The FUND FOR ACCURATE AND INFORMED REPRESENTATION, INC., Juan De Sanctis, Augustine C. Chen, Onel Alfraro, Margaret Quigley, Helen K. Horn, Calvin L. Walton, Juan L. Jimenez, Felix Figueroa, Alfred Hong, Emory N. Jackson and Juan De La Cruz, Brooklyn Political Action Committee, Inc., Martin Chicon, Ronald Travis, Martha Howlette, Louis Deguzman, Marion Phillips, Bay Ridge Community Council, Inc., and George K. Arthur, Plaintiffs,
v.
Saul WEPRIN, both Individually and as Speaker of the Assembly of the State of New York, David Gantt, both Individually and as Co-Chairman of the Legislative Task Force on Demographic Research and Reapportionment, Dean Skelos, both Individually and as Co-Chairman of the Legislative Task Force on Demographic Research and Reapportionment, Mario Cuomo, both Individually and as Governor of the State of New York, Stanley Lundine, both Individually and as Lt. Governor of the State of New York and as presiding Officer and President of the Senate of the State of New York, the New York State Legislative Task Force on Demographic Research and Reapportionment, the Senate of the State of New York, the Assembly of the State of New York, and the Board of Elections of New York State, Defendants.
Clarence E. NORMAN, Jr., Angelo Del Toro, David F. Gantt, the New York State Assembly and Saul Weprin, Plaintiffs,
v.
Mario M. CUOMO, Stan Lundine, Ralph J. Marino, the New York State Senate, the State Board of Elections, Clarence D. Rappleyea, John Faso, the Fund For Accurate and Informed Representation, Inc., Juan De Sanctis, Augustine C. Chen, Onel Alfari, Aurelia Greene, James F. Brennan, Anthony S. Seminerio and Frederick D. Schmidt, Defendants.
George P. SCARINGE, Plaintiff,
v.
Ralph J. MARINO, Majority Leader of the Senate of the State of New York; Dean Skelos, Co-Chairman of the New York State Legislative Task Force on Demographic Research and Reapportionment; the Senate of the State of *663 New York; Saul Weprin, Speaker of the Assembly of the State of New York; David Gantt, Co-Chairman of the New York State Legislative Task Force on Demographic Research and Reapportionment; the Assembly of the State of New York; Mario Cuomo, Governor of the State of New York; Stanley Lundine, Lieutenant Governor of the State of New York; and the Board of Elections of the State of New York, Defendants,
Anthony Masiello and Manfred Ohrenstein, Intervenors-Defendants.
United States District Court, N.D. New York.
*664 *665 Tabner, Laudato Law Firm, Albany, N.Y. (William F. Ryan, Jr. and John W. Tabner, of counsel), Baker, Hostetler Law Firm, Washington, D.C. (E. Mark Braden, of counsel), Edward L. Howlette & Associates, P.C., Amityville, N.Y. (Edward L. Howlette, of counsel), Andrew L. Sichenze, Brooklyn, N.Y., for plaintiffs.
Graubard, Mollen Law Firm, New York City (C. Daniel Chill, Elaine M. Reich, of counsel), DeGraff, Foy, Holt-Harris & Mealey, Albany (Carroll J. Mealey, of counsel), for defendants Saul Weprin, David Gantt, Task Force and the NYS Assembly.
Shaw, Pittman Law Firm, Washington, D.C. (Michael A. Carvin, William L. McGrath, Charles J. Cooper, of counsel), for defendants Dean Skelos and the NYS Senate.
Robert Abrams, Atty. Gen., Albany, N.Y. (Donald P. Berens, Jr., Asst. Atty. Gen., of counsel), for defendants Mario Cuomo, Stanley Lundine and Bd. of Elections.
Cusick & Hacker, Latham, N.Y. (Roger J. Cusick, of counsel), for plaintiff Scaringe.
Duker & Barrett, Albany, N.Y. (George F. Carpinello, of counsel), for intervenors-defendants.
Before CARDAMONE, Circuit Judge, McCURN, Chief District Judge, and MUNSON, Senior District Judge.
AMENDED MEMORANDUM AND ORDER OF THREE-JUDGE COURT (Amending Memorandum and Order filed July 2, 1992)
PER CURIAM:
We have before us actions that challenge the redistricting apportionment plan for the *666 New York State Assembly recently enacted by the Legislature. Also before the Court is a challenge to the 1983 Assembly and Senate apportionment plans. After holding a summary trial testing the validity of the state's 1992 Assembly plan on the issues of one person, one vote, partisan gerrymandering and racial gerrymandering, we find the reapportionment plan meets constitutional and statutory Voting Rights Act requirements on each of these issues. There remain nonetheless two assembly districts in Manhattan that the Attorney General of the United States found racially malapportioned.
It is abundantly clear that legislative reapportionment is a matter primarily for a state's legislative body, and that a federal court may interfere only when that body fails timely to validly reapportion, after having had an adequate opportunity to do so. This is such a case. As of this date, July 2, 1992 one week from the commencement of the state's election process the legislature has not yet enacted a valid redistricting plan pre-cleared by the United States Department of Justice, with respect to both the Assembly and the Senate. As discussed more fully below, the Senate plan is invalid by operation of Article 3, Section 5 of the New York State Constitution. We must therefore maintain jurisdiction to ensure that the election process in New York may commence in a timely, constitutional and statutorily valid manner.
BACKGROUND
The present three-judge court was convened by the Chief Judge of the United States Court of Appeals for the Second Circuit to hear and determine the issues raised in three actions involving the reapportionment of the State of New York based on the 1990 Census. See Fund for Accurate and Informed Representation, Inc., et al. v. Weprin, et al., No. 92-CV-283 (N.D.N.Y.) ("the FAIR action") (challenge to the apportionment of Assembly seats in 1992 N.Y.Laws chs. 76-78); Norman, et al. v. Cuomo, et al., No. 92-CV-720 (N.D.N.Y.) ("the Norman action") (declaration that the 1992 Assembly plan is statutorily and constitutionally valid); Scaringe v. Marino, et al., No. 92-CV-593 (N.D.N.Y.) ("the Scaringe action") (challenge to the existing 1983 apportionment of both the Senate and the Assembly). By per curiam order dated June 15, 1992, the three-judge court consolidated the FAIR action and the Norman action. For ease of reference, the court shall group the parties as specified below and refer primarily to the FAIR complaint unless further differentiation is required.
Parties contesting the 1992 Assembly plan are the Fund for Accurate and Informed Representation, Inc. ("FAIR"), which is a New York not-for-profit corporation, and a variety of other corporate and individual plaintiffs (collectively "plaintiffs"). Parties defending the 1992 plan are the New York State Assembly, its Speaker, the Legislative Task Force on Demographic Research and Reapportionment and one of its Co-Chairmen, who is also a member of the Assembly ("Assembly defendants"), the Senate of the State of New York and a member who is Co-Chairman of the Legislative Task Force ("Senate defendants"), the Governor and Lt. Governor of the State of New York, and the Board of Elections of New York State ("Executive defendants").
The FAIR complaint alleges three causes of action. The first contains four claims: (1) the Assembly is not presently apportioned nor is the 1992 reapportionment plan consistent with the required principle of "one person, one vote"; (2) the newly enacted Assembly reapportionment plan comprises a partisan gerrymander which discriminates against citizens who support the Republican Party; (3) the new plan violates the Equal Protection Clause of the Fourteenth Amendment, the Federal Civil Rights Act and the Voting Rights Act of 1965 by diluting minority voting rights and interests; and (4) the new plan violates the Equal Protection Clause of the Fourteenth Amendment by "fragmenting cohesive communities of interest and political subdivisions between Assembly districts." The second and third causes of action assert that defendants' failure to adopt a constitutional *667 reapportionment plan for the Assembly districts in a timely manner prior to the commencement of the 1992 electoral process irreparably harms the plaintiffs and violates the constitutional rights of minority candidates. While plaintiff in the Scaringe action does not challenge the 1992 redistricting plan, he does challenge the continued validity of the 1983 districts in view of the 1990 Census. Plaintiff Scaringe seeks to enjoin defendants from conducting the 1992 elections using the malapportioned 1983 districts. The ultimate relief requested by plaintiffs in these actions is for the court to adopt a constitutionally and statutorily valid redistricting plan in time for the 1992 electoral process scheduled to commence on July 9, 1992.
A barrage of pre-trial motions were addressed by the court prior to the summary trial held in Utica, New York on June 24-25, 1992. Of particular importance here are four pre-trial matters. The court, acknowledging that only when state agencies cannot act expeditiously in light of the state's election calendar should a federal court step in to review the validity of the state's redistricting plan, declined defendants' repeated requests to abstain in these cases. E.g., Per Curiam Order dated May 28, 1992, at 7-8, citing White v. Weiser,
While the summary trial was in progress, on June 25, 1992 the Attorney General of the United States found that two Assembly districts in the northern part of Manhattan violated the Voting Rights Act of 1965. He precleared the remainder of the Assembly districts and all of the Senate districts in the Bronx, Brooklyn, and Manhattan. This court proceeded with the taking of proof, cognizant of the fact that the state had no valid redistricting plan in place based on both the Attorney General's decision and the New York Supreme Court decisions in Wolpoff and Dixon.
On June 30, 1992, the New York Court of Appeals reversed the lower courts' decisions in Wolpoff and Dixon, declaring that the 1992 Senate districts represent a balancing of state and federal requirements and that the districts comply with the New *668 York State Constitution as far as is practicable. We turn now to the issues raised at trial.
DISCUSSION
I
We first review plaintiffs' contention that the 1992 Assembly plan violates the "one person, one vote" principle first articulated in Gray v. Sanders,
Absolute equality in population is not required when to do so ignores state policy concerns that might justify minor deviations in population between legislative districts. See Gaffney v. Cummings,
Minor deviations from absolute equality among districts are presumptively valid. A "minor" deviation is defined as a deviation of less than 10 percent. See Brown v. Thomson,
Turning to the present case, we look first to the maximum population deviation of the Assembly plan to determine whether it satisfies the 10 percent threshold for establishing a prima facie case of discrimination. A cursory examination reveals that the proof fails to establish a prima facie case. Plaintiffs' submissions to the Court are replete with concessions that the maximum population deviation in the Assembly plan is 9.43 percent, for example, in their trial brief of June 17, 1992 and their June 24, 1992 answers to the Special Master's questions. This concession is fatal to the one person, one vote claim because, absent credible evidence that the maximum deviation exceeds 10 percent, plaintiffs fail to establish a prima facie case of discrimination under that principle sufficient to warrant further analysis by this Court. See Brown,
Moreover, we reject plaintiffs' contention that the state must justify an apportionment plan even though it creates a maximum deviation of under 10 percent. While plaintiffs' argument may be correct in the context of state apportionment of Congressional districts, see Karcher v. Daggett,
II
We turn next to plaintiffs' allegation of political gerrymandering, a claim which also arises under the equal protection clause. To prevail on this argument, plaintiffs must prove that "the electoral system is arranged in a manner that will *669 consistently degrade a voter's or a group of voters' influence on the political process as a whole." Davis v. Bandemer,
Plaintiffs allege that the Assembly apportionment plan denies Republicans their right to fair and effective representation. Plaintiffs' evidence, even when considered in its most persuasive light, falls short of proving that the Assembly apportionment plan deprives Republicans of an opportunity to "influence [New York State's] political process as a whole." Id. at 132,
The inevitable conclusion from the foregoing discussion is that a political party which is precluded from one house of a bicameral legislature is not necessarily foreclosed from the state's political process as a whole. Under Bandemer, plaintiffs cannot prevail on their political gerrymandering claim vis-a-vis the Assembly apportionment plan without showing that the gerrymandering contaminated the Senatorial apportionment as well. Plaintiffs failed to present any evidence suggesting that defendants' gerrymandering contaminated the Senate apportionment plan. In fact, the evidence shows that the Assembly apportionment plan was a result of a political compromise that allowed the Republicans to craft the Senate apportionment plan while the Democrats fashioned the Assembly plan. It is difficult to fathom how plaintiffs can argue that the Assembly plan will consistently degrade Republicans' ability to influence New York's political process. See also Badham v. March Fong Eu,
III
A.
In their third amended complaint plaintiffs raise three separate claims alleging unlawful diminution of voting rights, political power and influence for racial and language minorities through the reapportionment of the State Assembly. They contend the new plan violates the Equal Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment's protection against abridgement of the right to vote on account of race. The Equal Protection Clause of the Fourteenth Amendment guarantees the opportunity for equal participation by all voters, and redistricting plans that do not achieve fair and effective representation for all citizens impair basic constitutional rights secured by this Amendment. See Reynolds,
We examine first plaintiffs' constitutional claims that the Assembly plan discriminates *670 on the basis of race. Plaintiffs conceded at trial that defendants harbored no design or purpose to discriminate against minorities in reapportioning the Assembly. Instead, they claim minority vote dilution was caused by defendant's partisan gerrymandering efforts. In light of plaintiffs' concession, the Fourteenth and Fifteenth Amendment claims must fail. It is well settled that constitutional claims of the kind alleged here require proof that the apportionment plan be "conceived or operated as [a] purposeful devic[e] to further racial discrimination." Whitcomb v. Chavis,
Plaintiffs point to decisions by other courts where a racially discriminatory motive was inferred from "an ultimate objective of keeping certain white incumbents in office...." Ketchum v. Byrne,
In fact, in Assembly Districts 18, 133 and 141, (Nassau, Monroe and Erie), where the fragmentation of minority communities is alleged by plaintiffs though to which communities plaintiffs refer is not clear from the pleading a black incumbent presently holds office, and in A.D. 84 in Westchester County there is no resident incumbent. And examining areas with substantial minority communities elsewhere in the state, such as in Buffalo, the Capitol District, Syracuse, Staten Island and Suffolk County, we find apportionment that appears to consolidate minority populations possibly in the interests of maximizing minority influence rather than discriminatory fragmentation. Hence, no racial gerrymandering under the Fourteenth and Fifteenth Amendments has been found to exist.
B.
In addition to satisfying constitutional requirements, redistricting plans must comply with the Voting Rights Act of 1965, as amended in 1970, 1975, and 1982 (42 U.S.C. § 1973 et seq.) (Act). The Act is intended to facilitate implementation of the Fifteenth Amendment to protect citizens from the denial or abridgement of the right to vote based on race or color. See National Assoc. for the Advancement of Colored People v. New York,
The Act prohibits the enforcement of any voting "practice, or procedure ... [that] results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color," (42 U.S.C. § 1973(a)), or "because he is a member of a language minority group." 42 U.S.C. § 1973b(f)(2). In Allen v. State Board of Elections,
Section 2 of the Voting Rights Act is divided into two subsections. Subsection 2(a) prohibits any voting procedure that "results in a denial or abridgement of" the voting rights of a person on account of race, color, or membership in a language minority. 42 U.S.C. § 1973(a). Subsection 2(b) provides that a violation of subsection 2(a) is established by a showing that "based on the totality of circumstances," members of a class protected under subsection 2(a) "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." § 1973(b).
The leading case construing section 2 of the Act is Thornburg v. Gingles,
The standard § 2 challenge is an assertion of minority vote dilution. Minority vote dilution can occur in one of two ways: by fragmenting large concentrations of minority populations and dispersing them into separate electorate districts, or by concentrating minorities into districts where they constitute an excessive majority. Thornburg,
The Supreme Court in Thornburg developed a three-part test that a minority group must meet to establish a vote dilution claim under § 2. That test requires: (1) that a minority group be sufficiently large and geographically compact to constitute a majority in a single member district; (2) that the minority group also be politically cohesive; and (3) that bloc voting by the white majority, in the absence of special circumstances, usually defeats the minority's preferred candidate. Id. at 50-51,
We note first that a state's redistricting law is ordinarily accorded deference as a constitutionally compliant enactment. See Clements v. Fashing,
*672 We are not persuaded that the alleged "packing" of minority districts effected in the Assembly plan rises to the level of a Voting Rights Act infirmity. Plaintiffs argue the plan creates too few minority control districts because it uses too high a percentage of minority population to create an effective control district. For instance, the Assembly plan includes 9 districts with black populations greater than the 65% rule of thumb adopted in United Jewish Orgs., Inc. v. Carey,
We are unpersuaded that these districts are unlawfully packed. Plaintiffs have not convinced us that the state legislature's decision to heighten the minority population in certain Assembly districts is a pretext for an unworthy goal. Moreover, under some circumstances, the use of a lower population threshold for minority districts may lead to ineffective minority control districts. This choice is a matter of judgment, and we cannot say on this record that the legislature exercised its judgment unlawfully.
This result is not inconsistent with the Attorney General's decision preclearing all Assembly districts in the new plan except A.D. 71 and A.D. 72 under § 5 of the Voting Rights Act. As to those two districts, the Justice Department's withholding of preclearance will require that they be redrawn. Accordingly, we have no need to make an independent determination whether they violate § 2.
Plaintiffs also claim § 2 of the Act requires that in areas where minorities are not sufficiently large and compact to constitute a majority of voters in a single district, they should be consolidated into a single district to maximize their ability to influence elections. Whether influence districts are required under the Voting Rights Act has not been expressly determined by the Supreme Court. See Thornburg,
IV
Finally, we turn to the question of how today's ruling, when considered in conjunction with the myriad other activities that have transpired during the past week, affects the Senate apportionment plan. As noted in earlier decisions and orders, no party before this Court has challenged the state's 1992 Senate apportionment plan. The Scaringe case only challenges the 1983 Senate districts in light of the 1990 census, and raises no substantive challenge to the 1992 districts. Scaringe was undoubtedly brought in anticipation of the 1992 Senate plan being declared invalid, so as to prevent the state from administering the coming election under the 1983 apportionment plan. As noted above, we granted plaintiff's motion for summary judgment in Scaringe thereby declaring the 1983 Senate districts invalid in light of the 1990 census.
At first glance, the recent decision by the New York State Court of Appeals would seem to moot the Scaringe action because *673 the 1992 Senate apportionment plan has now been adjudicated valid on its merits by New York's highest court, as well as having been precleared by the Attorney General. Nonetheless, the case is not moot. Administration of an election under the 1992 Senate apportionment plan is foreclosed by the fact that the Attorney General refused to preclear the 1992 Assembly plan, thereby rendering the Assembly plan invalid. Because Article Three, Section 5 of the New York Constitution requires that valid Senate and Assembly plans must be enacted in the same legislation, any continuing invalidity of the Assembly apportionment plan necessarily invalidates the Senate plan. In re Orans,
Although we granted plaintiff's motion for summary judgment in Scaringe, in an order dated June 24, 1992, we retained jurisdiction so as to fashion an appropriate remedy. Given the imminence of the 1992 election season and the absence of a valid Senate or Assembly apportionment plan to govern the elections, an appropriate remedy in this case is obviously the issuance of an apportionment plan to govern the upcoming elections. With respect to the Senate election, implementation of such a plan is not difficult. We may simply order the identical Senate apportionment plan precleared by the Attorney General be utilized for the 1992 election season. The plan has survived all challenges mounted against it and would be valid but for the state constitutional provision that requires its enactment in the same bill as a valid Assembly plan. By ordering the election to occur in accordance with the state's Senate plan, we adhere to our obligation to "follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution...." White v. Weiser,
Intervenor-defendants Ohrenstein and Masiello have forcefully argued that this Court is without jurisdiction to order implementation of a new apportionment plan in Scaringe. The Senate defendants in Scaringe later made a similar motion on July 1, 1992 claiming the Court is without the power to fashion a new Senate plan. Although intervenor-defendants have since withdrawn their argument, we consider these challenges to our jurisdiction serious enough to be deserving of an explanation of our action in the Scaringe case. Intervenor-defendants' contended that plaintiff requested such relief only "in the event the Attorney General objects to ... [the] Senate [plan]...." Intervenor-defendants urged that since the condition-precedent to relief under this clause, to wit, an objection by the Attorney General, did not occur, the Court is not empowered to direct the use of an apportionment plan with respect to the Senate.
Yet, the remedy we fashion today is not issued pursuant to the clause of the complaint upon which these intervenor-defendants exclusively relied. Rather, relief is ordered pursuant to the clause that requests the Court to "[g]rant such other and further relief as the Court deems just and proper under the circumstances," a clause that we believe allows us to act without regard to the Attorney General's preclearance of the Senate plan. Consequently, the complaint invokes this Court's jurisdiction to afford a remedy in this case, and we do so for the sake of ensuring a fair, timely election in New York State this Fall.
CONCLUSION
After reviewing the proof following the summary trial of the F.A.I.R. action, the Court concludes that the challenges raised *674 in plaintiffs' complaint to New York's Assembly redistricting plan are without merit. No constitutional or statutory violation is found by this Court except for the Attorney General's refusal to preclear A.D. 71 and A.D. 72 under the Voting Rights Act. With respect to those two districts, we have directed the Special Master to draw new district lines for them, and for such contiguous districts as may thereby be affected, to bring those districts into compliance with the Voting Rights Act. With respect to the remaining districts in the Assembly plan and the entire Senate plan, we defer to the legislature's plan and adopt its apportionment of those districts. See Upham,
NOTES
Notes
[1] On June 12, 1992, Justice Saks of the New York Supreme Court, Bronx County, delivered a bench decision in Wolpoff, et al. v. Cuomo, et al., Index No. 14757-92, ruling that the 1992 Senate redistricting plan contained in 1992 N.Y.Laws chs. 76-78 was violative of Article III, section 4 of the New York State Constitution. The court further ruled that the 1992 Assembly redistricting plan must also be invalidated based on the mandate in Article III, section 5 of the state constitution that the Senate and Assembly must be redistricted by the same law. On June 15, 1992, Justice DeGrasse of the New York Supreme Court, New York County, issued a Decision and Order in Dixon, et al. v. Cuomo, et al., Index No. 13266-92, ruling that the 1992 Senate redistricting plan contained in 1992 N.Y.Laws chs. 76-78 was violative of Article I, section 11 and Article III, section 4 of the New York State Constitution. Justice DeGrasse did not address the 1992 Assembly plan. Both state court decisions were appealed to the New York Court of Appeals.