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Mark A. Favors, Howard Lieb, Lillie H. Galan, Edward A. Mulraine, Warren Schreiber, and Weyman A. Carey v. andrew M. Cuomo

March 8, 2012

MARK A. FAVORS, HOWARD LIEB, LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, AND WEYMAN A. CAREY, PLAINTIFFS, DONNA KAYE DRAYTON, EDWIN ELLIS, AIDA FORREST, GENE A. JOHNSON, JOY WOOLLEY, SHEILA WRIGHT, LINDA LEE, SHING CHOR CHUNG, JULIA YANG, JUNG HO HONG, JUAN RAMOS, NICK CHAVARRIA, GRACIELA HEYMANN, SANDRA MARTINEZ, EDWIN ROLDAN, MANOLIN TIRADO, LINDA ROSE, EVERET MILLS, ANTHONY HOFFMAN, KIM THOMPSON-WEREKOH, CARLOTTA BISHOP, CAROL RINZLER,GEORGE STAMATIADES, JOSEPHINE RODRIGUEZ, AND SCOTT AUSTER, INTERVENOR PLAINTIFFS,
v.
ANDREW M. CUOMO, AS GOVERNOR OF THE STATE OF NEW YORK, ROBERT J. DUFFY, AS PRESIDENT OF THE SENATE OF THE STATE OF NEW YORK, DEAN G. SKELOS, AS MAJORITY LEADER AND PRESIDENT PRO TEMPORE OF THE SENATE OF THE STATE OF NEW YORK, SHELDON SILVER, AS SPEAKER OF THE ASSEMBLY OF THE STATE OF NEW YORK, JOHN L. SAMPSON, AS MINORITY LEADER OF THE SENATE OF THE STATE OF NEW YORK, BRIAN M. KOLB, AS MINORITY LEADER OF THE ASSEMBLY OF THE STATE OF NEW YORK, THE NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND APPORTIONMENT : ("LATFOR"), JOHN J. MCENENY, AS MEMBER OF LATFOR, ROBERT OAKS, AS MEMBER OF LATFOR, ROMAN HEDGES, AS MEMBER OF LATFOR, MICHAEL F. NOZZOLIO, AS MEMBER OF LATFOR, MARTIN MALAVE DILAN, AS MEMBER OF LATFOR, AND WELQUIS R. LOPEZ, AS MEMBER OF LATFOR, DEFENDANTS.



MEMORANDUM AND ORDER

REENA RAGGI, United States Circuit Judge, GERARD E. LYNCH, United States Circuit Judge, DORA L. IRIZARRY, United States District Judge:

On November 17, 2011, Mark A. Favors, Howard Leib, Lillie H. Galan, Edward A. Mulraine, Warren Schreiber, and Weyman A. Carey (collectively, "Plaintiffs")*fn1 filed this action against Andrew M. Cuomo, as Governor of the State of New York, Eric T. Schneiderman, as Attorney General of the State of New York,*fn2 Robert J. Duffy, as President of the Senate of the State of New York, Dean G. Skelos, as Majority Leader and President Pro Tempore of the Senate of the State of New York, Sheldon Silver, as Speaker of the Assembly of the State of New York, John L. Sampson, as Minority Leader of the Senate of the State of New York, Brian M. Kolb, as Minority Leader of the Assembly of the State of New York, the New York State Legislative Task Force on Demographic Research and Reapportionment ("LATFOR"), John J. McEneny, as a member of LATFOR, Robert Oaks, as a member of LATFOR, Roman Hedges, as a member of LATFOR, Michael F. Nozzolio, as a member of LATFOR, Martin Malave Dilan, as a member of LATFOR, and Welquis R. Lopez, as a member of LATFOR (collectively "Defendants").

The Complaint alleges that the current New York State legislative and congressional districts, which were enacted in 2002, are unconstitutional due to the population changes reflected in the 2010 census results and the state's that legislative redistricting process is at an impasse.

(Compl. ¶ 114.) The particular import of the 2010 census is that New York will lose two seats in the United States House of Representatives. Thus, if the current congressional district map is used, none of New York's representatives will be seated in the next Congress, resulting in a disenfranchisement of the people of the state. (Id. ¶ 129.) Plaintiffs allege that the current electoral districts thus violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Section 2 of the United States Constitution and Sections 4 and 5 of Article III of the New York State Constitution. (Id. ¶¶ 106-42.)*fn3

Defendants Dean G. Skelos, Sheldon Silver, John J. McEneny, Roman Hedges, Michael F. Nozzolio, Welquis R. Lopez, Brian M. Kolb, and Robert Oaks (collectively "Moving Defendants") filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on ripeness and standing grounds. Plaintiffs and defendants State Senator Dilan and State Senator Sampson opposed the motions. For the reasons set forth below, the motions to dismiss are denied.

alleges that, in using population statistics that still count prison living in the communities in which the prisons are located, instead of properly basing the figures inmates

I. BACKGROUND

Plaintiffs are politically active registered voters living throughout the State of New York, one of whom is a prospective candidate for political office. (Compl. ¶¶ 14-19.) Plaintiffs bring this action against Defendants in their official capacities based on Defendants' involvement in drawing congressional and state legislative electoral districts. (Id. ¶¶ 20-28.)

Pursuant to Sections 4 and 5 of Article III of the New York State Constitution, after each decennial census, the New York State Senate and Assembly districts must be readjusted according to the shifts in population during the previous ten years, such that each district contains an equal number of inhabitants to the extent possible. The United States Constitution also requires each state to redraw their congressional districts after each federal census. (Id. ¶¶ 35-36.)

In New York State, the Legislature created LATFOR to prepare redistricting maps following each census. (Id. ¶ 38.) LATFOR is made up of four legislators (two from the New York State Senate, two from the New York State Assembly) and two non-legislators. (Id.) One of the non-legislators is appointed by the President Pro Tempore of the New York State Senate, currently defendant Dean G. Skelos, and the other is appointed by the Assembly Speaker, currently defendant Sheldon Silver. (Id. ¶¶ 23-24, 28.) The current members of LATFOR are defendants Assemblyman John J. McEneny, Assemblyman Robert Oaks, Dr. Roman Hedges, State Senator Michael F. Nozzolio, State Senator Martin Malave Dilan, and Welquis R. Lopez. (Id. ¶ 38.) Once LATFOR issues its redistricting plan, it must be approved by the Legislature and Governor. (Id. ¶ 40.) In addition, the United States Department of Justice's Civil Rights Division or the United States District Court for the District of Columbia must pre-clear any legislative redistricting plan because three counties of New York City (Bronx, Kings, and New York) are "covered" jurisdictions under section 4(b) of the Voting Rights Act, 42 U.S.C. § 1973b(b). (Id.)

After holding hearings in mid-to-late 2011, LATFOR issued a redistricting plan for the State Assembly and Senate in January 2012 based on the 2010 census results and New York State Corrections figures pursuant to the New York Prisoner Reallocation Law and new hearings were held. (See LATFOR District Maps, http://www.latfor.state.ny.us/maps (last visited February 27, 2012).) However, Governor Cuomo has stated that he will veto the plan without changes. (Cuomo Says He Will Veto NY Redistricting Plan, Wall St. J., Jan. 27, 2012.) Indeed, Governor Cuomo publicly has stated that he does not believe LATFOR is "independent" and that he will veto any LATFOR plan that is not an "independent product." (Compl. ¶ 73.) LATFOR also has held hearings on congressional redistricting, but it has yet to issue a new congressional map. (See generally LATFOR Website, http://www.latfor.state.ny.us (last visited February 27, 2012).)

On January 27, 2012, Chief Judge Gary L. Sharpe of the United States District Court for the Northern District of New York held, inter alia, that, in order for New York to comply with the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA") of 1986, 42 U.S.C. §§1973ff-1973ff-7, as amended by the Military and Overseas Voter Empowerment ("MOVE") Act, Pub. L. No. 111-84, subtitle H, §§575-589, 123 Stat. 2190, 2318-2335 (2009), New York's congressional primary elections must be held "at least 80 days before the November 6, 2012 federal general election." United States v. New York, No. 1:10-cv-1214, 2012 WL 254263, at *3 (N.D.N.Y. Jan. 27, 2012). The court determined that, "[i]n 2012, that date shall be June 26, 2012." Id. On February 9, 2012, Chief Judge Sharpe issued a second order adopting a federal election schedule that set dates for, among other things, the start of the candidate petitioning period as March 20, 2012 and affirming the June 26, 2012 primary election date. United States v. New York, No. 10-cv-1214 (N.D.N.Y. Feb. 9, 2012) (attached to Plaintiffs' Letter requesting the Court expedite designation of three-judge panel and appointment of special master, dated February 10, 2012, Dkt. Entry 72 ("Pls.' Feb. 10 Letter")).

In light of the looming deadlines ordered by Chief Judge Sharpe, without new electoral districts, candidates and the public allegedly have been hampered in their ability to prepare for the upcoming elections. For example, in an affidavit submitted by Plaintiffs in support of their request for a special master, Vincent Morgan explains that he is running for Congress in what is currently New York's 15th Congressional District, but that he is having trouble building support and raising money without settled district lines. (See Aff. of Vincent Morgan, dated Feb. 16, 2012, Dkt. Entry 100-4, ¶ 3.) Morgan also states that, because he can collect signatures to get on the ballot only from within his district, he cannot begin the process to get on the ballot until new districts have been enacted. (Id. ¶ 5.)*fn4

Following Chief Judge Sharpe's orders moving up the congressional election deadlines, Plaintiffs renewed their request to the District Judge for a three-judge panel. (See Pls.' Feb. 10 Letter 2.)*fn5 On February 13, 2012, pursuant to 28 U.S.C. § 2284(b), the District Court requested that the Honorable Dennis Jacobs, Chief Judge of the Second Circuit Court of Appeals, appoint a three-judge panel to hear this case. (See Dkt. Entry 73.) On February 14, 2012, Chief Circuit Judge Jacobs appointed a panel consisting of Circuit Judges Reena Raggi and Gerard E. Lynch, and District Judge Dora L. Irizarry. (See Dkt. Entry 74.)

By electronic order dated February 15, 2012, this Court directed the parties to show cause, by February 17, 2012, why the Court should not appoint a special master to begin the task of creating a new redistricting plan. On February 21, 2012, this Court issued an electronic order that, inter alia, denied the motions to dismiss, noted that this written decision would follow, and ...


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