Favors v. Cuomo
| Decision Date | 12 March 2012 |
| Docket Number | 11-CV-5632 (DLI)(RR)(GEL) |
| Parties | MARK A. FAVORS, et al., Plaintiffs, v. ANDREW M. CUOMO, as Governor of the State of New York, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND
RECOMMENDATION
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 ("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.
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 York1 ; 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")2 ; and the six members of LATFOR: Assemblyman John J. McEneny, Assemblyman Robert Oaks, Dr. Roman Hedges, State Senator Michael F. Nozzolio, State Senator Martin Malavé Dilan, and Welquis R. Lopez (collectively, "Defendants").3 Seegenerally 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); theNew York Prisoner Reallocation Law4 (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 MinorityDefendants' 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.5 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...
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