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Mark A. Favors, Howard Leib, Lillie H. Galan, Edward A. Mulraine, Warren Schreiber, and Weyman A. Carey v. Donna Kaye Drayton

May 16, 2012

MARK A. FAVORS, HOWARD LEIB, LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, AND WEYMAN A. CAREY, PLAINTIFFS,
v.
DONNA KAYE DRAYTON, EDWIN ELLIS, AIDA FORREST, GENE A. JOHNSON, JOY WOOLLEY, SHEILA WRIGHT, MELVIN BOONE, GRISSELLE GONZALEZ, DENNIS O. JONES, REGIS THOMPSON LAWRENCE, AUBREY PHILLIPS, 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, SCOTT AUSTER, AND ITZCHOK ULLMAN, 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, NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT ("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.



OPINION AND ORDER

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

In this opinion and order, we address several outstanding motions following our previous orders denying defendants' motions to dismiss the original complaint, see Favors v. Cuomo, No. 11-cv-5632 (RR)(GEL)(DLI)(RLM), 2012 WL 824858 (E.D.N.Y. Mar. 8, 2012), and adopting, with slight modifications, Magistrate Judge Roanne L. Mann's report and recommendation for the enactment of a new congressional redistricting plan for New York that complies with federal and state law, see Favors v. Cuomo, No. 11-cv-5632 (RR)(GEL)(DLI)(RLM), 2012 WL 928223 (E.D.N.Y. Mar. 19, 2012). First, we deny defendants Dean G. Skelos's, Michael F. Nozzolio's, and Welquis R. Lopez's (collectively, the "Senate Majority Defendants") motion to dismiss the amended complaints for lack of ripeness and failure to state a claim. Second, we grant the Senate Majority Defendants' and defendants Sheldon Silver's, John J. McEneny's, and Roman Hedge's (collectively, the "Assembly Majority Defendants") motions to dismiss intervening plaintiff Itzchok Ullman's complaint for failure to state a claim. Third, we deny the motions for preliminary injunctive relief filed by Donna Kaye Drayton, Edwin Ellis, Aida Forrest, Gene A. Johnson, Joy Woolley, Sheila Wright, Melvin Boone, Grisselle Gonzalez, Dennis O. Jones, Regis Thompson Lawrence, and Aubrey Phillips ("Drayton Intervenors"); and Juan Ramos, Nick Chavarria, Graciela Heymann, Sandra Martinez, Edwin Roldan, and Manolin Tirado ("Ramos Intervenors"). Fourth, we grant defendants John L. Sampson's and Martin Malave Dilan's (collectively, the "Senate Minority Defendants") motion for leave to amend their answer and to file a cross-claim against the Senate Majority Defendants. Fifth, we deny the motion to intervene filed by Todd Breitbart, Tobias Sheppard Bloch, Gregory Lobo-Jost, Raul Rothblatt, Mark Weisman and David Wes Williams (collectively, "Proposed Breitbart Intervenors") .

In resolving these motions, we assume familiarity with the facts and record of the underlying proceedings. Nevertheless, we begin by providing a brief background focusing on the events that transpired on and after March 15, 2012, when New York enacted redistricting plans for the State Assembly and Senate.

I. Background

On March 15, 2012, Governor Andrew M. Cuomo signed into law newly enacted state legislative districts based upon the 2010 census ("New Senate Plan," "New Assembly Plan" and, collectively, "New Plans"). Before putting the New Plans into effect, however, defendants*fn1 had to obtain preclearance under Section 5 of the Voting Rights Act, see 42 U.S.C. § 1973c, from either the United States Department of Justice ("DOJ") or the United States District Court for the District of Columbia ("D.C. District Court") because New York, Kings, and Bronx counties are "covered" jurisdictions, see 28 C.F.R., pt. 51, App. Defendants took both steps to obtain preclearance. The New Senate Plan was submitted to DOJ on March 16, 2012, and the New Assembly Plan was submitted to DOJ on March 28, 2012. Meanwhile, actions were filed with the D.C. District Court seeking the empaneling of a three-judge court and declaratory judgments that the New Plans comply with Section 5 of the Voting Rights Act. See Compl., New York v. United States, No. 12-cv-413 (RBW)(JWR)(RJL) (D.D.C. Mar. 16, 2012); Compl., New York v. United States, No. 12-cv-500 (RBW)(JWR)(RJL) (D.D.C. Mar. 30, 2012).

On March 15, 2012, a group of petitioners, including defendant Dilan and proposed intervenor Breitbart, brought a special proceeding in New York State Supreme Court, New York County, alleging that the New Senate Plan violates the New York State Constitution because of the inconsistent application of two mathematical formulas to add a new sixty-third State Senate district. See Cohen v. Cuomo, No. 102185/2012 (Sup. Ct. N.Y. Cnty. Mar. 15, 2012).

Due to these intervening events since the filing of this action, this Court orally directed the plaintiffs to file any amended complaints by March 27, 2012.*fn2 See Minute Entry, Mar. 21, 2012. In their new pleadings, the Amending Plaintiffs requested that this Court draft state legislative redistricting plans for the 2012 elections because the New Plans cannot be implemented until they are precleared, and there was a substantial risk that preclearance would not be obtained by the beginning of the candidate petitioning period on June 5, 2012. Without this Court's intervention, they maintained, New York would be forced to hold an election using the outdated and malapportioned existing plans, which would violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, as well as Article III, §§ 4 and 5 of the New York State Constitution.

The Drayton Intervenors, Lee Intervenors, and Ramos Intervenors alleged that, even if the New Plans obtained preclearance and survived the state court challenge, the New Senate Plan improperly dilutes the voting power of African Americans, Asian Americans and Hispanics in violation of the United States Constitution and the Voting Rights Act, and the malapportioned districts lack any legitimate justification. The Drayton and Ramos Intervenors alleged that the New Assembly Plan also violates Section 2 by failing to create new majority-minority districts in Nassau County and New York and Bronx Counties, respectively. The Drayton and Ramos Intervenors moved for preliminary injunctive relief on their Fourteenth Amendment one person, one vote and race discrimination claims, and their Voting Rights Act claims.

The Senate Majority Defendants moved to dismiss the Favors Plaintiffs' amended complaint in its entirety, as well as the Drayton, Lee, and Ramos Intervenors' amended complaints to the extent that they sought relief from allegedly malapportioned districts on grounds of ripeness, see Fed. R. Civ. P. 12(b)(1), and for failure to state a claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6). Amending Plaintiffs and the Senate Minority Defendants opposed the motion.

On March 27, 2012, Intervenor Plaintiff Itzchok Ullman filed an amended complaint alleging that the New Assembly Plan improperly divides the Town of Ramapo, which could be contained in a single Assembly district, in a way that dilutes the Chasidic Jewish community's political power in violation of the Fourteenth Amendment and Article III, § 5 of the New York State Constitution. The Assembly Majority Defendants together with the Senate Majority Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

At a status conference held on April 18, 2012, this Court orally denied the motions to dismiss the amended complaints with the exception of that filed by Ullman, on which we reserved decision, and indicated that this written decision would follow. See Minute Entry, Apr. 18, 2012. Two days later, on April 20, this Court heard oral argument regarding the standard of review applicable to the Drayton, Lee, and Ramos Intervenors' malapportionment challenge to the New Senate Plan, as well as the population measurement the Court should use to assess the various challenges presented. At the conclusion of the hearing, we ordered the Drayton and Ramos Intervenors to produce the evidence on which they intended to rely to support their preliminary injunction motions. See Minute Entry, Apr. 20, 2012.

On April 27, 2012, DOJ advised the D.C. District Court that it had precleared the New Senate Plan. On May 3, 2012, following an expedited appeal directly from the trial court, the New York State Court of Appeals held that the application of two different methods to calculate the number of districts in the New Senate Plan did not violate the New York State Constitution. See Cohen v. Cuomo, 2012 WL 1537411 (N.Y. Ct. of Appeals May 3, 2012). Thus, Amending Plaintiffs' claims regarding the need for this Court to create interim State Senate maps while preclearance and the New York Court of Appeals decisions were pending are now moot. Those claims remain viable with respect to the New Assembly Plan, however, which has not yet obtained preclearance. Further, the Drayton, Lee, and Ramos Intervenors' constitutional and Voting Rights Act challenges to the New Senate Plan remain to be decided.

II. Discussion

A. Senate Majority Defendants' Motion To Dismiss the Amended Complaints At the April 18 hearing, we stated that we would file a written decision to explain our oral denial of the Senate Majority Defendants' motion to dismiss the amended complaints to the extent they sought to have this Court create interim redistricting maps while the preclearance process and state court litigation were pending. Although those claims are now moot with respect to the New Senate Plan, because we represented that a written decision would follow, and because the New Assembly Plan has not yet been precleared, we offer the following explanation for why the Amending Plaintiffs' claims were and are ripe for review and why their amended complaints stated claims for relief.

1. Ripeness Challenge

The Senate Majority Defendants' contention that Amending Plaintiffs' claims were not ripe as of April 18, 2012, can be understood in two parts. First, insofar as the Amending Plaintiffs complained that defendants had failed to provide the state with election districts that had secured either DOJ or court approval necessary for implementation, the Senate Majority Defendants argued that no remediable injury was shown because the New Plans had been submitted for such approval in sufficient time to secure preclearance before June 5, 2012. They dismissed as speculative Amending Plaintiffs' allegations that the New Plans would not be precleared by June 5 or would be found to violate the New York State Constitution.

Second, insofar as the Amending Plaintiffs complained that the New Plans, even if precleared, violate the Equal Protection guarantee of one person, one vote and Section 2 of the Voting Rights Act, the Senate Majority Defendants asserted that these claims were premature because the New Plans could not be implemented-and, thus, the constitutional violations could not occur-before preclearance was secured.

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "Ripeness is a jurisdictional inquiry." Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005). "Ripeness is peculiarly a question of timing. Its basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (internal quotation marks, brackets, and citation omitted).

Amending Plaintiffs' claims are ripe for reasons analogous to those discussed in this Court's denial of the initial motions to dismiss this matter. See Favors v. Cuomo, 2012 WL 824858, at *4--*7. Although the Governor signed the New Plans into law on March 15, 2012, those Plans could not be implemented for the upcoming elections until they were precleared. See Perry v. Perez, 132 S. Ct. 934, 941 (2012) ("Section 5 prevents a state plan from being implemented if it has not been precleared."). Insofar as those Plans had not been precleared at the time of our April 18 oral ruling, New York was thus without a lawful redistricting plan for an election cycle that would start within only six weeks. It is undisputed that the Court could not allow that election cycle to proceed under the existing plans because they are based upon the outdated 2000 census. See, e.g., Flateau v. Anderson, 537 F. Supp. 257, 262 (S.D.N.Y 1982) (three-judge court) ("If we waited until there no longer was time in 1982 for the reapportionment to be effected, the constitutional violation would then have occurred, but it would be too late for any timely remedy to be structured."). Therefore, as of the date of this Court's oral order, there were no State Senate and Assembly districts that could be used in the 2012 state legislative elections. Moreover, and what the Senate Majority Defendants fail to address satisfactorily, even if the New Plans were precleared by June 5, 2012, the amended complaints also assert federal constitutional and Section 2 Voting Rights Act claims that fall outside of the preclearance process and the state constitutional challenge in Cohen. Regardless of the outcome of the preclearance process and the state constitutional challenge, this Court needs to address these claims.

Thus, as of April 18, the Amending Plaintiffs adequately alleged injury from either (1) the complete lack of a precleared redistricting plan for the 2012 elections to the state legislature, or (2) the implementation of a plan that, even if precleared under Section 5 of the Voting Rights Act, nevertheless violated the Fourteenth Amendment's guarantee of one person, one vote and Section 2 of the Voting Rights Act. In short, resolution of the pending preclearance process and the Cohen litigation would not eliminate the Amending Plaintiffs' claimed injuries, but would only clarify their scope.

Insofar as the Senate Majority Defendants' ripeness challenge argues that any remedy would be premature, we are not persuaded. Redistricting remedies cannot be created on the spot (as this Court knows all too well after drafting congressional districts in an extremely tight time frame). As the Court's appointed expert, Professor Nathaniel Persily, has advised, "a court should have as its goal the imposition of a plan no later than one month before candidates may begin qualifying for the primary ballot," which "means that the court should begin drawing its plan about three months before the beginning of ballot qualification in order to build in time for possible hearings and adjustments to the plan." Nathaniel Persily, When Judges Carve Democracies: A Primer on Court-Drawn Redistricting Plans, 73 Geo. Wash. L. Rev. 1131, 1147 (2005). Here, less than two months remained from the date of the Court's April 18, 2012 oral order until the June 5 start of the candidate petitioning period for the Court to craft a contingent redistricting plan. Under such circumstances, Amending Plaintiffs' claims were certainly ripe for consideration as to both their merits and to the possible remedy of a judicially created redistricting plan, particularly if the New Plans were not precleared by June 5, 2012. See Branch v. Smith, 538 U.S. 254, 259--61, 265--66 (2003) (affirming three-judge panel's interim plan where state plan had not yet been precleared); Fund for Accurate & Informed Representation, Inc. v. Weprin, 796 F. Supp. 662, 673 (N.D.N.Y.) (three-judge panel) (exercising jurisdiction where state plan had not been precleared "for the sake of ensuring a fair, timely election in New York State this Fall"), aff'd mem., 506 U.S. 1017 (1992); Scaringe v. Marino, No. 92-cv-0593, 1992 WL 144627, at *2 (N.D.N.Y. June 18, 1992) (three-judge panel) ("[U]nless new districts are devised in accordance with constitutional and statutory mandates, cleared through the procedural maze, and implemented in a timely fashion, plaintiff alleges that he will be deprived of his right to vote for a Senator and an Assemblyman because no valid districts will be in existence.").*fn3

Time did not permit the Court to run the risk of having no contingent plan ready if the New Senate Plan was not precleared, and simply to hope that the legislature could remedy any defects in the short time frame remaining, particularly when the legislature had taken more than a year to pass the New Plans following the release of the 2010 census results. See Smith v. Clark, 189 F. Supp. 2d 503, 511 n.5 (S.D. Miss. 2002) (three-judge court) ("We are simply unwilling to wait until a point in time that would not provide ample time for ...


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