Pope v. Cnty. of Albany

• Decision Date: 18 August 2011
• Docket Number: 1:11-CV-00736 (LEK/DRH)
• Parties: ANNE POPE, et al., Plaintiffs, v. COUNTY OF ALBANY, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

ANNE POPE, et al., Plaintiffs, v. COUNTY OF ALBANY, et al., Defendants.

1:11-CV-00736 (LEK/DRH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: August 18, 2011

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Presently before the Court is Plaintiffs' Motion for preliminary and permanent injunctive relief ("PI Motion") (Dkt. No. 12), filed on July 15, 2011. Defendants filed a Response in opposition to this motion on July 29, 2011. Dkt. No. 40 ("PI Opposition"). On August 3, 2011, Plaintiffs also filed a Motion for a Temporary Restraining Order ("TRO"), to which Defendants responded on August 5, 2011. Dkt. Nos. 56, 66. The Court denied the TRO on August 10, 2011. Plaintiffs also submitted a Memorandum of law on the majority-minority rule on August 3, 2011, and a Memorandum of law on political cohesion on August 5, 2011. Dkt. Nos. 57, 67. Plaintiffs seek to enjoin Defendants from holding elections for seats in the Legislature of Defendant Albany County ("the County"), on the grounds that Defendants' redistricting plan, signed into law on June 6, 2011 ("Local Law C"), dilutes the voting strength of the minority community in violation of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 ("VRA"). The Court denies Plaintiffs' Motion for a preliminary injunction.

II. BACKGROUND

Plaintiffs allege that Local Law C violates the VRA because it creates an insufficient numberof districts containing a majority of minorities in the population, or "majority/minority districts" ("MMDs"). See Compl. (Dkt. No. 1) at 13-14. The County's Legislature consists of individual members elected from each of the County's thirty-nine districts. Pls.' Mem. of law in support of preliminary injunction ("PML for PI Mot.") (Dkt. No. 30) at 3. The County redistricts itself every ten years following the United States Census. Id. Elections to the Legislature are held every four years, with the next primary election for the Legislature scheduled to be held on September 13, 2011. Id.

On two prior occasions following the 1990 and 2000 United States Censuses, Plaintiffs have successfully sued in this District to create more MMDs. In 1991, when the reapportionment law only provided for one MMD, minority residents sued and the litigation was resolved through entry of a consent decree mandating three MMDs ("1991 Consent Decree"). N.A.A.C.P. v. Albany County, No. 91-CV-1288 (N.D.N.Y. filed Nov. 7, 1991). In 2003, when the County's reapportionment law did not create a fourth MMD in response to the 2000 Census, minority residents again sued and United States District Judge Norman A. Mordue, adopting the Report-Recommendation of United States Magistrate Judge David R. Homer, enjoined the scheduled 2003 election of County legislators pending adoption of a new redistricting plan that would create a fourth MMD. Arbor Hill Concerned Citizens Neighborhood Assn' v. County of Albany, 281 F. Supp. 2d 436 (N.D.N.Y. 2003), adopting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, No. 03-CV-502, 2003 WL 21524820 (N.D.N.Y. July 7, 2003) ("Arbor Hill Report-Rec."). Now, following the 2010 Census, Plaintiffs request that the Court void Local Law C and enjoin the 2011 elections on the grounds that Defendants' failure to create a fifth MMD dilutes minority voting power under the VRA.

III. DISCUSSION

Generally, the "district court may grant a preliminary injunction where the moving party establishes: (1) that it is likely to suffer irreparable injury if the injunction is not granted, and (2) either (a) a likelihood of success on the merits of its claim, or (b) the existence of serious questions going to the merits of its claim and a balance of the hardships tipping decidedly in its favor." Freeman v. McKnight, No. 07-CV-01123, 2007 WL 3254431, at *1 (N.D.N.Y. Nov. 2, 2007) (citing Moore v. Consolidated Edison Co. of New York, Inc., 409 F.3d 506, 510-511 (2d Cir. 2005)).

"Such relief . . . is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. " Moore, 409 F.3d at 510-11. Moreover, in some cases, a significantly higher standard applies. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). Where the moving party seeks to "affect government action taken in the public interest pursuant to a statutory or regulatory scheme," as is the case here, "the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard." Sussman v. Crawford, 488 F.3d 136, 140 (2d Cir. 2007); see also Arbor Hill, 281 F. Supp. at 442 (citing No Spray Coalition, Inc. v. City of N.Y., 252 F.3d 148, 150 (2d Cir. 2001)).

Plaintiffs have not sustained their burden to demonstrate that a preliminary injunction should issue, and, accordingly, the Court denies the relief sought. Although "[t]he abridgement or dilution of the right to vote is an irreparable harm," Arbor Hill Report-Rec., 2003 WL 21524820, at *3, Plaintiffs have failed to meet their burden of showing a likelihood of success on the merits at this stage of the litigation. In Thornburg v. Gingles, the seminal case interpreting Section 2 of the VRA, the Supreme Court identified three preconditions that must exist for a plaintiff to succeed ona vote dilution claim: (1) "[T]he minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) "the minority group must be able to show that it is politically cohesive"; and (3) "the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate." 478 U.S. 30, 50-51 (1986).

Each of the three Gingles preconditions must be proven by a preponderance of the evidence. Arbor Hill Report-Rec., 2003 WL 21524820, at *4 (citing Reed v. Town of Babylon, 914 F. Supp. 843, 863 (E.D.N.Y. 1996)). Further, even if a plaintiff proves the existence of the three preconditions, in order to prevail on a vote dilution claim they must still prove that, based on a totality of the circumstances, the minority group does not have equal access to the political process. Id. at *14. This determination "focuses on nine factors that are relevant to vote dilution claims, which overlap in certain respects with themselves and with the three Gingles preconditions." Id.

At this juncture, the Court finds that Plaintiffs have not demonstrated a likelihood of success on the merits with respect to the three Gingles preconditions. Because of this finding, the Court need not address whether Plaintiffs have established, based on a totality of the circumstances, that blacks and Hispanics do not have equal access to the political process in Albany County.

A. Sufficiently Large and Geographically Compact Majority Minority District

Plaintiffs argue that "the increased population of blacks alone supports five MMDs" that have non-Hispanic minority voting-age populations ("VAPs") of between 50.44 percent and 52.67 percent. PML for PI Mot. at 12 (emphasis in original). In support of this contention, Plaintiffs filed an additional Memorandum with the Court citing to Bartlett v. Strickland, 129 S. Ct. 1231, 1246 (2009) (Kennedy, J.), an opinion adopted by only three justices on the Supreme Court stating that "aparty asserting § 2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50%." Pls.' Memorandum on majority-minority rule ("PML on Majority/Minority Rule") (Dkt. No. 57). The Court is not bound by this portion of Bartlett, insofar as it was not followed by a majority of the Supreme Court, and that decision dealt only with "crossover districts" that do not otherwise satisfy the Gingles requirement that a district be sufficiently large and compact. See Bartlett, 129 S. Ct. at 1243-45.

Furthermore, the Court is unpersuaded that a barebones 50.44 percent black VAP majority is sufficient to warrant a preliminary injunction ordering the creation of a fifth MMD in this case, particularly where Plaintiff's own expert, Dr. Paul Liu, testified that a 55 percent minority population is required for a particular district to be considered a "dominant" black district. Transcript of examination of Dr. Baodong Paul Liu on Wednesday, August 3, 2001 ("Liu Hearing Tr.") at 3; see also Arbor Hill Report-Rec., 2003 WL 21524820, at *5 ("A minority group is sufficiently large if it comprises more than 51% of the population of a voting district.") The Court finds that Plaintiffs have not proven a fifth MMD exists because of the increase in the black population alone.

Thus, to establish that a fifth MMD that is sufficiently large and geographically compact exists in Albany County, Plaintiffs must prove that blacks and Hispanics are politically cohesive and should be counted together for Section 2 purposes. Plaintiffs themselves advance this argument, pointing to the combined numbers of blacks and Hispanics in a geographically compact area - the eastern part of the City of Albany. Plaintiffs state that these numbers would support five MMDs with VAPs between 60.46 percent and 62.69 percent, sufficiently large numbers to warrant the creation of a fifth MMD. PML for PI Mot. at 11-13. However, for the reasons discussed below,Plaintiffs have not yet established a likelihood of success of the merits on the issue of whether blacks and Hispanics in Albany County are politically cohesive.

B. Political Cohesion Between Black and Hispanic Voters

Plaintiffs have failed to meet their burden as to the second Gingles precondition in establishing that blacks and Hispanics are politically cohesive. Dr. Liu testified that there is insufficient data available to obtain a reliable estimate of Hispanics' voting patterns in Albany County. Liu Hearing Tr. at 2; PML on Cohesion at 1, 3-6. Plaintiffs have presented socioeconomic data and testimony from a...