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Mark A. Favors, et al v. andrew M. Cuomo

March 12, 2012


The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge:


Faced yet again with a dysfunctional state legislature, the federal judiciary in New York must now undertake the "unwelcome obligation" of creating a plan redrawing the State's electoral districts for the United States Congress. Perry v. Perez, ___ U.S. ___, 132 S.Ct. 934, 940 (2012) (quoting Connor v. Finch, 431 U.S. 407, 415 (1977)). The legislature's abdication of its responsibility, and the need for judicial intervention, have become an all-too-familiar scenario in New York. In 1992, a three-judge court in this district, burdened with the same task, made the following observation:

Ten years ago, legislative delay required a federal court's intervention to protect the people of the State of New York, and the same has happened this decade. We can only hope that the census of 2000 will not give birth to yet another judicial redistricting drama in 2002.

Puerto Rican Legal Defense & Educ. Fund, Inc. v. Gantt, 796 F.Supp. 681, 696 (E.D.N.Y. 1992) ("PRLDEF") (three-judge court) (citing Flateau v. Anderson, 537 F.Supp. 257 (S.D.N.Y.) (three-judge court) (per curiam), appeal dismissed, 458 U.S. 1123 (1982)).

Unfortunately, the Court's hope in PRLDEF would not be realized: the Census of 2000 did in fact give birth to yet another redistricting drama, see Rodriguez v. Pataki, No. 02 Civ. 618(RMB), 2002 WL 1058054 (S.D.N.Y. May 24, 2002) ("Rodriguez I") (three-judge court) -- as did the Census of 2010, which produced the legislative stalemate that now threatens to disenfranchise New Yorkers and brings the parties before this Court.

As a result of the 2010 Census, the number of congressional districts allotted to New York State was reduced from 29 to 27. The purpose of this Report and Recommendation is to present to the Three-Judge Panel presiding in this case the 27-district congressional redistricting plan (the "Recommended Plan") formulated by the undersigned magistrate judge with the assistance of its redistricting consultant, Dr. Nathaniel Persily. Dr. Persily's affidavit and attachments (collectively referred to as "Persily Affidavit" or "Persily Aff.") accompany this opinion and are incorporated by reference herein. As detailed in the discussion that follows, and in the Persily Affidavit, the Recommended Plan complies with all constitutional and statutory requirements, as well as with the terms of the Three-Judge Panel's order charging this Court with the duty to prepare and propose a congressional redistricting plan for the State of New York. Furthermore, whatever its effects on the political process, the Recommended Plan was prepared according to neutral principles, pursuant to a process aimed at ensuring both the reality and appearance of judicial impartiality.


I. The Instant Action

On November 17, 2011, plaintiffs Mark A. Favors, Howard Leib, Lillie H. Galan, Edward A. Mulraine, Warren Schreiber, and Weyman A. Carey ("Plaintiffs"), registered voters in the State of New York, filed the instant voting rights action against defendants Andrew M. Cuomo, as Governor of the State of New York; Eric T. Schneiderman, as Attorney General of the State of New York*fn1 ; Robert J. Duffy (Lieutenant Governor of the State of New York), as President of the New York State Senate; Dean G. Skelos, as Majority Leader and President Pro Tempore of the New York State Senate; John L. Sampson, as Minority Leader of the New York State Senate; Sheldon Silver, as Majority Leader of the New York State Assembly; Brian M. Kolb, as Minority Leader of the New York State Assembly; the New York State Legislative Task Force on Demographic Research and Reapportionment ("LATFOR")*fn2 ; and the six members of LATFOR: Assemblyman John J. McEneny, Assemblyman Robert Oaks, Dr. Roman Hedges, State Senator Michael F. Nozzolio, State Senator Martin Malave Dilan, and Welquis R. Lopez (collectively, "Defendants").*fn3 See generally Complaint (Nov. 17, 2011) ("Compl."), DE #1.

Additionally, four sets of individuals have intervened in the matter as plaintiffs pursuant to Rule 24 of the Federal Rules of Civil Procedure, including: (1) Donna Kaye Drayton, Edwin Ellis, Aida Forrest, Gene A. Johnson, Joy Woolley, and Shelia Wright (the "Drayton Intervenors"); (2) Juan Ramos, Nick Chavarria, Graciela Heymann, Sandra Martinez, Edwin Roldan, and Manolin Tirado (the "Ramos Intervenors"); (3) Linda Lee, Shing Chor Chung, Jung Ho Hong, and Julia Yang (the "Lee Intervenors"); and (4) Linda Rose, Everet Mills, Anthony Hoffman, Kim Thompson-Werekoh, Carlotta Bishop, Carol Rinzler, George Stamatiades, Josephine Rodriguez, and Scott Auster (the "Rose Intervenors"). Their respective motions to intervene were granted as unopposed on February 14 and 21, 2012. See Order Granting Motions to Intervene (Feb. 14, 2012); Order Denying Motion to Dismiss and Granting Motion to Intervene (Feb. 21, 2012).

Plaintiffs allege that Defendants' failure to adjust New York's state legislative and federal congressional districts in accordance with the results of the 2010 Census violates their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Count I); the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution (Count II); Article I, Section 2 of the United States Constitution (Count III); Article III, Sections 4 and 5 of the New York State Constitution (Count IV); the New York Prisoner Reallocation Law*fn4 (Count V); and the Voting Rights Act of 1965, 42 U.S.C. § 1973(f) (Count VI), based on the failure to comply with the Prisoner Reallocation Law. See Compl. ¶¶ 106-155. Plaintiffs further seek a declaratory judgment that Defendants' failure to adjust the malapportioned districts has deprived Plaintiffs and all citizens of New York equal protection and due process in violation of the United States Constitution (Count

VII). See id. ¶¶ 156-158.

Accordingly, Plaintiffs seek a judgment declaring the current state and congressional districts invalid, declaring that Plaintiffs' rights have been violated as alleged, appointing a Special Master to draw new districts in compliance with the law, ordering LATFOR to cooperate with the Special Master, ordering the redrawing of the district map, and awarding attorney's fees. See Compl. at 32-33.

On December 2, 2011, plaintiffs requested that the Honorable Dora L. Irizarry, the District Judge assigned to the case, convene a three-judge court pursuant to 28 U.S.C. § 2284 and 42 U.S.C. § 1973c. See Plaintiffs' Letter to Judge Irizarry (Dec. 2, 2011), DE #2. Judge Irizarry subsequently ordered the parties to show cause why such a panel should not be convened. See Order to Show Cause (Dec. 6, 2011). While the Governor Defendants did not oppose the convening of a three-judge panel, a number of Defendants requested that the Court delay such empanelment until the resolution of dispositive motions. See Assembly Majority Defendants' Response to Order to Show Cause (Dec. 8, 2011), DE #9; Assembly Minority Defendants' Response to Order to Show Cause (Dec. 9, 2011), DE #16; Defendant Oaks' Response to Order to Show Cause (Dec. 9, 2011), DE #20. Events in the Northern District of New York, however, heightened the need for a three-judge panel.

In United States of America v. New York, 10-CV-1214 (N.D.N.Y.) (Feb. 9, 2012), Exh. to Plaintiffs' Letter (Feb. 10, 2012), DE #72, Chief Judge Gary L. Sharpe of the United States District Court for the Northern District of New York issued an order that advanced the date for New York's congressional primary election as a means of ensuring compliance with the requirements of the Uniformed and Overseas Citizens Absentee Voting Act of 1986, 42 U.S.C. §§ 1973ff-1973ff-7, as amended by the Military and Overseas Voter Empowerment Act, and ordered the candidate petitioning period for New York's congressional primary elections to begin on March 20, 2012. As a result of these developments, Judge Irizarry found it necessary to request a three-judge panel prior to deciding Defendants' motions to dismiss. See Request to Appoint Three-Judge Panel and Special Master Pursuant to 28 U.S.C. § 2284(b) (Feb. 13, 2012), DE #73. On February 14, 2012, Chief Judge Dennis G. Jacobs of the United States Court of Appeals for the Second Circuit appointed two Second Circuit judges, the Honorable Reena Raggi and the Honorable Gerard E. Lynch, to serve with Judge Irizarry on the three-judge panel (the "Three-Judge Panel" or the "Panel"). See Designation of Three-Judge Panel (Feb. 14, 2012), DE #74. On February 21, 2012, the Panel referred the task of creating a redistricting plan to the undersigned magistrate judge, and denied Defendants' motions to dismiss with an opinion to follow.*fn5 See Docket Entry Referral Order (Feb. 21, 2012).

The Three-Judge Panel then held a hearing on February 27, 2012, at which it set forth procedures for the court-based redistricting process. See Minute Entry Regarding Hearing Before the Three-Judge Panel (Feb. 27, 2012) ("2/27/12 Panel Minute Entry"). The Panel's rulings were outlined in a formal referral order issued the following day. See Order of Referral to Magistrate Judge (Feb. 28, 2012) ("2/28/12 Order of Referral"), DE #133. The Order limited the task before this Court to the redistricting of the State's congressional districts, reserving for a later date the question of whether the Court "must intervene to reapportion the State Senate and Assembly Districts." See id. at 2.

In addition, the Panel's Order delineated the responsibilities and powers of the undersigned magistrate judge. First, the Panel directed this Court to "adhere to, and, to the extent possible, reconcile" a number of guidelines, including: (a) "divid[ing] the state into 27 congressional districts in accordance with the 2010 federal Census and applicable law"; (b) creating districts that are "substantially equal in population"; (c) ensuring that the districts are "compact, contiguous, respect political subdivisions, and preserve communities of interest"; and (d) complying with 42 U.S.C. § 1973(b) and with all other applicable provisions of the Voting Rights Act. See 2/28/12 Order of Referral at 3. Moreover, the Panel empowered the undersigned to "consider other factors and proposals submitted by the parties, which, in the magistrate judge's view, are reasonable and comport with the Constitution and applicable federal and state law." Id. at 3.

The Three-Judge Panel also authorized the undersigned to retain a redistricting consultant, Dr. Nathaniel Persily, Professor of Law at Columbia University, to assist in preparing the redistricting plan. The Panel directed LATFOR to "cooperate fully in providing to the magistrate judge, and to any experts, technical advisors, or consultants assisting her, immediate and unrestricted access to information, data, facilities, and technical support, as well as any additional assistance that may facilitate and expedite the work of the magistrate judge." Id. at 4.

The Panel instructed this Court, in preparing its redistricting plan, to "consider any proposals, plans, and comments either already submitted or to be submitted by all parties and intervenors in the action," and authorized the undersigned to "invite additional submissions, hold hearings, take testimony, and take whatever steps she deems reasonably necessary to develop the plan contemplated by this Order." Id. at 4. The undersigned was further authorized to "recommend a new plan" or to "incorporate all or parts of extant or newly proposed plans" submitted either by "the parties or interested members of the public." Id.

Finally, the Panel ordered this Court to submit its Report and Recommendation by March 12, 2012, ordered the parties to file any objections by noon on March 14, 2012, and set a hearing on the Report and Recommendation for March 15, 2012. Id. at 6.

II. Developing the Proposed Plan

Meanwhile, on February 27, 2012, at a proceeding immediately following the hearing before the Three-Judge Panel, this Court set a schedule for the parties to file their proposed redistricting plans and then to file responses or objections both to one another's proposals and to the statewide plan released by a non-party, the public advocacy organization Common Cause (the "Common Cause Plan"). See Minute Entry (Feb. 27, 2012), DE #129.*fn6 In a subsequent order, this Court set forth detailed technical requirements for the submission of plans and proposals to the Court, and developed an online submission system to allow members of the public to file proposed plans and comments. See Order (Feb. 28, 2012) ("2/28/12 Order"), DE #134. Further, the Court arranged to have the docket made accessible free of charge and available to the public via the website of the United States District Court for the Eastern District of New York.

The parties submitted their proposed redistricting plans on February 29, 2012, including four statewide redistricting plans and three partial plans. See Persily Aff. ¶ 61. The statewide plans included those of the Senate Majority Defendants, the Assembly Majority Defendants, the Assembly Minority Defendants, and the Rose Intervenors. See id. ¶ 63. The partial plans included those of the Lee Intervenors, the Ramos Intervenors, and the Drayton Intervenors. See id. ¶ 64. The Ramos and Drayton plans were each modified versions of the "Unity Plan," "a nonpartisan plan created as a joint effort of four voting rights' advocacy organizations for the protected groups of New York City." See Transcript of Public Hearing, March 5, 2012 ("3/5/12 Tr.") at 24, DE #221. The Plaintiffs, the Governor Defendants, and the Senate Minority Defendants did not submit proposed plans to the Court.

Non-parties were invited to submit proposed plans on or before March 2, 2012, see 2/28/12 Order, and the Court received and considered thirteen non-party statewide plans*fn7 and six non-party partial plans.*fn8 See Persily Aff. ¶¶ 66-67. Additionally, parties and non-parties were directed to file any comments on the proposed plans -- including both the party plans and the Common Cause Plan -- on or before March 2, 2012. See 2/28/12 Order at 1-2. Eight sets of parties filed responses and objections.*fn9 The public response, embodied in 61 comments submitted through the Court's online submission system, was voluminous, passionate, and thoughtful. See Order Regarding Public Submissions (Mar. 12, 2012), DE #222.

At a four-hour public hearing convened by this Court on March 5, 2012, the parties advocated for their respective proposed plans and against the competing proposed plans. See Minute Entry (Mar. 5, 2012) ("3/5/12 Minute Entry"), DE #183; see generally 3/5/12 Tr.

Additionally, the Court heard from nineteen members of the public, including one sitting Congresswoman, two town mayors, a sitting Assembly Committeeman, and numerous community leaders, public interest advocates, and concerned citizens.*fn10 See 3/5/12 Minute Entry; 3/5/12 Tr.

Taking the various viewpoints and suggested plans into account, the Court fashioned its own proposed plan (the "Proposed Plan") with the assistance of its redistricting consultant, and publicly released that plan for comment on March 5, 2012, in the form of an Order to Show Cause why the Proposed Plan should not be recommended for adoption by the Three-Judge Panel. See Order to Show Cause (Mar. 5, 2012), DE #184. Thereafter, starting on March 6, 2012 and continuing to date, the parties and interested members of the public have responded to the Proposed Plan. As described more fully in the Persily Affidavit, of the parties, only the Senate Majority Defendants, the Rose Intervenors, the Ramos Intervenors, and the Drayton Intervenors submitted substantive responses to the Court's Order to Show Cause. See Persily Aff. ¶¶ 143-147.*fn11 Approximately 400 non-party members of the public also filed comments on the Court's Proposed Plan, in the form of detailed replies, letters to the Court, and petitions, see id. ¶¶ 148-153, and countless concerned citizens have been telephoning the Court's chambers to express their views.*fn12

After considering each of those objections, and balancing the need for each proposed modification against competing considerations, the Court modified its Proposed Plan where it deemed warranted. See generally Persily Aff. ¶¶ 154-159. The result of that process is the Court's Recommended Plan, which is attached to the Persily Affidavit at Appendix A.


As explained above, the Three-Judge Panel set forth detailed instructions in its Referral Order to guide this Court in the redistricting process. See 2/28/12 Order of Referral at 3-4. First, the Recommended Plan must comport with the constitutional requirements of population equality and the Equal Protection Clause. See id. at 3. Second, the Recommended Plan must comply with the mandates of the Voting Rights Act of 1965, avoiding the twin ills of minority vote dilution and retrogression. See id. Third, the Recommended Plan must follow the traditional redistricting principles of compactness, contiguity, respect for political subdivisions, and preservation of communities of interest. See id. Lastly, the Plan may incorporate additional factors where appropriate and in accordance with the law. See id. This section of the Report and Recommendation will review the existing law with respect to each of these requirements, will measure the Recommended Plan against those factors, and will discuss the extent to which permissive factors were employed. Based on the analysis below, this Court respectfully recommends that the Three-Judge Panel adopt the Recommended Plan in its entirety.

I. Constitutional Constraints on Redistricting

A. Equal Population

Consistent with the Panel's Order of Referral, the Recommended Plan satisfies the requirement of substantial population equality. Article I, Section 2 of the United States Constitution provides that the United States House of Representatives "shall be composed of Members chosen . . . by the People of the several States," and that "[r]epresentatives . . . shall be apportioned among the several States . . . according to their respective Numbers." U.S. Const. art. I, § 2. The Supreme Court has interpreted this provision to mean that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." See Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964). As a result, courts must "make a good-faith effort to achieve precise mathematical equality." Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969). Indeed, a court-drawn plan is "held to higher standards than a state's own plan" with respect to population equality. Chapman v. Meier, 420 U.S. 1, 26 (1975). As such, a court's "paramount objective" when faced with the task of redrawing malapportioned congressional districts is to achieve absolute population equality. See Karcher v. Daggett, 462 U.S. 725, 732 (1983) (citing, inter alia, White v. Weiser, 412 U.S. 783, 793 (1973)). Therefore, any variances in population between districts must be justified, and the Supreme Court has been loath to allow even de minimis variations in congressional redistricting plans. See Karcher, 462 US. at 731-32; White, 412 U.S. at 790 n.8; Kirkpatrick, 394 U.S. at 533.

Based on the total New York population according to the 2010 Census, the ideal population for each of the new 27 congressional districts is 717,707.48 persons. See Persily Aff. ¶ 103. The increase from the 2000 Census's ideal district population of 654,360 to the 2010 ideal of 717,707 required each district to gain population. See id. ¶ 104. Moreover, the extent of the population deviations varied considerably among the districts, from a population shortfall of 105,869 in Existing District 28 to a shortfall of only 4,195 in Existing District 8. See id. ¶ 105, Table I.

In the Recommended Plan crafted by the Court, fourteen districts contain 717,707 persons, and thirteen districts contain 717,708 persons. See id. ¶ 106. Therefore, the Recommended Plan achieves "zero deviation," and meets the constitutional standard of population equality. See id.

B. Racial Gerrymandering

The Recommended Plan also comports with the requirements of the Fourteenth Amendment to the United States Constitution, which prohibits both intentional and excessive uses of race in redistricting. See Shaw v. Reno, 509 U.S. 630, 658 (1993). First, the Equal Protection Clause prevents state actors engaged in redistricting from purposefully discriminating against a racial group by diluting its vote. See City of Mobile v. Bolden, 446 U.S. 55, 66 (1980). Second, the Supreme Court has held that a redistricting plan violates the Equal Protection Clause where race is a "predominant factor motivating [a] decision to place a significant number of voters within or without a particular district." Miller v. Johnson, 515 U.S. 900, 916 (1995). Courts have held that race was a "predominant factor" in redistricting plans where ...

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