Pope v. Cnty. of Albany

• Decision Date: 29 May 2012
• Docket Number: Docket No. 11–3439–cv.
• Citation: 687 F.3d 565
• Parties: Anne POPE, Janis Gonzalez, Wanda Willingham, Plaintiffs–Appellants, v. COUNTY OF ALBANY, Albany County Board of Elections, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

687 F.3d 565

Anne POPE, Janis Gonzalez, Wanda Willingham, Plaintiffs–Appellants,

v.COUNTY OF ALBANY, Albany County Board of Elections, Defendants–Appellees.

Docket No. 11–3439–cv.

United States Court of Appeals, Second Circuit.

Argued: Dec. 16, 2011.

Decided: May 29, 2012.

Mitchell A. Karlan, Gibson, Dunn & Crutcher LLP, New York, NY, (Aric H. Wu, Gibson Dunn & Crutcher LLP, New York, NY; Paul DerOhannesian III, DerOhannesian & DerOhannesian, Albany, NY, on the brief), for Plaintiffs–Appellants.

Thomas Marcelle, Esq., and Peter Barber, Murphy, Burns, Barber & Murphy, LLP, Albany, NY, for Defendants–Appellees.

Before: McLAUGHLIN, CALABRESI, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Plaintiffs, black and Hispanic registered voters in Albany County, sue the County and the County Board of Elections (collectively “defendants”) in the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge ) for enacting a redistricting plan for the Albany County Legislature (“Local Law C”) in response to the 2010 United States census that allegedly dilutes black and Hispanic voting strength in violation of Section 2 of the Voting Rights Act (“VRA”), 42 U.S.C. § 1973, by failing to provide for five majority-minority districts (“MMDs”). Plaintiffs here appeal from the district court's denial of a preliminary injunction barring defendants from implementing Local Law C with respect to elections held in September and November of 2011. See Pope v. Cnty. of Albany, No. 11–cv–736 (LEK)(DRH), 2011 WL 3651114 (N.D.N.Y. Aug. 18, 2011). For the reasons stated herein, we conclude that the appeal is not moot, even though the challenged elections have taken place. Nevertheless, it is without merit because the district court acted within its discretion in concluding that plaintiffs failed, on the record presented in support of their preliminary injunction motion, to demonstrate a likelihood of success on the third factor of a vote dilution claim identified in Thornburg v. Gingles, 478 U.S. 30, 51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), i.e., bloc voting by the white majority sufficient to defeat minority voters' preferred candidate. At the same time, we identify a concern with the district court's apparent demand for more than a simple majority of minority group members of voting age within the proposed districts to satisfy the first Gingles factor. Because the district court will have to apply the Gingles analysis at trial in ultimately resolving this case, we clarify the law applicable to the first factor at the same time that we affirm the district court's denial of preliminary relief.

I. Factual BackgroundA. Redistricting of the Albany County Legislature

The Albany County Legislature consists of representatives elected every four years from 39 single-member districts. See Albany County Charter Art. 2, §§ 201, 206. After each decennial national census, the County legislature appoints a reapportionment commission charged with revising district lines to account for shifts in population. See id. § 207.

The County's past redistricting efforts have routinely triggered litigation. A challenge to the redistricting plan adopted after the 1990 census, which provided for only one district in which blacks would constitute a majority of the voting age population (“VAP”), resulted in the County entering into a consent judgment that prevented implementation of the plan and provided for the establishment of three MMDs in each of which blacks and Hispanics together constituted at least 63% of the VAP. See Consent J. & Decree, NAACP v. Albany Cnty., No. 91–cv–1288 (CGC) (N.D.N.Y. Nov. 13, 1991), ECF No. 2. When, following the 2000 census, the County enacted a redistricting plan that maintained three MMDs, the district court enjoined implementation, concluding that Section 2 required the County to create a fourth MMD. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 281 F.Supp.2d 436 (N.D.N.Y.2003); see also Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 289 F.Supp.2d 269, 276 (N.D.N.Y.2003) (stating that County's plan “flagrantly violated the rights of minority voters”). To the extent the district court there did not think that it could order special elections based on the revised plan containing four MMDs, this court reversed and itself ordered such elections. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 357 F.3d 260, 263 (2d Cir.2004).

After the 2010 census, the County enacted the redistricting plan challenged in this lawsuit, which maintains four MMDs. In doing so, the County followed the recommendation of its redistricting commission, which had retained a redistricting expert, John Merrill, to prepare a plan based on the new census information. The commission held public hearings, at which minority groups urged the creation of a fifth MMD. One such group, the Arbor Hill Environmental Justice Corporation, submitted a proposed redistricting plan to that effect (“AHEJ Plan”).

Merrill advised the Commission that, although he attempted to create a fifth MMD, the task was impossible because of the dispersion of the minority population, which he treated as including both blacks and Hispanics. See infra at 572 n. 5, 577 n. 11 (discussing issues presented by choice of minority group). Merrill deemed the AHEJ Plan unsatisfactory because, in his view, it violated a number of redistricting principles and constituted racial gerrymandering.¹ Accordingly, on May 19, 2011, the Commission adopted a final redistricting plan proposed by Merrill that retained four MMDs. The Legislature adopted the plan as Local Law C on May 23, 2011.

B. Motion for Preliminary Injunction

Plaintiffs filed this Section 2 challenge to Local Law C on June 29, 2011, and on July 15, 2011, they moved for a preliminary injunction to prevent defendants from “conducting the petition process, gathering signatures for elections, holding and conducting any further primary or general elections, or implementing or certifying elections in the districts under the current scheme implemented in 2004 or those created by Local Law C for any term of office commencing January 1, 2012.” Notice of Mot. at 1–2, Pope v. Cnty. of Albany, No. 11–cv–736, ECF No. 12. Plaintiffs maintained that they were likely to succeed on their claim of minority vote dilution whether the relevant minority population aggregated blacks and Hispanics or was limited to blacks alone. After evidentiary hearings and written submissions, the district court denied a preliminary injunction on August 18, 2011. Plaintiffs filed a timely notice of appeal and sought an expedited briefing schedule, which was granted, with oral argument heard on December 16, 2011.

In the interim, primary and general elections for the County legislature on the basis of Local Law C were held on September 13, 2011, and November 8, 2011, respectively. On November 14, 2011, defendants moved to dismiss the appeal as moot. On November 30, 2011, plaintiffs moved in this court for a preliminary injunction pending appeal to prevent defendants from “conducting elections or related processes, or qualifying and/or certifying individuals elected in the November 8, 2011 elections for Albany County legislature to take office.” Appellant Mot. for Prelim. Inj. Pending Appeal at 1, Pope v. Cnty. of Albany, No. 11–3439–cv (2d Cir. Nov. 30, 2011), ECF No. 82. On December 28, 2011, this court summarily denied plaintiffs' motion for a preliminary injunction pending appeal.

II. DiscussionA. Mootness

Because the question implicates our jurisdiction, we first address defendants' motion to dismiss the appeal as moot in light of the fact that the very 2011 elections that plaintiffs sought preliminarily to enjoin have now been conducted. “The occurrence of the action sought to be enjoined normally moots the request for preliminary injunctive relief because this Court has no effective relief to offer once the action has occurred.” Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir.2005) (Sotomayor, J.) (internal quotation marks omitted). This principle does not apply, however, when “we do not lack the ability to offer effective relief” because we “can feasibly restore the status quo.” Id. at 509–10 (emphasis in original). This conclusion is a “natural, if not inevitable, extension of the well established principle that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.” Id. at 510 n. 4 (internal quotation marks omitted).

In this case, defendants unquestionably had notice that plaintiffs were seeking to enjoin the 2011 elections. Indeed, the parties were engaged in an appeal from the denial of such relief when defendants proceeded with the 2011 elections. See id. (rejecting mootness challenge where district court denied preliminary injunction that sought to prevent plaintiff's termination and plaintiff was then terminated before appeal was heard). We do not fault defendants' actions in this respect; no court order barred them from proceeding with the elections. We note only that defendants were on notice that plaintiffs were still pursuing preliminary injunctive relief. Thus, we will not dismiss the case as moot if we are satisfied that, should plaintiffs succeed on this appeal, it would be possible to restore the status quo.

In considering that question, we are mindful of precedent recognizing that “[i]t is within the scope of [a federal court's] equity powers to order a governmental body to hold special elections to redress violations of the VRA.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 357 F.3d at 262. Implicit in the power to order special elections is the authority to void elections conducted in violation of the VRA. It was not necessary to authorize such relief in Arbor Hill because the district court...