Pope et al v. County of Albany et al
Filing
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MEMORANDUM-DECISION and ORDERED, that Plaintiffs Motion for a preliminary injunction (Dkt. No. 12) is DENIED. Signed by Senior Judge Lawrence E. Kahn on August 18, 2011. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANNE POPE, et al.,
Plaintiffs,
-against-
1:11-CV-00736 (LEK/DRH)
COUNTY OF ALBANY, et al.,
Defendants.
___________________________________
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 number
of 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 ReportRecommendation 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.
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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 on
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a 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 “a
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party 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 majorityminority 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,
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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 number of residents providing anecdotal evidence that the two groups
support the same candidates and have worked together to further each other’s political and social
interests. See PML for PI Mot. at 13-14 (citing Joseph Gomez Decl. (Dkt. No. 18) ¶ 8; Janis
Gonzalez Decl. (Dkt. No. 17) at ¶¶ 10-13; Carlos Gonzalez Decl. (Dkt. No. 23) ¶ 10)); Pls.’
Memorandum on political cohesion (“PML on Cohesion”) (Dkt. No. 67). See also PML for PI Mot.
at 22 (citing Cooper Decl. at ¶ 16 (Dkt. No. 24, later amended in Dkt. No. 54)). Plaintiffs cite the
1991 Consent Decree, in which Defendants stipulated that blacks and Hispanics in the County
should be considered as one group for purposes of redistricting under Section 2 of the VRA. Judge
Homer heavily relied on this Consent Decree in determining that blacks and Hispanics were
politically cohesive in 2003. PML on Cohesion at 1; Arbor Hill Report-Rec., 2003 WL 21524820,
at *9. Plaintiffs nonetheless contend that this twenty-year-old Consent Decree, together with
socioeconomic evidence, and anecdotal evidence from current minority residents in Albany County,
constitute sufficient evidence of political cohesion between blacks and Hispanics.
These arguments fail. Diverse minority groups such as blacks and Hispanics may under
certain circumstances be combined to satisfy the Gingles precondition of political cohesiveness.
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Arbor Hill, 281 F. Supp. 2d at 445 (citing Bridgeport Coalition for Fair Representation v. City of
Bridgeport, 26 F.3d 271, 276 (2d Cir. 1994)). However, the Court cannot assume that blacks and
Hispanics in Albany County are politically cohesive because courts have found them to be cohesive
in other jurisdictions. Instead, the Court must make a local determination that blacks and Hispanics
are politically cohesive in Albany County. Growe v. Emison, 507 U.S. 25, 41-42 (1993) (finding
law review article on national voting patterns insufficient to establish bloc voting without any
further proof that it occurred in specific local area). Nor can the Court conclude that blacks and
Hispanics in Albany County are currently politically cohesive because a court concluded they were
politically cohesive more than eight years ago. While Judge Mordue adopted Judge Homer’s
finding of political cohesiveness in the absence of any statistical evidence to support such a finding
in 2003, Judge Homer relied heavily on the County’s admission in the Consent Decree of 1991. See
Arbor Hill Report-Rec. at *9. As nearly twenty years have elapsed since the adoption of the
Consent Decree, it carries little probative value in the determination of whether the black and
Hispanic communities in Albany County are politically cohesive at present. See also FED . R. EVID .
401; Arbor Hill Report-Rec. at *9 (“The most probative evidence of cohesiveness . . . is statistical
evidence of voting patterns in elections held in the district at issue.”) (citing Goosby v. Town Bd. of
the Town of Hempstead, 180 F.3d 476 (2d Cir. 1999)).
Regarding Plaintiffs’ anecdotal evidence, the Court notes that “anecdotal testimony
regarding individual instances where [H]ispanic voters supported and worked for black candidates is
insufficient to demonstrate the requisite level of political cohesion in the absence of statistical or
other evidence of voting patterns.” Arbor Hill Report-Rec., 2003 WL 21524820, at *8 (citing
Concerned Citizens of Hardee County v. Hardee County Bd. of Comm’rs, 906 F.2d 524, 526 (11th
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Cir. 1990)). The Court finds no other cases applying the VRA in this Circuit or in other circuits
where anecdotal evidence alone has been deemed sufficient to establish political cohesion. See
Concerned Citizens of Hardee County, 906 F.2d at 527; Rodriguez v. Pataki, 308 F. Supp. 2d 346,
372 (S.D.N.Y. 2004) (“Proof of cohesion in actual elections is required.”); Reed, 914 F. Supp. at
863 (“Although lay testimony may evidence political cohesiveness or racial bloc voting, statistical
evidence . . . presented through expert testimony is typically also offered.”) (citing Monroe v. City
of Woodville, Miss., 897 F.2d 763, 764 (5th Cir. 1990)). Cf. Growe v. Emison, 507 U.S. 25 (1993)
(finding Gingles preconditions not met where “the record contains simply no statistical evidence of
minority political cohesion . . . [a]nd even anecdotal evidence is lacking.”).
The Court cannot conclude, in the absence of any statistical voting evidence, that a twentyyear-old Consent Decree, evidence of socioeconomic similarities, and mere anecdotal evidence of
cooperation between blacks and Hispanics in the community are in and of themselves sufficient to
prove that the two groups are politically cohesive. While Defendants have provided little in the way
of independent evidence to rebut Plaintiffs’ claims of cohesiveness, the burden remains with
Plaintiffs to establish political cohesiveness by a preponderance of the evidence. Reed, 914 F.
Supp. at 863. Accordingly, the Court finds that at this juncture Plaintiffs have failed to establish a
likelihood of success on the merits sufficient to warrant preliminary injunctive relief.
C. Majority Bloc Voting that Usually Defeats the Preferred Minority Candidate
Plaintiffs have also failed to demonstrate a likelihood of success on the merits with respect
to the third Gingles precondition, namely, that the white majority votes sufficiently as a bloc to
enable it usually to defeat the minority’s preferred candidate. Plaintiffs primarily rely on the
testimony of Dr. Liu to establish this precondition. PML for PI Mot. at 15. In his report, Dr. Liu
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performed a statistical analysis using the ecological inference method that included fourteen
elections, and he eventually included sixteen elections in his analysis. Declaration of Dr. Baodong
(Paul) Liu (“Liu Report”) at 2; Liu Hearing Tr.) at 8. Dr. Liu is clearly qualified as an expert on
racial bloc voting, and the ecological inference method that he uses appears to be scientifically
reliable.
However, Defendants established on cross-examination that Dr. Liu did not include several
countywide and citywide elections in his data set, and Dr. Liu himself admitted that some of these
races would have been relevant to his analysis. Liu Hearing Tr. at 16-17, 21-22, 26. Specifically,
for at least six citywide or countywide races in the last 10 years, Dr. Liu either admitted that they
were not included in his 2003 or 2011 statistical analyses or said that he did not know if they were
included. Id. These races include the 2003 race for County Coroner, the 2004 and 2008 countywide
races for District Attorney, a 2004 election for City Court Judge, a 2005 race for a Democratic state
committee position on the Common Council, and the 2009 election for Mayor of Albany. Id.
Further, Dr. Liu conceded on cross-examination that a more robust data set would provide a more
accurate assessment of racial voting patterns in Albany County. Id. at 29. Therefore, Plaintiffs have
not yet proven a likelihood of success on the merits on the issue of white majority bloc voting on the
basis of Dr. Liu’s testimony.
In addition to relying on Dr. Liu’s report, Plaintiffs rest on the 2003 Arbor Hill decision,
which found that the historical evidence “strongly supports the conclusion that the white majority in
[Albany] County and in the area . . . votes sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate.” Arbor Hill Report-Rec., 2003 WL 21523820, at *31 (quoting
Gingles, 478 U.S. at 51). While the Arbor Hill decision correctly concluded that whites voted as a
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bloc before and during 2003, there has clearly been a change in the voting patterns of white
residents of the County in the last eight years. Id.; Liu Hearing Tr. at 16-17, 21-22, 26. When the
2003 Arbor Hill litigation took place, no minority candidate had ever been nominated to run for
countywide office, much less won such an race. Id. at 31-32. As Plaintiffs themselves concede, two
black candidates have won countywide races to the offices of County Coroner and District Attorney
since 2003. PML for PI Mot. at 15. Further, Defendants point out that President Barack Obama
carried Albany County in his 2008 presidential election, and that black candidates, such as City
Court Judge Helena Heath-Roland, have prevailed in citywide races in Albany. Liu Hearing Tr. at
10-12, 20.
The recent electoral successes of some minority candidates in Albany County suggest that
longstanding bloc voting among whites that usually defeats the preferred minority candidate is in the
process of changing. Significant progress has been made in achieving equality among racial and
ethnic groups in Albany County elections. However, greater progress is necessary to afford
Plaintiffs a full opportunity to participate in our local political processes. As Dr. Liu confirmed
during his testimony, even when a minority candidate wins an election, it is still possible for bloc
voting and racially polarized voting to occur. Liu Hearing Tr. at 38. However, Plaintiffs have not
yet made a showing that bloc voting by whites in Albany County still exists. The Court therefore
finds that Plaintiffs have not established a likelihood of success on the merits with respect to the
third Gingles precondition.
IV. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiffs’ Motion for a preliminary injunction (Dkt. No. 12) is DENIED;
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and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.
DATED:
August 18, 2010
Albany, New York
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