Pope et al v. County of Albany et al
Filing
253
MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 214) for Summary Judgment is DENIED; and it is further ORDERED, that Plaintiffs Motion (Dkt. No. 209) for Partial Summary Judgment is GRANTED in part and DENIED in part. The Court fin ds that there is no genuine issue of fact as to the assertion that the black community in the County of Albany is sufficiently large and geographically compact to form five majority-minority districts. There are unresolved issues of material fact as to all other elements of Plaintiffs claims; and it is further ORDERED, that Plaintiffs Motion (Dkt. No. 226) for leave to amend is GRANTED in part and DENIED in part. Plaintiffs may file a second amended complaint within seven (7) days of this orde r to add proposed plaintiffs Vicente Alfonso, Stephanie Davis, and Elaine Frazier; and it is further ORDERED, that Defendants may schedule deposition of Vicente Alfonso, Stephanie Davis, and Elaine Frazier within thirty (30) days of the filing of Plaintiffs Second Amended Complaint. Signed by Senior Judge Lawrence E. Kahn on January 28, 2014. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANNE POPE; WANDA WILLINGHAM;
GERALDINE BELL; SAMUEL
COLEMAN; and LEE PINCKNEY,
Plaintiffs,
-against-
1:11-cv-0736 (LEK/CFH)
COUNTY OF ALBANY; and ALBANY
COUNTY BOARD OF ELECTIONS,
Defendants.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Before the Court are Plaintiffs Anne Pope, Wanda Willingham, Geraldine Bell, Samuel
Coleman, and Lee Pinckney’s (“Plaintiffs”) Motion for partial summary judgment (“Plaintiffs’ SJ
Motion”) and Defendants County of Albany (“County”) and Albany County Board of Elections’
(collectively, “Defendants”) Motion for summary judgment (“Defendants’ SJ Motion”) in this
action challenging the redistricting of the Albany County Legislature (“Legislature”) under Section
2 of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. 1973 (“Section 2”). Dkt. Nos. 209; 214.
The Court also considers Plaintiffs’ second Motion for leave to amend their Complaint and attached
Memorandum of law, which Defendants have opposed. Dkt. Nos. 226 (“Motion to Amend”); 226-1
(“Motion to Amend Memorandum”). For the reasons that follow, the Court grants Plaintiffs’ SJ
Motion in part and denies it in part, and denies Defendants’ SJ Motion.
1
II.
BACKGROUND
A. Procedural Posture
Plaintiffs filed a Complaint in June 2011 alleging that the VRA requires the creation of an
additional majority-minority district (“MMD”) in the Legislature following population shifts
reflected in the 2010 Census. Shortly thereafter, Plaintiffs filed a Motion for preliminary injunction
to prevent the County from holding elections under the Legislature’s operative redistricting plan.
Dkt. No. 12 (“PI Motion”). They argued that: (1) it is possible to create 5 MMDs within the City of
Albany (“City”) using a narrow definition of black voters, Dkt. No. 30 (“PI Memorandum”) at 12;
(2) the “black community [has] routinely voted as a bloc” and, thus, “the black community is
politically cohesive, as are blacks and Hispanics,” id. at 13; and (3) that the minority-preferred
candidate is usually defeated and the totality of the circumstances supports a finding of vote
dilution, id. at 15-26. Defendants filed a response, Dkt. No. 40 (“PI Response”), arguing that
Plaintiffs could not prove that minority voters were sufficiently numerous to create five majorityminority districts “when counting Blacks alone,” Dkt. No. 40 (“PI Response”) at 11-12, as well as
that the Plaintiffs had not proved the rest of the Gingles factors. Id. at 13-23. The Court denied the
PI Motion, holding that Plaintiffs failed to prove that they were likely to succeed on the merits. Dkt.
No. 76.
Plaintiffs filed an interlocutory appeal (“Appeal”). Dkt. No. 78. The Second Circuit found
error in the Court’s requirement of something more than a simple majority at the first step of
Section 2 analysis, but ultimately affirmed the Court’s decision. Dkt Nos. 153, 153-1; Pope v. Cnty.
of Albany, 687 F.3d 565 (2d Cir. 2012). Meanwhile, Plaintiffs filed an Amended Complaint, Dkt.
2
No. 100 (“Amended Complaint”), which is the operative pleading for purposes of this decision.1
Plaintiffs’ Motion seeks judgment that the black population in Albany County is: (1)
sufficiently numerous and geographically compact to justify five MMDs; and (2) politically
cohesive. Dkt. No. 210 (“Plaintiffs’ SJ Memorandum”). Defendants filed a Response, and
Plaintiffs a Reply. Dkt Nos. 230 (“Defendants’ SJ Response”); 241 (“Plaintiffs’ SJ Reply”).2
Defendants’ Motion seeks judgment on Plaintiffs’ claim to the extent it relies upon a
coalition of black and Hispanic voters. In particular, Defendants argue that: (1) Plaintiffs lack
standing to bring a claim under Section 2; (2) the VRA does not allow a black and Hispanic voting
coalition; (3) Plaintiffs cannot show political cohesion; (4) Plaintiffs cannot show that racially
polarized voting yields white bloc votes sufficient to usually defeat minority-preferred candidates.
Dkt. No. 214-24 at 1-2 (“Defendants’ SJ Memorandum”). Plaintiffs submitted a Response, and
Defendants a Reply. See Dkt. Nos. 228 (“Plaintiffs’ SJ Response”); 242 (“Defendants’ SJ Reply”).
Both parties submitted Statements of material facts with their Motions. Dkt. Nos. 211
(“Plaintiffs’ SMF”); 214-1 (“Defendants’ SMF”). Defendants responded to Plaintiffs’ SMF and
Plaintiffs replied. Dkt. Nos. 230-1 (“Defendants’ SMF Response”), 241-1, (“Plaintiffs’ SMF
Reply”). Plaintiffs responded to Defendants’ SMF, including a counter-statement of facts. Dkt. No.
1
Although Plaintiffs have filed the second Motion to Amend, they make no amendments to
the factual allegations in the Amended Complaint. See generally Mot. Am. Therefore, the Court
will consider the Amended Complaint to be the operative pleading for purposes of deciding the
summary judgment Motions, and then resolve the Motion to Amend.
2
Defendants argue that the Court should not consider a black-only “claim,” because it was
not fairly raised in their pleadings. See Defs.’ Resp. As discussed below, Plaintiffs’ complaint
explicitly states only one cause of action, but fairly supports two theories to prove that cause of
action. Furthermore, Defendants’ arguments in their preliminary injunction briefing indicates that
they understood the Plaintiffs would attempt to prove their claim using a black-only theory.
3
229 (“Plaintiffs’ SMF Response” and “Plaintiffs’ Counter-SMF”).
During summary judgment briefing, the parties stipulated that Plaintiff Janis Gonzalez
(“Gonzalez”), the only Hispanic Plaintiff, would withdraw her claim. Dkt No. 222. Two weeks
later, Plaintiffs filed their second Motion to Amend to add additional plaintiffs, some of whom are
Hispanic, and who live both inside and outside the City the Albany. See Mot. Am. Mem.
Defendants’ Opposition challenges the Motion to Amend on several bases: (1) that the Motion to
Amend would cause undue delay; (2) that Plaintiffs brought the Motion in bad faith; (3) that the
Motion to Amend would prejudice Defendants; and (4) the Motion to Amend is futile. See
generally Opp. Mot. Am.
B. Facts
County voters in single-member districts elect 39 representatives to sit on the Legislature
every four years. Defs.’ SMF ¶ 1. After each decennial United States Census (“Census”), the
County redraws its districts to account for population shifts. Pls.’ SMF ¶ 2.
After both the 1990 and 2000 Census, minority voters in the County—and, specifically, in
the City—filed Section 2 claims against Defendants (“1990 Litigation” and “2003 Litigation”).
Pls.’ Counter-SMF ¶ 7. Each time, the County modified its redistricting plans. Id. The 1990
Litigation increased the number of MMDs from one to three. Id. ¶ 7; Dkt. No. 1-2 (“1991 Consent
Decree”). The County maintained the three MMDs when it redrew districts subsequent to the 2000
Census. See Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 281 F. Supp.
2d 436, 440 (N.D.N.Y. 2003). Minority voters sued for and obtained an injunction. Id. at 457. The
parties entered a consent decree, which created a fourth MMD. Pls.’ Counter-SMF ¶ 7.
The Department of Justice (“DOJ”) releases racial-demographic data. The relevant
4
demographics are Hispanic population, non-Hispanic DOJ black population,3 and non-Hispanic
white population.4 The County’s total population as of the 2010 Census was 304,204, of which the
voting-age population (“VAP”) was 243,573. U.S. Census, 2010 Redistricting Data (Public Law
94-171) Summary File, Albany County, N.Y.5 The Hispanic population was 14,917, with a VAP of
10,024, the DOJ black population was 39,087, with a VAP of at least 26,196 but no more than
29,435,6 and the white population was 231,152, with a VAP of 197,006.7 Id.
The Albany County Redistricting Commission (“Commission”) is charged with examining
3
The parties use “Non-Hispanic DOJ Black” to mean the simple sum of the Census
responders identifying as “Black of African American alone” and “Two Races: White; Black or
African American.” Pls.’ SMF ¶ 42. The Court recognizes that this definition does not include
Hispanic individuals that may identify as black, nor multiracial individuals identifying as a
combination of races other than “White” and “Black or African American,” and thus may not be
fully inclusive of the population that identifies as black. However, this definition ensures that the
operative black and Hispanic populations do not overlap for purposes of VRA litigation.
4
The Plaintiffs contend that an additional definition, “any part black,” is the proper
definition of black for the purposes of a black only claim. Pls.’ Mem. at 3 n.8.
5
The Court may take judicial notice of government statistics. See FED. R. EVID. 201; United
States v. Esquivel, 88 F.3d 722, 726-27 (9th Cir. 1996).
6
The Census data does not delineate a “Two or More Races: White; Black or African
American” category for the voting-age population. Rather, the above range employs the nonHispanic “Black or African American” population as the minimum, and the sum of the nonHispanic “Black or African American” population and the non-Hispanic “Two or More Races”
population as the maximum. The actual population is somewhere in the middle, because the “Two
or More Races” VAP includes the “White; Black or African American” VAP that would be used to
calculate the DOJ black VAP.
7
There are currently 4 MMDs out of 39 total districts, which equates to 10.26 percent. The
black VAP consists of between 10.75% and 12.08% of the total VAP using a non-Hispanic DOJ
black definition. Using an “any part black” definition, which includes black Hispanic individuals
and additional multiracial individuals, would result in a higher number. The combined black and
Hispanic VAP consists of between 14.87% and 16.20% of the total voting population. Plaintiffs’
proposed changes would cause MMDs to comprise 12.82% of the total districts.
5
new Census data and creating a map of proposed new districts. Pls.’ SMF ¶ 2. The Commission
held hearings to allow the public to comment before releasing proposed districts. Pls.’ CounterSMF ¶ 8. However, Plaintiffs allege that members of the minority communities were generally not
aware of these meetings because they were held in unfamiliar locations or were minimally
advertised. Id. Minority voters that did attend the meetings advised the Commission that the
minority population had grown since 2000, and that a fifth MMD was therefore warranted. Id. ¶ 9.
Aaron Mair presented an alternative redistricting plan, the Arbor Hill Environmental Justice plan
(“AHEJ Plan”) to illustrate the possibility of creating five MMDs in the City. Id. ¶ 14. The
Commission maintained the number of MMDs at four, id. ¶ 11, reasoning that there were “not
enough numbers to justify” a fifth MMD, Dkt. No. 231-17 at 3. However, Mr. Merrill, who drew
the districts for Defendants, relied on a definition of “minority” as “single race black.” Dkt. No.
231-17, at 177:2-178:2. The Legislature passed the Commission’s plan as Local Law C, which the
County Executive signed into law. Pls.’ Counter-SMF ¶¶ 18-19.
C. Expert Findings on Racial Polarization
Plaintiffs and Defendants employed experts to analyze racially polarized voting and other
data relevant to Section 2 litigation. Plaintiffs’ first expert, Dr. Baodong Liu, analyzed 46 elections
between his original and supplemental reports to test for racial bloc voting and minority candidate
success. Id. ¶ 24-25. Dr. Liu’s supplemental Declaration and Report focused on 34 single-member
elections where a black candidate ran against a white candidate, and 12 multi-member elections.8
8
Dr. Liu analyzed single-member elections using “Ecological Inference,” which purportedly
improves upon the bivariate ecological regression technique employed in Thornburg v. Gingles, 478
U.S. 30 (1986), because it does not assume homogeneity or produce impossible estimates. See Liu
Report at 4-5; 478 U.S. at 52-53. For multi-member districts, Dr. Liu used “homogeneous precinct
analysis” because “[Ecological Inference] methodology is not useful” where voters elect more than
6
Dkt. No. 231-25 (“Liu Report”) at 4-5. Dr. Liu analyzed only the voting patterns of black and white
voters because of “the lack of sufficient statistical data on Hispanic voters,” and defined black
voters for the purposes of his analysis as “non-Hispanic Black.” Pls.’ Counter-SMF ¶ 27; Defs.’
SMF ¶ 33. Dr. Liu concluded that racially polarized voting occurred in 19 single-member elections.
Liu Report at 6. Of the 15 elections that were not polarized, ten involved incumbent candidates and
14 were “non-competitive.” Id. at 7-9. In 11 of the 12 multi-member elections analyzed by Dr. Liu,
white voters’ most preferred candidate was white, and black voters’ most preferred candidate was
black. Id. at 5-6. Dr. Liu found that black voters, as defined above, were “‘politically cohesive’ in
that they have overwhelmingly preferred African American candidates as their choices in biracial or
multiracial elections involving black and white candidates.” Id. at 6-7.
Defendants also retained an expert, Dr. Ronald Gaddie, to analyze political cohesion and
racial bloc voting. See Dkt. No. 122. However, to the Court’s knowledge, Dr. Gaddie’s expert
report has never been entered into the record, and Defendants do not rely on it in their papers.
Plaintiffs’ second expert, William Cooper, analyzed demographic and socio-economic
Census data for the County, as well as Local Law C and the AHEJ Plan. Dkt. No. 231-23 (“Cooper
Supplemental Declararation”) ¶ 6. Mr. Cooper concluded that “African-Americans and Latinos in
Albany County lag behind whites across most socioeconomic measures.”9 Id. ¶ 9. Mr. Cooper
one candidate at a time. Id. at 5. “Homogeneous precinct analysis” is another term for the “extreme
case analysis” employed in Gingles. See Gingles, 478 U.S. at 53; Montano v. Suffolk Cnty.
Legislature, 268 F. Supp. 2d 243, 254 (E.D.N.Y. 2003).
9
Because Mr. Cooper drew his estimates from the American Community Survey (the
accuracy of which the Court addresses in footnote 15, infra), the demographics presented in Mr.
Cooper’s overlap somewhat—the “African-American” category contains black Hispanics, as does
the “Latino” category. Cooper Supplemental Decl. ¶ 8.
7
further concluded that “there is little appreciable difference in the overall socio-economic status of
African-Americans and Latinos.” Id. ¶ 12. Mr. Cooper also analyzed potential districts using
computer software, and found that the AHEJ plan “complies with one-person, one-vote
requirements . . . [and] other key traditional redistricting criteria such as compactness, contiguity,
and the non-dilution of minority voting strength.” Dkt. No. 54 (“Cooper Am. Declaration”) ¶¶ 1921, 27-28. Meanwhile, Mr. Cooper contends that Local Law C “packs minorities into four
districts.” Id. ¶ 29.
Mr. Cooper also created several additional “Illustrative Plans.” The first Illustrative Plan
merges the AHEJ MMD allocation with the existing framework of Local Law C, and would require
the redrawing of ten out of 39 districts. Id. ¶ 31-33. Mr. Cooper compares this design with an
“Illustrative Plan 2” that creates 6 MMDs.10 Id. ¶ 36-37. Mr. Cooper has also created a third
Illustrative Plan, which aims to make as few changes to district lines as possible to create 5 MMDs.
Id. ¶ 38. While this approach creates larger majorities of minority voters than the AHEJ Plan, each
MMD contains below-average total population. Id. ¶ 38; Defs.’ SMF ¶ 21.
III.
LEGAL STANDARD
A. Summary Judgment
Summary judgment is proper where “there is no genuine issue as to any material fact,” and
thus “the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). “An issue of fact is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Niagara Mohawk Power Corp. v. Hudson River-Black
10
The Court notes that the sixth MMD only achieves a majority of minority voters when
combining all minority groups—not just blacks and Hispanics—and only reaches 50.18% minority
voters.
8
River Regulating Dist., 673 F.3d 84, 94 (2d Cir. 2012). The moving party must first meet a burden
of production, which differs depending on whether the moving party will have the burden of
proving the claim or element at trial. Celotex, 477 U.S. at 330-32 (Brennan, J., dissenting).
Because Plaintiffs will bear the burden of proving the Gingles factors at trial, they “must support
[their] motion with credible evidence—using any of the materials specified in Rule 56(c)—that
would entitle [them] to a directed verdict if not controverted at trial.” Id. at 331. Defendants will
not bear the burden at trial; they may, in support of their Motion: (1) “submit affirmative evidence
that negates an essential element of the nonmoving party’s claim”; or (2) “demonstrate to the Court
that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party's claim.” Id. If a moving party has carried its burden, the nonmoving party must
raise some genuine issue of material fact; “metaphysical doubt as to material facts” is not enough.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, the burden
of persuasion remains at all times with the moving party, who must affirmatively demonstrate
entitlement to judgment as a matter of law. Celotex, 477 U.S. at 332.
B. VRA Section 2 Claims
Courts assess the merit of Section 2 vote dilution claims under the three-step framework
specified in Thornburg v. Gingles. A plaintiff must prove that: (1) the alleged minority group is
sufficiently numerous and geographically compact to compose a majority of a single-member
district; (2) members of the minority group are politically cohesive; and (3) that white bloc voting is
usually sufficient to defeat the minority-preferred candidate. See generally Gingles, 478 U.S. 30.
Although it would be “a very unusual case” where a plaintiff establishes the Gingles factors and
fails to establish a Section 2 violation, courts must still consider the totality of the
9
circumstances—additional indicia that tend to show a pattern and history of discrimination and a
need for redress. Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3d Cir.
1993) (emphasis in original).
IV.
DISCUSSION
A. Defendants’ Motion for Summary Judgment
Defendants advance several arguments. Defendants first contend that Plaintiffs reside within
existing MMDs under the current scheme and therefore do not have standing to bring this action.
Defs.’ Mem. at 11. Second, Defendants contend that black and Hispanic voters may not form a
coalition for the purposes of Section 2. Id. at 13. Third, Defendants contend that Plaintiffs have not
proved political cohesion among the black and Hispanic voting populations taken as a whole. Id. at
26. Fourth, Defendants contend that Plaintiffs cannot prove that white bloc voting is usually
sufficient to defeat the minority-preferred candidate. Id. at 28. The Court rejects each of these
arguments, and thus denies summary judgment.
1. Standing11
Defendants posit that Plaintiffs, as residents of existing majority-minority districts, lack
standing to bring a claim for vote dilution. Id. at 11. Defendants argue that only residents of
majority-white districts suffer injury as a result of Local Law C, and thus only those residents are
properly situated to bring a claim. Id.
In general, a plaintiff has standing if she satisfies three elements: (1) she has suffered an
injury in fact that is concrete and particularized, and actual or imminent; (2) she can show a
11
This section addresses only the standing of Plaintiffs under the Amended Complaint. The
standing of the proposed Plaintiffs in the Motion to amend is discussed infra.
10
connection between the defendant’s conduct and the complained injury; and (3) that a favorable
decision is likely to redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). In a Section 2 claim, the putative injury is that the minority lacks “substantial
proportionality” of political opportunity—per capita voting power on par with the majority12—under
the existing voting system. See Johnson v. DeGrandy, 512 U.S. 997, 1013-15 (1994). The first
Gingles factor provides further guidance on whether a Plaintiff has standing to assert a Section 2
claim. That threshold analysis “requires the possibility of creating more than the existing number of
reasonably compact districts with a sufficiently large minority population to elect candidates of its
choice.” Id. at 1008. Thus, supported allegations that Plaintiffs reside in a reasonably compact area
that could support additional MMDs sufficiently proves standing for a Section 2 claim for vote
dilution.13 Here, Plaintiffs have identified a personalized injury: that the apportionment of 4 MMDs
to the sufficiently numerous and geographically compact minority population, as opposed to the 5
MMDs that Plaintiffs contend are required by the VRA, dilutes Plaintiffs’ individual voting
power—including those in existing MMDs. Therefore, all Plaintiffs have standing to litigate these
claims.
Defendants rely on United States v. Hays, 515 U.S. 737 (1995) to support their assertion that
12
This concept is related to, but distinct from, proportional representation, to which Section
2 does not provide an unfettered guarantee. Johnson v. DeGrandy, 512 U.S. 997, 1014 n.11 (1994).
13
No circuit has developed a framework specifically for a Section 2 standing inquiry.
Plaintiffs cite two unpublished district court decisions, Broward Citizens for Fair Dists. v. Broward
Cnty., No. 12-60317-CIV, 2012 WL 111053 (S.D. Fla. Apr. 3, 2012), and Barnett v. City of
Chicago, No. 92 C 1683, 1996 WL 34432 (N.D. Ill. Jan. 29, 1996), in support of standing in similar
factual circumstances. Other circuits have declined to review standing where Gingles factors were
not met. See, e.g., African Am. Voting Rights Legal Def. Fund, Inc. v. Villa, 54 F.3d 1345 (8th Cir.
1995).
11
only those residents of majority-white districts may properly sue for relief under the VRA. Hays
was not a Section 2 case, but a challenge to a redistricting plan on Equal Protection grounds. Id. at
738-39. The voters lacked standing not because they resided in an MMD (they did not), see Hays,
515 U.S. at 742, but because they did not challenge the constitutionality of their own district or area.
Id. at 746-47; id. at 750 (Breyer, J., concurring) (emphasizing that Plaintiffs are “voters . . . who do
not reside within the district they challenge”).14 Plaintiffs here, in addition to making their claim
under Section 2 as opposed to the Fourteenth Amendment, challenge the drawing of district lines in
a compact area within the City of Albany, where they reside. See Pls.’ SJ Mem. at 8. The Parties’
discussion of “packing” and “fragmentation” claims, Pls.’ SJ Resp. at 12-13; Defs.’ SJ Reply at 3-4,
obscures the actual issue in the standing inquiry— whether or not black and Hispanic voters allege
that they do not enjoy proportional political opportunity. See DeGrandy, 512 U.S. at 1015-16.
2. Minority Coalitions
Defendants argue that black and Hispanic populations together do not comprise a “minority
group” under Section 2, entitling Defendants to summary judgment on Plaintiffs’ combination of
black and Hispanic populations. Defs.’ SJ Mem. at 14.15
14
Although Defendants correctly assert that Hall v. Virginia, 276 F. Supp. 2d 528 (E.D.Va.
2003) extended Hays to a Section 2 claim, that court did so on rather unusual facts. In that case, the
class of plaintiffs included individuals that had resided in the former influence district in the past,
but did not reside there currently, and did not allege that they should be part of the influence district,
or that their situation should change at all. Id. at 531. Because they established no link to the actual
redistricting process, they had no standing to assert a claim. Id. at 531-32. The plaintiffs in that
case also sought to restore an influence district by returning the black population to 40%. Id. at 52930. Indeed, the opinion goes to lengths to distinguish the Hall facts from a situation where voters
seek to establish a former influence district as an additional MMD. See, e.g., id. at 530 n.4.
15
Defendants draw an analogy between coalitions of minorities voters and crossover
districts, where a minority group combines with a subset of the majority to elect candidates of its
choosing. Defs.’ Mem. at 20-22. Defendants rely on the plurality opinion in Bartlett v. Strickland,
12
Courts are divided on whether Section 2 authorizes a coalition of minority voters to
comprise a “minority group.” The Second Circuit declined to decide this issue on appeal. Pope v.
Cnty. of Albany, 687 F.3d 565, 573 n.5 (2d Cir. 2012). However, it previously upheld a Section 2
violation where the plaintiffs were a mixed group of black and Hispanic voters. See Bridgeport
Coal. of Fair Representation v. City of Bridgeport, 26 F.3d 271, 275-76 (2d. Cir. 1994), vacated on
other grounds, 512 U.S. 1283 (1994). The Supreme Court has likewise reserved judgment, stating
only that if such claims were allowed, the entire minority group would have to be politically
cohesive. Growe v. Emison, 507 U.S. 25, 41 (1993). The treatment of aggregate coalition claims
has varied among other circuits. Compare Campos v. City of Baytown, 840 F.2d 1240 (5th Cir.
1988) (approving aggregated claims), and Concerned Citizens of Hardee Cnty. v. Hardee Cnty. Bd.
of Comm’rs, 906 F.2d 524, 526 (11th Cir. 1990) (same), with Nixon v. Kent Cnty., 76 F.3d 1381
(6th Cir. 1996) (denying coalition claims based upon the text of the VRA).
The Court finds that the plain text of the statute, its purpose, and the legislative history do
not abridge the right of politically cohesive minority groups to aggregate. Defendants advance the
line of reasoning in Nixon. Defs.’ SJ Mem. at 15-16. The Sixth Circuit held that, because Section 2
refers to potential claimants as “members” of a singular “class of citizens protected by subsection
556 U.S. 1 (2009). Defs.’ Mem. at 20-22. However, the analogy fails for several reasons. First,
Bartlett explicitly distinguishes the two types of claims. Bartlett, 556 U.S. at 13-14. Second, the
combination of minority groups goes beyond “political alliance,” Defs.’ Mem. at 24; the Section 2
action addresses discriminatory treatment on the basis of historically disadvantaged race. Bartlett,
556 U.S. at 10. Finally, rather than lacking power because of a political structure, the minority
group in Bartlett held political power only because of a political structure. Id. at 15. Thus, by
seeking to re-create the crossover district by relying on white crossover voting, the minority group in
Bartlett may actually be demonstrating that the third Gingles factor, racial bloc voting usually
sufficient to defeat the minority candidate, is not present. Id. at 16 (plurality opinion); id. at 34
(Souter, J., dissenting).
13
(a),” Congress intended to allow only a single racial group to claim under the VRA. However, the
language of subsection (a) does not cabin potential claimants into one racial group; it affords
protection from “denial or abridgement of the right of any citizen of the United States to vote on
account of race or color.” 42 U.S.C. 1973 (emphasis added). This broad wording does not suggest
that only a single group may allege a violation of its voting rights. See Chisom v. Roemer, 501 U.S.
380, 403 (1991).16
3. Political Cohesion
Defendants next assert that, even if a joint claim is permitted, Plaintiffs cannot prove
political cohesion between black and Hispanic voters. Defs.’ SJ Reply at 16. Defendants point out
that there is no development in the record of any empirical data suggesting cohesion, and posit that
the whole of Plaintiffs’ anecdotal evidence cannot support a finding of political cohesion. Id. at 1718. Plaintiffs present empirical evidence—which Defendants do not challenge in their
Memorandum or Reply—showing cohesion among non-Hispanic black voters, but not between
black and Hispanic voters. See Liu Report at 4-7. Thus, the Court must determine whether
anecdotal evidence alone can support the conclusion that Hispanic voters are politically cohesive
with black voters, and if so, whether the anecdotal evidence present here is sufficient to raise a
genuine issue of material fact.
Anecdotal evidence can support a finding of political cohesion. The Second Circuit quoted
the Supreme Court’s language in Gingles, which discussed racially polarized voting, as applicable to
16
Courts within the Second Circuit have likewise recognized minority coalition claims. See
Rodriguez v. Pataki, 308 F. Supp. 2d 346, 405 (S.D.N.Y. 2004); Arbor Hill Concerned Citizens
Neighborhood Ass’n v. County of Albany, 281 F. Supp. 2d 436, 445 (N.D.N.Y. 2003); France v.
Pataki, 71 F. Supp. 2d 317, 321-22 (S.D.N.Y. 1999).
14
the evaluation of cohesion. See Pope v. County of Albany, 687 F.3d 565, 573, n.5 (“Courts must
rely on other factors to determine whether the Section 2 claim has been proved.”). The Fifth Circuit
adopted a similar approach, stating that “[s]tatistical evidence is not a sine qua non to establish
cohesion.” Brewer v. Ham, 876 F.2d 448, 454 (5th Cir. 1989). Thus, the Court rejects Defendants’
contention that a failure to show cohesion between black and Hispanic voters through statistical
evidence is fatal to a Section 2 claim.
Both parties cite Bridgeport to support their arguments, the facts of which are similar to the
ones present here. The Bridgeport plaintiffs, a group of blacks and Hispanics, produced ample
evidence that black voters in the city exhibited polarized voting, but showed less cohesion among
Hispanic voters except in cases where the candidate was Hispanic. Bridgeport, 26 F.3d at 276.
Plaintiffs introduced additional “anecdotal evidence directly bearing on the political cohesiveness
issue.” Id. The defendants “introduced little or no evidence on the issue of cohesiveness,” id., and
the Second Circuit found sufficient cohesion to uphold a grant of preliminary injunction.17
The facts before the Court largely mirror those in Bridgeport. Plaintiffs adduce significant
empirical evidence showing political cohesion among the black community. Their expert, Dr. Liu,
found that there is not sufficient data available to form a conclusion about Hispanic cohesion. Pls.’
Counter-SMF ¶ 7. However, Plaintiffs have bolstered the available statistical evidence with
socioeconomic analysis, see Cooper Report, evidence of joint political ventures, Pls.’ Counter-SMF
17
The context of the appeal does not diminish Bridgeport’s value here. Although the Second
Circuit reviewed a preliminary injunction for abuse of discretion, the Bridgeport panel recognized
the significance of a grant of preliminary injunction and reviewed the trial court’s decision within
that lens. 26 F.3d at 274. The panel remarked that it “recognize[d] the urgency of the City’s
contention that the prerequisites for the issuance of a preliminary injunction in voting rights cases be
scrutinized carefully.” Id. The court then found that the plaintiffs had sufficient evidence to support
that they were likely to succeed on the merits.
15
¶¶ 40-68, and witness testimony,18 much as the Bridgeport plaintiffs did. Meanwhile, Defendants
have neither effectively attacked the veracity of Plaintiffs’ evidence or conclusions, nor opted to
introduce their own evidence.
The parties agree that it is not possible to accurately analyze Hispanic voting patterns.
Scholarship in the field has noted that ecological regression, ecological inference, and homogeneous
precincts analysis are often “blunt” tools, and that, “[a]t some point, a racial or ethnic group’s
numbers in a jurisdiction are so low as to make separate estimation of the group’s voting patterns
both difficult and unlikely to be useful.” D. James Greiner, Ecological Inference in Voting Rights
Act Disputes: Where Are We Now, and Where Do We Want to Be?, 47 JURIMETRICS J. 115, 118,
125 (2007); see also David A. Freedman et al., Ecological Regression and Voting Rights, 15
EVALUATION REV. 673 (1991); Stephen P. Klein et al., Ecological Regressions Versus the Secret
Ballot, 31 JURIMETRICS J. 393 (1991); W. S. Robinson, Ecological Correlations and the Behavior of
Individuals, 15 AM. SOC. REV. 351 (1950). The Hispanic VAP in the County, while growing
quickly, still comprises only a small percentage of voters. It is therefore unsurprising that the proof
Defendants seek is unavailable.
Plaintiffs have compiled a record of anecdotal political cohesion to show that the black and
Hispanic communities satisfy Section 2's cohesion requirements. The City “recently found the
Black and Hispanic populations in the City to be politically cohesive for purposes of redistricting
the City’s Common Council wards.” Pls.’ SMF Resp. ¶ 47. “Get-out-the-vote” organizations such
as One Hundred Black Men and People of Color Who Vote, as well as the local NAACP chapter,
18
See, e.g., Dkt. Nos. 232-6 (“Declaration of Joseph Gomez”); 232-7 (“Declaration of
Nathan LeBron”); 232-10 (“Declaration of Elaine Frazier”); 232-11 (“Declaration of Ladan
Alomar”); 232-12 (“Declaration of Corey Ellis”); 232-14 (“Declaration of Vicente Alfonso”).
16
reach out to members of both races and have memberships that include blacks and Hispanics. Id. ¶¶
55-57. Several successful minority-candidate campaigns have relied on outreach to and support
from the black and Hispanic communities. Id. ¶¶ 48-54. Plaintiffs have sufficiently raised issues of
material fact that, when coupled with the empirical evidence of black voter cohesion, could support
a finding of political cohesion. Thus, summary judgment is not appropriate.
4. White Majority Bloc Voting
The third Gingles prerequisite requires that voting be polarized along racial lines, and that
majority bloc voting “usually” suffice to defeat the minority-preferred candidate. 478 U.S. at 51,
55-57. “[T]here is no simple doctrinal test for the existence of legally significant racial bloc
voting”; “the degree of racial bloc voting that is cognizable . . . will vary according to a variety of
factual circumstances.” Id. at 57. In cases where minority-preferred candidates achieve some
success, “special circumstances, such as the absence of an opponent [or] incumbency . . . may
explain minority electoral success in a polarized contest.” Id. (noting that the example
circumstances are “illustrative, not exclusive”). In cases where some majority-minority districts
already exist, the third Gingles factor can be proved where the majority tends to vote as a bloc “to
bar minority groups from electing their chosen candidates except in a district where a given minority
makes up a voting majority.” DeGrandy, 512 U.S. at 1003-04. In a largely fact-driven inquiry, it is
unsurprising that different circuits have developed divergent acceptable thresholds of minority
success. Compare Old Person v. Cooney, 230 F.3d 1113, 1122 (9th Cir. 2000) (recognizing that
“usually” could mean “more than half of the time”) with Lewis v. Alamance Cnty., 99 F.3d 600, 606
(4th Cir. 1996) (“Suffice it to say that [‘usually,’ ‘normally,’ and ‘generally’] mean something more
than just 51%”). The Second Circuit has provided little additional guidance beyond stating that the
17
third Gingles factor “recognizes the need for some flexibility.” Pope, 687 F.3d at 578.
Defendants’ first argument, that Plaintiffs have not properly identified minority-preferred
candidates, is largely duplicative of their political-cohesion arguments addressed above. Defs.’
Reply at 21-22. However, Defendants also suggest in passing that Plaintiffs should have analyzed
the group of black and Hispanic voters together for the racially polarized voting determination,
rather than assuming that including the Hispanic population would not change the comparison of the
black and white populations. See Defs.’ Mem. at 28 (“[P]laintiff made no attempt to demonstrate
the ‘preferred’ candidate of the coalition group.”). Although the Court agrees that such a
comparison would be preferable, Defendants have failed to argue either that using a combined test
group of black and Hispanic voters is possible with the existing data, or that such combination
would not demonstrate polarization. Because the Court must make all factual inferences in favor of
the nonmoving party, Celotex, 477 U.S. at 330 n.2 (Brennan, J., dissenting), Defendants have not
shown that they are entitled to summary judgment on this basis.19
Defendants do not advance affirmative evidence to show that voting preferences are not
polarized (although they do allege, as discussed, that Plaintiffs have not properly proved such
polarization), or dispute that the minority-preferred candidate is successful less than 50% of the
time. See Defs.’ SJ Mem. at 29 (“Dr. Liu’s report concedes that the ‘preferred’ candidate of the
19
Denial of summary judgment due to a failure to identify empirically a minority-preferred
candidate for the entire racial group, without additional support, also defies the Gingles directive to
“rely on other factors that tend to prove unequal access to the electoral process” where “a minority
group has begun to sponsor candidates just recently,” as Hispanic voters have here. 478 U.S. at 57.
Thus, although such an argument could be relevant in defeating Plaintiffs’ coalition claim at trial,
the Court cannot award summary judgment on that ground. See Ruiz v. City of Santa Maria, 160
F.3d 543, 559 (9th Cir. 1998) (“Plaintiffs . . . are not required to prove any of the three
preconditions in opposing a motion for summary judgment; they need only show a genuine dispute
of material fact”).
18
black community prevailed in 16 contests or 47% of the time.”). Rather, they argue that the
minority-preferred candidate is not successful enough to be “usually” defeated. Because there is
widespread recognition that the third prong is a fact-based inquiry, see, e.g., Gingles, 478 U.S. at 57
(stressing the need to examine “factual circumstances”); Ruiz, 160 F.3d at 550 (“[A] ‘[W]hite
majority’ voting bloc must be read in the context of the facts presented to the court. . . .”); Uno v.
City of Holyoke, 72 F.3d 973, 989 (1st Cir. 1995) (“[D]etermining whether racial bloc voting exists
is not merely an arithmetic exercise . . . . To the contrary, the district court should . . . make a
practical, commonsense assay of all the evidence.”), Defendants face a high bar in proving that they
are entitled to judgment as a matter of law.
Defendants attempt to prove that minority success is sufficient to warrant judgment as a
matter of law by citing standards used by courts in other jurisdictions. Defs.’ Mem. at 29. In one of
these cases, Uno, the First Circuit found error in the district court’s findings because there was
insufficient evidence of both minority and white bloc voting. 72 F.3d at 988. Specifically, Hispanic
voters backed a candidate as a bloc in only four out of 11 elections. Id. Even under these
circumstances, the thin record of racially polarized voting did not per se defeat the plaintiffs’ claim;
rather, the failure to assign proper weight to this evidence was the fatal flaw. Id. at 988-89.
Defendants also cite a case in which the Third Circuit found clear error in the district court’s
holding that plurality-win schemes undermined that white-bloc voting consistently defeating
minority candidates, Jenkins, 4 F.3d at 1122, and another in which the Sixth Circuit found that a
47% success rate of black candidates supported by black voters was not itself sufficient to find
sufficient white bloc voting in an at-large scheme, Clarke v. City of Cincinnati, 40 F.3d 807, 812-13
(6th Cir. 1994).
19
Even if the Court were to adopt these persuasive authorities, none provides a coherent
standard to judge that the combination of minority success rate, additional anecdotal evidence, and
the existence of special circumstances in the instant case could not reasonably support a finding that
there is sufficient white bloc voting to “usually” defeat the minority-preferred candidate. Plaintiffs
have showed that minority-preferred candidates are successfully less than half of the time. See Liu
Supp. Report at 4. Even among successful minority candidates, several were incumbents, others
won races within MMDs, and still others won immediately after prior successful litigation “might
have worked a one time advantage for black candidates, Gingles, 478 U.S. at 76. See Pls.’ Resp. at
28-32.
Defendants urge that, because the non-Hispanic DOJ Black VAP in the County is only 11%,
minority success rates in excess of that amount are enough to show that no additional majorityminority districts are needed. See Defs.’ Mem. at 30. Defendants mistakenly rely on Barnett v. City
of Chicago, 141 F.3d 699, 705 (7th Cir. 1998), for support. However, the “electoral power . . .
equal to its fraction of the electorate” to which Barnett refers is the number of MMDs, not the
relative success of minority candidates. See id. at 705-06. Therefore, the Court finds that there are
genuine issues of material fact as to whether or not minority-preferred candidates have usually been
defeated due to white bloc voting, and summary judgment is not appropriate.
For all of the reasons detailed above, Defendants’ Motion for summary judgment is denied.
B. Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs seek summary judgment on the first two Gingles preconditions under a black-only
theory. Plaintiffs contend that there is no genuine issue of material fact as to whether the black
population is sufficiently numerous and geographically compact to form a majority of five MMDs,
20
Pls.’ Mem. at 8-15, and as to whether the black population is politically cohesive, id. at 15-16.
Defendants dispute whether Plaintiffs have brought a black-only claim, Defs.’ Resp. 4-5.
Defendants contend that Plaintiffs’ theory fails on the merits because: (1) Plaintiffs are required to
show, and have not showed, that the minority group contains 50% of the Citizen Voting Age
Population (“CVAP”), Defs.’ SJ Resp. at 4-7, (2) the minority group is not geographically compact,
id. at 7-9; and (3) there are disputed issues of material fact as to black voters’ political cohesiveness.
The Court finds that there is no genuine issue of material fact as to the first Gingles element of a
black only claim, but that Plaintiffs have not proved political cohesiveness.
1. Status of the Putative Black-Only Claim
In general, a party may not raise a claim or defense for the first time in summary judgment
briefing; rather the party’s pleadings must put the opposing party on notice of the claims. See
George v. Reisdorf Bros., Inc., 410 Fed. Appx. 382, 384 n.2 (2d Cir. 2011); Johnson v. Cleveland
City Sch. Dist., 443 Fed. Appx. 974, 980 (6th Cir. 2011) (discussing whether Plaintiff’s claim was
“fairly raised” in the Complaint); Nunley v. Dept. of Justice, 425 F.3d 1132, 1140 (8th Cir. 2005)
(“[T]he appropriate disposition of these claims . . . will depend on whether they can be said to have
been fairly raised in the original complaint.”). In some circumstances, the parties’ conduct in
litigation allows a court to consider a claim that is not raised in the pleadings. See FED. R. CIV. P
15(b)(2) (allowing issues “not raised by the pleadings” to be “treated in all respects as if raised in
the pleadings” when “tried by express or implied consent”); Jund v. Town of Hempstead, 941 F.2d
1271, 1287 (2d Cir. 1991) (considering claims not raised in the complaint but briefed and argued
without objection at summary judgment). However, defendants should be protected from
reasonably conducting discovery on one theory of liability, and then having to defend against a
21
different theory. See Beckman v. U.S. Postal Serv., 79 F. Supp. 2d 394, 407 (S.D.N.Y. 2000) (“[A]t
the very least, [a] plaintiff must set forth facts that will allow each party to tailor its discovery to
prepare an appropriate defense”).
Defendants argue that Plaintiffs failed to raise a claim that the County’s redistricting scheme
dilutes the voting power of black voters alone. Defs.’ SJ Resp. at 4-5.20 Defendants point to
Plaintiffs’ “Cause of Action” section, where Plaintiffs allege:
83.
84.
The black and Hispanic populations in the County of Albany are sufficiently
large and geographically compact to constitute a majority in five legislative
districts.
The black and Hispanic populations in the City are politically cohesive.
Am. Compl. ¶¶ 83-84. Throughout the remainder of the “Cause of Action” section, Plaintiffs refer
to the class of claimants as “minorities” and “the minority population.” Id. ¶¶ 80-88.
The language in the complaint does not foreclose a black-only theory. The Amended
Complaint states increases in “the non-Hispanic black population,” of the County and City. Id. at ¶¶
25, 30. While this data is useful in proving the first Gingles prong of Section 2 analysis under a
black-only theory, it is hardly useful under a coalition claim except, perhaps, as one factor among
many under a “totality of the circumstances” analysis. The Amended Complaint also states that
both the black community and the Hispanic community are politically cohesive, which goes to the
second element of the Gingles analysis for both a coalition and a black-only claim.
The parties’ post-Complaint conduct indicates that there was a sufficient basis for
Defendants to anticipate and conduct discovery on a black-only theory. Plaintiffs filed their original
complaint on June 29, 2011. Id. Plaintiffs filed their Motion for preliminary injunction and a
20
Defendants do not dispute that Plaintiffs properly raised a coalition claim.
22
supporting brief on July 15, 2011. See PI Mot.; PI Mem. Discovery had not yet begun at the time
of the initial briefing on preliminary injunction, and thus that briefing was relevant to parties’
understanding of the nature of the case when crafting discovery.
Plaintiffs’ Motion for preliminary injunction implicitly advances a black-only claim by
arguing that black voters alone meet the three Gingles factors. Plaintiffs noted that “the increased
population of blacks alone supports 5 MMDs with non-Hispanic black VAPs of between 50.44%
and 52.67%” in satisfaction of the numerosity requirement of the first prerequisite. PI Mem. 12
(emphasis added). In support of the black community’s political cohesion, Plaintiffs stated that “the
black community has routinely voted as a bloc,” with black candidates receiving “73.92% and
77.7% of the black votes” in City-wide elections and “94.95% and 82.44% of their votes” in County
Legislature primaries. Id. at 14. Furthermore, all of the analysis on racial bloc voting and racial
polarization compares black votes with white votes, and black-preferred candidates with whitepreferred candidates. Id. at 15-16.
In response, Defendants did not argue that these statistics were irrelevant. Rather
Defendants argued only that the statistics were insufficient to show that Plaintiffs were likely to
succeed on the merits. See generally PI Resp. Defendants justified their plan with respect to a
black-only claim, stating that “[t]he County has created four reasonably compact MMDs with a
sufficiently large black voting age population which allows black voters have [sic] to be able to
elect candidates of their choice.” Id. at 10. Defendants further argued that “Plaintiffs’ plan (when
counting Blacks alone) does not create an effective majority-minority district.” Id. at 11-12.
Defendants thereby acknowledge that Plaintiffs were proceeding on a black-only claim.
The Court finds that, given the previous conduct of the parties and the broad language used
23
in the Amended Complaint, Plaintiffs have fairly raised a black-only theory of vote dilution and thus
may seek summary judgment on relevant issues.
2. Merits of the Claim
a. Sufficient Numerosity and Geographic Compactness
Plaintiffs move for summary judgment on the first Gingles element, that black voters in the
County are sufficiently numerous and geographically compact to form five MMDs. In support of
their motion, Plaintiffs refer to the AHEJ Plan, in which non-Hispanic DOJ black voters comprise a
majority of the voting age population in five districts. Pls.’ SJ Mem. at 5, 9-11. Defendants assert
that (1) the AHEJ plan does not show that black voters comprise a voting majority of the citizen
voting age population (“CVAP”); and (2) Plaintiffs’ proposed districts are irregular and, thus, do not
conform with constitutional standards for redistricting. See Defs.’ SJ Resp. at 4-9. The Court finds
that Plaintiffs have satisfied their burden of persuasion. Thus, summary judgment for Plaintiffs is
appropriate on this issue.
In order to satisfy the first element of the Gingles analysis, Plaintiffs must prove that the
class of minority voters forms, at least, a simple majority of a compact geographic area, allowing the
minority group to form a simple majority of a proposed number of MMDs. Pope, 687 F.3d at 573;
Bartlett v. Strickland, 556 U.S. 1, 18-19 (2009); League of United Latin Am. Citizens v. Perry, 548
U.S. 399, 433 (2006).21
Plaintiffs have set forth sufficient evidence. Plaintiffs have showed a majority in a compact
area by providing several illustrative plans, each creating five districts in which non-Hispanic black
21
This is the only relevant analysis. Defendants’ second argument – that a district in one of
Plaintiffs’ illustrative plans, the AHEJ plan, is irregularly shaped – goes beyond the “objective,
numerical test” that the Supreme Court intended at this stage of analysis. Bartlett, 556 U.S. 18.
24
residents comprise majorities. Cooper Am. Decl. ¶¶ 19-38. Furthermore, they have adduced
evidence that the black population as a whole is geographically compact. Plaintiffs note that “more
than 70 percent of the County’s non-Hispanic black citizens live in a geographically compact area
within the City of Albany.” Pls.’ SJ Mem. at 13. They narrow the concentrations of the black
population further, describing certain neighborhoods with high concentrations of black residents. Id.
at 13-14. Defendants have not disputed these basic facts in their summary judgment papers or
elsewhere in the record. Instead, Defendants argue that Plaintiffs have not met their burden as to
numerosity because they have not showed that black residents comprise a majority of the CVAP.
Defs.’ SJ Resp. at 5-7.
Defendants cite several cases that favor the use of CVAP over VAP for the first Gingles
element. However, CVAP has been applied only where there is a significant noncitizen population.
See Barnett v. City of Chicago, 141 F.3d 699, 705 (7th Cir. 1998) (stating that VAP should apply
where “noncitizens [are] not a significant part of the relevant population”); Negron v. City of Miami
Beach, 113 F.3d 1563, 1568 (11th Cir. 1997) (“Of course, [a previous Section 2 decision] did not
address [CVAP], because there was no indication in that case that there was any disparity between
black and white citizenship rates. Nor is there likely to be any disparity in citizenship rates, except
in a case, such as this one, where the minority population includes a substantial number of
immigrants.”); Rodriguez v. Pataki, 308 F. Supp. 2d 346, 369 (S.D.N.Y. 2004) (noting that the use
of CVAP instead of total population changed disputed districts from overpopulated to significantly
underpopulated); France v. Pataki, 71 F. Supp. 2d 317, 326 (S.D.N.Y. 1999) (finding that the
challenged areas “contain[] a high-proportion of immigrants who are non-citizens who are ineligible
to vote under the Voting Rights Act”); United States v. Village of Port Chester, 704 F. Supp. 2d
25
411, 419-20 (S.D.N.Y. 2010) (requiring CVAP statistics for a community that was more than onethird noncitizen).
There is no reason to require use of CVAP where there is no evidence of a significant noncitizen population. Given that CVAP data is less reliable VAP,22 Defendants must first raise some
evidence of a higher-than-normal non-citizen population among the minority group. Defendants
make no such allegation here. Defendants argue only that “Plaintiffs have not shown that [the black
citizenship rate] is 100 percent.” Defs.’ SJ Resp. at 7.23 Because Defendants have not raised a
genuine issue of material fact that would require the use of CVAP, Plaintiffs are entitled to
summary judgment on the first Gingles factor.24
b. Political Cohesion
Plaintiffs also seek summary judgment on the second Gingles factor: political cohesion. In
order to carry their burden, Plaintiffs must show that “‘a significant number’ of minority voters
22
The Census Bureau acknowledged that its American Community Survey, a collection of
survey estimates on statistics such as CVAP, is less reliable than Census data and not intended to be
used in redistricting. U.S. Census Bureau, Three Tips for Using American Community Survey
(ACS) Data, http://www.census.gov/acs/www/guidance_for_data_users/guidance_main/.
23
While that is true—both in that Plaintiffs have not showed that not all of the City’s black
residents are citizens and that the citizenship rate may reasonably not be 100%—it also does not
guarantee that the VAP and CVAP are different. Rather, for the VAP and CVAP statistics to
diverge, the citizenship rate of black County residents over 18 years of age must be less than the
citizenship rate of the population as a whole. Defendants have not provided evidence that could
reasonably allow that conclusion.
24
Defendants further assert that “Plaintiffs have not addressed the impact of disenfranchised
felons on CVAP.” Even if the Court were to accept as true the bare allegation that the County’s
black population contains a disproportionate number of felons, to deny relief on such basis would be
irresponsible. To potentially penalize a minority group seeking to reform one structural issue, an
abridgement of voting power, because of the existence of another societal issue, racially correlated
felony rates, would directly counteract the VRA’s “broad remedial purpose.” Chisom, 501 U.S. at
403.
26
‘usually’ vote for the same candidate.” Mallory v. Ohio, 173 F.3d 377, 383 (6th Cir. 1999) (citing
Gingles, 478 U.S. at 56). Plaintiffs argue that, based upon previous proceedings in this litigation
and the consent degrees in the 1990 and 2000 litigation, Defendants are estopped from arguing that
the black community is not politically cohesive. Pls.’ SJ Reply at 10 n.6. In the alternative,
Plaintiffs argue that the findings of their experts and the development of substantial anecdotal
evidence in the record leave no genuine issue of material fact as to cohesion. Pls.’ SJ Mem. at 1516; Pls.’ SJ Reply at 10-13.
Defendants counter with largely irrelevant arguments. Defendants argue that, because black
voters support candidates of several different parties, they are not truly cohesive. Defs.’ SJ Resp. at
12. But that black cohesion is not simply due to party affiliation supports Plaintiffs’ ultimate claim
more than it detracts. Although there is disagreement as to whether political cohesion must be
caused by race, as opposed to merely correlated with factors such as party affiliation, see Gingles,
478 U.S. at 82-83 (White, J., concurring); id. at 100-102 (O’Connor, J., concurring) (stating that
electoral outcomes may sometimes be an insufficient measure of cohesion, as other factors could be
at play), independence from interest-group politics does not undermine racial cohesion. Indeed,
ruling out party affiliation as a reason for polarized voting habits would bolster an inference that
another factor, such as race, caused those disparities. Defendants have raised no other disputed
issues of material fact.
Nevertheless, Plaintiffs are not entitled to summary judgment. Plaintiffs argue that judicial
estoppel bars Defendants from contesting black cohesion because Defendants’ positions in their
preliminary injunction papers and the 1991 consent decree are inconsistent with that argument. Pls.’
SJ Reply at 10 n.6. However, Defendants did not concede cohesion in their opposition to
27
preliminary injunction for the purposes of the entire litigation; rather, the Defendants did not dispute
the likelihood of success on the merits on those grounds. PI Resp. at 19 (“The Second factor
requires that Plaintiffs show that Blacks are politically cohesive. Defendants concede this point for
the purposes of this hearing.”). Additionally, while the County’s admission in joining the 1991
consent decree might prevent Defendants from arguing that the black community was not cohesive
in 1991, it does not prevent them from arguing that the community is not cohesive now. Thus, the
Court rejects Plaintiffs’ argument that Defendants cannot contest whether the black community is
presently cohesive.
Plaintiffs are seeking summary judgment on cohesion using non-Hispanic DOJ Black data
while they maintain that the proper definition of black is “any part black.”25 To grant Plaintiffs
summary judgment on the issue of political cohesion among the black community using a nonHispanic DOJ Black definition, only to have them press an “any part black” definition at trial,
would allow Plaintiffs to improperly “argue one Gingles factor by reference to a particular minority
group, only to recast the minority group in arguing another factor.” Pope, 687 F.3d at 577 n.11.
Although this inconsistency was not problematic for the first Gingles factor,26 a more heterogeneous
definition of the minority group is less likely to be cohesive. While Plaintiffs have also offered
anecdotal evidence to support their claim, this fact-intensive consideration not appropriate for
25
“Any part black” and “non-Hispanic DOJ Black” differ in that the former includes black
Hispanics and multiracial individuals that are part black. If these demographic groups vote
differently than non-Hispanic DOJ Black individuals, the statistical cohesion observed by Dr. Liu
could be upset.
26
A finding that a subset of a minority group is sufficiently numerous and geographically
compact to form a majority of the proposed number of MMDs necessarily implies that all members
of the minority group can form a majority within the same geographic area.
28
decision on summary judgment. See, e.g., Calamia v. City of New York, 879 F.2d 1025, 1035 (2d
Cir. 1989); E.C. ex rel R.C. v. Cnty. of Suffolk, 514 Fed. Appx. 28, 30 (2d Cir. 2013). The Court
holds that, based upon the facts in the record, a reasonable factfinder making all inferences in
Defendants’ favor could find that the class of any part black voters is not politically cohesive. Thus,
summary judgment on this issue is inappropriate.
V.
MOTION TO AMEND THE COMPLAINT
Although the Court has discretion to grant or deny a motion to amend pleadings, Foman v.
Davis, 371 U.S. 178, 182 (1962), courts “should freely give leave [to amend] when justice so
requires.” FED R. CIV. P. 15(a)(2). Federal Rule of Civil Procedure 21 further allows the Court to
“at any time, on just terms, add or drop a party.” Amendment should be denied in cases of “undue
delay, bad faith, and prejudice to the opposing party.” Barrows v. Forest Laboratories, 742 F.2d 54,
58 (2d Cir. 1984).
Plaintiffs argue that justice requires the addition of a Hispanic Plaintiff to replace Gonzalez,
who prior to her withdrawal was the only Hispanic party to this case. Mot. Am. Mem. at 1-2. They
assert that they moved “as quickly as possible” to notify Defendants that Gonzalez “needed to
withdraw” and to amend the complaint—indeed, the Motion to Amend was filed two weeks after
Gonzalez withdrew from the action. Mot. Am. Mem. at 1; see generally Dkt.
Defendants claim that allowing leave to amend would cause undue delay and prejudice.27
27
Defendants also argue that the Motion to Amend is in bad faith and futile, because neither
the current nor the to-be-added Plaintiffs have standing to sue. But as discussed supra, the Court
has found that all current Plaintiffs in this action possess standing to bring a Section 2 claim.
Defendants’ Opposition also brings other arguments based on standing defects in Plaintiffs’
previous pleadings. See, e.g., Mot. Am. Opp. at 3-4. The Court does not reconsider these
arguments in the context of the Motion to Amend.
29
Opp. Mot. Am. at 3-8. Defendants state that the Motion comes more than a year after the Court’s
deadline to amend pleadings, would necessitate the re-opening of discovery, and changes the nature
of the litigation by expanding the geographic area at issue. Mot. Am. Opp. at 4-6. Although a court
may deny amendments after pleading-amendment deadlines have passed, noncompliance with these
deadlines does not, per se, prevent the amendments. See, e.g., Soler v. G & U, Inc., 103 F.R.D. 69,
74 (S.D.N.Y. 1984). In this instance, the potential viability of a black-Hispanic coalition claim
weighs in favor of allowing the addition of a Hispanic Plaintiff.28 Defendants have not argued that
Gonzalez’s departure from the action was anticipated by Plaintiffs before they moved to amend.
The Court is loathe, however, to dramatically change the nature of the litigation after
discovery has been conducted and summary judgment motions have been filed. See Luellen v.
Hodge, No. 11-cv-6144P, 2013 WL 5490166, at *7-9 (W.D.N.Y. Sept. 30, 2013). Plaintiffs’
proposed Second Amended Complaint (Dkt. No. 226-4) includes five new Plaintiffs. One of the
proposed Plaintiffs, Nathan Lebron, lives within the Town of Colonie, located northwest of the City,
and another, Joseph Gomez, lives in the town of Cohoes, which sits on the County’s northern
border. Given that Plaintiffs’ prior claims have concentrated specifically on “the eastern portion of
the City,” Pls.’ SJ Mem. at 8, the addition of these new parties would necessitate reevaluation of
even the most basic elements of a Section 2 claim, including geographic compactness. Dramatically
changing the scope and nature of the litigation after the close of discovery would cause undue delay
and prejudice Defendants. Therefore, the Court denies the addition of Joseph Gomez and Nathan
28
The Court makes no determination of whether the coalition claim could proceed without a
new Hispanic plaintiff to replace Ms. Gonzalez, as there is no precedent on that issue. However, to
expose Plaintiffs to that unforeseen risk at this stage of the litigation would not further justice when
the original group of Plaintiffs could have brought the claim.
30
Lebron to the action.
Plaintiffs also propose the addition of three potential plaintiffs within the City of Albany.
One of these three proposed plaintiffs, Vicente Alfonso, is Hispanic. Mot. Am. Mem. at 2 n.1. He
has already been deposed by Defendants. Id. at 3. The other two proposed plaintiffs, Stephanie
Davis and Elaine Frazier, are black residents of the City. See Prop. Am. Compl.
The parties have familiarized themselves with the key issues of this litigation. The addition
of these new plaintiffs would require little additional discovery, as one proposed plaintiff has
already been deposed, and few new relevant issues are raised by the addition of individual similarly
situated plaintiffs. Where the burden of additional discovery on the nonmoving party is small and
not disadvantageous, courts generally grant motions to amend. See, e.g., United States v. Cont’l Ill.
Nat. Bank & Trust Co., 889 F.2d 1248, 1255 (2d Cir. 1989); Lawrence v. Starbucks Corp., No. 08
Civ. 3734, 2009 WL 4794247, at *4 (S.D.N.Y. Dec. 10, 2009). The addition of new plaintiffs in
this case is non-prejudicial and would cause minimal delay, and therefore the Court permits joinder.
See Oneida Indian Nation of New York v. City of Sherill, 337 F.3d 139, 168 (2d Cir. 2003).
VI.
CONCLUSION
Based on the foregoing discussion, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 214) for Summary Judgment is DENIED;
and it is further
ORDERED, that Plaintiffs’ Motion (Dkt. No. 209) for Partial Summary Judgment is
GRANTED in part and DENIED in part. The Court finds that there is no genuine issue of fact as
to the assertion that “the black community in the County of Albany is sufficiently large and
geographically compact to form five majority-minority districts.” There are unresolved issues of
31
material fact as to all other elements of Plaintiffs’ claims; and it is further
ORDERED, that Plaintiffs’ Motion (Dkt. No. 226) for leave to amend is GRANTED in
part and DENIED in part. Plaintiffs may file a second amended complaint within seven (7) days
of this order to add proposed plaintiffs Vicente Alfonso, Stephanie Davis, and Elaine Frazier; and it
is further
ORDERED, that Defendants may schedule deposition of Vicente Alfonso, Stephanie Davis,
and Elaine Frazier within thirty (30) days of the filing of Plaintiffs’ Second Amended Complaint;
and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties.
IT IS SO ORDERED.
DATED:
January 28, 2014
Albany, New York
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