove a Section 2 violation. See id. at 70-73 (Brennan, J. plurality op.); Coleman v. Bd. of Educ. of the City of Mt. Vernon, 990 F. Supp. 221, 227 (S.D.N.Y. 1997) (internal citation omitted); cf. Goosby v. Bd. of the Town of Hempstead, 180 F.3d 476, 498-504 (2d Cir. 1999) (Leval, J. concurring) (hereinafter "Goosby III").

An analysis of the three Gingles factors and whether each has been proven by a preponderance of the evidence is the first step in a two-part analysis of a vote dilution claim on behalf of minority voters. The Supreme Court has found, however, that the satisfactory establishment of the three Gingles preconditions alone is not sufficient for a Section 2 vote dilution claim to succeed. See Johnson v. DeGrandy, 512 U.S. 997, 1011 (1994). Accordingly, this Court must "consider whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process." Goosby v. Bd. of the Town of Hempstead, 956 F. Supp. 326, 329 (E.D.N.Y. 1997) (hereinafter "Goosby I") (citing NAACP v. City of Niagara Falls, 65 F.3d 1002, 1007 (2d Cir. 1995)). Various Circuit courts have recognized that "it will only be the very unusual case in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of Section 2 under the totality of the circumstances." Niagara Falls, 65 F.3d at 1019, n.21; see also Thompson v. Glades County Bd. of County Comm'rs, 493 F.3d 1253, 1261 (11th Cir. 2007); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116 n.6 (3d Cir. 1993).

Judicial assessment of the totality of the circumstances requires a "searching practical evaluation of the past and present reality." Gingles, 478 U.S. at 45. The key to this inquiry is an examination of the seven principal factors set forth in the Senate Judiciary Committee Report accompanying the 1982 amendments to Section 2 of the Voting Rights Act, the so called "Senate factors." See S. Rep. No. 97-417, 97th Cong. 2nd Sess. 28 (1982) (the "Senate Report"). The additional factors listed in the Senate Report are:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of members of the minority group to register, vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder the ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial appeals; [and]

7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

In addition, the Senate Report adds two other considerations that may have probative value in vote dilution cases, specifically:

(1) whether there is a significant lack of responsiveness on the part of the elected officials to the particularized needs of the members of the minority group; and

(2) whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

The list of factors is "neither comprehensive nor exclusive." Gingles, 478 U.S. at 45. Plaintiffs need not prove a majority of these factors, nor even any particular number of them in order to sustain their claims. Instead, "these factors are simply guideposts in a broad-based inquiry in which district judges are expected to roll up their sleeves and examine all aspects of the past and present political environment in which the challenged electoral practice is used." Goosby I, 956 F. Supp. at 331.

B. Findings of fact

1. Overview of the Village of Port Chester

Port Chester is an incorporated village located within the Town of Rye, and is situated in southeastern Westchester County, New York, adjacent to the Connecticut border. According to the 2000 United States Census, Port Chester's population was 27,867, an increase of 12.7 percent from the 1990 Census. From 1990 to 2000, the Hispanic population of the Village grew by 73 percent from 7,446 to 12,884; the Hispanic community now constitutes a plurality of Port Chester's residents. As of the 2000 Census, Port Chester's total population was 46.2 percent Hispanic, 42.8 percent non-Hispanic White, and 6.6 percent non-Hispanic black. Of Port Chester's voting age population ("VAP") of 21,585 in 2000, however, 45.7 percent were non-Hispanic White, 43.4 percent were Hispanic and 6.1 percent were non-Hispanic black. Meanwhile, as of 2000, the Village had a total citizen voting age population ("CVAP") of 13,990, of whom 65.5 percent (9,160) were non-Hispanic White, 21.9 percent (3,070) were Hispanic and 8.9 percent (1,245) were non-Hispanic black. Plaintiffs' expert Dr. Andrew Beveridge ("Dr. Beveridge") estimated that as of July 2006, Port Chester's CVAP totaled 14,259, of which Hispanics constituted 27.5 percent (3,928).

Port Chester is governed by a Mayor and a six-member Board of Trustees, and all of these Village officials are elected pursuant to an at-large voting scheme. The Trustees serve staggered three-year terms, with two Trustee positions open for election each calendar year; the Mayor, who presides over the Board of Trustees, serves a two-year term, and thus must stand for election every other year. Each resident of the Village who is registered to vote may cast up to two votes for Trustee candidates. A voter cannot select the same candidate twice, but a voter may opt to cast just one of his or her two votes and withhold the other, a practice known as "single shot" or "bullet" voting. Village elections for Mayor and Trustees are held "off cycle"-that is, they are not conducted in November alongside other county, state, and national elections, but instead are held in the spring, usually on the third Tuesday in March.

The Village is divided into 16 election districts for the purposes of voting administration. These districts determine at which polling place Port Chester's voters cast their ballots for both Village elections in March and "on-cycle" county, state, and national elections in November.*fn4 In addition, it has been the practice of the Republican and Democratic parties in Port Chester to choose "district leaders" for each election precinct. To be clear, however, these precincts in no way correspond to any type of elected representation-voters in each of the Village's election precincts choose from the same slate of candidates in local elections. The Town of Rye, which in addition to the Village of Port Chester also encompasses the incorporated village of Rye Brook as well as the Rye Neck section of Mamaroneck, consecutively numbered all of the election precincts within the Town; those that lie within Port Chester are precincts 5 through 19 and precinct 25.

2. First Gingles Precondition: The Minority Group Must Be Sufficiently Large and Geographically Compact to Constitute a Majority in a Single-Member District

a. Criteria for Drawing Proposed Districts

To demonstrate the existence of the first Gingles precondition in an at-large system, the Plaintiffs must be able to draw illustrative single-member districts following traditional districting principles to show that the Hispanic population is sufficiently large and compact so as to constitute a majority in a single-member district. Dr. Beveridge, an expert in the fields of demographics and redistricting, offered two alternative plans- Proposed Plan A ("Plan A") and Proposed Plan A as Modified ("Modified Plan A")- each of which divided the Village into six hypothetical single-member districts that would allow Port Chester to elect the six members of its Board of Trustees using a district-based, rather than an at-large, system. See Gov. Exs. 32 (Plan A) and 33 (Modified Plan A).

To draw the proposed districts in each of the plans, Dr. Beveridge first sought to ensure equality in the total population of each district, and next endeavored to make each district "reasonably compact." See Hearing Tr. at 599. Dr. Beveridge testified that he opted to draw the districts on the basis of total population because in his view "total population is the accepted standard method"; he did not know of any districting process in the United States that has used a method other than total population for drawing district lines.*fn5 See Hearing Tr. at 600. Population equality and compactness are "two of the most relevant [re]districting principles" in smaller geographic areas-such as Port Chester-where districting experts need not be concerned about splitting towns and villages when drawing potential district boundaries. Id. Only after these principal criteria were met did Dr. Beveridge seek, to the extent possible, to keep together a portion of the Hispanic community of Port Chester within a single proposed district in a way that did not "pack" or "crack" the Hispanic population.*fn6

Both of the proposed plans show very limited deviation in the total population among the six proposed districts based on data from the 2000 Census. Given a total Village population of 27,867, an equal division of the population for each district would yield approximately 4,645 individuals in each district. In Plan A, the district with the smallest population is District 5, which contains 4,528 people-117 less than the ideal- for a deviation of 2.51 percent. See Gov. Ex. 25 at Ex. F. The largest district by population in Plan A is District 3, which contains 4,793 people-149 more than the ideal-for a total deviation of 3.20 percent. Id. Thus the total population deviation in Plan A measured by the spread between the greatest downward deviation and greatest upward deviation within the districting plan is 5.71 percent, a figure that is comfortably within the bounds of acceptable 10 percent population deviation for state or local legislature districting purposes. See, e.g., Brown v. Thompson, 462 U.S. 835, 842-43 (1983); White v. Regester, 412 U.S. 755 (1973). Under Modified Plan A, the greatest downward deviation is again in District 5, though the difference in this model is only 1.50 percent; similarly, District 3 exhibited the greatest upward deviation in Modified Plan A, but with only a 1.84 percent departure from the ideal figure. See Gov. Ex. 26 at T. 2. Modified Plan A therefore has a total deviation of 3.34 percent, again well within acceptable population deviation parameters. Defendant's expert Dr. Peter Morrison ("Dr. Morrison"), an expert in the fields of demography and drawing and evaluating single-member districts, agreed that the total population balance of both Plan A and Modified Plan A falls within acceptable limits. See Def. Ex. LL at 34.

As to Dr. Beveridge's second criterion, both Plan A and Modified Plan A are reasonably compact. The only challenge that can be construed as relating to the compactness of the proposed districts is the Village's contention that the proposed districts for Trustee representation should have taken into account existing election precincts in the Village. Based on the current election precinct boundaries and the proposed district boundaries in Plan A and Modified Plan A, the district plans would create a system where the population of certain election precincts would be divided among one or more Trustee districts. For example, certain residents of election precinct 14 would be eligible to vote in Trustee District 1, while others would be eligible to vote in District 3, District 4, or District 5. In fact, 10 of the 16 current election precincts would experience these types of cleavages. See Def. Ex. X.

Such a scenario raises administrative and logistical concerns for the Village, as Port Chester would have to ensure that voters are presented with the proper electoral choices when they arrive at their polling places. Assuming that the precinct boundaries remained the same and that the proposed districts were implemented, the Village might, for example, be forced to use different practices and procedures for March elections (which, under the current electoral framework, would implicate the Trustee district boundaries) and November elections (which would not). Dr. Morrison admitted, however, that this issue is a "purely economic consideration" -- his concern is that "it would be an expense imposed on the taxpayers of the Village to have to have a different set of geographies used for elections" -- though he also acknowledged that he did not analyze any potential expenses or savings that might result. Trial Tr. at 478, 556. Dr. Beveridge did not place great emphasis on election precinct boundaries given that they are simply an administrative mechanism for localities, and given that such precinct lines, in his experience, are commonly redrawn during districting or re-districting processes. See Hearing Tr. at 613. There was no evidence presented at any point in this proceeding to explain why Port Chester's election precincts were drawn the way they were, or why it would be important to preserve those particular boundaries.

On balance, the decision not to give any particular weight to election precinct lines here was sensible; these purely administrative designations do not signify anything of overwhelming import in Port Chester, and do not represent the types of political boundaries that are particularly deserving of deference when crafting proposed district borders. In no way would it have been advisable to place greater emphasis on the maintenance of existing precincts than on the other criteria employed by Dr. Beveridge in crafting Plan A and Modified Plan A.

Finally, though he admits that he used race as part of his districting process, Hearing Tr. at 634, Dr. Beveridge did not, as Defendant suggests, use race as his only criterion, or even as his predominant criterion, in drawing either of the proposed plans. The proposed districts did not result in any impermissible packing or cracking of the Hispanic population of the Village. Indeed, the distribution of Hispanics across the proposed district lines under both Plan A and Modified Plan A results in four districts where Hispanics account for a greater percentage of the total population, VAP, and CVAP in those districts as compared with the Hispanic share of population, VAP, and CVAP in Port Chester as a whole. By way of illustration, the Hispanic community constituted 46.23 percent of the population of the Village based on 2000 data, as well as 43.34 percent of the VAP and 21.87 percent of the CVAP. Under Plan A, the Hispanic population shares of the following four proposed districts exceed these thresholds on all three metrics: District 5 (48.43 percent Hispanic population; 44.31 percent Hispanic VAP 26.00 percent Hispanic CVAP); District 6 (54.37 percent Hispanic population; 51.80 percent Hispanic VAP; 28.13 percent Hispanic CVAP); District 3 (54.45 percent Hispanic population; 51.67 percent Hispanic VAP; 29.95 percent Hispanic CVAP); and District 4 (75.40 percent Hispanic population; 73.83 percent Hispanic VAP; 50.51 percent Hispanic CVAP). Under Modified Plan A, the Hispanic populations of District 6, District 3, and District 4 constitute a greater percentage of the total population, VAP, and CVAP in those districts as compared with the Hispanic population of Port Chester as a whole, while the Hispanic population of District 5 accounts for a greater percentage of CVAP, but slightly smaller percentages of total population and VAP as compared to the Village generally.

In addition to the favorable comparisons between intra-district ethnic compositions and the Village population as a whole, the inter-district distribution of the Village's Hispanic population in both Plan A and Modified Plan A is well-balanced. For example, in Modified Plan A, District 3, District 4, District 5, and District 6 contain 82.05 percent of the total Hispanic CVAP of the Village, with each of those Districts accounting for no less than 19.33 percent and no more than 22.79 percent of the Village-wide share based on 2000 Census data. Similarly, those four districts include 83.94 percent of the Hispanic VAP of Port Chester and 83.47 percent of the total Hispanic population of the Village; while District 4 contains the greatest share of Village-wide Hispanic VAP (28.54 percent) and total Hispanic population (28.10 percent), the remaining three Hispanic-heavy proposed districts contain between 16 and 21 percent of the Village-wide share of Hispanic VAP and total population.

Through cross-examination of Dr. Beveridge, Defendant attempted to demonstrate that the non-Hispanic White population of the Village was impermissibly packed under the proposed districting regime. Neither Dr. Beveridge's methodology nor the resulting data support this contention, and the Court therefore rejects the notion that either Plan A or Modified Plan A packed the non-Hispanic White population of the Village. The mere fact that there are greater concentrations of non-Hispanic Whites in certain areas and greater concentrations of Hispanics in other areas does not indicate any sort of nefarious effort; instead, this merely is a reflection of the reality of residential segregation in Port Chester.*fn7 Under Modified Plan A, 72.60 percent of the non-Hispanic White population of the Village is concentrated in District 1, District 2, and District 5, but the greatest proportion in any one district is the 30.18 percent of non-Hispanic Whites living in District 1. Similarly, those three districts also contain 72.18 percent of the non-Hispanic White VAP and 74.67 percent of the non-Hispanic White CVAP of the Village, but none of the districts contains more than a 30 percent share of the non-Hispanic White VAP or CVAP of the Village. These figures simply do not support a finding that the proposed districting plans create impermissible concentrations of the non-Hispanic White population in Port Chester.

In sum, it is clear that the proposed districts in Plan A and Modified Plan A were drawn in accordance with traditional districting principles of population balancing and compactness, and there is no evidence in the record to indicate that race-of Hispanics or non-Hispanics-was the predominant factor in crafting the proposed district boundaries.

b. Use of 2000 Census Data and 2006 Estimates

As noted above, Dr. Beveridge relied on data from the 2000 Census in drawing the proposed districts in Plan A and Modified Plan A, and data from the 2000 Census formed the basis of the majority of his expert conclusions. The 2000 figures represent the most recent set of comprehensive Census information for Port Chester-no new complete Census information will be available until sometime in 2011. Various exhibits-such as Gov. Ex. 34-show the 2000 Census data broken down by the block level, indicating the number of individuals counted for all of the blocks of the Village that appear on that particular map. Defendant attempted to call into question the accuracy and reliability of the Census figures, but the Village's efforts did not produce any clear, concrete, and comprehensive demonstration that the 2000 Census data for Port Chester is in any way significantly unreliable.*fn8

As part of his analysis, Dr. Beveridge estimated the demographic changes that he believes have occurred in Port Chester since 2000 based on an extrapolation from the 2000 Census figures and the rate of change in voter registration in the Village. This Court takes Dr. Beveridge's 2006 estimates for what they are: estimates provided by a demographics expert that, while not endowed with the same presumption of reliability as the decennial census, may nevertheless be used by this Court to understand relevant population trends in the Village. Nevertheless, there is no need to rely directly on the 2006 estimates in making any determinative findings of fact or conclusions of law with respect to the ultimate issues in this case.*fn9 Accordingly, to the extent that the Court has reviewed and considered the 2006 data, it has only been for background informational purposes. As set forth throughout this Decision and Order, the data on which the Court relies for its assessment of the Gingles preconditions and the Senate factors is the data from the 2000 Census.

c. Measuring the Effective Majority In a Single-Member District

Within both Plan A and Modified Plan A, the proposed district that is meant to satisfy the first Gingles precondition for the Hispanic community is District 4. The best method to judge whether a particular minority group constitutes an effective majority in a single-member district is to examine the VAP and CVAP data for that district.*fn10 The Hispanic community comprises 73.83 percent of the VAP in proposed District 4 under the Plan A boundaries, and constitutes 50.51 percent of CVAP according to 2000 Census data. In Modified Plan A, the Hispanic VAP in District 4 is 77.27 percent of the population there, and the Hispanic CVAP makes up 56.27 percent of the district. Even Dr. Morrison conceded that even taking into account possible data errors, Hispanics would constitute a majority of CVAP in District 4 in Modified Plan A. See Hearing Tr. at 1390, 1429, 1430, 1456.

Port Chester challenged the use of VAP and CVAP for measuring whether Hispanics constituted an effective majority in proposed District 4 under any of Plaintiffs' plans by attacking the reliability of the VAP and CVAP figures and by offering alternative approaches to the effective majority question.*fn11 However, Port Chester failed to convince the Court that there are documented discrepancies in VAP and CVAP or that the other methods it proposed, such as using "corrected" Census numbers, voter registration, or voter turnout, were more reliable measures. In particular, the Court finds that voter registration and voter turnout methods have serious shortcomings that render them inappropriate for this analysis. Voter registration overstates the number of eligible voters in a given location because they are only scrutinized and updated from time to time. See Hearing Tr. at 1461-62. Records kept by the United States Election Assistance Commission ("EAC") illustrate this problem; according to EAC voter registration data for New York State from the 2004 general election, a highly implausible 99.3 percent of the CVAP in Westchester County*fn12 was registered to vote at the time of that election. See Gov. Ex. 92. In smaller counties, the 2004 data revealed complete mathematical impossibilities -- according to those figures, 100.3 percent of the CVAP in Orleans County, New York was registered to vote, and 104.0 percent of the CVAP in Sullivan County, New York was on the registration rolls. Id.

This Court also rejects the notion, offered in Dr. Morrison's expert report, that a proper measure of an effective majority must include a consideration of voter turnout. Using Spanish Surname Analysis of voter sign-in sheets in Port Chester,*fn13 Dr. Morrison calculated only between 9.4 and 11.8 percent of all people who cast votes in Village elections between 2001 and 2006 were Hispanic; the greatest percentage of Hispanic voters in any one year -- 11.8 percent of turnout -- came in the March 2006 elections. See Def. Ex. LL at 23 (Table 5). Based on the borders of proposed District 4 in Plan A,*fn14 Dr. Morrison found that in those same elections, only between 21.0 and 28.2 percent of actual voters in the illustrative District were Hispanic, with the greatest percentage of Hispanic voters again occurring in March 2006. According to Dr. Morrison, these figures reveal that even if Hispanics constitute a majority of VAP and CVAP in District 4, they will not amount to an effective majority in that District because they do not turn out in sufficient numbers to elect candidates of their choice without assistance from other demographic groups.

What this turnout analysis fails to consider is that there may very well be a correlation between the subject matter of this lawsuit -- the various circumstances and conditions that contribute to the inability of the Hispanic community to elect candidates of its choice -- and the lower turnout by Hispanic citizens in Port Chester. Defendant's expert Dr. Ronald Keith Gaddie ("Dr. Gaddie"), an expert in the fields of elections and voter participation, acknowledged that a district-based system with a majority-minority district would likely increase the number of Hispanic candidates who would run for office (and the number who would win), and that such candidates would likely stimulate increased voter participation -- both in terms of registration and turnout -- among the Hispanic population. Hearing Tr. at 1289 (qualifications); 1344-48.

It is interesting to note that in the 2007 Mayoral election -- held in the wake of this lawsuit, and less than two weeks after the issuance of the preliminary injunction halting the Trustee elections -- Hispanic turnout both Village-wide and within the confines of proposed District 4 was the highest it had ever been for a Village election from the years 1995-2007 (15.3 percent Village-wide, and 44.5 percent within proposed District 4). See Def. Ex. LL at Table 5. Though these figures are subject to multiple interpretations, when they are combined with the testimony and other evidence presented in this case, it seems highly likely to this Court that a dramatic change in the electoral structure to give Hispanics a better opportunity to participate would likely result, for myriad reasons, in a marked change in voter turnout. Accordingly, it would be counterintuitive to determine that depressed turnout among Hispanics -- a condition that may very well be a direct byproduct of the existing electoral regime -- should be a reason to preclude the creation of a new electoral structure in Port Chester.

On balance, the most reliable measure of whether Hispanics constitute an effective majority in proposed District 4 in Plan A and Modified Plan A is the CVAP data for Port Chester. As discussed above, Hispanics constitute a slight CVAP majority in District 4 under Plan A, and an even more substantial majority under Modified Plan A; Plaintiffs, therefore, have made a sufficient showing to satisfy this component of the first Gingles factor.

3. Second Gingles Precondition: the Minority Group Must Be Politically Cohesive and Vote as a Bloc

Plaintiffs' expert, Dr. Lisa Handley ("Dr. Handley"), is an expert in the fields of racially polarized voting, analyzing voting behavior, statistical analysis of voting, and the effect of electoral practices of minority participation and representation. Hearing Tr. at 461. Dr. Handley used three methods of statistical analysis -- bivariate ecological regression analysis, ecological inference, and homogeneous precinct analysis -- to review election data and to determine how voters cast their ballots in those contests. Hearing Tr. at 480, 500. In her initial report in this case, Dr. Handley used voter registration data to estimate voter behavior -- this was the only data that was available to her at the time she prepared the initial expert report. See Gov. Ex. 12. In her subsequent reports, however, Dr. Handley used sign-in data, which reflects actual voter turnout, and therefore provides a more reliable basis for estimating voter preferences. See Gov. Ex. 13. Defendant's expert, Dr. Ronald Weber ("Dr. Weber"), is an expert in the fields of political science, state and local politics, quantitative ...


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