Case 1:11-cv DLI-RR-GEL Document 420 Filed 06/29/12 Page 1 of 3 PageID #: 8335 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

Transcription

1 Case 1:11-cv DLI-RR-GEL Document 420 Filed 06/29/12 Page 1 of 3 PageID #: 8335 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) Case: 1:11-cv DLI-RR-GEL ) ORAL ARGUMENT REQUESTED ) Date of Service: June 29, 2012 ANDREW M. CUOMO, et al. ) ) ) Defendants. ) ) SENATE MAJORITY DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON ALL EQUAL-POPULATION CLAIMS AGAINST THE SENATE PLAN PLEASE TAKE NOTICE that, pursuant to Federal Rule of Civil Procedure 56(a) and Local Rule 56.1, the Senate Majority Defendants New York State Senators Dean G. Skelos and Michael F. Nozzolio, and LATFOR member Welquis R. Lopez respectfully move for summary judgment on all equal-population claims asserted against the Senate Plan. Those claims appear as Count IV of the Drayton Intervenors Amended Complaint (DE 254); Count IV of the Lee Intervenors Amended Complaint (DE 256); Counts I and II of the Ramos Intervenors Amended Complaint (DE 257); and the sole Cross-Claim in the Senate Minority Defendants Amended Answer And Cross-Claim (DE 370). For the reasons set forth in the accompanying Statement of Material Facts and Memorandum of Law, the Senate Majority Defendants are entitled to summary judgment on these claims. 1 1 The Senate Majority Defendants also are entitled to judgment as a matter of law on all other remaining claims in this case. First, as this Court already has recognized, claims regarding the need for this Court to create interim State Senate maps while preclearance and the New York Court of Appeals decisions were pending are now moot. 5/16/12 Op. at 7 (DE 367).

2 Case 1:11-cv DLI-RR-GEL Document 420 Filed 06/29/12 Page 2 of 3 PageID #: 8336 Dated: June 29, 2012 Respectfully submitted, /s/michael A. Carvin Michael A. Carvin (MC 9266) JONES DAY 51 Louisiana Avenue, NW Washington, DC / Todd R. Geremia (TG 4454) JONES DAY 222 East 41st Street New York, NY / David Lewis (DL 0037) LEWIS & FIORE 225 Broadway, Suite 3300 New York, NY / Attorneys For Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez (continued ) Those claims appear as Counts I, II, and III of the Drayton Intervenors Amended Complaint and Counts I, II, and III of the Lee Intervenors Amended Complaint. Second, the Drayton Intervenors and the Ramos Intervenors also purport to plead claims under Section 2 of the Voting Rights Act. See Drayton Intervenors Am. Compl (Counts V-VII); Ramos Intervenors Am. Compl (Count III). For the reasons explained in the Senate Majority Defendants Motion For Summary Judgment On Section 2 Claims, which is being filed concurrently with this motion, Defendants are entitled to judgment on those claims as well. 2

3 Case 1:11-cv DLI-RR-GEL Document 420 Filed 06/29/12 Page 3 of 3 PageID #: 8337 CERTIFICATE OF SERVICE I hereby certify that, on this 29th day of June, 2012, a true and correct copy of the foregoing was served on the following counsel of record through the Court s CM/ECF system: Richard Mancino Daniel Max Burstein Jeffrey Alan Williams WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, NY Attorneys for Plaintiffs Leonard M. Kohen 67 E. 11th Street #703 New York, NY Attorney for Defendants John L. Sampson and Martin Malave Dilan Harold D. Gordon Couch White, LLP 540 Broadway Albany, NY Attorney for Defendant Brian M. Kolb James D. Herschlein KAYE SCHOLER LLP 425 Park Avenue New York, NY Attorney for Intervenors Lee, Chung, Hong, and Lang Joshua Pepper Assistant Attorney General 120 Broadway, 24th Floor New York, NY Attorney for Defendants Andrew M. Cuomo, Eric T. Schneiderman, and Robert J. Duffy Jonathan Sinnreich SINNREICH KOSAKOFF & MESSINA LLP 267 Carleton Avenue, Suite 301 Central Islip, NY Attorney for Defendant Robert Oaks Joan P. Gibbs Center for Law and Social Justice 1150 Carroll Street Brooklyn, NY Attorney for Intervenors Drayton, Ellis, Forrest, Johnson, Woolley, and Wright Jackson Chin LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY Attorney for Intervenors Ramos, Chavarria, Heymann, Martinez, Roldan, and Tirado Jeffrey Dean Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY Attorney for Rose Intervenors /s/ Michael A. Carvin 3

4 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 1 of 25 PageID #: 8338 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) Case: 1:11-cv DLI-RR-GEL ) ORAL ARGUMENT REQUESTED ) Date of Service: June 29, 2012 ANDREW M. CUOMO, et al. ) ) ) Defendants. ) ) STATEMENT OF MATERIAL FACTS IN SUPPORT OF SENATE MAJORITY DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON ALL EQUAL-POPULATION CLAIMS AGAINST THE SENATE PLAN Pursuant to Local Rule 56.1, the Senate Majority Defendants New York State Senators Dean G. Skelos and Michael F. Nozzolio, and LATFOR member Welquis R. Lopez respectfully submit this Statement of Material Facts in support of their Motion for Summary Judgment on all equal-population claims asserted in this case. Those claims appear as Count IV of the Drayton Intervenors Amended Complaint (DE 254); Count IV of the Lee Intervenors Amended Complaint (DE 256); Counts I and II of the Ramos Intervenors Amended Complaint (DE 257); and the sole Cross-Claim in the Senate Minority Defendants Amended Answer And Cross-Claim (DE 370). I. EQUAL POPULATION 1. According to the 2010 Census, New York has a total population of 19,378,102 people. See U.S. Census Bureau, 2. According to the 2010 Census, New York City has a total population of 8,175,133 people. See id.

5 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 2 of 25 PageID #: According to the 2010 Census, New York City s total population is 42.2% of the total population of New York. See id. 4. New York s total population, according to the 2010 Census as adjusted for prisoner reallocation under Chapter 57 of the Laws of 2010, is 19,363, See 2010 Amended Population (Prisoner Readjustment), available at amendpop. 5. Based on a 63-seat Senate, the ideal size of a Senate district, as measured by total population, is 307,356 people. See id. 6. New York has an estimated citizen population (CPOP) of 17,220,415 people. 2 See Senate Plan Data Charts (Ex. B) Intentionally omitted. 8. Based on a 63-seat Senate, the ideal size of a Senate district, as measured by CPOP, is 273,340 people. See id. 9. New York has an estimated citizen voting-age population (CVAP) of 13,004,820 people. 4 See id. 10. New York City has an estimated CVAP of 4,969,460. See Bronx And New York City VAP and CVAP (Ex. C). 1 Unless otherwise indicated, all subsequent references in this Statement of Material Facts to total population are to total population according to the 2010 Census, adjusted to reflect prisoner reallocation under Chapter 57 of the Laws of All CPOP estimates are based on data collected in the Census Bureau s American Community Survey See American Community Survey, available at 3 The exhibits referenced in this Statement of Material Facts are appended to the Declaration of Todd Geremia filed in support of the motion for summary judgment. 4 All CVAP estimates are based on data collected in the Census Bureau s American Community Survey See American Community Survey, available at 2

6 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 3 of 25 PageID #: New York City s estimated CVAP is 38.2% of New York s estimated CVAP. See Senate Plan Data Charts (Ex. B); Bronx And New York City VAP and CVAP (Ex. C). 12. Based on a 63-seat Senate, the ideal size of a Senate district, as measured by estimated CVAP, is 206,426 people. See Senate Plan Data Charts (Ex. B). A. The Senate Plan 13. The Senate Plan was signed into law on March 15, (DE 236). 14. The Senate Plan creates a 63-seat Senate. See Enacted Plan District Statistics (Ex. A). 15. The Department of Justice precleared the Senate Plan on April 27, See Letter from U.S. Department of Justice, Civil Rights Division (DE 332). 16. The New York Court of Appeals upheld the Senate Plan against a state constitutional challenge to its creation of a 63rd Senate seat in a unanimous per curiam decision issued on May 3, See Cohen v. Cuomo, No. 135 (N.Y. May 3, 2012) (DE 351). 17. The total population deviation in the Senate Plan (that is, the difference between the largest district and the smallest district) is 8.8% of the ideal district size. See Breitbart Decl. 12 (DE 322). 18. On average, 78% of a district s population under the Senate Plan was together in a district under the 2002 Senate Plan. See District Cores Report for the Enacted Senate Plan (Ex. D). 19. The Senate Plan pairs the residences of two incumbent senators in the same district. See Incumbent Pairings (Ex. E). 20. The Senate Plan places nine Senate Districts (1-9) on Long Island. See Senate Plan Data Charts (Ex. B). 3

7 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 4 of 25 PageID #: The Senate Plan places twenty-six Senate Districts (10-34 and 36) in New York City, with two of these districts (34 and 36) drawing 5.6% and 19.5%, respectively, of their populations from Westchester County. See id.; Bronx Districts Chart (Ex. O). 22. The Senate Plan places twenty-eight Districts (35 and 37-63) in upstate, 5 with two additional districts (34 and 36) drawing 5.6% and 19.5%, respectively, of their populations from Westchester County. See Senate Plan Data Charts (Ex. B); Bronx Districts Chart (Ex. O). 23. The benchmark 2002 Senate Plan created fourteen performing 6 minority districts in New York City. See New York City Minority Districts (Ex. F). 24. The benchmark 2002 Senate Plan created eight performing Black districts in New York City, Districts 10, 14, 19, 20, 21, 25, 30, and 36. See id. 25. The benchmark 2002 Senate Plan created six performing Hispanic districts in New York City, Districts 13, 18, 29, 31, 32, and 33. See id. 26. The enacted Senate Plan retains all fourteen performing New York City minority districts from the benchmark 2002 Senate Plan (although it renumbers District 25 as 26, District 18 as 25, and District 29 as 27) and adds an Asian-majority district (District 16) in Queens. See Enacted Plan District Statistics (Ex. A). 27. The Senate Plan overpopulates the nine Long Island districts by 2.54% of the ideal district size as measured by total population. See id. 28. The estimated CPOP in the twenty-six New York City districts 7 is 6,702,965. See Senate Plan Data Charts (Ex. B). 5 As used in this Statement of Material Facts, upstate is the area of New York north or west of New York City. 6 As used in this Statement of Material Facts, a performing district is one in which Black voters or Hispanic voters have the ability to elect their candidates of choice. 4

8 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 5 of 25 PageID #: The average estimated CPOP in the twenty-six New York City districts is 257,806 people per district. See id. 30. The Senate Plan underpopulates the twenty-six New York City districts by 5.68% of the ideal district size as measured by estimated CPOP. See id. 31. The estimated CPOP in the twenty-eight upstate districts 8 is 7,916,595. See id. 32. The average estimated CPOP in the twenty-eight upstate districts is 282,736 people per district. See id. 33. The Senate Plan overpopulates the twenty-eight upstate districts by 3.44% of the ideal district size as measured by estimated CPOP. See id. 34. The estimated CPOP in the fourteen New York City Black or Hispanic districts 9 is 3,545,676. See id. 35. The average estimated CPOP in the fourteen New York City Black or Hispanic districts is 253,263. See id. 36. The Senate Plan underpopulates the fourteen New York City Black or Hispanic districts by 7.35% of the ideal district size as measured by estimated CPOP. See id. 37. The estimated CVAP in the Senate Plan s nine Long Island districts is 1,938,115 people. See id. (continued ) 7 As used in this Statement of Material facts, New York City districts are the twenty-six Districts (10-34 and 36) referenced in 21, supra. 8 As used in this Statement of Material facts, upstate districts are the twenty-eight Districts (35 and 37-63) referenced in 22, supra. 9 As used in this Statement of Material facts, New York City Black or Hispanic districts are the fourteen Districts (10, 13, 14, 19-21, 25-27, 30-33, and 36) referenced in 26, supra. 5

9 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 6 of 25 PageID #: The average estimated CVAP in the Senate Plan s nine Long Island districts is 215,436 people per district. See id. 39. The Senate Plan overpopulates the nine Long Island districts by 4.32% of the ideal district size as measured by estimated CVAP. See id. 40. The estimated CVAP in the twenty-six New York City districts is 4,969,460. See id. 41. The average estimated CVAP in the twenty-six New York City districts is 191,133 people per district. See id. 42. The Senate Plan underpopulates the twenty-six New York City districts by 7.41% of the ideal district size as measured by estimated CVAP. See id. 43. The estimated CVAP in the twenty-eight upstate districts is 6,097,245. See id. 44. The average estimated CVAP in the twenty-eight upstate districts is 217,759 people per district. See id. 45. The Senate Plan overpopulates the twenty-eight upstate districts by 5.49% of the ideal district size as measured by estimated CVAP. See id. 46. The estimated CVAP in the Senate Plan s fourteen New York City Black or Hispanic districts is 2,541,872 people. See id. 47. The average estimated CVAP in the Senate Plan s fourteen New York City Black or Hispanic districts is 181,562 people per district. See id. 48. The Senate Plan underpopulates the fourteen New York City Black or Hispanic districts by 12.04% of the ideal district size as measured by estimated CVAP. See id. 49. The total voter enrollment in New York is 10,612,515 people. 10 See id. 10 All references to voter enrollment are to 2010 enrollment. 6

10 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 7 of 25 PageID #: The total voter enrollment in the New York City districts is 4,038,099 people. See id. 51. The average voter enrollment in the New York City districts is 155,312 people per district. See id. 52. The total voter enrollment in the fourteen New York City Black or Hispanic districts is 2,167,801 people. See id. 53. The average voter enrollment in the fourteen New York City Black or Hispanic districts is 154,843 people per district. See id. 54. The total voter enrollment in the twenty-eight upstate districts is 4,795,457 people. See id. 55. The average voter enrollment in the twenty-eight upstate districts is 171,266 people per district. See id. 56. The difference between the average weight of a vote in the New York City districts and the average weight of a vote in the upstate districts, as measured by enrollment, is calculated by dividing the average enrollment of the upstate districts by the average enrollment of the New York City districts and subtracting one. See id. 57. Under the Senate Plan, the average weight of a vote in a New York City district is 10% more than the average weight of a vote in an upstate district as measured by enrollment and calculated as described in 56. See id. 58. The difference between the average weight of a vote in the New York City Black or Hispanic districts and the average weight of a vote in the upstate districts, as measured by enrollment, is calculated by dividing the average enrollment of the upstate districts by the 7

11 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 8 of 25 PageID #: 8345 average enrollment of the New York City Black or Hispanic districts and subtracting one. See id. 59. Under the Senate Plan, the average weight of a vote in the fourteen New York City Black or Hispanic districts is 11% more than the average weight of a vote in an upstate district as measured by enrollment and calculated as described in 58. See id. 60. The total voter turnout in the New York City districts in the 2008 election, 11 a Presidential election year, was 2,675,007 people. See id. 61. The average voter turnout in the New York City districts in the 2008 election was 102,885 people per district. See id. 62. The total voter turnout in the fourteen New York City Black or Hispanic districts in the 2008 election was 1,423,364 people. See id. 63. The average voter turnout in the fourteen New York City Black or Hispanic districts in the 2008 election was 101,669 people per district. See id. 64. The total voter turnout in the upstate districts in the 2008 election was 3,738,419 people. See id. 65. The average voter turnout in the upstate districts in the 2008 election was 133,515 per district. See id. 66. The difference between the average weight of a vote in the New York City districts and the average weight of a vote in the upstate districts, as measured by voter turnout, is calculated by dividing the average turnout in the upstate districts by the average turnout in the New York City districts and subtracting one. See id. 11 All references to the 2008 and 2010 elections are to the general elections. 8

12 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 9 of 25 PageID #: Under the Senate Plan, the average weight of a New York City resident s vote in the 2008 election was 30% more than the average weight of an upstate resident s vote as measured by voter turnout and calculated as described in 66. See id. 68. The difference between the average weight of a vote in the New York City Black or Hispanic districts and the average weight of a vote in the upstate districts, as measured by voter turnout, is calculated by dividing the average turnout in the upstate districts by the average turnout in the New York City Black or Hispanic districts and subtracting one. See id. 69. Under the Senate Plan, the average weight of a vote of a resident of the fourteen New York City Black or Hispanic districts in the 2008 election was 31% more than the average weight of an upstate resident s vote as measured by voter turnout and calculated as described in 68. See id. 70. The total voter turnout in the New York City districts in the 2010 election, a non- Presidential election year, was 1,428,274 people. See id. 71. The average voter turnout in the New York City districts in the 2010 election was 54,934 people per district. See id. 72. The total voter turnout in the fourteen New York City Black or Hispanic districts in the 2010 election was 721,703 people. See id. 73. The average voter turnout in the fourteen New York City Black or Hispanic districts in the 2010 election was 51,550 people per district. See id. 74. The total voter turnout in the upstate districts in the 2010 election was 2,542,589 people. See id. 75. The average voter turnout in the upstate districts in the 2010 election was 90,807 people per district. See id. 9

13 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 10 of 25 PageID #: Under the Senate Plan, the average weight of a vote in the New York City districts in the 2010 election was 65% more than the average weight of a vote in the upstate districts as measured by voter turnout and calculated as described in 66. See id. 77. Under the Senate Plan, the average weight of a vote in the New York City Black or Hispanic districts in the 2010 election was 76% more than the average weight of a vote in the upstate districts as measured by voter turnout and calculated as described in 68. See id. 78. The New York Assembly has 150 seats. See 2012 District Maps, The Assembly Plan places sixty-five districts wholly in New York City. See id. 80. The Assembly Plan underpopulates fifty-three New York City districts as measured by total population. See id. 81. Between the 1990 Census and the 2000 Census, New York s total population 12 grew by 5.5%. New York State Population Change by Region (Ex. G). 82. Between the 1990 Census and the 2000 Census, the total population of the New York City districts in the Senate Plan grew by 9.3%. See id. 83. Between the 2000 Census and the 2010 Census, New York s total population grew by 2.12%. See Beveridge Decl. 73 (DE 331). 84. Between the 2000 Census and the 2010 Census, New York City s total population grew by 2.06%. See id. 85. Between the 2000 Census and the 2010 Census, the Hudson Valley counties total population grew by 5%. 13 New York State Population Change by Region (Ex. G). 12 References to total population in are to total population according to the U.S. Census, without adjustment to reflect prisoner reallocation under Chapter 57 of the Laws of

14 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 11 of 25 PageID #: Between the 2000 Census and the 2010 Census, the total population of the five counties located wholly or partially in District 46, including Montgomery, Schenectady, Albany, Greene, and Ulster, grew by 3.36%. See New York Quick Facts, U.S. Census Bureau, District 35 in the Senate Plan is located wholly in Westchester County and is overpopulated by 0.03%. See Enacted Plan District Statistics (Ex. A). 88. District 37 in the Senate Plan is located wholly in Westchester County and is overpopulated by 0.03%. See id. 89. District 40 in the Senate Plan extends partly into Westchester County and is underpopulated by 1.61%. See id. B. The Breitbart Plan 90. Mr. Todd Breitbart spent about twelve hours in a single night to modify his prior proposed plan, which had only 62 Senate districts, into the 63-District Alternative Senate Plan ( Breitbart Plan ) on April 23, Breitbart Decl. 8 (DE 327). 91. The Breitbart Plan was filed publicly in this Court on April 26, See Breitbart Plan (DE 327-2). 92. The Breitbart Plan has 63 Senate seats. Breitbart Decl. 5 (DE 327). 93. The Breitbart Plan pairs the residences of eight incumbent senators in the same districts. See Incumbent Pairings (Ex. E). (continued ) 13 As used in this Statement of Material Facts, the Hudson Valley counties are Warren, Washington, Saratoga, Rensselaer, Albany, Schenectady, Greene, Columbia, Dutchess, Ulster, Orange, Putnam, Rockland, and Westchester, except for the portions of Westchester (Mount Vernon and Pelham) included in the New York City districts under the Senate Plan. 11

15 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 12 of 25 PageID #: The Breitbart Plan pairs the residences of Senate Majority Leader Dean Skelos and another incumbent senator in the same district. See id. 95. The Breitbart Plan purports to create fifteen performing Black or Hispanic districts in New York City. Breitbart Decl. 82, 86 (DE 327); Breitbart Plan Data Charts (Ex. H). 96. On average, 69.46% of a district s population under the Breitbart Plan was together in a district under the 2002 Senate Plan. Breitbart Decl. 54 (DE 327). 97. The Breitbart Plan places nine districts on Long Island (1-9), twenty-six districts wholly in New York City (10-35), and twenty-seven districts wholly in upstate (37-63). Breitbart Plan Data Charts (Ex. H). 98. The Breitbart Plan splits District 36 between the Bronx and Westchester. See id.; Bronx Districts Chart (Ex. O). As used in this Statement of Material Facts, the Breitbart Plan s New York City districts are Districts 10-36, and the Breitbart Plan s upstate districts are Districts The Breitbart Plan overpopulates the nine Long Island Districts by 2.54% of the ideal district size as measured by total population. DE at The estimated CPOP in the Breitbart Plan s twenty-seven New York City districts is 6,732,435 people. See Breitbart Plan Data Charts (Ex. H) The average estimated CPOP in the Breitbart Plan s twenty-seven New York City districts is 249,349 people per district. See id The Breitbart Plan underpopulates the twenty-seven New York City districts by 8.78% of the ideal district size as measured by estimated CPOP. See id. 12

16 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 13 of 25 PageID #: The estimated CPOP in the Breitbart Plan s twenty-seven upstate districts is 7,887,125 people. See id The average estimated CPOP in the Breitbart Plan s twenty-seven upstate districts is 292,116. See id The Breitbart Plan overpopulates its twenty-seven upstate districts by 6.87% of the ideal district size as measured by estimated CPOP. See id The estimated CPOP in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts is 3,729,970 people. See Breitbart Plan Data Charts (Ex. H) The average estimated CPOP in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts is 248,665 people per district. See id The Breitbart Plan underpopulates the putative fifteen New York City Black or Hispanic districts by 9.03% of the ideal district size as measured by estimated CPOP. See id The estimated CVAP in the Breitbart Plan s nine Long Island districts under the Breitbart Plan is 1,938,115 people. See id The average estimated CVAP in the Breitbart Plan s nine Long Island districts is 215,346 people per district. See id The Breitbart Plan overpopulates the nine Long Island districts by 4.32% of the ideal district size as measured by estimated CVAP. See id The estimated CVAP in the Breitbart Plan s twenty-seven New York City districts is 4,991,415 people. See id The average estimated CVAP in the Breitbart Plan s twenty-seven New York City districts is 184,867 people per district. See id. 13

17 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 14 of 25 PageID #: The Breitbart Plan underpopulates the twenty-seven New York City districts by 10.44% of the ideal district size as measured by estimated CVAP. See id The estimated CVAP in the Breitbart Plan s twenty-seven upstate districts is 6,075,290 people. See id The average estimated CVAP in the Breitbart Plan s twenty-seven upstate districts is 225,011. See id The Breitbart Plan overpopulates its twenty-seven upstate districts by 9% of the ideal district size as measured by estimated CVAP. See id The estimated CVAP in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts is 2,662,206 people. See id The average estimated CVAP in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts is 177,480 people per district. See id The Breitbart Plan underpopulates the putative fifteen New York City Black or Hispanic districts by 14.02% of the ideal district size as measured by estimated CVAP. See id The total voter enrollment in the Breitbart Plan s twenty-seven New York City districts is 4,058,553 people. See id The average voter enrollment in the Breitbart Plan s twenty-seven New York City districts is 150,317 people per district. See id The total voter enrollment in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts is 2,228,278 people. See id The average voter enrollment in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts is 148,552 people per district. See id. 14

18 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 15 of 25 PageID #: The total voter enrollment in the Breitbart Plan s twenty-seven upstate districts is 4,775,003 people. See id The average voter enrollment in the Breitbart Plan s twenty-seven upstate districts is 176,852 people per district. See id The average weight of a vote in the Breitbart Plan s twenty-seven New York City districts is 18% more than the average weight of a vote in the Breitbart Plan s upstate districts as measured by enrollment and calculated as described in 56. See id The average weight of a vote in the Breitbart Plan s putative fifteen Black or Hispanic New York City districts is 19% more than the average weight of a vote in the Breitbart Plan s upstate districts as measured by enrollment and calculated as described in 58. See id The total voter turnout in the Breitbart Plan s twenty-seven New York City districts in the 2008 election was 2,691,802 people. See id The average voter turnout in the Breitbart Plan s twenty-seven New York City districts in the 2008 election was 99,696 people per district. See id The total voter turnout in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts in the 2008 election was 1,461,408 people. See id The average voter turnout in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts in the 2008 election was 97,427 people per district. See id The total voter turnout in the Breitbart Plan s twenty-seven upstate districts in the 2008 election was 3,721,624 people. See id The average voter turnout in the Breitbart Plan s twenty-seven upstate districts in the 2008 election was 137,838 people per district. See id. 15

19 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 16 of 25 PageID #: The average weight of a vote in the Breitbart Plan s twenty-seven New York City districts in the 2008 election is 38% more than the average weight of a vote in the Breitbart Plan s upstate districts as measured by voter turnout and calculated as described in 66. See id The average weight of a vote in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts in the 2008 election is 41% more than the average weight of a vote in the Breitbart Plan s upstate districts as measured by voter turnout and calculated as described in 68. See id The total voter turnout in the Breitbart Plan s twenty-seven New York City districts in the 2010 election was 1,439,564 people. See id The average voter turnout in the Breitbart Plan s twenty-seven New York City districts in the 2010 election was 53,317 people per district. See id The total voter turnout in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts in the 2010 election was 748,729 people. See id The average voter turnout in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts in the 2010 election was 49,915 people per district. See id The total voter turnout in the Breitbart Plan s twenty-seven upstate districts in the 2010 election was 2,531,299 people. See id The average voter turnout in the Breitbart Plan s twenty-seven upstate districts in the 2010 election was 93,752 people per district. See id The average weight of a vote in the Breitbart Plan s twenty-seven New York City districts in the 2010 election is 76% more than the average weight of a vote in the Breitbart Plan s upstate districts as measured by voter turnout and calculated as described in 66. See id. 16

20 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 17 of 25 PageID #: The average weight of a vote in the Breitbart Plan s putative fifteen New York City Black or Hispanic districts in the 2010 election is 88% more than the average weight of a vote in the Breitbart Plan s upstate districts as measured by voter turnout and calculated as described in 68. See id. C. The Common Cause Plan 145. Common Cause proposed a 62-seat Senate Plan ( Common Cause 62-seat Plan ), which it released in revised form on February 23, Beveridge Decl. 79 (DE 331) The Common Cause 63-seat Senate Plan ( Common Cause Plan ) was proposed on February 29, Beveridge Decl. 79 (DE 331) The Common Cause Plan purports to create fourteen performing Black or Hispanic districts in New York City. See Common Cause Plan s District Statistics (Ex. I) The Common Cause Plan does not create more minority districts that are Blackmajority or Hispanic-majority than the Senate Plan. See id The Common Cause Plan pairs the residences of eighteen incumbents in the same districts. See Incumbent Pairings (Ex. E) On average, 66.97% of a district s population under the Common Cause Plan was together in a district under the 2002 Senate Plan. District Cores Report for the Common Cause Plan (Ex. J) The Common Cause Plan places nine districts on Long Island, twenty-seven districts in New York City (including one district that draws approximately 22.5% of its 17

21 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 18 of 25 PageID #: 8355 population from Westchester), and twenty-seven districts upstate. Common Cause Plan s District Statistics (Ex. I); Bronx District Charts (Ex. O) The Common Cause Plan overpopulates the nine Long Island Districts by 2.54% of the ideal district size as measured by total population. See id The estimated CPOP in the Common Cause Plan s twenty-seven New York City districts is 6,691,490 people. See Common Cause Plan Data Charts (Ex. K) The average estimated CPOP in the Common Cause Plan s twenty-seven New York City districts is 247,833 people per district. See id The Common Cause Plan underpopulates its twenty-seven New York City districts by 9.33% of the ideal district size as measured by estimated CPOP. See id The estimated CPOP in the Common Cause Plan s twenty-seven upstate districts is 7,928,070 people. See id The average estimated CPOP in the Common Cause Plan s twenty-seven upstate districts is 293,632 people per district. See id The Common Cause Plan overpopulates the twenty-seven upstate districts by 7.42% of the ideal district size as measured by estimated CPOP. See id The estimated CPOP in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts is 3,435,001 people. See id The average estimated CPOP in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts is 245,357 people per district. See id. 14 As used in this Statement of Material Facts, the Common Cause Plan s New York City districts include the Bronx-Westchester district, and the Common Cause Plan s upstate districts do not include the Bronx-Westchester district. 18

22 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 19 of 25 PageID #: The Common Cause Plan underpopulates its putative fourteen New York City Black or Hispanic districts by 10.24% of the ideal district size as measured by estimated CPOP. See id The estimated CVAP in the Common Cause Plan s nine Long Island districts is 1,938,115 people. See id The average estimated CVAP in the Common Cause Plan s nine Long Island districts is 215,346 people per district. See id The Common Cause Plan overpopulates its nine Long Island districts by 4.32% of the ideal district size as measured by estimated CVAP. See id The estimated CVAP in the Common Cause Plan s twenty-seven New York City districts is 4,961,635 people. See id The average estimated CVAP in the Common Cause Plan s twenty-seven New York City districts is 183,764 people per district. See id The Common Cause Plan underpopulates its twenty-seven New York City districts by 10.98% of the ideal district size as measured by estimated CVAP. See id The estimated CVAP in the Common Cause Plan s twenty-seven upstate districts is 6,105,070 people. See id The average estimated CVAP in the Common Cause Plan s twenty-seven upstate districts is 226,114 people per district. See id The Common Cause Plan overpopulates the twenty-seven upstate districts by 9.54% of the ideal district size as measured by estimated CVAP. See id The estimated CVAP in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts is 2,467,650 people. See id. 19

23 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 20 of 25 PageID #: The average estimated CVAP in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts is 176,261 people per district. See id The Common Cause Plan underpopulates the putative fourteen New York City Black or Hispanic districts by 14.61% of the ideal district size as measured by estimated CVAP. See id The total voter enrollment in the Common Cause Plan s twenty-seven New York City districts is 4,030,553 people. See id The average voter enrollment in the Common Cause Plan s twenty-seven New York City districts is 149,268 people per district. See id The total voter enrollment in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts is 2,062,734 people. See id The average voter enrollment in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts is 147,338 people per district. See id The total voter enrollment in the Common Cause Plan s twenty-seven upstate districts is 4,803,320 people. See id The average voter enrollment in the Common Cause Plan s twenty-seven upstate districts is 177,901 people per district. See id The average weight of a vote in the Common Cause Plan s twenty-seven New York City districts is 19% more than the average weight of a vote in the Common Cause Plan s upstate districts as measured by enrollment and calculated as described in 56. See id The average weight of a vote in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts is 21% more than the average weight of a vote in the 20

24 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 21 of 25 PageID #: 8358 Common Cause Plan s upstate districts as measured by enrollment and calculated as described in 58. See id The total voter turnout in the Common Cause Plan s twenty-seven New York City districts in the 2008 election was 2,668,448 people. See id The average voter turnout in the Common Cause Plan s twenty-seven New York City districts in the 2008 election was 98,831 people per district. See id The total voter turnout in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts in the 2008 election was 1,347,154 people. See id The average voter turnout in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts in the 2008 election was 96,225 people per district. See id The total voter turnout in the Common Cause Plan s twenty-seven upstate districts in the 2008 election was 3,744,978 people. See id The average voter turnout in the Common Cause Plan s twenty-seven upstate districts in the 2008 election was 138,703 people per district. See id The average weight of a vote in the Common Cause Plan s twenty-seven New York City districts in the 2008 election is 40% more than the average weight of a vote in the Common Cause Plan s upstate districts as measured by voter turnout and calculated as described in 66. See id The average weight of a vote in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts in the 2008 election is 44% more than the average weight of a vote in the Common Cause Plan s upstate districts as measured by voter turnout and calculated as described in 68. See id. 21

25 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 22 of 25 PageID #: The total voter turnout in the Common Cause Plan s twenty-seven New York City districts in the 2010 election was 1,424,010 people. See id The average voter turnout in the Common Cause Plan s twenty-seven New York City districts in the 2010 election was 52,741 people per district. See id The total voter turnout in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts in the 2010 election was 689,091 people. See id The average voter turnout in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts in the 2010 election was 49,221 people per district. See id The total voter turnout in the Common Cause Plan s twenty-seven upstate districts in the 2010 election was 2,546,853 people. See id The average voter turnout in the Common Cause Plan s twenty-seven upstate districts in the 2010 election was 94,328 people per district. See id The average weight of a vote in the Common Cause Plan s twenty-seven New York City districts in the 2010 election is 79% more than the average weight of a vote in the Common Cause Plan s upstate districts as measured by voter turnout and calculated as described in 66. See id The average weight of a vote in the Common Cause Plan s putative fourteen New York City Black or Hispanic districts in the 2010 election is 92% more than the average weight of a vote in the Common Cause Plan s upstate districts as measured by voter turnout and calculated as described in 68. See id. D. Unity Plan 198. The Unity Plan was proposed in late Unity Plan s District Statistics (Ex. L). 22

26 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 23 of 25 PageID #: The Unity Plan proposes alternative districts only for New York City and lower Westchester County, and does not propose districts for Long Island or any part of upstate New York other than lower Westchester County. See id The Unity Plan consecutively numbers its proposed districts See id The Unity Plan pairs the residences of four incumbents in the same districts. See Incumbent Pairings (Ex. E) On average, 64.84% of a district s population under the Unity Plan was together in a district under the 2002 Senate Plan. District Cores Report for the Unity Plan (Ex. M) The Unity Plan does not create more minority districts that are Black-majority or Hispanic-majority than the Senate Plan. Unity Plan s District Statistics (Ex. L). 23

27 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 24 of 25 PageID #: 8361 Dated: June 29, 2012 Respectfully submitted, /s/michael A. Carvin Michael A. Carvin (MC 9266) JONES DAY 51 Louisiana Avenue, NW Washington, DC / Todd R. Geremia (TG 4454) JONES DAY 222 East 41st Street New York, NY / David Lewis (DL 0037) LEWIS & FIORE 225 Broadway, Suite 3300 New York, NY / Attorneys For Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez 24

28 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 25 of 25 PageID #: 8362 CERTIFICATE OF SERVICE I hereby certify that, on this 29th day of June, 2012, a true and correct copy of the foregoing was served on the following counsel of record through the Court s CM/ECF system: Richard Mancino Daniel Max Burstein Jeffrey Alan Williams WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, NY Attorneys for Plaintiffs Leonard M. Kohen 67 E. 11th Street #703 New York, NY Attorney for Defendants John L. Sampson and Martin Malave Dilan Harold D. Gordon Couch White, LLP 540 Broadway Albany, NY Attorney for Defendant Brian M. Kolb James D. Herschlein KAYE SCHOLER LLP 425 Park Avenue New York, NY Attorney for Intervenors Lee, Chung, Hong, and Lang Joshua Pepper Assistant Attorney General 120 Broadway, 24th Floor New York, NY Attorney for Defendants Andrew M. Cuomo, Eric T. Schneiderman, and Robert J. Duffy Jonathan Sinnreich SINNREICH KOSAKOFF & MESSINA LLP 267 Carleton Avenue, Suite 301 Central Islip, NY Attorney for Defendant Robert Oaks Joan P. Gibbs Center for Law and Social Justice 1150 Carroll Street Brooklyn, NY Attorney for Intervenors Drayton, Ellis, Forrest, Johnson, Woolley, and Wright Jackson Chin LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY Attorney for Intervenors Ramos, Chavarria, Heymann, Martinez, Roldan, and Tirado Jeffrey Dean Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY Attorney for Rose Intervenors /s/ Michael A. Carvin 25

29 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 1 of 32 PageID #: 8363 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) No. 1:11-cv DLI-RR-GEL ) ORAL ARGUMENT REQUESTED ) Date of Service: June 29, 2012 ANDREW M. CUOMO, et al. ) ) ) Defendants. ) ) MEMORANDUM OF LAW IN SUPPORT OF SENATE MAJORITY DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON ALL EQUAL-POPULATION CLAIMS AGAINST THE SENATE PLAN Michael A. Carvin (MC 9266) Louis K. Fisher (admitted pro hac vice) JONES DAY 51 Louisiana Avenue, NW Washington, DC / / Todd R. Geremia (TG 4454) JONES DAY 222 East 41st Street New York, NY / David Lewis (DL 0037) LEWIS & FIORE 225 Broadway, Suite 3300 New York, NY / Attorneys For Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez

30 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 2 of 32 PageID #: 8364 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 ARGUMENT... 5 I. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON ALL EQUAL-POPULATION CHALLENGES TO THE SENATE PLAN... 5 A. Population Deviations Under 10% Must Be Shown To Harm Voting Equality And To Result Solely From An Unconstitutional Or Irrational Purpose... 5 B. The Senate Plan Benefits, Rather Than Harms, New York City Voters C. The Senate Plan Promotes Traditional Redistricting Policies The Senate Plan Adheres To Appropriate State Policies Drayton s And Ramos s Racial Discrimination Allegations Do Not Salvage Their One-Person, One-Vote Claims CONCLUSION i

31 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 3 of 32 PageID #: 8365 TABLE OF AUTHORITIES CASES Page(s) Ashcroft v. Iqbal, 556 U.S. 662 (2009)...24 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...24 Brown v. Thomson, 462 U.S. 835 (1983)...6, 7, 9, 16 Burns v. Richardson, 384 U.S. 73 (1966)...11, 14, 15 Cohen v. Cuomo, No. 135 (N.Y. May 3, 2012)...3 Daly v. Hunt, 93 F.3d 1212 (4th Cir. 1996)...10 Easley v. Cromartie, 532 U.S. 234 (2001)...25 Flemming v. Nestor, 363 U.S. 603 (1960)...17 Gaffney v. Cummings, 412 U.S. 735 (1973)...6, 19 Garza v. Cnty. of Los Angeles, 918 F.2d 763 (9th Cir. 1990)...23 Hunter v. Underwood, 471 U.S. 222 (1985)...16 In re Primus, 436 U.S. 412 (1978)...8 Karcher v. Daggett, 462 U.S. 725 (1983)...18 Kirkpatrick v. Preisler, 394 U.S. 526 (1969)...7 ii

32 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 4 of 32 PageID #: 8366 Larios v. Cox, 300 F. Supp. 2d 1320 (Feb. 10, 2004), summ. aff d, 542 U.S. 947 (June 30, 2004)...8, 9, 19 LULAC v. Perry, 548 U.S. 399 (2006)...14 Mahan v. Howell, 410 U.S. 315 (1973)...7, 9, 14, 16 Mandel v. Bradley, 432 U.S. 173 (1977)...2, 8, 9 Marylanders for Fair Rep. v. Schaefer, 849 F. Supp (D. Md. 1994)...6 Md. Comm. for Fair Rep. v. Tawes, 377 U.S. 656 (1964)...15 NAACP v. Snyder, No. 2:11-cv (E.D. Mich. Apr. 6, 2012)...25 Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm n, 461 U.S. 190 (1983)...17 Palmer v. Thompson, 403 U.S. 217 (1971)...17 Personnel Adm r v. Feeney, 442 U.S. 256 (1979)...23 Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000)...5 Reynolds v. Sims, 377 U.S. 533 (1964)... passim Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004), summ. aff d, 543 U.S. 997 (2004)... passim Roman v. Sincock, 377 U.S. 695 (1964)...7, 9, 10 Sanks v. Georgia, 401 U.S. 144 (1971)...8 iii

33 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 5 of 32 PageID #: 8367 Swann v. Adams, 385 U.S. 440 (1967)...7 Thornburg v. Gingles, 478 U.S. 30 (1986)...22 Washington v. Davis, 426 U.S. 229 (1976)...23 WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964)...11 STATUTES 42 U.S.C U.S.C. 1973c(c)...4, 5, 25 OTHER AUTHORITIES New York Constitution...13 Public Hearing Schedule Second Round, available at iv

34 Case 1:11-cv DLI-RR-GEL Document Filed 06/29/12 Page 6 of 32 PageID #: 8368 The Senate Majority Senators Dean G. Skelos and Michael F. Nozzolio, and LATFOR member Welquis R. Lopez respectfully submits this memorandum in support of its motion for summary judgment on all equal-population claims asserted against the Senate Plan. PRELIMINARY STATEMENT Ten years ago, the Rodriguez plaintiffs claimed that the 2002 Senate Plan violated the Fourteenth Amendment s equal-population requirement because it failed to place a 27th district in New York City. See Rodriguez v. Pataki, 308 F. Supp. 2d 346, (S.D.N.Y. 2004) (per curiam), summ. aff d, 543 U.S. 997 (2004). The plaintiffs alleged that the 2002 plan discriminate[d] against downstate residents by systematically overpopulating all [New York City] districts and systematically underpopulating all of the upstate districts. Id. at 366. The plaintiffs asserted that such regional discrimination is unconstitutional, alleged that the Legislature acted with improper political purpose, and suggest[ed] that racial bias may have animated the plan because all fourteen Senate majority-minority districts were overpopulated and are downstate, where most of the state s minority population lives. Id. at The 2002 plan had a maximum population deviation of 9.78%, 1 which is below the 10% minor deviation presumed constitutional. See id. at The three-judge court therefore held that the defendants have no burden to justify the plan s minor deviation, but instead that the plaintiffs bore the heavy burden to establish that the minor deviation result[ed] solely from an unconstitutional or irrational state purpose and not even in part from other State policies recognized by the Supreme Court to be appropriate reasons for deviations. Id. The three-judge court granted summary judgment to the defendants because the plaintiffs failed to meet their burden of negating every conceivable rational basis for the 2002 plan s minor 1 The maximum population deviation is the difference between the most and least populous districts, divided by the ideal district size. 1