Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 1 of 30 PageID #: 10294

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1 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 1 of 30 PageID #: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. v. Plaintiffs, No. 1:11-cv DLI-RR-GEL ORAL ARGUMENT REQUESTED Date of Service: July 20, 2012 ANDREW M. CUOMO, et al. Defendants. DRAYTON PLAINTIFFS INTERVENORS MEMORANDUM OF LAW IN OPPOSITION TO SENATE MAJORITY DEFENDANT S MOTIONS FOR SUMMARY JUDGMENT ON FOURTEENTH AMENDMENT AND SECTION 2 CLAIMS Joan P. Gibbs Esmeralda Simmons Center for Law and Social Justice Medgar Evers College, CUNY 1150 Carroll Street Brooklyn, NY (718) Randolph M. McLaughlin Jeffrey M. Norton Newman Ferrara LLP 1250 Broadway, 27 th Fl. New York, NY (212) Frederick K. Brewington Valerie M. Cartwright LAW OFFICES OF FREDERICK K. BREWINGTON 556 Peninsula Boulevard Hempstead, NY (516)

2 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 2 of 30 PageID #: TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT...1 ARGUMENT...1 I. Defendants' Motions for Summary Judgment Are Premature...1 II. Defendants' Summary Judgment Motion on Plaintiffs' Fourteenth Amendment Claims Should Be Denied...7 A. Defendants' Motion is Based on Disputed Issues of Material Fact...7 B. Defendants Are Not Entitled to Summary Judgment As A Matter of Law...10 III. Defendants Are Not Entitled to Summary Judgment on Plaintiffs-Intervenors' Section 2 Challenges to the 2012 Senate Plan...14 A. Nassau County Coalition Districts Political Cohesion Compactness...19 B. Bronx County...21 IV. The Senate Majority Are Not Entitled to Summary Judgment As A Matter of Law on Plaintiffs-Intervenors Challenge to the 2012 Senate Plan...21 CONCLUSION...24 i

3 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 3 of 30 PageID #: TABLE OF AUTHORITIES CASES Page Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986)...1, 2, 7 Bartlett v. Strickland, 129 S.Ct (2009)...15, 16 Benavidez v. Irving Independent School District, 690 F. Supp 2d 451 (N.D. Tex. 2010)...9 Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F. 3d 271 (2d Cir. 1994)...17 Burns v. Richardson, 384 U.S. 73 (1966)...12 Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988)...17, 18 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...1, 2, 7 Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000)...11 Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374 (2d Cir. 2001)...2 Concerned Citizens of Hardee County v. Hardee Board of Commissioners, 960 F.2d 524 (11th Cir. 1990)...17 Cox v. Larios, 540 U.S (2004)...12 Daley v. Hunt, 93 F.3d 1212 (4th Cir. 1996)...12 Ely v. Klahr 403 U.S. 108 (1971)...12 Floyd, et al., v. City of New York, No. 08 Civ (S.D.N.Y.)...23 ii

4 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 4 of 30 PageID #: Flateau v. Anderson,, 537 F. Supp. 237 (S.D.N.Y Garcia v. U.S. Air Force, 533 F.3d 1170 (10th Cir. 2008)...4 Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990)...12 Growe v. Emison, 507 U.S. 25 (1993)...16 Ideal Steel Supply Corp. v. Anza, 632 F.3d 310 (2d Cir. 2011)...2 Karcher v. Dagget, 462 U.S. 725 (1983)...12 Larios v. Cox, 300 F. Supp 2d 320 (N.D. Ga. 2004)...12 Little v. LATFOR, Index No (Sup. Ct., County of Albany 2011)...23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)...2 Nixon v. Kent Cnty.,, 76 F.3d 1381 (6th Cir. 1996) (en banc)...17 People United for Children v. City of New York, 214 F.R.D. 252 (S.D.N.Y. 2003)...23 Perez v. Perry, 132 S.Ct. 934 (2012)...16 Pope v. County of Albany, 2012 WL (2d Cir. 2012) Puerto Rican Legal Defense Fund v. Gantt,Reno v. Bossier Parish School Bd., 796 F. Supp. 681 (E.D.N.Y. 1992)...22 Reno v. Bossier Parish School Bd., 520 U.S. 471 (1997)...13 iii

5 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 5 of 30 PageID #: Reynolds v. Sims,, 377 U.S. 533 (1964)...11 Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004)...10, 11, 13, 15, 22 Rogers v. Lodge, 458 U.S. 613 (1982)...13, 15 Shaw v. Reno, 509 U.S. 630 (1993)...13 Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859 (D.C. Cir. 2006)...4 Thornburg v. Gingles, 478 U.S. 30 (1986)...14, 15, 19 Trammel v. Keane, 338 F.3d 155 (2d Cir. 2003)...2 Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506 (2d Cir. 1989)...2 Village of Arlington Heights v Metropolitan Housing Development Corp., 429 U.S. 252 (1977)...13 Wesberry v. Sanders, 376 U.S. 11 (1964)...11 STATUTES 42 U.S.C OTHER AUTHORITIES Fed. R. Civ. P. 26(a)...3 Fed. R. Civ. P. 56(a)...1, 7 Fed. R. Civ. P. 56(d)...1, 2, 4 iv

6 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 6 of 30 PageID #: SECONDARY SOURCES Juan Cartagena, Report Voting Rights in New York City: , 17 S. Cal. L. & Social Justice 559 (2008)...22 David N. Gelman and David Quigley, Jim Crow New York: A Documentary History Race and Citizenship (NYU Press 2003)...22 J. Gerald Hebert, et al., THE REALISTS GUIDE TO REDISTRICTING: AVOIDING THE LEGAL PITFALLS (2d ed. 2010)...12 Lawrence Nordeen and Sundeep Iyver, Design Deficiencies and Lost Votes at 1 (Brennan Center for Justice at New York University School of Law 2011)...22 Nathaniel Persily, The Law of the Census: How To Count, What to Count, Whom To Count, And Where to Count Them, 32 Cardozo L. Rev, 755, (2011)...9, 12 Eric Schrimshaw et al., Insurance Related barriers to Accessing Dental care Among African America Adults With Oral Health Symptoms in Harlem, New York, 101 American Journal of Public Health 8, at (August 2011)...23 Julie Sez, NOXIOUS NEW YORK: THE RACIAL POLITICS OF URBAN HEALTH AND ENVIRONMENTAL JUSTICE (MIT Press 2006)...23 U.S. Census Bureau, A Compass for Understanding American Community Survey Data (October 2008)...9 v

7 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 7 of 30 PageID #: PRELIMINARY STATEMENT Plaintiffs-Intervenors Donna Kaye Drayton et al. (the Plaintiffs-Intervenors ), by their undersigned counsel, respectfully submit this memorandum in opposition to the Senate Majority Defendants ( Defendants ) motions for summary judgment on their Fourteenth Amendment (DE 420-2) (hereinafter Sen. Mem. Fourteenth Amend. ) and Section 2 claims (DE 422-2) (herein after Sen. Mem. Sec. 2 ) challenging the 2012 New York State Senate plan. The Drayton Plaintiffs Intervenors argue that the instant motion is premature as discovery has not commenced with respect to the Fourteenth Amendment claims, and expert reports, essential to the Section 2 claims, have not yet been prepared. Accordingly, pursuant to Federal Rule of Civil Procedure 56(d), the Drayton Plaintiffs request that the motion be denied, or, in the alternative, continued until discovery herein has been completed. ARGUMENT I. DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT ARE PREMATURE Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any show that there is no genuine issue as any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(a). A genuine issue of material fact exists where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986). When adjudicating a motion for summary judgment, a court construes the facts in the light most favorable to the non-moving party, and draws all reasonable inferences and resolves any 1

8 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 8 of 30 PageID #: ambiguities against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Ideal Steel Supply Corp. v. Anza, 632 F. 3d 310, 326 (2d Cir. 2011). As a party moving for summary judgment must demonstrate the absence of any issue of material fact, a court should only grant summary judgment after the parties have had an adequate opportunity for discovery. See Celotex, 477 U.S. at 317 (observing that summary judgment is appropriate only after adequate time for discovery ); see also Anderson, 477 U.S. at 250 n. 5, 257 (noting that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition, and that the nonmoving party should have a full opportunity to conduct discovery. ); Trammell v. Keane, 338 F.3d 155, 161 n.2 (2d Cir. 2003) ( [O]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery ); Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386 (2d Cir. 2001) ( [W]hen party... reasonably advises the court that it needs discovery to be able to present facts needed to defend the motion, the court should defer decision until the party has had the opportunity to take discovery and rebut the motion. ); Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) ( The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment. ). As the Court noted in Celotex premature motions can be adequately dealt with under Rule 56[d]. 477 U.S. at 326. Under Fed. R. Civ. P. 56(d), the Court has several options when facts are unavailable to the nonmovant: (1) Defer considering the motion or deny it; (2). Allow time to obtain affidavits or declarations or to take discovery; or (3) Issue any other appropriate order. 2

9 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 9 of 30 PageID #: In the instant case, no discovery has yet been had; rather, the parties have only served the initial disclosures required by Fed. R. Civ. P. 26(a) and a first request for documents and interrogatories. The Defendants have not provided the discovery sought, but instead filed motions for a protective order, contending that the responsive documents and information are protected by the legislative privilege. As of this writing, this Court has yet to rule on Defendants motions for a protective order. The documents and information sought by Plaintiffs-Intervenors are essential to Plaintiff- Intervenors opposition to Defendants motions for summary judgment as they will enable Plaintiffs-Intervenors to establish the existence of triable facts herein on their claims under both the Fourteenth Amendment and Section 2 of the Voting Rights Act, 42 U.S.C. 1973, et seq.. See Declaration of Joan P. Gibbs, dated July 19, 2012 (DE 450). Additionally, the Senate Majority Defendants argue that the expert reports that were produced during the preliminary injunction phase of this case do not establish essential elements of the Section 2 claims. As a threshold matter, the Plaintiffs-Intervenors observe that the preliminary expert reports were just that preliminary. Plaintiffs expert disclosures are not due until January 25, (DE 377). At the conclusion of expert disclosures, the Plaintiffs- Intervenors will rely on their experts final reports, not the reports utilized at the preliminary injunction stage of the proceedings. Until the reports of the experts on whom the Plaintiffs- Intervenors will rely at trial have been produced, they are not in a position to factually oppose the instant motions. In light of the foregoing, the Plaintiffs-Intervenors respectfully suggest that the instant motion should be denied. The Plaintiffs-Intervenors are not yet in possession of the facts that will enable them to rebut the arguments of the Senate Majority Defendants; however, after an 3

10 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 10 of 30 PageID #: adequate opportunity for discovery and the conclusion of the expert phase of this case, the Plaintiffs-Intervenors expect that they will have the evidence essential to oppose the motion. Further, the Plaintiffs-Intervenors will rely on the expert reports that will be produced subsequently and the evidence contained therein; therefore, it is appropriate to defer consideration of the motion as the expert reports will, in all likelihood, contain information that has not been previously provided, possibly rendering the arguments raised in the instant motion moot or irrelevant. In the alternative, Plaintiffs-Intervenors suggest that the motion should be continued until they have been afforded the opportunity to conduct discovery. Pursuant to Fed. R. Civ. P. 56(d), a court may deny a motion for summary judgment, or, alternatively, order a continuance to permit discovery if the party opposing the motion adequately explains why it cannot present by affidavit facts needed to defeat the motion. Under Rule 56(d), the nonmovant must satisfy four requirements: First, a party seeking relief under Rule 56(d) must identify the additional discovery she would seek to oppose a motion for summary judgment. See, e.g., Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 2006). Second, a party seeking relief under Rule 56(d) must articulate a plan for obtaining the discovery alleged to be unavailable. See, e.g., Garcia v. U.S. Air Force, 533 F.3d 1170, 1180 (10th Cir. 2008). Third, a party seeking relief pursuant to Rule 56(d) must establish that the discovery she seeks is essential to justify [her] opposition. Fed. R. Civ. P. 56(d). Fourth, the showing required by Rule 56(d) must be made by affidavit or declaration. Fed. R. Civ. P. 56(d). Here, Plaintiffs- Intervenors satisfy each of the four requirements for relief under Fed. R. Civ. P. 56(d). 4

11 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 11 of 30 PageID #: Plaintiffs-Intervenors have requested discovery as to the arguments and allegations of fact that have been advanced by Defendants as grounds for summary judgment regarding the following issues: (a) The reasons for the population deviations between upstate and downstate Senate districts in the enacted 2012 map; (b) The reasons why the Senate Majority located the new Senate district upstate rather than downstate; (c) The reasons why the Senate Majority did not locate the new Senate district in New York City, particularly within one of the three counties Bronx, Kings, and New York covered by Section 5 of the Voting Rights Act; (d) The reasons why the Senate Majority delayed the implementation of Part XX of Chapter 57 of the Laws of 2010 of New York; and (e) The reasons why the Senate Majority did not draw a majority-minority Senate district in Nassau County. See Declaration of Joan P. Gibbs, date July 19, 2012 (DE 450). In order to respond to Defendants arguments and factual allegations, Plaintiffs- Intervenors also will need the following documents and information: (a) All documents pertaining to the creation of the 2012 Senate plan; (b) All documents concerning the location of the new Senate seat; (c) All documents pertaining to the implementation or non-implementation of Part XX of Chapter 57 of the Laws of 2010 of New York; (d) The identity or identities of the persons who drew or assisted in drawing the 2010 Senate plan See Declaration of Joan P. Gibbs, dated July 19, 2012 (DE 450). The discovery sought by Plaintiffs-Intervenors is essential to Plaintiffs-Intervenors opposition to Defendants motions for summary judgment as it will enable Plaintiffs-Intervenors to establish that triable issues of fact exist herein that preclude summary judgment. For example, in their memorandum, Defendants claim that the deviations in the enacted Senate between 5

12 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 12 of 30 PageID #: upstate and downstate districts serve the legitimate state policy of avoiding the dilution of voting strength of upstate voters and offsetting deviations in the redistricting plan for the New York State Assembly. However, the record herein regarding these allegations consists only of Defendants assertions in their briefs. The requested documents pertaining to the creation of the enacted 2012 Senate plan will enable Plaintiffs-Intervenors to raise a triable of fact as to whether this was the case. In addition, the documents pertaining to the creation of the 2012 Senate plan and to the Senate Majority s delay in implementing Part XX may raise a triable issue of fact as to whether or not the Senate Majority located the Senate district upstate rather than downstate to avoid creating a majority-minority district in New York City, particularly within one of the three counties covered by Section 5 of the Voting Rights Act. 1 Plaintiff-Intervenors also seek the identity or identities of the persons who drew or assisted in the drawing of 2012 Senate plan to depose them as to, inter alia, the reasons for the population deviations in the enacted Senate plan between upstate and downstate, as well as the placement of the new Senate district upstate. Such depositions could also raise triable issues of fact as to the reasons for the deviations in the 2012 enacted plan between upstate and downstate Senate districts and the placement of the new Senate district. 1 Part XX was designed to end the practice of prison-based gerrymandering, or the counting of incarcerated persons where they are confined, rather than in their home communities for redistricting purposes. Part XX was therefore an important civil rights reform. According to data from LATFOR, a total of 46,000 incarcerated persons were reallocated back to their home districts pursuant to Part XX. The counties covered by Section 5 of the Voting Rights Act in New York State, the Bronx, Kings and New York received an aggregate increase in populations numbers of 17,280, or approximately 37.6 % of all reallocated individuals. Plaintiffs-Intervenors believe that the Senate Majority delayed the implementation of Part XX, the announcement of the increase in the number of Senate districts and placed the new Senate district upstate rather than downstate as part of an effort to reverse the voting strength of Black and Latino as result of the Passage Part XX. See Exhibit 1 attached to the Declaration of Joan P. Gibbs, dated Jul 19, 2012, (DE 450). 6

13 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 13 of 30 PageID #: Plaintiffs- Intervenors have diligently sought to obtain the aforementioned discovery from the Defendants. The Magistrate Judge has already set an aggressive Scheduling Order for discovery that is both reasonable and achievable. Pursuant to the Magistrate s Judge s Order, fact discovery is be completed by December 21, 2012; Plaintiffs-Intervenors expert disclosures are due on January 25, 2013; Defendants expert disclosures are due on March 8, 2013; and all expert depositions must be completed by April 5, Id. Plaintiffs-Intervenors have timely complied with the existing Scheduling Order and will continue to do so. Prior to ruling on Defendants summary judgments motions, Plaintiffs-Intervenors experts should, at the very least, be afforded the opportunity to complete their reports. In short, this Court should issue an order denying Defendants motions for summary judgment, or, in the alternative, continuing said motions until discovery has been completed. II. DEFENDANTS SUMMARY JUDGMENT MOTION ON PLAINTFFS FOURTEENTH AMENDMENT CLAIMS SHOULD BE DENIED As previously mentioned, summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex, 477 U.S. at 322; see also Fed. R. Civ. P. 56(a). A genuine issue of material fact exists where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. In the instant case, both disputed issues of material fact exist that preclude a grant of summary judgment, and Defendants are not entitled to summary judgment as a matter of law. A. Defendants Motion Is Based on Disputed Issues of Material Fact 7

14 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 14 of 30 PageID #: The Senate Majority s motion for summary judgment should be denied because it is based on disputed issues of material facts. These disputed facts include the following: (1). Whether Plaintiffs-Intervenors are harmed by the enacted 2012 Senate redistricting plan; (2). The number of citizens in New York State; (3). The number of citizens in New York City; (4). The number of citizens in each of the 63 Senate districts in the enacted 2012 Senate redistricting plan; (5). The estimated number of citizens in New York State; (6). The estimated number of citizens in New York City; (7). The estimated number of citizens in each of the 63 Senate districts in the enacted 2012 Senate redistricting plan; (8). The number of citizens of voting age in New York State; (9). The number citizens of voting age in New York City; (10). The number of citizens of voting age population in each of the 63 Senate districts in the enacted 2012 Senate redistricting plan; (11). The estimated number of citizens of voting age in New York State; (12). The estimated number of citizens of voting age population in New York City; (13). The estimated number of citizens of voting age population in each of the 63 Senate districts in the enacted 2012 Senate plan; (14). The Defendants reasons for locating the new Senate district in upstate New York; and, (15). The Defendants reasons for delaying the implementation of Part XX of Chapter 57 of the Laws of New York. See Declaration of Joan P. Gibbs, dated July 19, 2012 (DE 450). In particular, a factual dispute exists here with respect to the Senate Majority s estimates of the number of citizens and citizens of voting age in New York and New York City due to the Senate Majority s exclusive reliance on the American Community Survey ( ACS ). See, e.g., 8

15 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 15 of 30 PageID #: Benavidez v. Irving Independent School District, 690 F. Supp. 2d 451 (N.D. Tex. 2010); see also Nathaniel Persily, The Law of the Census: How To Count, What to Count, Whom To Count, And Where to Count Them, 32 Cardozo L. Rev, 755, (2011). During the 2001 redistricting cycle, citizenship data was derived from the data collected on a long-form questionnaire, sent to approximately 18 million households in lieu of the short-form questionnaire, which specifically asked whether a person was citizen. However, after the 2000 census, the Census Bureau eliminated the long-form questionnaire and replaced it with the ACS, an annual survey of only approximately three million housing units each year, as well as a small percentage of persons who live in group quarters (nursing homes, prisons). As Professor Persily has noted, the ACS, which is now given yearly to a very small subset (2.5%) of households and given its sample size, is not accurate in estimating citizenship totals at the census block level. Nathaniel Persily, The Law of the Census: How To Count, What to Count, Whom To Count, And Where to Count Them, 32 Cardozo L. Rev. 755, 776 (2011). In short, the ACS surveys and the resulting data are subject to both sampling and non-sampling errors; therefore, they should not be used to determine whether the 2012 Senate plan violated the Fourteenth Amendment. See generally U.S. Census Bureau, A Compass for Understanding American Community Survey Data (October 2008). In addition, a genuine factual dispute exists with respect to Defendants reasons for locating the new Senate seat upstate rather than downstate. In particular, in a previous submission, the Senate Majority claimed that Plaintiffs-Intervenors could not satisfy their burden of demonstrating that the deviations in the Senate plan violated the Fourteenth Amendment because the deviations in the Enacted Plan serve the legitimate state policies of avoiding dilution of the voting strength of upstate voters and offsetting deviations in the redistricting plan 9

16 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 16 of 30 PageID #: for the New York State Assembly. Sen. Mem. Fourteenth Amend. at Other than the Senate Majority s allegations in their briefs, the record is void of any evidence that the 2012 Senate plan deviations were premised in the avoidance of dilution. B. Defendants Are Not Entitled To Summary Judgment As A Matter of Law In their memorandum, the Senate Majority essentially offer four arguments as to why their motions for summary judgment on all equal populations claims should be granted. First, the Senate Majority contends that Plaintiffs-Intervenors bring the same equal-population challenge to the Senate Plan that Rodriquez rejected a decade ago. See Sen. Mem. Fourteenth Amend. at 2. Second, the Senate Majority contends that Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004), aff d 543 U.S. 997 (2004) squarely forecloses Plaintiffs-Intervenors Fourteenth Amendment claims because (1) the practical effect of the Senate Plan is to dilute the votes of upstate residents, not those who reside down downstate because it under-populates New York City districts and overpopulates upstate districts as measured by CVAP, registered voters, and turnout ; (2) Plaintiffs-Intervenors cannot possibly establish that the Senate Plan s presumptively constitutional deviations resulted solely from an unconstitutional or irrational state purpose ; and (3) Plaintiffs-Intervenors racial discrimination allegation is irreconcilable with the fact, that under CVAP, voter registration, and turnout measures, the Senate Plan overvalues the votes of citizens in New York City Black and Hispanic districts even more heavily than the votes of other New York City voters. 2 Sen. Mem. Fourteenth Amend. at The Senate Majority additionally contends that Intervenors allegations of political purpose are completely irrelevant because there is no negative effect, and because any political consideration justification since the Plan serves the identified legitimate interests. Sen. Mem. Fourteenth Amend. at 4. As the Plaintiffs-Intervenors have made no such claim, they will respond only to arguments relevant to their claim. 10

17 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 17 of 30 PageID #: Each of these arguments is without merit and should be squarely rejected for the following reasons. First, Plaintiffs-Intervenors Fourteenth Amendment claim is not the same as the Fourteenth Amendment claim asserted by the Plaintiffs in Rodriquez. Here, Plaintiffs - Intervenors have specifically alleged that 2012 Senate Plan violated the Fourteenth Amendment s prohibition against discrimination on the basis race. By contrast, the Plaintiffs in Rodriquez merely alleged in Count 1 of their complaint that the Senate Plan violates the one person one vote requirement of the Fourteenth Amendment. Id. at 359. Further, as the Rodriguez court noted [w]hen pressed at oral argument, counsel for the plaintiffs conceded that this count was not intended to charge defendants with intentional racial discrimination, although they suggested that the population deviation has a discriminatory effect. Id. at 366, n. 22. In short, it is simply untrue that Plaintiffs-Intervenors are asserting the same claim that was asserted by the Plaintiffs in Rodriquez. Accordingly, Rodriquez does not, squarely or otherwise, foreclose Plaintiff Intervenors Fourteenth Amendment claim. Second, the only appropriate population for assessing the lawfulness of the 2012 Senate plan is the total population of New York State and New York City as determined by the 2010 Census. The Supreme Court has generally left the determination of the appropriate population to be used for the redistricting of state legislative bodies to the states. Here, both the New York State Constitution and the 2010 Senate Legislation, S. 6696, clearly mandate that the appropriate population for apportioning Senate districts is the total population. Moreover, the Supreme Court has repeatedly reaffirmed that the equal protection principle requires equal representation for equal numbers of people. Reynolds v. Sims, 377 U.S. 533, (1964) (quoting Wesberry v, Sanders, 376 U.S. 11, 18 (1964)); see also Chen v. 11

18 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 18 of 30 PageID #: City of Houston, 206 F.3d 502 (5th Cir. 2000), cert. denied, 532 U.S (2001); see also Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990). While the Supreme Court in Burns v. Richardson, albeit with reservation, held that a jurisdiction could satisfy the one person vote rule by drawing districts using registered voters U.S. 73 (1966). In Karcher v. Daggett, the Supreme Court stated that adopting any standard other than population equality, using the best census data available would subtly erode the Constitution s idea of equal representation. 462 U.S. 725, 731 (1983). Acceptance of the Senate Majority s estimates as to the number of citizens and citizens of voting age in New York State and New York City would surely erode the Constitution s idea of equal representation because the source of the Senate Majority s CPOP and CVAP estimates, the ACS, as discussed supra., is too inaccurate to be exclusively relied on. See Nathaniel Persily, The Law of the Census: How To Count, What to Count, Whom To Count, And Where to Count Them, 32 Cardozo L. Rev, 755, (2011). 4 Third, redistricting state legislative plans with deviations under 10% is not beyond challenge. Several courts have expressed the same in concluding that population deviations under 10% are subject to a rebuttable presumption of validity; however, they may nevertheless be unconstitutional if the drafting process was arbitrary, discriminatory, or otherwise unsupported by traditional redistricting data. See e.g., Larios v. Cox, 300 F. Supp. 2d 320 (N.D. Ga. 2004), aff d sub nom., Cox v. Larios, 540 U.S (2004); Daley v. Hunt, 93 F.3d 1212, 3 In Burns, the Supreme Court cautioned that the use of registered or actual voters could be susceptible to manipulation to maintain under-representation. See also Ely v. Klahr, 403 U.S. 108, (1971) (Use of registered voter data permissible only if the result would be a distribution of legislatures not substantially different from that which would have resulted from the use of a permissible population basis ). 4 Tellingly, almost all jurisdictions use the P.L data file to draw districts, and that dataset only includes aggregate total population data and voting age population, broken down by race. See, e.g., J. Gerald Hebert, et al., THE REALISTS GUIDE TO REDISTRICTING: AVOIDING THE LEGAL PITFALLS (2d ed. 2010). 12

19 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 19 of 30 PageID #: (4th Cir. 1996). Even in the absence of discovery, Plaintiffs-Intervenors have offered sufficient evidence to rebut the presumption that the 2012 Senate Plan complies with the Constitution. See, e.g., Declaration of Joan P. Gibbs, dated April 9, 2012 (DE 297-1); Declaration of Joan P. Gibbs, dated April 12, 2012 (DE 308); Declaration of Joan P. Gibbs, dated April 27, 2012 (DE 328). Furthermore, the Plaintiffs-Intervenors, unlike the Plaintiffs in Rodriquez, are challenging the 2012 Senate Plan on the grounds that it violated the Fourteenth Amendment s prohibition of discrimination on the basis of race; therefore, Plaintiffs-Intervenors are not required to show that the minimal deviation results solely from an unconstitutional or irrational state purpose, Rodriquez, 308 F. Supp. 2d at 366, but rather, that race was a motivating factor, Village of Arlington Heights, 429 U.S. at 266, in the Defendants drawing of the 2012 Senate plan and their location of the new Senate district upstate rather than downstate where the majority of Black and other racial minorities in New York reside. See, e.g., Reno v. Bossier Parish School Bd., 520 U.S. 471 (1997) (applying the Arlington Heights standard to assess whether a voting system was enacted for a discriminatory purpose); Shaw v. Reno, 509 U.S. 630, 644 (1993) (citing Arlington Heights standard in the context of an Equal Protection challenge to racial gerrymandering of districts); Rogers v. Lodge, 458 U.S. 613, 618 (1982) (evaluating a vote dilution claim under the Equal Protection Clause using the Arlington Heights test). Here, even in the absence of discovery, Plaintiffs-Intervenors have offered sufficient evidence to raise an inference that race was a motivating factor or a predominate factor in Defendants drawing of the 2012 Senate plan and their location of the new Senate district upstate rather than downstate. See e.g., Declaration of Joan P. Gibbs, dated April 9, 2012 (DE 297-1); Declaration of Joan. P. Gibbs, dated April 12, 2012 (DE 308); Declaration of Joan P. Gibbs, dated April 27, 2012 (DE 328). 13

20 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 20 of 30 PageID #: In short, the Court should deny the Senate Majority motion for summary judgment with respect to Plaintiffs-Intervenors Fourteenth Amendment claim, or, in the alternative, continue them until discovery herein has been completed. III. DEFENDANTS ARE NOT ENTITLTED TO SUMMARY JUDGMENT ON PLAINTIFFS-INTERVENORS SECTION 2 CHALLENGES TO THE 2012 SENATE PLAN In order to establish that a challenged districting map has a disparate impact on minority voters, a plaintiff bringing a Section 2 claim must first satisfy three necessary preconditions (the "Gingles preconditions"): First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district; Second, the minority group must be able to show that it is politically cohesive;.;. Third, the minority group must be able to demonstrate that the] majority votes sufficiently as a bloc to enable in the absence of special circumstances to defeat the minority's preferred candidate. Thornburg v. Gingles, 478 U.S. 30, (1986). If the Gingles preconditions are satisfied, the plaintiff must then demonstrate that the totality of circumstances shows that the minority group does not possess the same opportunities to participate in the political process as other voters. See id. at Section 2 is a flexible, fact-intensive doctrine, and relief is available under the statute when "a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and [majority] voters to elect their preferred representatives." Id. at As the Supreme Court has stated, a trial court s determination of whether a violation of Section 2 exists is peculiarly dependent upon the facts 14

21 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 21 of 30 PageID #: of each case... and requires intensely local appraisal of the design and impact of challenged provision. Id. at 46, 90 (quoting Rogers v. Lodge, 458 U.S. 613, (1982)). A. NASSAU COUNTY 1. Coalition Districts. As a threshold matter, Defendants erroneously argue that Plaintiffs-Intervenors Section 2 claim was rejected in Rodriguez. Sen. Mem. Sec. 2 at 5. The Senate district that was proposed in Rodriguez was a crossover district. With respect to the nature of the claim therein asserted, the Rodriguez court stated that [t]he plaintiffs argue that their claim should be cognizable because black voters in their proposed district would be able to form an effective coalition district where they would have the potential to elect representatives of their choice with crossover votes from the white majority. Rodriguez, 308 F. Supp. 2d. at 382 (emphasis supplied). In their Amended Complaint, the Plaintiffs-Intervenors alleged that the failure of the Legislature to create a majority-minority (Black/Latino) district for the State Senate in Nassau County violates Section 2 of the Voting Rights Act. Amended Complaint, 128 (DE 254). The district that the Plaintiffs-Intervenors seek to establish is a coalition district where two minority group members are combined to form a majority-minority district. In Bartlett v. Strickland, 129 S.Ct (2009), the Supreme Court discussed the differences between a coalition district and the crossover district that was rejected in Rodriguez. The Bartlett Court defined a majority-minority district as a district where a minority group composes a numerical, working majority of the voting age population. Id. at The Court stated that a crossover district is one in which minority voters make up less than a majority of the voting age population, but is large enough to elect candidates of its choice with help from voters who are members of the majority and who cross over to support the minority s preferred candidate. Id. 15

22 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 22 of 30 PageID #: The Court acknowledged that it has referred to crossover districts as coalitional districts, but cautioned that term risks confusion with coalition district claims in which two minority groups form a coalition to elect the candidate of the coalition s choice. Id. While the Court did not address the issue of minority coalition districts in Bartlett, in Growe v. Emison, Justice Scalia authored a unanimous opinion in which the Court assumed, without deciding, that it was permissible to combine distinct ethnic and language minority groups for purposes of assessing compliance with Section U.S. 25, 41 (1993). The Senate Majority would have this Court conclude that the Supreme Court, in a single sentence in Perez v. Perry, 132 S.Ct. 934, 944 (2012), resolved the question of whether minority coalition claims are cognizable under Section 2. Sen. Mem. Sec. 2 at 11. In Perry the Court was critical of the lower court s redistricting plan and stated [i]f the District Court did set out to create a minority coalition district, rather than drawing a district that simply reflected population growth, it had no basis for doing so. Id. In rejecting this district, the Court noted that the lower court s approach was unclear and ambiguous. Id. At no point in the opinion did the Court, expressly or otherwise, hold that Section 2 did not countenance minority coalition districts. The most that can be said is that the Court did not believe there was a factual basis for the lower court s creation of a minority coalition district, not that there was no legal basis for such a district under Section 2 jurisprudence. In a post-perry decision, the Second Circuit in Pope v. County of Albany, citing Growe, noted that the Supreme Court had expressly reserved decision on the issue of whether different minority groups may be aggregated to establish a Section 2 claim WL , n.5 (2nd Cir. 2012). The court also observed that there was a split among the circuits on this question. Id. The Pope court stated that in Bridgeport Coalition for Fair Representation v. City of Bridgeport, 16

23 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 23 of 30 PageID #: the Second Circuit had identified a Section 2 violation in a challenge that aggregated Blacks and Hispanics, without expressly ruling that such an aggregation was permissible. 26 F.3d 271, (2d Cir.), vacated on other grounds, 512 U.S (1994). The Fifth Circuit in Campos v. City of Baytown, 840 F.2d 1240 (11th Cir. 1988) has expressly held that minority coalition districts are cognizable under Section 2. There is nothing in the law that prevents the plaintiffs from identifying the protected aggrieved minority to include both Blacks and Hispanics. Section 1973(a) protects the right to vote of both racial and language minorities. Congress itself recognized that voting discrimination against citizens of language minorities is pervasive and national in scope, and similar discrimination against Blacks is well documented. If, together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters. Id. at 1244 (citations omitted); see also Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, 960 F.2d 524, 526 (11th Cir. 1990) ( Two minority groups (in this case Blacks and Hispanics) may be a single section 2 minority if they can establish that they behave in a politically cohesive manner. ); but see Nixon v. Kent Cnty., 76 F.3d 1381, 1393 (6th Cir. 1996) (en banc) (rejecting minority coalition section 2 claims.). Thus, there is continued vitality to the assertion of minority coalition claims under Section Political Cohesion In an effort to undercut the argument that coalition districts are cognizable, the Senate Majority Defendants argue that Dr. Andrew Beveridge s Declarations submitted in support of the preliminary injunction motion stand for the proposition that the proposed district would only elect the candidate of choice of the Black community and not the Hispanic community. Sen. Mem. Sec. 2 at 11. However, a careful review of Dr. Beveridge s preliminary conclusions reveals the following statement: The proposed Senate plan deprives African American voters allied with Hispanics of their ability to elect their candidates of choice in one Senate district. 17

24 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 24 of 30 PageID #: Declaration of A. Beveridge, dated April 12, (DE 308-3). Throughout his Declaration, Dr. Beveridge states his expert opinion that the adopted Senate plan for Nassau County deprives minority voters of their right to choose the candidate of their choice, and that the proposed Senate district is a coalition district wherein Blacks and Hispanics will coalesce behind candidates of choice. Id. at 15, 18, 20, 21. The Senate Majority Defendants also argue that Dr. McDonald s Second Supplemental Expert Report (DE 308-1) supports their argument that Blacks and Hispanics do not vote cohesively. Sen. Mem. Sec. 2 at 12. However, a careful review of his report reveals the following: Taken together the evidence indicates that, in the face of various indications of racially polarized voting patterns and of black-hispanic voter coalition behavior in two current districts where the two groups reside together, a new districting plan in Nassau County creates two majority-minority districts along with a third district that might be called a minority-influence district. The evidence also shows, however, that a new districting plan could be drawn with three minority districts i.e. each would hold the prospect of providing minority voters opportunities to elect white, Hispanic, or African candidates of their choice. Id. at 107 (emphasis supplied). It should be noted that Dr. McDonald s analysis was done in connection with a challenge to a redistricting plan for Nassau County s Legislature, and he did not examine State Senate races. Those races would, of course, be the subject of an expert report for this case. On the issue of political cohesion in a coalitional Section 2 challenge, the opinion of the Court in Campos is instructive. [T]he proper standard is the same as Gingles: whether the minority group together votes in a cohesive manner for the minority candidate. The key is the minority group as a whole....[i]f the statistical evidence is that Blacks and Hispanics together vote for the Black or Hispanic candidate, then cohesion is shown. 840 F.2d at Thus, the appropriate measure of cohesion is whether the two groups have supported the candidate of choice of either Blacks or Hispanics. As noted above, at this 18

25 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 25 of 30 PageID #: preliminary stage in the proceeding, there is evidence that these two minority groups have in fact supported the same candidates of choice. In sum, the Senate Defendants are not entitled to summary judgment with respect to the Section 2 claims arising in Nassau County. The Plaintiffs-Intervenors, after discovery, will be able to establish that minority group members, Blacks and Hispanics, have political cohesion. Furthermore, the courts, including Second Circuit, have acknowledged that such claims can form the basis for a Section 2 challenge. Accordingly, the Senate Majority Defendants motion should be denied. 3. Compactness The Senate Majority Defendants also argue, without any reference to the proposed district contained in Dr. Beveridge s Declaration, (DE 308-3), that the district proposed by the Plaintiffs-Intervenors is not compact. Sen. Mem. Sec. 2 at The Senate Majority Defendants make this bold assertion without any reference to the criteria for compactness that are generally accepted by cartographers or redistricting experts. See id. at 44; see also Declaration of A. Beveridge, submitted 4/27/12 (DE 331) (discussing compactness measures). Instead, the Senate Majority Defendants rely on the district that was proposed in Rodriguez and suggest, without more, that the district proposed by Dr. Beveridge is identical. As a threshold matter, it should be noted that the district proposed here was based on a preliminary analysis, which Dr. Beveridge expected to supplement at a later date. See Id. at 9. As noted above, the time for expert discovery has not yet commenced, and therefore the motion is premature as the Plaintiffs-Intervenors have not yet had the opportunity to conduct a full expert analysis of the myriad of possible maps that could be drawn that would create a viable and effective majority-minority district. Accordingly, the motion should be denied. 19

26 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 26 of 30 PageID #: As the Court noted in its Opinion and Order denying Plaintiffs request for an expedited discovery schedule and hearing, [P]laintiffs claims are not just important, but legally and factually complicated. The greatest public interest must attach to adjudicating these claims fairly and correctly. We have little confidence that a few weeks discovery and an abbreviated trial leaves enough time for the parties to marshal all the relevant facts and make their best arguments. Opinion and Order at 25 (DE 367). The same holds true at this stage of the proceedings. As the Court noted, Section 2 claims involve complex legal and factual issues that are not readily resolved without expert analysis. In addition, the courts are directed to make an in depth, searching exploration of the political realities affecting the jurisdiction. This Court has set forth a detailed and thorough discovery schedule. At the conclusion of which motions for summary judgment would be more appropriate after the parties have had a full and fair opportunity to develop their legal and factual record. B. Bronx County Like their motion for summary judgment on Plaintiffs-Intervenors challenge to the 2012 Senate under the Fourteenth Amendment, the Senate Majority s motion for summary judgment on Plaintiffs-Intervenors Section 2 challenges to the Senate plan also should be denied because they are based on disputed issues of material fact. The material disputes involve the following: (1) the number of Hispanic citizens residing in Bronx County; (2) the number of Hispanic citizens of voting age residing in Bronx County; (3) the number of white citizens residing in Bronx County; and (4) the number of white citizens of voting age residing in Bronx County. Here too, the Senate Majority s factual and legal assertions for summary judgment are significantly based on estimates of, inter alia, the number of Hispanic citizens and Hispanic citizens of voting age residing in the Bronx as they are derived from ASC data. As Plaintiffs- 20

27 Case 1:11-cv DLI-RR-GEL Document 452 Filed 07/20/12 Page 27 of 30 PageID #: Intervenors have previously pointed out, ACS data is subject to both sampling and non-sampling errors that renders it inappropriate for assessing Plaintiffs-Intervenors Section 2 claims. In addition, factual disputes also exist here with respect to, inter alia, Defendants reasons for sitting the new Senate district upstate rather than downstate, for not drawing a new majority-minority districts downstate, in Nassau County and/or in the Bronx. A factual dispute also exists as to whether the new Senate majority-minority districts in the Bronx in fact enable Black and Latino voters to elect the candidates of their choices as no elections in these new districts have been had. IV. The Senate Majority Are Not Entitled to Summary Judgment As A Matter Of Law On Plaintiffs-Intervenors Challenge to the 2012 Senate Plan Even in the absence of discovery, Plaintiffs-Intervenors here have offered sufficient evidence to preclude summary judgment. First, Plaintiffs-Intervenors have shown that Blacks and Hispanics are sufficiently large and geographically compact to constitute a majority in another single-member district in New York City. Second, Plaintiffs-Intervenors have offered evidence that Black and Hispanics are each political cohesive groups in New York City and more often than not vote as a bloc in New York City elections. See Declaration of Frank Lewis, dated April 12, 2012 (DE 308); see also Declaration of Zulema Blair, dated April 12, (DE 308). Third, Plaintiffs-Intervenors have offered evidence that New York State, including New York City, has a long history of racially polarized voting. Id. Similar evidence of racially polarized voting can be found in local New York City primary and general elections. See Declaration of Frank Lewis, dated April 12, 2012 (DE 308); see also Declaration of Zulema Blair, dated April 12, 2012 (DE 308). 21