Favors et al v. Cuomo et al

Filing 133

ORDER OF REFERRAL TO MAGISTRATE JUDGE -- The task of creating a new congressional redistricting plan for the State of New York is hereby referred to the Honorable Roanne L. Mann, U. S. Magistrate Judge of the Eastern District of New York who shall be empowered and charged with the duty to prepare a Report and Recommendation to the Court, including a proposed plan for adoption by this Court. FOR SPECIFIC DETAILS, PLEASE SEE THE ATTACHED WRITTEN "ORDER OF REFERRAL TO THE MAGISTRATE JUDGE." SO ORDERED by Circuit Judge Reena Raggi, Circuit Judge Gerard E. Lynch, and Judge Dora Lizette Irizarry on 2/28/2012. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARK A. FAVORS, HOWARD LIEB, LILLIE H.
:
GALAN, EDWARD A. MULRAINE, WARREN
:
SHREIBER, and WEYMAN A. CAREY,
:
:
Plaintiffs,
:
:
DONNA KAYE DRAYTON, EDWIN ELLIS, AIDA
:
FORREST, GENE A. JOHNSON, JOY WOOLLEY,
:
SHEILA WRIGHT, LINDA LEE, SHING CHOR
:
CHUNG, JULIA YANG, JUNG HO HONG, JUAN
:
RAMOS, NICK CHAVARRIA, GRACIELA HEYMANN, :
SANDRA MARTINEZ, EDWIN ROLDAN, and
:
MANOLIN TIRADO, LINDA ROSE, EVERET MILLS, :
ANTHONY HOFFMAN, KIM THOMPSON-WEREKOH, :
CARLOTTA BISHOP, CAROL RINZLER,GEORGE
:
STAMATIADES, JOSEPHINE RODRIGUEZ, and
:
SCOTT AUSTER,
:
:
Intervenor Plaintiffs,
:
:
-against:
:
ANDREW M.CUOMO, as Governor of the State of New :
York, ROBERT J. DUFFY, as President of the Senate of :
the State of New York, DEAN G. SKELOS, as Majority :
Leader and President Pro Tempore of the Senate of the
:
State of New York, SHELDON SILVER, as Speaker of
:
the Assembly of the State of New York, JOHN L.
:
SAMPSON, as Minority Leader of the Senate of the State :
of New York, BRIAN M. KOLB, as Minority Leader of
:
the Assembly of the State of New York, the NEW YORK :
STATE LEGISLATIVE TASK FORCE ON
:
DEMOGRAPHIC RESEARCH AND APPORTIONMENT :
(“LATFOR”), JOHN J. McENENY, as Member of
:
LATFOR, ROBERT OAKS, as Member of LATFOR,
:
ROMAN HEDGES, as Member of LATFOR, MICHAEL :
F. NOZZOLIO, as Member of LATFOR, MARTIN
:
MALAVÉ DILAN, as Member of LATFOR, and
:
WELQUIS R. LOPEZ, as Member of LATFOR,
:
:
Defendants.
:
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ORDER OF REFERRAL
TO
MAGISTRATE JUDGE

DOCKET #11-cv-5632
(RR)(GEL)(DLI)(RLM)

Before: REENA RAGGI, United States Circuit Judge
GERARD E. LYNCH, United States Circuit Judge
DORA L. IRIZARRY, United States District Judge
PER CURIAM:
By complaint filed November 17, 2011, plaintiffs seek the reapportionment of
congressional, State Senate and State Assembly voting districts alleging various violations of the
Voting Rights Act, 42 U.S.C. §1973, and the United States and New York Constitutions. A
conference with the parties was held before the three-judge court on February 27, 2012. Based
upon the parties’ oral presentations to the Court and the prior filings made in this case, the Court
makes the following findings pertinent to this Order of Referral:
At this time, the task before this Court is the reapportionment of congressional districts
only. Whether this Court must intervene to reapportion the State Senate and Assembly districts
will be determined by the Court at a later date and will be based on the progress made by the
New York State Legislature and Governor in timely preparing new redistricting plans that can
withstand the preclearance process required by the Voting Rights Act, 42 U.S.C. § 1973, and
otherwise comply with the Constitutions of the United States and the State of New York.
The delineation of new districts must be accomplished in the shortest possible time, as
the congressional election petitioning process must begin by March 20, 2012. This difficult and
complex process involves dividing the state into districts that reasonably will reconcile the
demands of the applicable law, including the Constitution, Voting Rights Act and New York
law, and all interested parties, in a fair and impartial manner.
Accordingly, it is hereby ORDERED that:
1.

The task of creating a new congressional redistricting plan for the State of

New York (“the plan”) is hereby referred to the Honorable Roanne L. Mann, U. S.
Magistrate Judge of the Eastern District of New York (the “magistrate judge”)
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who shall be empowered and charged with the duty to prepare a Report and
Recommendation to the Court, including a proposed plan for adoption by this
Court.
2.

In preparing the plan, the magistrate judge must adhere to, and, where

possible, reconcile the following guidelines:
a.

The plan will divide the state into 27 congressional districts in

accordance with the 2010 federal Census and applicable law.
b.

Districts shall be substantially equal in population.

c.

Districts

shall

be

compact,

contiguous,

respect

political

subdivisions, and preserve communities of interest.
d.

The plan shall comply with 42 U.S.C. §1973(b) and with all other

applicable provisions of the Voting Rights Act.
3.

The magistrate judge may consider other factors and proposals submitted

by the parties, which, in the magistrate judge’s view, are reasonable and comport
with the Constitution and applicable federal and state law.
4.

The magistrate judge is hereby authorized to retain appropriate technical

advisors, consultants, and experts as reasonably may be necessary for her to
accomplish her task within the time constraints imposed by this Order. Towards
that end, upon having heard from the parties on this issue, Dr. Nathaniel Persily,
Charles Keller Beekman Professor of Law and Professor of Political Science at
Columbia University School of Law, who is an expert on election law and has
assisted in drafting redistricting plans for the states of Georgia, Maryland, New
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York and Connecticut, is hereby appointed as an expert to assist the magistrate
judge in formulating a plan.
5.

The New York State Legislative Task Force on Demographic Research

and Reapportionment (“LATFOR”) is respectfully directed to cooperate fully in
providing to the magistrate judge, and to any experts, technical advisors, or
consultants assisting her, immediate and unrestricted access to information, data,
facilities, and technical support, as well as any additional assistance that may
facilitate and expedite the work of the magistrate judge.
6.

In performing her task, the magistrate judge shall consider any proposals,

plans, and comments either already submitted or to be submitted by all parties and
intervenors in this action. Additionally, she may invite additional submissions,
hold hearings, take testimony, and take whatever steps she deems reasonably
necessary to develop the plan contemplated by this Order. The magistrate judge
may recommend a new plan or she may incorporate all or parts of extant or newly
proposed plans that may be submitted by the parties or interested members of the
public.
7.

The Magistrate Judge is authorized to determine reasonable rates for the

compensation of any experts, technical advisors and consultants she may appoint.
All reasonable costs and expenses, including compensation for the experts,
technical advisors, and consultants shall be subject to approval by this Court and
paid by the State of New York.
The Court is keenly aware of the urgent need to have a plan in place as soon as possible.
The number of New York’s members of the House of Representatives in Congress has been
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reduced from 29 to 27, based upon the results of the 2010 Census. At the conference held on
February 27, 2012, the Court heard from the parties that congressional candidates may only
collect petition signatures from persons living within the district they intend to represent. The
candidates cannot collect signatures until they know their district lines. The petition process is to
begin March 20, 2012, barely three weeks from the date of this Order. Counsel for the New
York State Legislature defendants advised the Court that, currently, no congressional district
plan exists at all and they do not know when one will be produced.

Under the present

circumstances, New Yorkers run the risk of having no representation at all in the House of
Representatives. “[T]he ‘eleventh hour’ is upon us, if indeed it has not already passed. It is
therefore necessary for this Court to prepare for the possibility that this Court will be required to
adopt an appropriate redistricting plan.”

Rodriguez v. Pataki, 207 F. Supp. 2d 123, 125

(S.D.N.Y. 2002).

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Accordingly, it is further hereby ORDERED that:
1.

The magistrate judge shall submit her Report and Recommendation and

proposed plan to this Court by March 12, 2012.
2.

Any and all objections to the Report and Recommendation of the

magistrate judge are to be filed electronically via ECF no later than noon on
March 14, 2012.

Hard courtesy copies must be forwarded forthwith to the

chambers of the undersigned judges.
3.

On March 15, 2012, a hearing on the Report and Recommendation will be

held in the Brooklyn Federal Courthouse, 225 Cadman Plaza East. The parties
will be advised as to the time to appear and which courtroom to report to by
separate order. The parties should be prepared to continue the hearing into the
evening hours and the next day, if necessary.

SO ORDERED.
DATED: Brooklyn, New York
February 28, 2012
______________/s/_________________
REENA RAGGI
United States Circuit Judge
______________/s/_________________
GERARD E. LYNCH
United States Circuit Judge
_______________/s/________________
DORA L. IRIZARRY
United States District Judge
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