Favors et al v. Cuomo et al

Filing 287

SCHEDULING ORDER -- Several defendants have moved to dismiss the amended complaints or portions thereof. Responses to those motions must be filed by 5:00 p.m. on April 9, 2012. In addition, for the reasons set forth in the ATTACHED WRITTEN SCHEDULING ORDER, any party planning to move for preliminary equitable relief on the ground that one or more of the issues presented in the amended complaints that have been filed in this case has sufficient legal and factual mer it to meet the standards set out above, such that the Court should not defer to one or more aspects of the legislative plan in the absence of preclearance, must do so by 5:00 p.m. on April 12, 2012. Responses to such motions must be filed by 5:00 p.m. on April 17, 2012. SO ORDERED by Circuit Judge Reena Raggi, Circuit Judge Gerard Lynch, and District Judge Dora Lizette Irizarry on 4/3/2012.(Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARK A. FAVORS, et. al.,
:
:
Plaintiffs,
:
:
-against:
:
ANDREW M. CUOMO, as Governor of
:
the State of New York, et. al.,
:
:
Defendants.
:
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SCHEDULING ORDER

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

REENA RAGGI, United States Circuit Judge
GERARD E. LYNCH, United States Circuit Judge
DORA L. IRIZARRY, United States District Judge:
The recently enacted Senate and Assembly Redistricting Plans are awaiting preclearance
by the United States Department of Justice and/or the United States District Court for the District
of Columbia, and cannot be implemented unless and until preclearance has been secured.
Because the preclearance processes are in their early stages, there is a possibility that
preclearance, if granted, might not occur until after the start of the petitioning period. In the
alternative, if preclearance is denied as to either or both State plans, such denial might well occur
too late in the process to allow the New York State Legislature to create (and obtain preclearance
of) a redistricting plan that cures the defects in the plan that was denied preclearance. In light of
these contingencies, and recognizing the need to have in place, as a back-up, a judicially created
interim redistricting plan for each house of the New York State Legislature, this Court previously
authorized its redistricting consultant, Dr. Nathaniel Persily, to begin his analysis on April 9,
2012, at the State’s expense, as to any further action to be taken by this Court with respect to
redistricting, and the Court also authorized Magistrate Judge Roanne L. Mann to assist as
necessary. See Minute Entry (Mar. 21, 2012).
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A federal court faced with a legislatively enacted redistricting plan that is awaiting
preclearance, and that has not yet been found by any other reviewing authority to be legally
infirm, must take guidance from the State’s recently enacted plan except to the extent that those
policies violate the United States Constitution or the Voting Rights Act (“VRA”). See Perry v.
Perez, __ U.S. __, 132 S.Ct. 934, 941 (2012). The amended pleadings in this case raise a variety
of constitutional and VRA challenges to the State’s plans. Those challenges are not likely to be
litigated to judgment prior to the start of the petitioning period. The Supreme Court’s decision in
Perry addresses this situation, and teaches that, “[w]here a State’s plan faces challenges under the
Constitution or § 2 of the Voting Rights Act, a district court should still be guided by that plan,
except to the extent that those legal challenges are shown to have a likelihood of success on the
merits.” Perry, 132 S.Ct. at 942. In addition, Perry provides that courts should “tak[e] guidance
from a State’s policy judgments unless they reflect aspects of the state plan that stand a
reasonable probability of failing to gain § 5 preclearance.” Id. A “‘reasonable probability’ . . .
means in this context that the § 5 challenge is not insubstantial.” Id.
It is imperative that this Court address the aforesaid issues expeditiously, in order to
provide Magistrate Judge Mann and Professor Persily with the legal framework under which
they will craft any proposed interim plan for each house of the State Legislature. Accordingly,
any party planning to move for preliminary equitable relief on the ground that one or more of the
issues presented in the complaints that have been filed in this case has sufficient legal and factual
merit to meet the standards set out above, such that the Court should not defer to one or more
aspects of the legislative plan in the absence of preclearance, must do so by 5:00 p.m. on April
12, 2012. Responses to such motions must be filed by 5:00 p.m. on April 17, 2012.

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In addition, yesterday several defendants moved to dismiss the amended complaints or
portions thereof. Responses to those motions must be filed by 5:00 p.m. on April 9, 2012.
SO ORDERED.
DATED: Brooklyn, New York
April 3, 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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