United States District Court, N.D. New York
ANNE POPE; WANDA WILLINGHAM; GERALDINE BELL; SAMUEL COLEMAN; and LEE PINCKNEY, Plaintiffs,
COUNTY OF ALBANY; and ALBANY COUNTY BOARD OF ELECTIONS, Defendants.
MEMORANDUM-DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
Before the Court are Plaintiffs Anne Pope, Wanda Willingham, Geraldine Bell, Samuel Coleman, and Lee Pinckney's ("Plaintiffs") Motion for partial summary judgment ("Plaintiffs' SJ Motion") and Defendants County of Albany ("County") and Albany County Board of Elections' (collectively, "Defendants") Motion for summary judgment ("Defendants' SJ Motion") in this action challenging the redistricting of the Albany County Legislature ("Legislature") under Section 2 of the Voting Rights Act of 1965 ("VRA"), 42 U.S.C. 1973 ("Section 2"). Dkt. Nos. 209; 214. The Court also considers Plaintiffs' second Motion for leave to amend their Complaint and attached Memorandum of law, which Defendants have opposed. Dkt. Nos. 226 ("Motion to Amend"); 226-1 ("Motion to Amend Memorandum"). For the reasons that follow, the Court grants Plaintiffs' SJ Motion in part and denies it in part, and denies Defendants' SJ Motion.
A. Procedural Posture
Plaintiffs filed a Complaint in June 2011 alleging that the VRA requires the creation of an additional majority-minority district ("MMD") in the Legislature following population shifts reflected in the 2010 Census. Shortly thereafter, Plaintiffs filed a Motion for preliminary injunction to prevent the County from holding elections under the Legislature's operative redistricting plan. Dkt. No. 12 ("PI Motion"). They argued that: (1) it is possible to create 5 MMDs within the City of Albany ("City") using a narrow definition of black voters, Dkt. No. 30 ("PI Memorandum") at 12; (2) the "black community [has] routinely voted as a bloc" and, thus, "the black community is politically cohesive, as are blacks and Hispanics, " id. at 13; and (3) that the minority-preferred candidate is usually defeated and the totality of the circumstances supports a finding of vote dilution, id. at 15-26. Defendants filed a response, Dkt. No. 40 ("PI Response"), arguing that Plaintiffs could not prove that minority voters were sufficiently numerous to create five majorityminority districts "when counting Blacks alone, " Dkt. No. 40 ("PI Response") at 11-12, as well as that the Plaintiffs had not proved the rest of the Gingles factors. Id. at 13-23. The Court denied the PI Motion, holding that Plaintiffs failed to prove that they were likely to succeed on the merits. Dkt. No. 76.
Plaintiffs filed an interlocutory appeal ("Appeal"). Dkt. No. 78. The Second Circuit found error in the Court's requirement of something more than a simple majority at the first step of Section 2 analysis, but ultimately affirmed the Court's decision. Dkt Nos. 153, 153-1; Pope v. Cnty. of Albany, 687 F.3d 565 (2d Cir. 2012). Meanwhile, Plaintiffs filed an Amended Complaint, Dkt. No. 100 ("Amended Complaint"), which is the operative pleading for purposes of this decision.
Plaintiffs' Motion seeks judgment that the black population in Albany County is: (1) sufficiently numerous and geographically compact to justify five MMDs; and (2) politically cohesive. Dkt. No. 210 ("Plaintiffs' SJ Memorandum"). Defendants filed a Response, and Plaintiffs a Reply. Dkt Nos. 230 ("Defendants' SJ Response"); 241 ("Plaintiffs' SJ Reply").
Defendants' Motion seeks judgment on Plaintiffs' claim to the extent it relies upon a coalition of black and Hispanic voters. In particular, Defendants argue that: (1) Plaintiffs lack standing to bring a claim under Section 2; (2) the VRA does not allow a black and Hispanic voting coalition; (3) Plaintiffs cannot show political cohesion; (4) Plaintiffs cannot show that racially polarized voting yields white bloc votes sufficient to usually defeat minority-preferred candidates. Dkt. No. 214-24 at 1-2 ("Defendants' SJ Memorandum"). Plaintiffs submitted a Response, and Defendants a Reply. See Dkt. Nos. 228 ("Plaintiffs' SJ Response"); 242 ("Defendants' SJ Reply").
Both parties submitted Statements of material facts with their Motions. Dkt. Nos. 211 ("Plaintiffs' SMF"); 214-1 ("Defendants' SMF"). Defendants responded to Plaintiffs' SMF and Plaintiffs replied. Dkt. Nos. 230-1 ("Defendants' SMF Response"), 241-1, ("Plaintiffs' SMF Reply"). Plaintiffs responded to Defendants' SMF, including a counter-statement of facts. Dkt. No. 229 ("Plaintiffs' SMF Response" and "Plaintiffs' Counter-SMF").
During summary judgment briefing, the parties stipulated that Plaintiff Janis Gonzalez ("Gonzalez"), the only Hispanic Plaintiff, would withdraw her claim. Dkt No. 222. Two weeks later, Plaintiffs filed their second Motion to Amend to add additional plaintiffs, some of whom are Hispanic, and who live both inside and outside the City the Albany. See Mot. Am. Mem. Defendants' Opposition challenges the Motion to Amend on several bases: (1) that the Motion to Amend would cause undue delay; (2) that Plaintiffs brought the Motion in bad faith; (3) that the Motion to Amend would prejudice Defendants; and (4) the Motion to Amend is futile. See generally Opp. Mot. Am.
County voters in single-member districts elect 39 representatives to sit on the Legislature every four years. Defs.' SMF ¶ 1. After each decennial United States Census ("Census"), the County redraws its districts to account for population shifts. Pls.' SMF ¶ 2.
After both the 1990 and 2000 Census, minority voters in the County-and, specifically, in the City-filed Section 2 claims against Defendants ("1990 Litigation" and "2003 Litigation"). Pls.' Counter-SMF ¶ 7. Each time, the County modified its redistricting plans. Id . The 1990 Litigation increased the number of MMDs from one to three. Id . ¶ 7; Dkt. No. 1-2 ("1991 Consent Decree"). The County maintained the three MMDs when it redrew districts subsequent to the 2000 Census. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 281 F.Supp.2d 436, 440 (N.D.N.Y. 2003). Minority voters sued for and obtained an injunction. Id. at 457. The parties entered a consent decree, which created a fourth MMD. Pls.' Counter-SMF ¶ 7.
The Department of Justice ("DOJ") releases racial-demographic data. The relevant demographics are Hispanic population, non-Hispanic DOJ black population,  and non-Hispanic white population. The County's total population as of the 2010 Census was 304, 204, of which the voting-age population ("VAP") was 243, 573. U.S. Census, 2010 Redistricting Data (Public Law 94-171) Summary File, Albany County, N.Y. The Hispanic population was 14, 917, with a VAP of 10, 024, the DOJ black population was 39, 087, with a VAP of at least 26, 196 but no more than 29, 435,  and the white population was 231, 152, with a VAP of 197, 006. Id.
The Albany County Redistricting Commission ("Commission") is charged with examining new Census data and creating a map of proposed new districts. Pls.' SMF ¶ 2. The Commission held hearings to allow the public to comment before releasing proposed districts. Pls.' Counter-SMF ¶ 8. However, Plaintiffs allege that members of the minority communities were generally not aware of these meetings because they were held in unfamiliar locations or were minimally advertised. Id . Minority voters that did attend the meetings advised the Commission that the minority population had grown since 2000, and that a fifth MMD was therefore warranted. Id . ¶ 9. Aaron Mair presented an alternative redistricting plan, the Arbor Hill Environmental Justice plan ("AHEJ Plan") to illustrate the possibility of creating five MMDs in the City. Id . ¶ 14. The Commission maintained the number of MMDs at four, id. ¶ 11, reasoning that there were "not enough numbers to justify" a fifth MMD, Dkt. No. 231-17 at 3. However, Mr. Merrill, who drew the districts for Defendants, relied on a definition of "minority" as "single race black." Dkt. No. 231-17, at 177:2-178:2. The Legislature passed the Commission's plan as Local Law C, which the County Executive signed into law. Pls.' Counter-SMF ¶¶ 18-19.
C. Expert Findings on Racial Polarization
Plaintiffs and Defendants employed experts to analyze racially polarized voting and other data relevant to Section 2 litigation. Plaintiffs' first expert, Dr. Baodong Liu, analyzed 46 elections between his original and supplemental reports to test for racial bloc voting and minority candidate success. Id . ¶ 24-25. Dr. Liu's supplemental Declaration and Report focused on 34 single-member elections where a black candidate ran against a white candidate, and 12 multi-member elections. Dkt. No. 231-25 ("Liu Report") at 4-5. Dr. Liu analyzed only the voting patterns of black and white voters because of "the lack of sufficient statistical data on Hispanic voters, " and defined black voters for the purposes of his analysis as "non-Hispanic Black." Pls.' Counter-SMF ¶ 27; Defs.' SMF ¶ 33. Dr. Liu concluded that racially polarized voting occurred in 19 single-member elections. Liu Report at 6. Of the 15 elections that were not polarized, ten involved incumbent candidates and 14 were "non-competitive." Id. at 7-9. In 11 of the 12 multi-member elections analyzed by Dr. Liu, white voters' most preferred candidate was white, and black voters' most preferred candidate was black. Id. at 5-6. Dr. Liu found that black voters, as defined above, were "politically cohesive' in that they have overwhelmingly preferred African American candidates as their choices in biracial or multiracial elections involving black and white candidates." Id. at 6-7.
Defendants also retained an expert, Dr. Ronald Gaddie, to analyze political cohesion and racial bloc voting. See Dkt. No. 122. However, to the Court's knowledge, Dr. Gaddie's expert report has never been entered into the record, and Defendants do not rely on it in their papers.
Plaintiffs' second expert, William Cooper, analyzed demographic and socio-economic Census data for the County, as well as Local Law C and the AHEJ Plan. Dkt. No. 231-23 ("Cooper Supplemental Declararation") ¶ 6. Mr. Cooper concluded that "African-Americans and Latinos in Albany County lag behind whites across most socioeconomic measures." Id . ¶ 9. Mr. Cooper further concluded that "there is little appreciable difference in the overall socio-economic status of African-Americans and Latinos." Id . ¶ 12. Mr. Cooper also analyzed potential districts using computer software, and found that the AHEJ plan "complies with one-person, one-vote requirements... [and] other key traditional redistricting criteria such as compactness, contiguity, and the non-dilution of minority voting strength." Dkt. No. 54 ("Cooper Am. Declaration") ¶¶ 19-21, 27-28. Meanwhile, Mr. Cooper contends that Local Law C "packs minorities into four districts." Id . ¶ 29.
Mr. Cooper also created several additional "Illustrative Plans." The first Illustrative Plan merges the AHEJ MMD allocation with the existing framework of Local Law C, and would require the redrawing of ten out of 39 districts. Id . ¶ 31-33. Mr. Cooper compares this design with an "Illustrative Plan 2" that creates 6 MMDs. Id . ¶ 36-37. Mr. Cooper has also created a third Illustrative Plan, which aims to make as few changes to district lines as possible to create 5 MMDs. Id . ¶ 38. While this approach creates larger majorities of minority voters than the AHEJ Plan, each MMD contains below-average total population. Id . ¶ 38; Defs.' SMF ¶ 21.
III. LEGAL STANDARD
A. Summary Judgment
Summary judgment is proper where "there is no genuine issue as to any material fact, " and thus "the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012). The moving party must first meet a burden of production, which differs depending on whether the moving party will have the burden of proving the claim or element at trial. Celotex, 477 U.S. at 330-32 (Brennan, J., dissenting). Because Plaintiffs will bear the burden of proving the Gingles factors at trial, they "must support [their] motion with credible evidence-using any of the materials specified in Rule 56(c)-that would entitle [them] to a directed verdict if not controverted at trial." Id. at 331. Defendants will not bear the burden at trial; they may, in support of their Motion: (1) "submit affirmative evidence that negates an essential element of the nonmoving party's claim"; or (2) "demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Id . If a moving party has carried its burden, the nonmoving party must raise some genuine issue of material fact; "metaphysical doubt as to material facts" is not enough. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, the burden of persuasion remains at all times with the moving party, who must affirmatively demonstrate entitlement to judgment as a matter of law. Celotex, 477 U.S. at 332.
B. VRA Section 2 Claims
Courts assess the merit of Section 2 vote dilution claims under the three-step framework specified in Thornburg v. Gingles . A plaintiff must prove that: (1) the alleged minority group is sufficiently numerous and geographically compact to compose a majority of a single-member district; (2) members of the minority group are politically cohesive; and (3) that white bloc voting is usually sufficient to defeat the minority-preferred candidate. See generally Gingles, 478 U.S. 30. Although it would be "a very unusual case" where a plaintiff establishes the Gingles factors and fails to establish a Section 2 violation, courts must still consider the totality of the circumstances-additional indicia that tend ...