Herron v. Koch

• Decision Date: 08 September 1981
• Docket Number: No. 81 Civ. 1956,81 Civ. 1542 and 81 Civ. 5468.,81 Civ. 1956
• Citation: 523 F. Supp. 167
• Parties: Melville HERRON, and all persons similarly situated, Plaintiff, v. Edward I. KOCH, et al., Defendants. Carl ANDREWS, et al., Plaintiffs, v. Edward I. KOCH, et al., Defendants. Gilberto GERENA-VALENTIN, and on behalf of Puerto Rican voters similarly situated, Plaintiff, v. Edward I. KOCH, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

523 F. Supp. 167

Melville HERRON, and all persons similarly situated, Plaintiff, v. Edward I. KOCH, et al., Defendants.

Carl ANDREWS, et al., Plaintiffs, v. Edward I. KOCH, et al., Defendants.

Gilberto GERENA-VALENTIN, and on behalf of Puerto Rican voters similarly situated, Plaintiff, v. Edward I. KOCH, et al., Defendants.

Nos. 81 Civ. 1956, 81 Civ. 1542 and 81 Civ. 5468.

United States District Court, E. D. New York United States District Court, S. D. New York.

September 8, 1981.

Paul Wooten, Brooklyn, N. Y., New York State Black & Puerto Rican Legislative Caucus, for plaintiff Melville Herron.

Kim Hoyt Sperduto, LeBoeuf, Lamb, Leiby & MacRae, New York City, for plaintiffs in Andrews, et al. v. Koch, et al.

Gabe Kaimowitz, Puerto Rican Legal Defense and Education Fund, Inc., New York City, for plaintiff Gerena-Valentin.

Patrick F. X. Mulhearn, New York City Law Dept., New York City, for defendants other than Stanley Friedman.

Paul A. Victor, New York City, for defendant Stanley Friedman.

Paul Hancock, Civil Rights Div., Dept. of Justice, Washington, D. C., John S. Martin, Jr., U. S. Atty., S. D. N. Y., New York City, of counsel, for the United States as amicus curiae.

Before KEARSE, Circuit Judge, and NEAHER and DUFFY, District Judges:

MEMORANDUM AND ORDER

PER CURIAM.

This three-judge district court has been convened pursuant to 28 U.S.C. § 2284 to hear claims in three cases, consolidated for this purpose, that certain plans of the City of New York ("City") with respect to its primary and general elections scheduled for September 10 and November 2, 1981, respectively, violate § 5 of the Voting Rights Act of 1965, as amended (hereafter "Voting Rights Act" or the "Act"), 42 U.S.C. § 1973c (1976).¹ Plaintiffs have moved for a preliminary injunction prohibiting the City, its officials, and its Board of Elections from holding these elections as planned because the City has not obtained the necessary federal approval of its changes in voting standards, practices and procedures. For the reasons set forth below, we grant the motions.

BACKGROUND

A. Requirements of the Voting Rights Act

Congress's purpose in enacting the Voting Rights Act was to rid the country of racial discrimination in voting. Allen v. State Board of Elections, 393 U.S. 544, 548, 89 S.Ct. 817, 822, 22 L.Ed.2d 1 (1969); South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 808, 15 L.Ed.2d 769 (1966). In substance, §§ 2 and 4(f)(2) of the Act prohibit any State or political subdivision from imposing or applying any qualifications or prerequisites for voting, or practices, procedures, or standards with respect to voting, that have the purpose or will have the effect of discriminating on the basis of race, color, or membership in a language minority group. 42 U.S.C. §§ 1973, 1973b(f)(2).² In practice, § 5 of the Act prohibits any State or political subdivision subject to § 5 of the Act³ from enforcing any change in voting qualifications, prerequisites, practices, procedures or standards unless it has either (1) obtained a declaratory judgment from the United States District Court for the District of Columbia that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority," or (2) submitted the proposed change to the Attorney General of the United States "and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made." 28 U.S.C. § 1973c.⁴

B. The City's Plan

Pursuant to the City's Charter, the City's Council Districting Commission (the "Commission") is required "to provide a draft plan for dividing the City into council districts ... at the first regular election of council members after each federal census ...." Following receipt of the results of the 1980 census on April 1, 1981, the Commission presented such a draft plan to the New York City Council. On May 29, 1981 the Council adopted the proposed plan; and on June 6, defendant Mayor Edward I. Koch signed the bill, Local Law 47, into law. Prior to the adoption of Local Law 47, the City had 33 councilmanic districts, each entitled to elect a single Councilman; in addition each of the five boroughs of the City⁵ was entitled to elect two Councilmen on an at-large basis.

Local Law 47 did not disturb the at-large councilmanic seats. It did, however, increase the number of district councilmanic seats from 33 to 35, and it redrew district lines. In addition, the plan adopted by the City changes approximately 300 of the 3000 election districts in Bronx, Kings, and New York counties, and hence relocates certain polling places.

The City concedes that these changes are within the coverage of the Voting Rights Act,⁶ that the counties of Bronx, Kings, and New York are political subdivisions subject to the Act,⁷ and that the City was required to obtain preclearance from the District Court for the District of Columbia or from the Attorney General:

There is no dispute among the parties, that the "change" or new councilmanic redistricting plan is "covered" by § 5 of the Voting Rights Act and thus, required to be precleared before implementation.

(Defendants' Memorandum of Law at 13.) Nor does the City dispute that it is not entitled to enforce these changes in the absence of preclearance:

If a change occurred and was not precleared, then it is unlawful and may not be enforced.

(Id. at 8.)

On June 12, 1981, within one week after Local Law 47 was signed into law, the City submitted, by hand delivery, its proposed changes in councilmanic districts to the Attorney General,⁸ and requested an expedited review of its submission, stating that the first date set to circulate petitions with respect to councilmanic seats was June 16, 1981. On August 4, 1981, the Department of Justice wrote to the City, stating that after a careful examination of the City's initial submission, it had been determined that the information sent was

insufficient to enable the Attorney General to determine that the proposed changes do not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group.

(Letter dated August 4, 1981, from Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division, Department of Justice, to Fabian Palomino, Esq., Counsel to New York City Council Redistricting Commission.) The letter specified eight types of information to be provided, including election results by election district for certain past elections, a map indicating the election districts in relation to the councilmanic districts as they now exist and the proposed new district lines, and data supporting or refuting the City's contention that one reason that the submitted plan does not contain additional districts in which minorities comprise a substantial majority of the population is that the minority populations are dispersed throughout the City. (Id. at 1-2.)

The August 4 letter alerted the City that the 60 days within which the Attorney General could consider the City's submission would commence on his receipt of the information necessary for the proper evaluation of the submission, and that in the absence of additional information the Attorney General might object to the proposed changes. It asked the City to notify the Department within twenty days whether the City planned to comply with the request. (Id. at 3.)

The City has informed the Attorney General that it will comply with the request for additional information. On August 14, the requested information in one of the eight categories, to wit, past election results, was submitted to the Attorney General. In addition, the City has provided some additional information in some of the other categories, but apparently has not yet completed its compliance in any of the other seven categories. The City expects to complete its submission by September 21, 1981.

C. The Present Lawsuits

The first of the present lawsuits, Herron v. Koch, et al., was commenced on June 16, 1981. The plaintiff, a black voter residing in Brooklyn, alleged that the City's changes violated the Voting Rights Act. Herron quickly moved for a preliminary injunction against implementation of the changes on the ground that the City had not obtained the requisite federal approval under the Act. The City opposed the motion principally on the ground that it had submitted its changes to the Attorney General pursuant to the Act, and that the 60 days within which the Attorney General could object would expire on August 11, 1981, prior to the elections to be affected. On June 17, 1981, the district court denied Herron's motion for an injunction on the grounds that it was premature and that the allegations of the complaint were conclusory.

On August 5, 1981, Andrews, et al. v. Koch, et al., was commenced by three registered voters residing in Brooklyn, including at least one black voter and at least one voter of Puerto Rican or Hispanic heritage. The Andrews plaintiffs alleged that although the total population of the City had declined from 7,895,563 in 1970 to 7,071,030 in 1980, the minority population had increased in that period by at least 319,676. They challenged the City's councilmanic changes as having the purpose and effect of "freezing" the 1970 number of minority councilmembers while increasing the number of white councilmembers, and alleged that the City had not obtained preclearance of its changes as required by § 5 of the Act. Gerena-Valentin v. Koch, et al., was commenced on September 2, 1981, by a Puerto Rican voter and incumbent Councilman in the Bronx, alleging that the City's changes had the purpose and effect of discriminating against Puerto Rican...