Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 1 of 18 PageID #: 2066

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1 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 1 of 18 PageID #: 2066 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK x MARK A. FAVORS, HOWARD LEIB, : LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, and : WEYMAN A. CAREY, Plaintiffs, : and DONNA KAY DRAYTON, EDWIN ELLIS, AIDA FORREST, GENE A. JOHNSON, JOY WOOLLEY, and SHELIA WRIGHT, and Plaintiff-Intervenors, LINDA LEE, SHING CHOR CHUNG, JULIA YANG, JUNG HO HONG, and Plaintiff-Intervenors, JUAN RAMOS, NICK CHAVARRIA, GRACIELA HEYMANN, SANDRA MARTINEZ, EDWIN ROLDAN, MANOLIN TIRADO, and Plaintiff-Intervenors, LINDA ROSE, EVERET MILLS, ANTHONY HOFFMANN, KIM THOMPSON- WEREKOH, CARLOTTA BISHOP, CAROL RINZLER, GEORGE STAMATIADES, JOSEPHINE RODRIGUEZ, and SCOTT AUSTER, v. Plaintiff-Intervenors, ANDREW M. CUOMO, as Governor of the State of New York, ROBERT J. DUFFY, as President of the Senate of the State of New York, DEAN G. SKELOS, as Majority Leader and President Pro Tempore of the Senate of the State of New York, SHELDON SILVER, as : : : : : : : : : : : : : : : : : : : Case No. 1:11-cv (DLI)(RR)(GEL) ROSE INTERVENORS MEMORANDUM ON OTHER PARTIES PROPOSED MAPS /LEGAL

2 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 2 of 18 PageID #: 2067 Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT ( LATFOR ), JOHN J. McENENY, as Member of LATFOR, ROBERT OAKS, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR, Defendants x I. INTRODUCTION : : : : : : : When a legislature fails to enact a redistricting plan and a federal court is left with the unwelcome obligation of performing in the legislature s stead, the court acts in place of the legislature, but it is not supposed to act like a legislature. Connor v. Finch, 431 U.S. 407, 415 (1977). [A] state legislature is... best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people s name. Id. at Thus, when a legislature conducts redistricting, it is allowed to make policy choices, such as choosing to protect incumbents, choosing to emphasize compactness, or adopting a plan aimed at achieving partisan ends. See, e.g., id. A court, by contrast, takes the legislature s prior policy choices as a given, and must respect them while fixing only legal flaws in a plan, such as districts of unequal population. See, e.g., White v. Weiser, 412 U.S. 783, 795 (1973) ( [A] district court should... honor state policies in the context of congressional reapportionment. ); Upham v. Seamon, 456 U.S. 37, 43 (1982) (noting that in properly reconciling the requirements of the Constitution with the goals of state political policy, the district court s modifications of a state plan are limited to /LEGAL

3 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 3 of 18 PageID #: 2068 those necessary to cure any constitutional or statutory defect ). Thus, [i]n fashioning a reapportionment plan or in choosing among plans, a district court should not... intrude upon state policy any more than necessary. Weiser, 412 U.S. at 795 (quoting Whitcomb v. Chavis, 403 U.S. 124, 160 (1971)). Unfortunately, nearly all of the plans submitted by other parties in this case ignore these basic principles. Rather than accepting the legislative policies underlying the existing plan, Abrams v. Johnson, 521 U.S. 74, 79 (1997), as the Court must, they ask the Court to make new policy. The Common Cause, Drayton, and Ramos Plans, for example, reject the New York Legislature s longstanding policy of seeking to retain incumbent members of Congress, a policy the Legislature has carefully chosen both to maintain relationships [Representatives] ha[ve] already developed with their constituents, and because of the powerful role that seniority plays in the functioning of Congress. Diaz v. Silver, 978 F. Supp. 96, 123 (E.D.N.Y. 1997), aff d 522 U.S. 801 (1997). The Skelos and Kolb Plans, meanwhile, would have the Court adopt partisan Republican policy goals, goals a Court has no place pursuing and that the Legislature has refused to adopt. See, e.g., Connor, 431 U.S. at 415 (explaining that in adopting a redistricting plan, the court s task... must be accomplished... in a manner free from any taint of arbitrariness or discrimination ) (quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)); Wyche v. Madison Parish Policy Jury, 635 F.2d 1151, 1160 (5th Cir. 1981) ( [A] court is forbidden to take into account the purely political considerations that might be appropriate for legislative bodies. ). Ultimately, it is the Rose Intervenors Plan ( Rose Plan ) that best reconcil[es] the requirements of the Constitution with the goals of state political policy, and that is the plan the Court should adopt. Upham, 456 U.S. at The Rose Intervenors do not object to the Silver Plan /LEGAL

4 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 4 of 18 PageID #: 2069 II. ANALYSIS OF PLANS A. The Common Cause Plan When faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying the existing plan. Abrams, 521 U.S. at 79. Despite this clear requirement, the Common Cause Plan rejects the legislative policies underlying New York s existing plan and asks the Court to make its own policy choices and draw a congressional plan from scratch based on those choices. This blatant disregard for New York s legislative policies not only precludes the Court from adopting the Plan as a whole, but it also prevents the Court from deriving any useful guidance from the Plan at all. For example, the Common Cause Plan was intentionally and explicitly drawn by an incumbent blind process, 2 rejecting New York s longstanding legislative policy of seeking to preserve incumbent-constituent relationships and retain the seniority benefits incumbency brings to New York. See Rodriguez v. Pataki, 308 F. Supp. 2d 346, 352 (S.D.N.Y. 2004) (redistricting plan drawn in 2002 reflects traditional districting principles including... preventing contests between incumbents ); Diaz, 978 F. Supp. at (with the exception of race, incumbency took priority over all other traditional criteria in the legislature s drawing of congressional districts). This indifference to a key legislative policy underlying the existing plan resulted in nearly two-thirds of New York s incumbent members of Congress being drawn into districts with other incumbents in the Common Cause Plan. Some incumbent pairing is likely inevitable given New York s loss of two districts, but the Common Cause Plan pairs incumbents in 10 of 27 districts five times the number of districts New York has lost. See Exhibit 1 (Incumbent Location in Proposed Plans). Under this Plan, New York would immediately lose more than one-third of its congressional delegation, and with it, the benefits of incumbency long recognized by the Legislature and New York s federal courts. See Diaz, 978 F. Supp. at 123 (incumbents provide constituents with representatives familiar with their concerns and seniority provides representatives with additional political power that can be used to help constituents). The 2 Testimony of Common Cause to LATFOR (February 7, 2012), Mapping Blog for Citizens Redistricting Committee, /LEGAL

5 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 5 of 18 PageID #: 2070 Legislature could legitimately decide to adopt such a dramatic break from past practice; a court may not. See, e.g., Weiser, 412 U.S. at 795 ( In fashioning a reapportionment plan or in choosing among plans, a district court should not... intrude upon state policy any more than necessary. ) (quoting Whitcomb, 403 U.S. at 160). Similarly, although New York has a longstanding legislative policy of seeking to preserve the cores of existing districts, Puerto Rican Legal Def. & Educ. Fund, Inc. v. Gantt, 796 F. Supp. 681 (E.D.N.Y. 1992) ( PRLDEF ), the Common Cause Plan makes no effort to do so. Even a quick glance at the Plan reveals its indifference to this goal. 3 Under the current congressional plan, for example, northeast New York includes three districts (Districts 20, 23, and 24), but the Common Cause Plan ignores the legislative policy underlying these districts and transforms northeast New York into one giant district. 4 Similarly, on Long Island, existing Districts 2 and 3 divide the island along primarily north-south boundaries, but the Common Cause Plan divides them along an east-west line, disrupting longstanding patterns of representation. Meanwhile, the Plan splits current District 17 into four different districts, leaving only a small portion of the prior district s residents together. See Exhibit 2 (Common Cause Plan Core Constituency Report). The Plan also tears the core of District 18 in half, putting 319,670 residents into new District 16 and 355,155 into new District 17. Id. Statistics confirm this obvious pattern. Fewer than half of the congressional districts in the Common Cause Plan thirteen total retain over 60 percent of the population from a single prior district. Ex. 2. By contrast, the Rose Plan has 21 districts that retain over 60 percent of the population from a prior district. See Dkt. # Moreover, the Common Clause Plan has 11 districts that retain less than half of the population of any previous district. Ex. 2. In other words, more than one-third of the districts in the Plan are comprised mostly of populations from multiple previous districts. Thus, here again, the Common Cause Plan asks the Court to 3 Common Cause Reform Plan NY State Congress, Citizens Redistricting Committee, CCNY%20CONGRESSIONAL%20GUIDE%20--FEB%202012%20--%20FULLY%20REVISED.PDF. 4 New York Congressional Districts 110th Congress, NationAtlas.gov, /LEGAL

6 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 6 of 18 PageID #: 2071 disregard the legislative policies underlying the current plan. Such a choice exceeds the proper role of the Court. See Abrams, 521 U.S. at 79; Upham, 456 U.S. at 43 ( An appropriate reconciliation of [the requirements of the Constitution with the goals of state political policy] can only be reached if the district court s modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect. ). Put simply, by any measure the Common Cause Plan thoroughly rejects the legislative policies underlying the existing plan. Abrams, 521 U.S. at 79. As a proposal to the Legislature, the Plan was free to do that, and the Legislature could have decided to change its past practices and adopt the Plan. But as a proposal to this Court, the Plan is unacceptable because a district court should... honor state policies in the context of congressional reapportionment, Weiser, 412 U.S. at 795, and unlike a legislature, has no authority to compromise... state apportionment policies in the people s name, Connor, 431 U.S. at The Plan may be motivated by high-minded theories, but they are different from the theories the Legislature has chosen to pursue. This departure from existing legislative policy is so profound that the Plan suggests few boundaries, even in isolated areas, that the Court could lawfully adopt. The Common Cause Plan suffers from another, equally fundamental flaw: it is unconstitutional. Article I, Section 2 of the Constitution requires that as nearly as is practicable one man s vote in a congressional election is to be worth as much as another s. Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964). The Supreme Court has established that the as nearly as practicable standard requires that the State make a good-faith effort to achieve precise mathematical equality in the number of residents in each congressional district. Kirkpatrick v. Preisler, 394 U.S. 526, (1969). As shown by the Rose Intervenors and every other party s proposed plans, it is eminently practicable to draw congressional districts in New York that deviate from the ideal population by only one person. The Common Cause Plan, however, fails to meet this clear and easily achievable standard, with only 2 of its 27 districts within one person of the ideal population. See Exhibit 3 (Common Cause Plan Population Data). The Court thus cannot adopt the Common Cause Plan for this independent reason. Cf. Chapman v. Meier, /LEGAL

7 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 7 of 18 PageID #: U.S. 1, 26 (1975) ( A court-ordered plan must be held to higher standards than a State s own plan. With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features. ). The Common Cause Plan also fails to respect many traditional redistricting principles, such as preserving political subdivision boundaries. See PRLDEF, 796 F. Supp. at 687. For example, where current District 21 includes 4 complete counties (Albany, Schenectady, Schoharie, and Montgomery), the Common Cause Plan s corresponding District 20 includes only one whole county. The Plan also divides many communities of interest, contrary to longstanding New York policy. See PRLDEF, 796 F. Supp. at 687. Current District 2, for example, includes two large and growing African-American communities on Long Island in Huntington Station and Wyandach. The Common Cause Plan splits these communities, diluting their political influence. Current District 8 includes large Jewish communities in the west side of Manhattan, Borough Park, Brighton Beach, and Coney Island, but the Common Cause Plan splits these communities. North of New York City, current District 18 includes residents of White Plains, Scarsdale, New Rochelle, Rye, and Eastchester, and these residents comprise a community of interest because they share similar demographics and rely on a similar economy as commuters to New York. Under the Common Cause Plan, approximately 320,000 of these residents will become part of a district based in the Bronx that has a population with different demographics and economic interests. Ex. 2. The Rose Plan, by contrast, preserves all of these communities of interest. In sum, the Court faces a great responsibility in adopting a reapportionment plan, and because it lacks the political authoritativeness that the legislature can bring to the task, the court s task is inevitably an exposed and sensitive one that must be accomplished circumspectly. Connor, 431 U.S. at 415. The Common Cause Plan is unworkable because it ignores this fundamental principle. Rather than accepting the legislative policies underlying the existing plan, Abrams, 521 U.S. at 79, it asks the Court to make a power grab by unilaterally declaring a new redistricting policy for New York. Precedent forbids this approach. See, e.g., Weiser, 412 U.S. at 795 ( In fashioning a reapportionment plan or in choosing among plans, a /LEGAL

8 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 8 of 18 PageID #: 2073 district court should not... intrude upon state policy any more than necessary. ) (quoting Whitcomb, 403 U.S. at 160). And adopting such a break from past policy would be particularly inappropriate here, where the Common Cause Plan fails to abide by even the most basic legal requirement of redistricting, the one-person, one-vote mandate. B. The Drayton, Ramos, and Lee Plans ( Unity Plans ) Like the Common Cause Plan, the Drayton Plan and its variants, the Ramos and Lee plans (together the Unity Plans ), ignore the Legislature s longstanding policy choice to recognize the benefits of incumbency. Though the Drayton Plan proposes lines for only 16 districts, it manages to draw eight Democratic incumbent Representatives, with decades of experience and seniority in Congress, into districts with other incumbents. See Ex. 1. The Plan s authors never mention or attempt to explain this choice. The Legislature could choose to adopt such a stark break from past policy; the Court should not. Moreover, though the Unity Plans goal of ensuring a voice for minority communities is laudable, if the Court were to adopt any of the Unity Plans on that basis, the plans would likely be rejected by the U.S. Supreme Court, which has consistently invalidated plans drawn with race as the predominant factor. Miller v. Johnson, 515 U.S. 900, 916 (1995). The Unity Plans drafters have made clear that: The primary purpose of the Unity Plan was to address the collective voting strength of each of the protected minorities. Ramos Br. 5 (emphasis added); see also Drayton Br. 8 (explaining that Unity Plan was created... for the protected population groups in New York City ) (emphasis added). But when a redistricting plan is justified on such race-based grounds, the Supreme Court will subject it to strict scrutiny and will uphold the plan only if (1) there was a compelling interest in using race as the predominant factor and (2) the use of race was narrowly tailored to meet that interest. Bush v. Vera, 517 U.S. 952, 976 (1996). This requires showing, at a minimum, that without such a predominant focus, a violation of the Voting Rights Act would otherwise occur. Shaw v. Hunt, 517 U.S. 899, (1996). But the Unity Plans authors have not presented the evidence necessary to prove such a violation. See, e.g., Thornburg v. Gingles, 478 U.S. 30, (1986) (listing preconditions for establishing a /LEGAL

9 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 9 of 18 PageID #: 2074 violation of Section 2 of the Voting Rights Act). The failure to offer evidence on this issue makes the Unity Plans adoption extraordinarily risky, as the Supreme Court has been extremely hostile to redistricting decisions based on race. See, e.g., Hunt, 517 U.S. at ; Miller, 515 U.S. at 922; Bush, 517 U.S. at Moreover, there is no need to pursue such a risky strategy to ensure that minority voting strength is undiluted. The Rose Plan, following traditional redistricting principles and legislative policies, actually creates more majority-minority districts, i.e., those in which a minority group composes a numerical, working majority of the voting-age population, Bartlett v. Strickland, 556 U.S. 1, 13 (2009), than any of the Unity Plans. Compare Dkt. # at 2 (showing that the Rose Plan creates three districts in which African Americans are a majority of the voting age population and two districts in which Hispanics are a majority of the voting age population); with Dkt. # 140 at 30 (showing that the Drayton Plan creates two districts in which African Americans are a majority of the voting age population and one district in which Hispanics are a majority of the voting age population); and Dkt. # at 1 (showing that the Ramos Plan creates two districts in which African Americans are a majority of the voting age population and two districts in which Hispanics are a majority of the voting age population). In short, the Unity Plans aim at a good end but pursue it by the wrong means, a means unlikely to survive review in the Supreme Court if adopted here. The Unity Plans also suffer from a number of other flaws. For one, the Plans split innumerable political subdivisions to achieve their race-based goals, e.g., the Drayton Plan s proposed District 17 alone would needlessly split Mount Pleasant, New Castle, New Rochelle, Eastchester, Bronxville, and the Town of Mamaroneck. It also utterly fails to preserve the core of prior District 17. The Unity Plans also ignore many important communities of interest, e.g., while current District 8 combines portions of Manhattan and Brooklyn that each have among the highest concentrations of Jewish residents of any congressional district in the country, the Unity Plans all divide the Manhattan portion of the district from the Brooklyn portion. In short, the Unity Plans cannot be adopted because they thoroughly reject the /LEGAL

10 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 10 of 18 PageID #: 2075 legislative policies underlying the existing plan, Abrams, 521 U.S. at 79, they focus predominantly on race without demonstrating the compelling justification required for doing so, and they violate traditional redistricting criteria. C. The Skelos Plan The Skelos Plan is legally and practically inappropriate for adoption by the Court. Not only does it reflect nothing more than a partisan power grab, but it also risks violating federal law and compromises on a number of traditional redistricting criteria in the process. 1. The Skelos Plan Reflects a Partisan Grab for Power The Skelos Plan, drafted and supported by the Republican Senate majority, is designed with one primary purpose: to favor Republicans. This sort of partisan policy goal is not what a court is supposed to pursue or endorse. See, e.g., Connor, 431 U.S. at 415 ( [T]he court s task... must be accomplished... in a manner free from any taint of arbitrariness or discrimination. ) (quoting Roman, 377 U.S. at 710); Wyche, 635 F.2d at 1160 ( [A] court is forbidden to take into account the purely political considerations that might be appropriate for legislative bodies. ). The Rose Intervenors expert affidavit, submitted by Dr. Stephen Ansolabehere, illuminates the extent to which the Skelos Plan is aimed at favoring the Republican Party. Dr. Ansolabehere applied partisan symmetry analysis and determined that, [u]nder the Skelos plan, in an election where Democrats and Republicans each win 50 percent of the vote, the Republicans are expected to win 61 percent of seats..., for a pro-republican bias of 11 points. Exhibit 4 ( Ansolabehere Aff. ) 21. While [s]mall deviations from a result might be acceptable,... large deviations, such as the deviations in the Skelos... plan[], are viewed as violations of the basic principle of majority rule. Id. 23. Additionally, the Skelos Plan is drawn such that Republicans would win a majority of congressional seats even if they won as little as 46.8 percent of the statewide vote, while Democrats would have to win at least 53.2 percent of the vote before winning a majority of seats. Id. 22. In other words, the Skelos Plan is based on a principle of minority rule, in which the minority party in the State would win a majority of the power in a election /LEGAL

11 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 11 of 18 PageID #: 2076 Additionally, Dr. Ansolabehere s analysis shows that the Skelos Plan would decrease the number of congressional districts that tend to vote for Democrats despite the fact that the vast majority of the population decline in the State took place in more Republican districts while most of the population increase in the State occurred in the most Democratic areas. See id. 12, 13, 16; see also id. Attachments 2-3. Given that population declines occurred disproportionately in Republican areas, such a result can only be accomplished by packing high concentrations of Democratic voters into a smaller number of districts and efficiently spreading Republican voters across a larger number of districts. Id. 19. Thus, the Skelos Plan runs counter to population trends to reap gains for Republicans, at the expense of the actual partisan preferences of New York voters. Indeed, even a non-expert can easily see the Skelos Plan for what it is: a blatant partisan grab for power. The Skelos Plan pairs a total of eight incumbents, seven of whom are Democrats and only one of whom is a Republican. Ex. 1. The Skelos Plan thus reflects a brazen attempt to use the judicial process to handicap Democratic incumbents, attempting to ensure that Republican losses in numbers nonetheless translate into gains in political power. In short, the Skelos Defendants are trying to accomplish in court what the Republican Party could never achieve through the Legislature or the democratic process. The Court should accordingly reject the Skelos Plan as a partisan gerrymander unbefitting a court-drawn plan. 2. The Skelos Plan Risks Violating the Voting Rights Act The Skelos Plan also raises serious red flags under the Voting Rights Act. In 2002, the New York Legislature enacted a congressional redistricting plan that created three majority- African-American districts (existing Districts 7, 11, and 12) and one majority-hispanic district (existing District 17). Exhibit 5 (New York 2000 Census Data by District). The Skelos Plan would decrease the number of majority-african-american districts by one, leaving only two such districts (proposed Districts 9 and 10), while increasing the number of majority-hispanic districts by one. This presents a potential problem under both Section 2 and Section 5 of the Voting /LEGAL

12 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 12 of 18 PageID #: 2077 Rights Act. Under Section 2, one of the primary questions is whether a minority group is sufficiently large and geographically compact to constitute a majority in a single-member district. Gingles, 478 U.S. at 50; see also Bartlett, 556 U.S. at 13 (defining majority-minority districts as those in which a minority group composes a numerical, working majority of the voting-age population ). The Skelos Plan creates just two majority-african-american districts, while crafting a third district (District 5) that has an African-American voting age population of 45.8 percent. There is no question that the African-American population in the area is large and compact enough to form a majority of the voting age population in a third district. Indeed, the Rose Plan creates three such districts, all of which are fairly compact (Districts 6, 9, and 10). See Dkt. # at 2. The Skelos Plan s failure to create an additional majority-minority district, which the Rose Plan demonstrates is attainable without compromising on compactness, suggests that the Skelos Plan may fall short under Section 2 of the Voting Rights Act. Section 5 presents a similar hurdle for the Skelos Plan. In decreasing the number of majority-african-american districts relative to the benchmark plan, the Skelos Plan may reflect a retrogression for New York s African-American population. And it is no answer that the Skelos Plan maintains the same absolute number of majority-minority districts by adding a majority-hispanic district. Where both African Americans and Hispanics are protected under the Voting Rights Act, it is insufficient to simply swap out the rights of one minority group for those of another, or to trade off the rights of minorities in one part of the state with those of minorities elsewhere in the state. Cf. LULAC v. Perry, 548 U.S. 399, 437 (2006) ( A local appraisal is necessary because the right to an undiluted vote does not belong to the minority as a group, but rather to its individual members. And a State may not trade off the rights of some members of a racial group against the rights of other members of that group. ) (internal quotation marks and citations omitted). For this reason, the Skelos Defendants calculation of the average voting age population among all of the districts they have determined relevant to the Voting Rights Act, see Dkt. # 144 at 3, only muddles the analysis. In sum, the vulnerability of the Skelos Plan under both Section 2 and Section 5 of the /LEGAL

13 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 13 of 18 PageID #: 2078 Voting Rights Act cautions against adoption of that plan. 3. The Skelos Plan Disregards Traditional Redistricting Criteria The Skelos Plan, drawn with the primary purpose of favoring the minority party contrary to population and partisan trends, subverts several traditional redistricting criteria in the process. The Skelos Defendants have submitted an entire memorandum extolling the virtues of preserving the cores of prior districts, noting that it is a well-established, traditional districting principle in New York. See Dkt. # 145 at 1. Yet while the Skelos Plan does not entirely reconfigure prior districts, it does not preserve the cores of existing districts as well as the Rose Plan. While the Rose Plan contains 21 districts that retain over 60 percent of the population from a single prior district, the Skelos Plan contains only 20 such districts. See Dkt. # at 2; Exhibit 6 (Skelos Plan Core Constituency Report). Moreover, while the Rose Plan contains nine districts that retain over 80 percent of the population from a single prior district, the Skelos Plan contains only eight such districts. Ex. 6 As a specific example, the Rose Plan keeps 78.6 percent of the core constituency of prior District 8 in its proposed District 8, but the Skelos Plan chops up prior District 8 among six separate districts, with the largest portion of the prior district, just percent, located in proposed District 7, and the remaining shards scattered among proposed Districts 8, 10, 11, 12, and 13. Even more damning is the extent to which the Skelos Plan fails to respect communities of interest and political subdivision boundaries. Most notably, the Skelos Plan s proposed District 7 combines the East and West sides of Manhattan below 92nd Street, artificially lumping together two distinct communities of interest. This Court has previously recognized the traditional divisions and historical differences between the two communities on the East and West sides, Rodriguez v. Pataki, 2002 WL , at *6 n.12 (S.D.N.Y. 2002) (internal quotation marks omitted), and for good reason. As any New Yorker knows, the East and West sides of the city include different political and social structures, as reflected in their separate local elected officials, community boards, and police precincts. Even the subway lines that link Manhattan communities together run north-south, not east-west. The Skelos Plan s approach to /LEGAL

14 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 14 of 18 PageID #: 2079 Manhattan for partisan interests fails to consider the interests of well-established Manhattan communities and their residents. Indeed, the Skelos Plan slices up communities throughout the State. While existing District 8 appropriately contains areas of both Manhattan and Brooklyn with high concentrations of Jewish residents, in particular Orthodox Jewish families with unique social service needs, the Skelos Plan divides this religious community, thereby muting the unified voice with which the community has historically been able to speak. In addition, the Skelos Plan s proposed District 12 truncates the Upper East Side and Upper West Side of Manhattan, diluting the voting power of the historical African-American community of Central and West Harlem. Its District 17 unnecessarily divides the Riverdale neighborhood in the Northwest Bronx, breaking apart a wellestablished community of interest. Moreover, the Skelos Plan s proposed District 23 expands a district that is already the largest in the State, eating up rural counties such as Herkimer, Hamilton, and Lewis that have little in common with the economic, cultural, and academic centers of the rest of the district. The only discernable purpose of this expansion is to make the district more Republican. The Skelos Plan also disregards multiple political subdivision boundaries. For instance, although the Town of Brookhaven (the largest in the State) has traditionally been represented by one congressional district, the Skelos Plan divides it into two, breaking up the town s Hispanic community in the process. It then divides the town of Smithtown to offset the slicing apart of Brookhaven. The Skelos Plan also upends existing patterns of representation in the lower Hudson Valley for no apparent reason other than partisan politics, as it swaps roughly 160,000 residents of Greenburgh and Yonkers between districts, cutting off Greenburgh from the rest of Westchester County. Additionally, the Skelos Plan s proposed District 25 splits Erie County, carving up the district s population center and a number of towns that share a common interest. Several districts in the Skelos Plan are also unnecessarily convoluted, ignoring the goal of compactness. Proposed District 17, for example, which takes the bulk of its population from the current District 17, relies upon an exceedingly narrow corridor to link population centers of the /LEGAL

15 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 15 of 18 PageID #: 2080 district. Moreover, a comparison of the Skelos Plan s proposed District 20 with the Rose Plan s District 20 reveals that the Skelos Plan not only scores less than half as well as a quantitative measure, see Dkt. # at 2; Exhibit 7 (Skelos Plan Compactness Report), but also cuts out compact cores of the prior district like Schoharie County in exchange for territory more than 65 miles to the south in Ulster County. The result is a long, narrow strip connecting far-flung areas of the State, and a district that resembles a backwards letter E instead of a compact square. Finally, as noted above, the Skelos Plan not only pairs eight incumbents, it does so in a strategic manner so as to eliminate its proponents Democratic rivals, sacrificing decades of experience, seniority, and relationships with constituents in the name of partisan convenience. In sum, the Skelos Plan s prioritization of partisan politics over core redistricting principles renders it ineligible for serious consideration by the Court. Here, the court s task is inevitably an exposed and sensitive one, and it must be accomplished circumspectly, and in a manner free from any taint of arbitrariness or discrimination. Connor, 431 U.S. at (quoting Roman, 377 U.S. at 710). The Skelos Plan falls far short of this mark. D. The Kolb Plan The fundamental flaw in the Kolb Plan, as in the Skelos Plan, is that it aims primarily to achieve highly partisan Republican policy objectives, objectives that a court has no business pursuing or endorsing. See, e.g., Connor, 431 U.S. at 415; Wyche, 635 F.2d at As demonstrated in the affidavit of Professor Ansolabehere, under the Kolb Plan, if Republican and Democratic congressional candidates each received 50 percent of the vote statewide, Republican candidates would win 59 percent of the seats. Ansolabehere Aff. 21. Moreover, Republican candidates could win over 50 percent of the seats while receiving only 45.7 percent of votes, and Democrats would have to receive at least 54.3 percent of the vote to achieve the same result. Id. 22. The Kolb Plan accomplishes this pro-republican gerrymander even though New York s population declines occurred disproportionately in Republican areas. Id. 16. In short, [t]he practical consequence of the Kolb Plan is to build in a bias against Democrats. Id. 20. This is a practical consequence the Court should not endorse. Partisan /LEGAL

16 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 16 of 18 PageID #: 2081 Republicans should not be allowed to achieve a result in court that they have been unable to achieve at the ballot box. Further evidence of the Kolb Plan s partisan bias comes in its selective pairing of incumbents, which also ignores longstanding New York policy. See, e.g., Diaz, 978 F. Supp. at 123. The Kolb Plan draws eight Democratic incumbents into districts that also contain other Democratic incumbents, while drawing no Republican incumbents into districts with other Republican incumbents. Ex. 1. The Democratic incumbents who would inevitably be displaced under this plan together possess decades of experience and seniority in Congress, immense clout that benefits all New Yorkers, and longstanding relationships with their constituents. For example, the Kolb Plan draws Representative Jerrold Nadler, who has served in Congress since 1992 and is one of the highest ranking Democrats on several committees crucial to New York s interests (e.g., Transportation and Infrastructure, Judiciary), into the same district as Representative Carolyn Maloney, who has also served in Congress since 1993 and is the senior New York Democrat on the Financial Services Committee, which oversees one of the most important industries to New York. The Court should not flout longstanding New York policy by casting aside the benefits of these Representatives incumbency, especially where the reason for sacrificing these incumbents has nothing to do with correcting legal violations and everything to do with achieving partisan goals. In achieving this partisan gerrymander, the Kolb Plan, like the Skelos Plan, also violates many other longstanding aspects of New York redistricting policy. The examples are innumerable, but for brevity s sake we detail only an illustrative sample. To begin with, the Kolb Plan s District 17 ignores political subdivision boundaries and constituent-incumbent relationships. Specifically, while the city of New Rochelle is currently located entirely in one congressional district, the Kolb Plan would needlessly split the city into three districts, including one linked with Rockland County (District 17), one linked with New York City (District 15), and a third linked with Sound Shore communities (District 16). The Kolb Plan s District 17 also includes Representative Nita Lowey, who has served in Congress /LEGAL

17 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 17 of 18 PageID #: 2082 since 1993 and sits on the powerful Appropriations Committee, but it divides her from over half of her current constituents. Similarly, District 20 in the Plan ignores communities of interest, breaking off major parts of current District 21 Schoharie County and the City of Troy and replacing them with new, suburban areas in Saratoga County that do not have similar demographics, history, or industry to the rest of the district. Kolb District 21, meanwhile, largely replaces current District 23. While District 23 is already the largest district in the state by area, the Kolb Plan would replace it with an even larger district, sweeping in communities with widely different interests, and for no apparent reason other than partisan gain. The district would also change shape drastically, losing several counties entirely (Oswego and Madison) and gaining many others. Finally, the Kolb Plan intentionally and needlessly draws two Democratic incumbents into its proposed District 25 (Representatives Higgins and Hochul) while leaving no incumbent in neighboring District 24. In short, the Kolb Plan single-mindedly pursues a policy goal partisan gain that courts have no business aiming to achieve. In doing so, it sacrifices longstanding policy choices and redistricting principles of the New York Legislature. The Plan is not an appropriate means of reconciling the requirements of the Constitution with the goals of state political policy, and it should therefore be rejected. Upham, 456 U.S. at 43. III. CONCLUSION In sum, of the submitted plans, the Rose Plan best reconcil[es] the requirements of the Constitution with the goals of state political policy. Upham, 456 U.S. at 43. Rather than accepting the legislative policies underlying the existing plan, Abrams, 521 U.S. at 79, as required, the other plans discussed here all intrude upon state policy... more than necessary. Weiser, 412 U.S. at 795 (quoting Whitcomb, 403 U.S. at 160). The Rose Intervenors therefore ask that the Court adopt their plan, which, as a district court should..., honor[s] state policies in the context of congressional reapportionment. Weiser, 412 U.S. at /LEGAL

18 Case 1:11-cv DLI-RR-GEL Document 171 Filed 03/02/12 Page 18 of 18 PageID #: 2083 Dated: March 2, 2012 By: /s/ Marc Erik Elias Marc Erik Elias (appearing pro hac vice) John Devaney (appearing pro hac vice) Perkins Coie, LLP th St., N.W., Suite 600 Washington, D.C Phone: (202) Fax: (202) Kevin J. Hamilton (appearing pro hac vice) Perkins Coie, LLP 1201 Third Ave, Suite 4800 Seattle, WA Phone: (206) Fax: (206) Jeffrey D. Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY Phone: (212) Fax: (212) Attorneys for Plaintiff-Intervenors /LEGAL

19 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 1 of 2 PageID #: 2084 Exhibit 1

20 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 2 of 2 PageID #: Incumbent Location 2085 in Proposed Plans District Current Incumbent Common Cause District and Inc Skelos Kolb Unity Gen Assembly Maj 1 Bishop Bishop Bishop Bishop Bishop Bishop 2 Israel King Israel Israel Israel Israel/Ackerman 3 King R Israel/Ackerman King King King King 4 McCarthy McCarthy McCarthy/Ackerman Ackerman/McCarthy Ackerman/McCarthy McCarthy 5 Ackerman Meeks/Turner Meeks Meeks None Crowley/Turner 6 Meeks None Crowley Turner Meeks/Turner Meeks 7 Crowley None Nadler Nadler/Maloney Crowley None 8 Nadler None Turner Rangel Nadler/Velasquez Nadler/Velasquez 9 Turner R Clarke/Towns None None Eliminated/Skipped Grimm 10 Towns Nadler/Velasquez Clarke/Towns None None None 11 Clarke Grimm Velasquez Towns/Clarke Clarke/Towns Clarke/Towns 12 Velasquez Maloney/Crowley Maloney Velasquez None None 13 Grimm R Engel Grimm Grimm Grimm Maloney 14 Maloney None Engel/Rangel Serrano Maloney Serrano 15 Rangel Rangel/Serrano Serrano Engel Rangel Rangel 16 Serrano None Lowey/Hayworth Crowley Serrano Lowey/Hayworth 17 Engel Hayworth/Lowey None Lowey Engel Engel 18 Lowey None None Hayworth Not Drawn Hinchey 19 Hayworth R Gibson/Hinchey Gibson Gibson/Hinchey Not Drawn Gibson 20 Gibson R Tonko Hinchey/Tonko Tonko Not Drawn Hanna 21 Tonko Owens Buerkle Owens Not Drawn Tonko 22 Hinchey Buekle/Hanna Hanna Buerkle Not Drawn Buerkle 23 Owens Reed Owens Slaughter Not Drawn Owens 24 Hanna R None Hochul None Not Drawn Reed 25 Buerkle R Slaughter Higgins Hochul/Higgins Not Drawn Slaughter 26 Hochul Higgins/Hochul Slaughter Hanna Not Drawn Hochul 27 Higgins None Reed Reed Not Drawn Higgins 28 Slaughter 29 Reed R

21 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 1 of 8 PageID #: 2086 Exhibit 2

22 Core Constituencies Case 1:11-cv DLI-RR-GEL Report Document Filed 03/02/12 Page 2 of 8 PageID #: 2087 Thursday, March 01, 2012 Printed for 12:54PM Population [Hispanic Origin] NH_DOJ_Blk NH_DOJ_Asn [18+_Pop] Plan: NY_Court_Common_Cause, District ,711 Total Population Dist ,261 88,899 (99.37%) 34,721 (99.72%) 25,097 (97.64%) 540,562 (98.36%) (98.27%) Dist , (00.63%) 99 (00.28%) 607 (02.36%) 9,027 (01.64%) (01.73%) Plan: NY_Court_Common_Cause, District ,714 Total Population 89,461 (12.46%) 34,820 (4.85%) 25,704 (3.58%) 549,589 (76.58%) Dist (00.02%) 5 (00.01%) 9 (00.04%) 222 (00.04%) (00.04%) Dist , ,973 (81.55%) 58,464 (87.39%) 13,500 (60.29%) 294,046 (54.09%) (54.63%) Dist ,923 25,785 (17.98%) 8,292 (12.39%) 8,414 (37.57%) 241,413 (44.41%) (43.88%) Dist , (00.46%) 141 (00.21%) 470 (02.10%) 7,944 (01.46%) (01.45%) Plan: NY_Court_Common_Cause, District ,704 Total Population 143,445 (19.99%) 66,902 (9.32%) 22,393 (3.12%) 543,625 (75.74%) Dist ,345 25,260 (36.41%) 10,031 (49.61%) 19,870 (25.03%) 207,004 (37.65%) (38.36%) Dist ,699 30,095 (43.38%) 6,019 (29.77%) 24,026 (30.27%) 205,369 (37.36%) (36.88%) Dist. 04 1, (00.09%) 78 (00.39%) 362 (00.46%) 1,284 (00.23%) (00.24%) Dist ,934 13,957 (20.12%) 4,092 (20.24%) 35,121 (44.24%) 136,099 (24.76%) (24.51%) Plan: NY_Court_Common_Cause, District ,713 Total Population 69,372 (9.67%) 20,220 (2.82%) 79,379 (11.06%) 549,756 (76.60%) Dist ,886 9,225 (06.47%) 5,526 (04.21%) 2,015 (04.18%) 53,654 (09.72%) (09.18%) Dist , ,363 (93.49%) 125,727 (95.78%) 46,067 (95.66%) 498,205 (90.21%) (90.74%) Dist (00.04%) 6 (00.00%) 73 (00.15%) 319 (00.06%) (00.06%) Dist (00.01%) 13 (00.01%) 9 (00.01%) 2 (00.00%) 79 (00.01%) Plan: NY_Court_Common_Cause, District ,712 Total Population 142,654 (19.88%) 131,268 (18.29%) 48,157 (6.71%) 552,257 (76.95%) Dist (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) Page 1

23 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 3 of 8 PageID #: Population [Hispanic Origin] NH_DOJ_Blk NH_DOJ_Asn [18+_Pop] 2088 Dist ,297 2,320 (01.63%) 3,945 (01.21%) 3,963 (04.47%) 11,947 (02.18%) (01.99%) Dist , ,617 (79.13%) 313,746 (96.15%) 67,736 (76.36%) 449,343 (81.96%) (82.66%) Dist ,190 27,377 (19.24%) 8,634 (02.65%) 17,012 (19.18%) 86,956 (15.86%) (15.35%) Plan: NY_Court_Common_Cause, District ,715 Total Population 142,314 (19.83%) 326,325 (45.47%) 88,711 (12.36%) 548,246 (76.39%) Dist ,450 42,043 (33.43%) 8,215 (25.25%) 150,270 (54.83%) 224,823 (38.47%) (37.96%) Dist ,451 11,088 (08.82%) 10,870 (33.41%) 18,792 (06.86%) 46,479 (07.95%) (08.14%) Dist ,321 17,334 (13.78%) 673 (02.07%) 28,223 (10.30%) 49,206 (08.42%) (08.54%) Dist ,730 47,104 (37.45%) 12,415 (38.16%) 75,585 (27.58%) 247,018 (42.26%) (42.32%) Dist ,763 8,212 (06.53%) 360 (01.11%) 1,201 (00.44%) 16,957 (02.90%) (03.03%) Plan: NY_Court_Common_Cause, District ,690 Total Population 125,781 (17.53%) 32,533 (4.53%) 274,071 (38.19%) 584,483 (81.44%) Dist (00.01%) 1 (00.00%) 0 (00.00%) 89 (00.02%) (00.02%) Dist ,281 5,835 (01.89%) 1,109 (01.85%) 14,915 (10.29%) 25,434 (04.49%) (04.64%) Dist ,538 22,361 (07.24%) 2,461 (04.10%) 7,416 (05.12%) 31,425 (05.55%) (05.79%) Dist ,806 13,696 (04.43%) 8,679 (14.45%) 3,735 (02.58%) 22,144 (03.91%) (04.29%) Dist ,013 1,790 (00.58%) 417 (00.69%) 1,464 (01.01%) 17,697 (03.12%) (02.93%) Dist , ,130 (84.85%) 46,745 (77.82%) 108,963 (75.20%) 451,596 (79.70%) (79.35%) Dist (00.02%) 3 (00.00%) 122 (00.08%) 175 (00.03%) (00.03%) Dist ,230 3,039 (00.98%) 656 (01.09%) 8,281 (05.72%) 18,094 (03.19%) (02.96%) Plan: NY_Court_Common_Cause, District ,694 Total Population 308,944 (43.05%) 60,071 (8.37%) 144,896 (20.19%) 566,654 (78.96%) Dist (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) Dist ,272 92,847 (71.30%) 309,617 (81.35%) 18,251 (64.30%) 380,134 (71.06%) (72.21%) Dist ,336 26,737 (20.53%) 62,363 (16.39%) 8,710 (30.68%) 129,631 (24.23%) (22.90%) Dist ,086 10,634 (08.17%) 8,607 (02.26%) 1,425 (05.02%) 25,161 (04.70%) (04.89%) Page 2

24 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 4 of 8 PageID #: Population [Hispanic Origin] NH_DOJ_Blk NH_DOJ_Asn [18+_Pop] 2089 Plan: NY_Court_Common_Cause, District ,704 Total Population 130,218 (18.14%) 380,587 (53.03%) 28,386 (3.96%) 534,926 (74.53%) Dist ,403 4,425 (05.72%) 2,567 (00.71%) 3,089 (06.12%) 20,057 (03.68%) (03.82%) Dist ,655 11,204 (14.48%) 5,270 (01.46%) 18,776 (37.17%) 93,155 (17.10%) (17.23%) Dist ,935 9,185 (11.87%) 77,397 (21.46%) 3,842 (07.61%) 90,797 (16.67%) (16.71%) Dist ,602 51,500 (66.54%) 275,375 (76.35%) 23,217 (45.96%) 332,224 (61.00%) (60.69%) Dist ,109 1,083 (01.40%) 69 (00.02%) 1,588 (03.14%) 8,391 (01.54%) (01.55%) Plan: NY_Court_Common_Cause, District ,694 Total Population 77,397 (10.78%) 360,678 (50.25%) 50,512 (7.04%) 544,624 (75.88%) Dist ,819 56,399 (67.91%) 17,741 (83.67%) 80,637 (59.62%) 441,467 (75.17%) (74.80%) Dist (00.01%) 1 (00.00%) 0 (00.00%) 0 (00.00%) 31 (00.01%) Dist ,457 3,311 (03.99%) 246 (01.16%) 4,151 (03.07%) 8,286 (01.41%) (01.60%) Dist. 12 5,765 1,798 (02.17%) 103 (00.49%) 1,898 (01.40%) 4,890 (00.83%) (00.80%) Dist ,183 17,371 (20.92%) 1,023 (04.82%) 45,543 (33.67%) 106,238 (18.09%) (18.56%) Dist. 14 7, (00.65%) 252 (01.19%) 1,483 (01.10%) 7,240 (01.23%) (01.07%) Dist ,755 3,629 (04.37%) 1,839 (08.67%) 1,541 (01.14%) 19,126 (03.26%) (03.17%) Plan: NY_Court_Common_Cause, District ,706 Total Population 83,047 (11.57%) 21,204 (2.95%) 135,253 (18.85%) 587,278 (81.83%) Dist ,851 14,768 (13.07%) 11,350 (17.96%) 9,515 (14.78%) 69,396 (12.34%) (11.96%) Dist ,142 5,611 (04.96%) 1,736 (02.75%) 8,604 (13.37%) 66,824 (11.89%) (11.31%) Dist. 10 8, (00.75%) 2,404 (03.80%) 456 (00.71%) 6,602 (01.17%) (01.21%) Dist ,005 91,800 (81.22%) 47,691 (75.48%) 45,797 (71.14%) 419,321 (74.59%) (75.52%) Plan: NY_Court_Common_Cause, District ,722 Total Population 113,027 (15.75%) 63,181 (8.80%) 64,372 (8.97%) 562,143 (78.32%) Dist ,550 12,018 (10.64%) 751 (02.42%) 12,105 (10.97%) 33,652 (05.37%) (05.65%) Dist ,158 2,671 (02.36%) 1,200 (03.87%) 5,224 (04.73%) 28,146 (04.49%) (04.20%) Page 3

25 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 5 of 8 PageID #: Population [Hispanic Origin] NH_DOJ_Blk NH_DOJ_Asn [18+_Pop] 2090 Dist ,253 16,551 (14.65%) 881 (02.84%) 11,438 (10.36%) 32,062 (05.12%) (05.47%) Dist ,761 81,705 (72.34%) 28,183 (90.87%) 81,628 (73.94%) 532,397 (85.01%) (84.68%) Dist (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) Plan: NY_Court_Common_Cause, District ,699 Total Population 112,945 (15.74%) 31,015 (4.32%) 110,395 (15.38%) 626,257 (87.26%) Dist , ,892 (47.59%) 41,579 (35.38%) 18,712 (53.98%) 290,106 (52.02%) (49.39%) Dist , ,408 (36.29%) 55,551 (47.26%) 5,423 (15.64%) 154,903 (27.77%) (30.43%) Dist ,818 66,357 (16.12%) 20,407 (17.36%) 10,530 (30.38%) 112,711 (20.21%) (20.18%) Plan: NY_Court_Common_Cause, District ,722 Total Population 411,657 (57.36%) 117,537 (16.38%) 34,665 (4.83%) 557,720 (77.71%) Dist , ,161 (30.06%) 11,691 (11.16%) 33,601 (33.50%) 161,025 (29.09%) (28.84%) Dist , ,298 (62.77%) 75,067 (71.66%) 65,561 (65.36%) 353,969 (63.94%) (64.28%) Dist (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) Dist. 12 1, (00.07%) 19 (00.02%) 403 (00.40%) 891 (00.16%) (00.14%) Dist (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) 0 (00.00%) Dist ,091 3,779 (01.00%) 6,207 (05.93%) 32 (00.03%) 10,724 (01.94%) (01.55%) Dist ,852 18,896 (05.02%) 6,397 (06.11%) 432 (00.43%) 19,334 (03.49%) (03.74%) Dist ,415 4,052 (01.08%) 5,372 (05.13%) 281 (00.28%) 7,649 (01.38%) (01.45%) Plan: NY_Court_Common_Cause, District ,711 Total Population 376,433 (52.45%) 104,753 (14.60%) 100,310 (13.98%) 553,592 (77.13%) Dist. 07 1, (00.23%) 583 (00.23%) 10 (00.06%) 1,075 (00.21%) (00.22%) Dist ,026 4,328 (01.11%) 2,426 (00.94%) 2,120 (12.58%) 13,778 (02.63%) (02.23%) Dist ,521 91,984 (23.56%) 122,552 (47.36%) 9,455 (56.09%) 195,246 (37.33%) (35.04%) Dist , ,276 (75.11%) 133,209 (51.48%) 5,273 (31.28%) 312,992 (59.84%) (62.50%) Plan: NY_Court_Common_Cause, District ,705 Total Population 390,482 (54.41%) 258,770 (36.05%) 16,858 (2.35%) 523,091 (72.88%) Page 4

26 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 6 of 8 PageID #: Population [Hispanic Origin] NH_DOJ_Blk NH_DOJ_Asn [18+_Pop] 2091 Dist ,718 29,865 (15.83%) 33,497 (15.29%) 4,030 (12.83%) 82,906 (15.10%) (14.31%) Dist ,317 74,122 (39.29%) 151,629 (69.21%) 8,865 (28.23%) 223,144 (40.64%) (41.15%) Dist ,670 84,676 (44.88%) 33,955 (15.50%) 18,508 (58.94%) 243,050 (44.26%) (44.54%) Plan: NY_Court_Common_Cause, District ,713 Total Population 188,663 (26.29%) 219,081 (30.53%) 31,403 (4.38%) 549,100 (76.51%) Dist ,008 29,019 (25.63%) 28,752 (43.88%) 14,338 (29.48%) 160,937 (30.31%) (31.77%) Dist ,155 68,126 (60.16%) 31,041 (47.37%) 28,708 (59.02%) 268,767 (50.62%) (49.48%) Dist ,550 16,093 (14.21%) 5,733 (08.75%) 5,594 (11.50%) 101,239 (19.07%) (18.75%) Plan: NY_Court_Common_Cause, District ,707 Total Population 113,238 (15.78%) 65,526 (9.13%) 48,640 (6.78%) 530,943 (73.98%) Dist ,933 69,227 (59.94%) 36,007 (50.96%) 19,473 (80.98%) 391,995 (73.04%) (73.00%) Dist ,900 1,573 (01.36%) 1,201 (01.70%) 863 (03.59%) 16,545 (03.08%) (03.05%) Dist ,874 44,695 (38.70%) 33,444 (47.34%) 3,712 (15.44%) 128,135 (23.88%) (23.95%) Plan: NY_Court_Common_Cause, District ,716 Total Population 115,495 (16.09%) 70,652 (9.84%) 24,048 (3.35%) 536,675 (74.78%) Dist ,476 4,730 (10.22%) 2,715 (08.05%) 652 (05.87%) 31,436 (05.53%) (05.78%) Dist ,300 11,712 (25.32%) 10,423 (30.89%) 4,353 (39.19%) 242,844 (42.68%) (42.54%) Dist ,461 1,607 (03.47%) 949 (02.81%) 475 (04.28%) 45,452 (07.99%) (08.01%) Dist ,264 26,574 (57.44%) 18,557 (55.00%) 4,935 (44.43%) 208,170 (36.59%) (36.68%) Dist ,215 1,641 (03.55%) 1,096 (03.25%) 693 (06.24%) 41,056 (07.22%) (07.00%) Plan: NY_Court_Common_Cause, District ,713 Total Population 46,264 (6.45%) 33,740 (4.70%) 11,108 (1.55%) 568,958 (79.27%) Dist ,948 2,566 (06.87%) 2,030 (02.96%) 3,388 (11.72%) 82,726 (14.67%) (15.04%) Dist ,119 34,732 (92.95%) 66,594 (96.96%) 25,506 (88.20%) 478,532 (84.84%) (84.45%) Dist. 23 3, (00.18%) 61 (00.09%) 23 (00.08%) 2,782 (00.49%) (00.51%) Page 5

27 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 7 of 8 PageID #: Population [Hispanic Origin] NH_DOJ_Blk NH_DOJ_Asn [18+_Pop] 2092 Plan: NY_Court_Common_Cause, District ,709 Total Population 37,366 (5.21%) 68,685 (9.57%) 28,917 (4.03%) 564,040 (78.59%) Dist ,595 5,837 (30.78%) 5,641 (25.90%) 2,356 (31.63%) 194,310 (34.63%) (34.36%) Dist ,049 13,034 (68.74%) 16,091 (73.89%) 5,051 (67.81%) 360,261 (64.21%) (64.52%) Dist. 24 8, (00.47%) 46 (00.21%) 42 (00.56%) 6,463 (01.15%) (01.12%) Plan: NY_Court_Common_Cause, District ,709 Total Population 18,961 (2.64%) 21,778 (3.03%) 7,449 (1.04%) 561,034 (78.17%) Dist , (00.93%) 166 (00.24%) 89 (00.39%) 11,734 (02.11%) (02.18%) Dist , (02.07%) 552 (00.79%) 290 (01.26%) 34,685 (06.24%) (06.29%) Dist ,128 11,416 (37.88%) 16,224 (23.20%) 7,275 (31.66%) 197,804 (35.58%) (35.27%) Dist ,812 17,815 (59.12%) 52,988 (75.77%) 15,326 (66.69%) 311,648 (56.06%) (56.26%) Plan: NY_Court_Common_Cause, District ,695 Total Population 30,136 (4.20%) 69,930 (9.74%) 22,980 (3.20%) 555,871 (77.45%) Dist. 20 1, (00.10%) 15 (00.05%) 5 (00.02%) 1,169 (00.21%) (00.20%) Dist ,159 9,698 (51.69%) 13,668 (49.20%) 15,588 (71.10%) 199,153 (35.12%) (34.02%) Dist , (04.13%) 1,058 (03.81%) 476 (02.17%) 27,512 (04.85%) (04.79%) Dist ,275 4,280 (22.81%) 3,973 (14.30%) 3,170 (14.46%) 174,676 (30.80%) (31.25%) Dist. 25 7, (00.78%) 72 (00.26%) 63 (00.29%) 5,410 (00.95%) (01.01%) Dist ,163 3,845 (20.49%) 8,995 (32.38%) 2,621 (11.96%) 159,195 (28.07%) (28.73%) Plan: NY_Court_Common_Cause, District ,695 Total Population 18,761 (2.61%) 27,781 (3.87%) 21,923 (3.05%) 567,115 (79.02%) Dist ,994 2,464 (12.21%) 1,260 (05.50%) 886 (13.73%) 90,931 (16.34%) (16.44%) Dist ,539 4,575 (22.67%) 6,939 (30.28%) 1,065 (16.50%) 95,852 (17.22%) (16.93%) Dist ,033 4,441 (22.01%) 4,120 (17.98%) 1,289 (19.97%) 122,049 (21.93%) (22.30%) Dist ,648 5,751 (28.50%) 8,649 (37.75%) 1,741 (26.98%) 135,784 (24.40%) (23.92%) Dist , (02.34%) 265 (01.16%) 86 (01.33%) 13,041 (02.34%) (02.39%) Page 6

28 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 8 of 8 PageID #: Population [Hispanic Origin] NH_DOJ_Blk NH_DOJ_Asn [18+_Pop] 2093 Dist ,357 2,476 (12.27%) 1,681 (07.34%) 1,387 (21.49%) 98,882 (17.77%) (18.02%) Plan: NY_Court_Common_Cause, District ,705 Total Population 20,179 (2.81%) 22,914 (3.19%) 6,454 (0.90%) 556,539 (77.55%) Dist ,781 3,383 (06.33%) 3,215 (02.85%) 2,618 (09.80%) 75,225 (13.54%) (13.62%) Dist ,968 5,769 (10.79%) 6,974 (06.18%) 2,537 (09.50%) 112,737 (20.29%) (20.20%) Dist ,012 37,555 (70.25%) 90,249 (80.00%) 8,124 (30.41%) 211,075 (38.00%) (38.46%) Dist ,944 6,749 (12.63%) 12,369 (10.96%) 13,434 (50.29%) 156,490 (28.17%) (27.72%) Plan: NY_Court_Common_Cause, District ,724 Total Population 53,456 (7.45%) 112,807 (15.72%) 26,713 (3.72%) 555,527 (77.40%) Dist ,072 3,258 (08.38%) 7,472 (05.63%) 10,035 (42.37%) 117,643 (20.80%) (20.35%) Dist ,834 27,435 (70.54%) 31,661 (23.87%) 7,758 (32.76%) 239,823 (42.40%) (42.33%) Dist ,818 8,202 (21.09%) 93,479 (70.49%) 5,889 (24.87%) 208,127 (36.80%) (37.31%) Plan: NY_Court_Common_Cause, District ,700 Total Population 38,895 (5.42%) 132,612 (18.48%) 23,682 (3.30%) 565,593 (78.80%) Dist ,116 3,786 (20.65%) 6,269 (40.37%) 3,174 (45.61%) 163,524 (29.33%) (29.55%) Dist ,437 11,641 (63.50%) 6,348 (40.88%) 2,180 (31.33%) 253,720 (45.51%) (45.34%) Dist , (04.85%) 832 (05.36%) 408 (05.86%) 40,407 (07.25%) (07.09%) Dist ,263 2,015 (10.99%) 2,080 (13.39%) 1,197 (17.20%) 99,886 (17.92%) (18.01%) 18,331 (2.55%) 15,529 (2.16%) 6,959 (0.97%) 557,537 (77.68%) Page 7

29 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 1 of 2 PageID #: 2094 Exhibit 3

30 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 2 of 2 PageID #: 2095 Common Cause Plan Population Data (This spreadsheet was provided by Brian Paul, Research Policy Coordinator at Common Cause/NY, via on March 1, 2012.) DIST* EQUIVDIST** POP DEV VAP NHWhtVAP %NHWhtVAP NHBlkVAP %NHBlkVAP NHAsnVAP %NHAsnVAP HspVAP %HspVAP , , , % 23, % 17, % 60, % , , , % 46, % 15, % 98, % , , , % 14, % 55, % 48, % , , , % 96, % 34, % 101, % , ,246 90, % 247, % 66, % 103, % , , , % 25, % 218, % 95, % , , , % 44, % 114, % 227, % , , , % 282, % 21, % 93, % , , , % 276, % 36, % 56, % , , , % 17, % 105, % 65, % , , , % 43, % 47, % 77, % , , , % 24, % 89, % 90, % , , , % 90, % 27, % 303, % , , , % 81, % 77, % 278, % , ,091 36, % 190, % 13, % 272, % , , , % 164, % 22, % 132, % , , , % 48, % 34, % 80, % , , , % 48, % 15, % 76, % , , , % 22, % 7, % 31, % , , , % 43, % 19, % 23, % , , , % 15, % 4, % 13, % , , , % 42, % 15, % 18, % , , , % 16, % 16, % 12, % , , , % 15, % 3, % 13, % , , , % 73, % 18, % 33, % , , , % 90, % 16, % 24, % , , , % 9, % 4, % 11, % **EQUIVDIST is the district number used in the Common Cause PDF guides to most closely relate the district to the current district numbers. *DIST is the district number assigned by Maptitude that will appear when the block file is used

31 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 1 of 28 PageID #: 2096 Exhibit 4

32 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 2 of 28 PageID #: 2097 EXPERT AFFIDAVIT OF STEPHEN ANSOLABEHERE I. Background and Qualifications 1. I am a professor of Government in the Department of Government at Harvard University in Cambridge, MA. Formerly, I was an Assistant Professor at the University of California, Los Angeles, and I was Professor of Political Science at the Massachusetts Institute of Technology, where I held the Elting R. Morison Chair and served as Associate Head of the Department of Political Science. At UCLA and MIT, I taught PhD level courses on applied Statistics in the Social Sciences. I directed the Caltech/MIT Voting Technology Project from its inception in 2000 through 2004, am the Principal Investigator of the Cooperative Congressional Election Study, a survey research consortium of over 250 faculty and student researchers at more than 50 universities, and serve on the Board of Overseers of the American National Election Study. I am a consultant to CBS News Election Night Decision Desk. I am a member of the American Academy of Arts and Sciences (inducted in 2007). 2. I have worked as a consultant to the Brennan Center in the case McConnell v. FEC, 540 US 93 (2003). I have testified before the U. S. Senate Committee on Rules, the U. S. Senate Committee on Commerce, the 1

33 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 3 of 28 PageID #: 2098 U. S. House Committee on Science, Space, and Technology, the U. S. House Committee on House Administration, and the Congressional Black Caucus on matters of election administration in the United States. I filed an amicus brief with Professors Nathaniel Persily and Charles Stewart on behalf of neither party to the U. S. Supreme Court in the case of Northwest Austin Municipal Utility District Number One v. Holder, 557 US 193 (2009). I am consultant for the Rodriguez plaintiffs in Perez v. Perry, currently before the District Court in the Western District of Texas, and in United States v. State of Texas, currently before the District Court in the District of Columbia; I consulted for the Guy plaintiffs in Guy v. Miller in Nevada state court. 3. My areas of expertise include American electoral politics and public opinion, as well as statistical methods in social sciences. I am author of numerous scholarly works on voting behavior and elections, with particular focus on the application of statistical methods. This scholarship includes articles in such academic journals as the Journal of the Royal Statistical Society, the American Political Science Review, the American Economic Review, the American Journal of Political Science, Legislative Studies Quarterly, the Quarterly Journal of Political Science, Electoral Studies, and Political Analysis. I have published articles on issues of election law in the 2

34 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 4 of 28 PageID #: 2099 Harvard Law Review, Texas Law Review, Columbia Law Review, New York University Annual Survey of Law, and the Election Law Journal, for which I am a member of the editorial board. I have coauthored three scholarly books on electoral politics in the United States, The End of Inequality: Baker v. Carr and the Transformation of American Politics, Going Negative: How Political Advertising Shrinks and Polarizes the Electorate, and The Media Game: American Politics in the Media Age. I am coauthor with Ted Lowi, Ben Ginsberg, and Ken Shepsle of American Government: Power and Purpose, a college textbook on American government. My curriculum vita with publications list is attached to this report. 4. I have been hired by the Rose Intervenors to analyze the partisan effects of proposed Congressional plans. I am retained for a rate of $400 per hour, which is my standard consulting rate. II. Sources of Information 5. I rely on data provided to me by NCEC, a firm specializing in election data. These data are compiled from the official election reports of County and Municipal election offices in the state of New York. They provide the 3

35 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 5 of 28 PageID #: 2100 Presidential vote for Democrats and Republicans in 2008 and 2004, as well as the average percent of the two-party vote for Democrats across statewide offices. 6. I rely on Census data provided by the U. S. Census Bureau, especially American Fact Finder, available through I also referred to two maps on the New York Times website, one showing population gains and losses in the State, and the other showing New York counties that voted for the Democrat or Republican in the 2008 Presidential election, Those maps are reproduced as Attachments 2 and 3 to this affidavit. III. Partisan Effects of Plans Proposed 7. The population of the state of New York grew from 19 million persons to 19.4 million from 2000 to 2010, a +2.1% growth rate. 4

36 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 6 of 28 PageID #: Thirteen counties had population declines of more than 1 percent. They are Allegany, Cattaragus, Cayuga, Chautauqua, Chemung, Chenango, Erie, Hamilton, Niagara, Orleans, Schuyler, Tioga, and Wyoming. Of these, the largest percentage declines were in Hamilton (-10.1% growth), Schuyler (- 4.6%), and Cattaragus (-4.3%). 9. The five boroughs of New York City contain 8.2 million persons and comprise 42.5% of the State s population. New York City grew +2.1%, a rate of growth equal to the State s overall growth. 10. The numerical growth of New York City accounts for almost half (41%) of the overall numerical growth of the state. 11. I use the Obama and McCain vote in 2008 as a reference election for analyzing the partisan effects of plans. Obama received 62.2% of all votes for President statewide in 2008; McCain received 36.7%. Obama s vote percent exceeded McCain s by 25.5 percentage points statewide. In terms of the two-party vote all votes for Democrats or Republicans for President Obama won 62.9% of the two-party vote statewide and McCain won 37.1%. 5

37 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 7 of 28 PageID #: The areas of the State of New York with the greatest declines in population vote disproportionately for Republicans, rather than Democrats. In the counties with declining populations, the average vote for Obama in 2008 was 45.1%, and the average vote for McCain was 53.3%. Of the 13 counties showing population declines of at least 1 percent from 2000 to 2010, only two gave a majority of their votes to Obama (Erie and Cayuga). And, all of these areas of population decline vote less than Obama s share of the vote statewide. Erie, with the highest vote for Obama of the declining counties, voted 58 percent for the Democratic presidential nominee in New York City s five boroughs combined are the most Democratic area in the state. Obama won 79 percent of the two-party vote, compared with 63 percent statewide, and McCain 21 percent of the vote in the City. Hence, New York City, which accounts for approximately half of the population growth of the state, is the most Democratic area in the state and votes well above the statewide average for the Democrats. 14. Adjusting district lines simply to follow patterns of population growth, then, one would expect that a plan ought to reduce the number and percent of congressional districts that vote below Obama s statewide electoral 6

38 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 8 of 28 PageID #: 2103 performance, and keep the same or perhaps increase the number of districts in which Obama s vote exceeded the statewide figure. 15. Under the current districts, there are 16 districts in which Obama s share of the vote was below his statewide vote share, and there are 13 districts that are at or above his statewide vote share. 16. Under the plan proposed by Senator Skelos, there would be 16 districts in which Obama s share of the vote is below his statewide vote share, and there would be 10 districts that are above his statewide vote share. One seat is at exactly the statewide share of the vote for Obama. In other words, Senator Skelos s plan keeps the same the number of districts in which Obama s share of the vote is below his statewide performance, but it decreases the number of districts in which Obama s share of the vote is above his statewide performance. The plan does this even though the population declines occurred disproportionately in counties that voted Republican. 17. Under the plan proposed by Assemblyman Kolb, there would be 16 districts in which Obama s share of the vote is below his statewide vote 7

39 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 9 of 28 PageID #: 2104 share, and there would be 11 districts that are at or above his statewide vote share. As with Senator Skelos plan, Assemblyman Kolb s map keeps the same the number of districts in which Obama s share of the vote is below his statewide performance, but it reduces the number of districts in which Obama s share of the vote is above his statewide performance. 18. I performed similar analyses using the Presidential vote in 2004 and the average vote for Democrats in statewide elections and came to the same conclusions. The maps proposed by Senator Skelos and Assemblyman Kolb would decrease the number of seats with above average performance for Democrats, and would increase the number of seats that have below average performance for Democrats. 19. Given that population declines occurred disproportionately in Republican areas, such a result can only be accomplished by packing high concentrations of Democratic voters into a smaller number of districts and efficiently spreading Republican voters across a larger number of districts. 20. The practical consequence of these plans is to build in a bias against Democrats. Using a standard methodology called uniform swing analysis, I 8

40 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 10 of 28 PageID #: 2105 computed what percent of New York s Congressional seats Republicans and Democrats would be expected to win if the statewide vote were divided evenly between the parties, i.e., if Obama received 50 percent of the votes and McCain received 50 percent of the votes. This amounts to subtracting 12 percentage points from Obama s vote share and adding 12 percentage points to McCain s vote share in each district, and then calculating the percent of seats in which Obama would have won more votes than McCain. The bias is the deviation of that percent of the seats from 50, because under majority rule we would expect the parties to each win 50 percent of the seats in an election when they win 50 percent of the vote. 21. Under the Skelos plan, the Republicans are expected to win 61 percent of seats when the two parties each win 50 percent of the vote, for a pro- Republican bias of 11 points. Under the Kolb plan, Republicans are expected to win 59 percent of the seats in a election, for a pro- Republican bias of 9 points. 22. Likewise, I calculate the percent of the votes statewide at which Republicans would win a majority (14 of 27) of seats. Under the Skelos plan, Republicans would win 14 of 27 CDs if they won 46.8 percent of the 9

41 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 11 of 28 PageID #: 2106 vote statewide, and Democrats need to win at least 53.2 percent of votes statewide to win at least 14 of 27 CDs. Under the Kolb plan, Republicans would win 14 of 27 CDs if they won 45.7 percent of votes statewide, and Democrats would need to win at least 54.3 percent of votes statewide in order to win at least 14 of 27 CDs. Under either plan, then, Republicans can capture a majority of the seats with a minority of votes. 23. The bias against the Democrats in these plans runs contrary to the principle of majority rule. The U. S. system of plurality rule in singlemember districts does not create an expectation of proportional representation of parties; in fact, such an outcome would be quite unusual. Rather, the U. S. electoral system is based on the principle of majority rule, such that if a candidate or party wins a majority of votes we expect that they will win a majority of seats. Small deviations from that expectation might be acceptable, but large deviations, such as the deviations in the Skelos and Kolb plans, are viewed as violations of the basic principle of majority rule. 10

42 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 12 of 28 PageID #: 2107

43 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 13 of 28 PageID #: 2108 Attachment 1

44 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 14 of 28 PageID #: 2109 STEPHEN DANIEL ANSOLABEHERE Department of Government Harvard University 1737 Cambridge Street Cambridge, MA EDUCATION Harvard University Ph.D., Political Science 1989 University of Minnesota B.A., Political Science 1984 B.S., Economics Edward C. Reed High School, Sparks, NV PROFESSIONAL EXPERIENCE ACADEMIC POSITIONS 2011 Visiting Professor, New York University Law School 2008-present Professor, Department of Government, Harvard University Elting Morison Professor, Department of Political Science, MIT (Associate Head, ) Associate Professor, Department of Political Science, MIT National Fellow, The Hoover Institution Assistant Professor, Department of Political Science, University of California, Los Angeles FELLOWSHIPS AND HONORS American Academy of Arts and Sciences 2007 Carnegie Scholar Goldsmith Book Prize for Going Negative 1996 National Fellow, The Hoover Institution Harry S. Truman Fellowship

45 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 15 of 28 PageID #: 2110 Books PUBLICATIONS 2012 American Government, 12 th edition, W.W. Norton. With Benjamin Ginsberg and Kenneth Shepsle 2008 The End of Inequality: One Person, One Vote and the Transformation of American Politics. W. W. Norton Going Negative: How Political Advertising Divides and Shrinks the American Electorate (with Shanto Iyengar). The Free Press Media Game: American Politics in the Television Age (with Roy Behr and Shanto Iyengar). Macmillan. Articles in Refereed Journals 2011 Profiling Originalism Columbia Law Review (with Jamal Greene and Nathaniel Persily) Partisanship, Public Opinion, and Redistricting Election Law Journal (with Joshua Fougere and Nathaniel Persily) Primary Elections and Party Polarization Quarterly Journal of Political Science (with Shigeo Hirano, James Snyder, and Mark Hansen) 2010 Constituents Responses to Congressional Roll Call Voting, American Journal of Political Science (with Phil Jones) 2010 Race, Region, and Stephen Ansolabehere, Nathaniel Persily, and Charles H. Stewart III, Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act Harvard Law Review April, Residential Mobility and the Cell Only Population, Public Opinion Quarterly (with Brian Schaffner) 2009 Explaining Attitudes Toward Power Plant Location, Public Opinion Quarterly (with David Konisky) 2009 Public risk perspectives on the geologic storage of carbon dioxide, 2

46 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 16 of 28 PageID #: 2111 International Journal of Greenhouse Gas Control (with Gregory Singleton and Howard Herzog) 3(1): A Spatial Model of the Relationship Between Seats and Votes (with William Leblanc) Mathematical and Computer Modeling (November) The Strength of Issues: Using Multiple Measures to Gauge Preference Stability, Ideological Constraint, and Issue Voting (with Jonathan Rodden and James M. Snyder, Jr.) American Political Science Review (May) Access versus Integrity in Voter Identification Requirements. New York University Annual Survey of American Law, vol Voter Fraud in the Eye of the Beholder (with Nathaniel Persily) Harvard Law Review (May) 2007 Incumbency Advantages in U. S. Primary Elections, (with John Mark Hansen, Shigeo Hirano, and James M. Snyder, Jr.) Electoral Studies (September) 2007 Television and the Incumbency Advantage (with Erik C. Snowberg and James M. Snyder, Jr). Legislative Studies Quarterly The Political Orientation of Newspaper Endorsements (with Rebecca Lessem and James M. Snyder, Jr.). Quarterly Journal of Political Science vol. 1, issue Voting Cues and the Incumbency Advantage: A Critical Test (with Shigeo Hirano, James M. Snyder, Jr., and Michiko Ueda) Quarterly Journal of Political Science vol. 1, issue American Exceptionalism? Similarities and Differences in National Attitudes Toward Energy Policies and Global Warming (with David Reiner, Howard Herzog, K. Itaoka, M. Odenberger, and Fillip Johanssen) Environmental Science and Technology (February 22, 2006), Purple America (with Jonathan Rodden and James M. Snyder, Jr.) Journal of Economic Perspectives (Winter) Did the Introduction of Voter Registration Decrease Turnout? (with David Konisky). Political Analysis Statistical Bias in Newspaper Reporting: The Case of Campaign Finance Public Opinion Quarterly (with James M. Snyder, Jr., and Erik Snowberg). 3

47 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 17 of 28 PageID #: Studying Elections Policy Studies Journal (with Charles H. Stewart III and R. Michael Alvarez) Legislative Bargaining under Weighted Voting American Economic Review (with James M. Snyder, Jr., and Michael Ting) 2005 Voting Weights and Formateur Advantages in Coalition Formation: Evidence from Parliamentary Coalitions, 1946 to 2002 (with James M. Snyder, Jr., Aaron B. Strauss, and Michael M. Ting) American Journal of Political Science Reapportionment and Party Realignment in the American States Pennsylvania Law Review (with James M. Snyder, Jr.) 2004 Residual Votes Attributable to Voting Technologies (with Charles Stewart) Journal of Politics 2004 Using Term Limits to Estimate Incumbency Advantages When Office Holders Retire Strategically (with James M. Snyder, Jr.). Legislative Studies Quarterly vol. 29, November 2004, pages Did Firms Profit From Soft Money? (with James M. Snyder, Jr., and Michiko Ueda) Election Law Journal vol. 3, April Bargaining in Bicameral Legislatures (with James M. Snyder, Jr. and Mike Ting) American Political Science Review, August, Why Is There So Little Money in U.S. Politics? (with James M. Snyder, Jr.) Journal of Economic Perspectives, Winter, Equal Votes, Equal Money: Court-Ordered Redistricting and the Public Spending in the American States (with Alan Gerber and James M. Snyder, Jr.) American Political Science Review, December, Paper awarded the Heinz Eulau award for the best paper in the American Political Science Review Are PAC Contributions and Lobbying Linked? (with James M. Snyder, Jr. and Micky Tripathi) Business and Politics 4, no The Incumbency Advantage in U.S. Elections: An Analysis of State and Federal Offices, (with James Snyder) Election Law Journal, 1, no Voting Machines, Race, and Equal Protection. Election Law Journal, vol. 1, no Models, assumptions, and model checking in ecological regressions (with 4

48 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 18 of 28 PageID #: 2113 Andrew Gelman, David Park, Phillip Price, and Larraine Minnite) Journal of the Royal Statistical Society, series A, 164: The Effects of Party and Preferences on Congressional Roll Call Voting. (with James Snyder and Charles Stewart) Legislative Studies Quarterly (forthcoming). Paper awarded the Jewell-Lowenberg Award for the best paper published on legislative politics in Paper awarded the Jack Walker Award for the best paper published on party politics in Candidate Positions in Congressional Elections, (with James Snyder and Charles Stewart). American Journal of Political Science 45 (November) Old Voters, New Voters, and the Personal Vote, (with James Snyder and Charles Stewart) American Journal of Political Science 44 (February) Soft Money, Hard Money, Strong Parties, (with James Snyder) Columbia Law Review 100 (April): Campaign War Chests and Congressional Elections, (with James Snyder) Business and Politics. 2 (April): Replicating Experiments Using Surveys and Aggregate Data: The Case of Negative Advertising. (with Shanto Iyengar and Adam Simon) American Political Science Review 93 (December) Valence Politics and Equilibrium in Spatial Models, (with James Snyder), Public Choice Money and Institutional Power, (with James Snyder), Texas Law Review 77 (June, 1999): Incumbency Advantage and the Persistence of Legislative Majorities, (with Alan Gerber), Legislative Studies Quarterly 22 (May 1997) The Effects of Ballot Access Rules on U.S. House Elections, (with Alan Gerber), Legislative Studies Quarterly 21 (May 1996) Riding the Wave and Issue Ownership: The Importance of Issues in Political Advertising and News, (with Shanto Iyengar) Public Opinion Quarterly 58: Horseshoes and Horseraces: Experimental Evidence of the Effects of Polls on Campaigns, (with Shanto Iyengar) Political Communications 11/4 (October- December):

49 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 19 of 28 PageID #: Does Attack Advertising Demobilize the Electorate? (with Shanto Iyengar), American Political Science Review 89 (December) The Mismeasure of Campaign Spending: Evidence from the 1990 U.S. House Elections, (with Alan Gerber) Journal of Politics 56 (September) Poll Faulting, (with Thomas R. Belin) Chance 6 (Winter): The Vanishing Marginals and Electoral Responsiveness, (with David Brady and Morris Fiorina) British Journal of Political Science 22 (November): Mass Media and Elections: An Overview, (with Roy Behr and Shanto Iyengar) American Politics Quarterly 19/1 (January): The Limits of Unraveling in Interest Groups, Rationality and Society 2: Measuring the Consequences of Delegate Selection Rules in Presidential Nominations, (with Gary King) Journal of Politics 52: The Nature of Utility Functions in Mass Publics, (with Henry Brady) American Political Science Review 83: Special Reports and Policy Studies 2010 The Future of Nuclear Power, Revised The Future of Coal. MIT Press. Continued reliance on coal as a primary power source will lead to very high concentrations of carbon dioxide in the atmosphere, resulting in global warming. This cross-disciplinary study drawing on faculty from Physics, Economics, Chemistry, Nuclear Engineering, and Political Science develop a road map for technology research and development policy in order to address the challenges of carbon emissions from expanding use of coal for electricity and heating throughout the world The Future of Nuclear Power. MIT Press. This cross-disciplinary study drawing on faculty from Physics, Economics, Chemistry, Nuclear Engineering, and Political Science examines the what contribution nuclear power can make to meet growing electricity demand, especially in a world with increasing carbon dioxide emissions from fossil fuel power plants Election Day Registration. A report prepared for DEMOS. This report analyzes the possible effects of Proposition 52 in California based on the experiences of 6 6

50 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 20 of 28 PageID #: 2115 states with election day registration Voting: What Is, What Could Be. A report of the Caltech/MIT Voting Technology Project. This report examines the voting system, especially technologies for casting and counting votes, registration systems, and polling place operations, in the United States. It was widely used by state and national governments in formulating election reforms following the 2000 election An Assessment of the Reliability of Voting Technologies. A report of the Caltech/MIT Voting Technology Project. This report provided the first nationwide assessment of voting equipment performance in the United States. It was prepared for the Governor s Select Task Force on Election Reform in Florida. Chapters in Edited Volumes 2010 Dyadic Representation in Oxford Handbook on Congress, Eric Schickler, ed., Oxford University Press Voting Technology and Election Law in America Votes!, Benjamin Griffith, editor, Washington, DC: American Bar Association What Did the Direct Primary Do to Party Loyalty in Congress (with Shigeo Hirano and James M. Snyder Jr.) in Process, Party and Policy Making: Further New Perspectives on the History of Congress, David Brady and Matthew D. McCubbins (eds.), Stanford University Press, Election Administration and Voting Rights in Renewal of the Voting Rights Act, David Epstein and Sharyn O Hallaran, eds. Russell Sage Foundation The Decline of Competition in Primary Elections, (with John Mark Hansen, Shigeo Hirano, and James M. Snyder, Jr.) The Marketplace of Democracy, Michael P. McDonald and John Samples, eds. Washington, DC: Brookings Voters, Candidates and Parties in Handbook of Political Economy, Barry Weingast and Donald Wittman, eds. New York: Oxford University Press Baker v. Carr in Context, (with Samuel Isaacharoff) in Constitutional Cases in Context, Michael Dorf, editor. New York: Foundation Press Corruption and the Growth of Campaign Spending (with Alan Gerber and James Snyder). A User s Guide to Campaign Finance, Jerry Lubenow, editor. Rowman and Littlefield The Paradox of Minimal Effects, in Henry Brady and Richard Johnston, eds., 7

51 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 21 of 28 PageID #: 2116 Do Campaigns Matter? University of Michigan Press Campaigns as Experiments, in Henry Brady and Richard Johnson, eds., Do Campaigns Matter? University of Michigan Press Money and Office, (with James Snyder) in David Brady and John Cogan, eds., Congressional Elections: Continuity and Change. Stanford University Press The Science of Political Advertising, (with Shanto Iyengar) in Political Persuasion and Attitude Change, Richard Brody, Diana Mutz, and Paul Sniderman, eds. Ann Arbor, MI: University of Michigan Press Evolving Perspectives on the Effects of Campaign Communication, in Philo Warburn, ed., Research in Political Sociology, vol. 7, JAI The Effectiveness of Campaign Advertising: It s All in the Context, (with Shanto Iyengar) in Campaigns and Elections American Style, Candice Nelson and James A. Thurber, eds. Westview Press Information and Electoral Attitudes: A Case of Judgment Under Uncertainty, (with Shanto Iyengar), in Explorations in Political Psychology, Shanto Iyengar and William McGuire, eds. Durham: Duke University Press. Working Papers 2009 Sociotropic Voting and the Media (with Marc Meredith and Erik Snowberg), American National Election Study Pilot Study Reports, John Aldrich editor Public Attitudes Toward America s Energy Options: Report of the 2007 MIT Energy Survey CEEPR Working Paper and CANES working paper "Constituents' Policy Perceptions and Approval of Members' of Congress" CCES Working Paper (with Phil Jones) Using Recounts to Measure the Accuracy of Vote Tabulations: Evidence from New Hampshire Elections, 1946 to 2002 (with Andrew Reeves) Evidence of Virtual Representation: Reapportionment in California, (with Ruimin He and James M. Snyder) Why did a majority of Californians vote to lower their own power? (with James Snyder and Jonathan Woon). Paper presented at the annual meeting of the American Political Science Association, Atlanta, GA, September, Paper received the award for the best paper on Representation at the 1999 Annual Meeting of the APSA. 8

52 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 22 of 28 PageID #: Has Television Increased the Cost of Campaigns? (with Alan Gerber and James Snyder) Money, Elections, and Candidate Quality, (with James Snyder) Party Platform Choice - Single- Member District and Party-List Systems, (with James Snyder) Messages Forgotten (with Shanto Iyengar) Consumer Contributors and the Returns to Fundraising: A Microeconomic Analysis, (with Alan Gerber), presented at the Annual Meeting of the American Political Science Association, September Biases in Ecological Regression, (with R. Douglas Rivers) August, (revised February 1994). Presented at the Midwest Political Science Association Meetings, April 1994, Chicago, IL Using Aggregate Data to Correct Nonresponse and Misreporting in Surveys (with R. Douglas Rivers). Presented at the annual meeting of the Political Methodology Group, Cambridge, Massachusetts, July The Electoral Effects of Issues and Attacks in Campaign Advertising (with Shanto Iyengar). Presented at the Annual Meeting of the American Political Science Association, Washington, DC Television Advertising as Campaign Strategy: Some Experimental Evidence (with Shanto Iyengar). Presented at the Annual Meeting of the American Association for Public Opinion Research, Phoenix Why Candidates Attack: Effects of Televised Advertising in the 1990 California Gubernatorial Campaign, (with Shanto Iyengar). Presented at the Annual Meeting of the Western Political Science Association, Seattle, March Winning is Easy, But It Sure Ain t Cheap. Working Paper #90-4, Center for the American Politics and Public Policy, UCLA. Presented at the Political Science Departments at Rochester University and the University of Chicago. Research Grants Markle Foundation. A Study of the Effects of Advertising in the 1990 California Gubernatorial Campaign. Amount: $50, Markle Foundation. An Experimental Study of the Effects of Campaign 9

53 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 23 of 28 PageID #: 2118 Advertising. Amount: $150, NSF. An Experimental Study of the Effects of Advertising in the 1992 California Senate Electoral. Amount: $100, MIT Provost Fund. Money in Elections: A Study of the Effects of Money on Electoral Competition. Amount: $40, National Science Foundation. Campaign Finance and Political Representation. Amount: $50, National Science Foundation. Party Platforms: A Theoretical Investigation of Party Competition Through Platform Choice. Amount: $40, National Science Foundation. The Legislative Connection in Congressional Campaign Finance. Amount: $150, MIT Provost Fund. Districting and Representation. Amount: $20, Sloan Foundation. Congressional Staff Seminar. Amount: $156, Carnegie Corporation. The Caltech/MIT Voting Technology Project. Amount: $253, Carnegie Corporation. Dissemination of Voting Technology Information. Amount: $200, National Science Foundation. State Elections Data Project. Amount: $256, Carnegie Corporation. Internet Voting. Amount: $279, Knight Foundation. Accessibility and Security of Voting Systems. Amount: $450, National Science Foundation, Primary Election Data Project Pew/JEHT. Measuring Voting Problems in Primary Elections, A National Survey. Amount: $300, Pew/JEHT. Comprehensive Assessment of the Quality of Voter Registration Lists in the United States: A pilot study proposal (with Alan Gerber). Amount: $100, National Science Foundation, Cooperative Congressional Election Study, $360,000 10

54 Case 1:11-cv DLI-RR-GEL Document Filed 03/02/12 Page 24 of 28 PageID #: Sloan Foundation, Precinct-Level U. S. Election Data, $240,000. Professional Boards Editor, Cambridge University Press Book Series, Political Economy of Institutions and Decisions. Member, Board of Overseers, American National Election Studies, 1999 to present. Member, Board of the Reuters International School of Journalism, Oxford University, 2007 to present. Contributing Editor, Boston Review, The State of the Nation. Editorial Board of American Journal of Political Science, 2005 to present. Editorial Board of Legislative Studies Quarterly, 2005 to present. Editorial Board of Public Opinion Quarterly, 2006 to present. Editorial Board of the Election Law Journal, 2002 to present. Editorial Board of the Harvard International Journal of Press/Politics, 1996 to Editorial Board of Business and Politics, 2002 to Present. Scientific Advisory Board, Polimetrix, 2004 to Special Projects and Task Forces Principal Investigator, Cooperative Congressional Election Study, 2005 present. MIT Energy Innovation Study, MIT Energy Initiative, Steering Council, Co-Director, Caltech/MIT Voting Technology Project, Co-Organizer, MIT Seminar for Senior Congressional and Executive Staff, MIT Coal Study, MIT Energy Research Council, MIT Nuclear Study, Voting Technology Task Force Leader, Election Reform Initiative of the Constitution Project, 2001 to

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