Case 1:11-cv DLI-RR-GEL Document 182 Filed 03/05/12 Page 1 of 1 PageID #: 2214

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1 Case 1:11-cv DLI-RR-GEL Document 182 Filed 03/05/12 Page 1 of 1 PageID #: 2214 Via ECF Magistrate Judge Roanne L. Mann United States District Court 225 Cadman Plaza East Brooklyn, New York March 5, 2012 Dear Judge Mann: Re: Favors, et al. v. Cuomo, et al. 11-cv DLI-RR-GEL (RLM) We represent Intervenor-Plaintiffs Drayton, Ellis, Forrest, Johnson, Woolley, and Wright in the above referenced matter. We have filed with this letter a copy of the testimony of Esmeralda Simmons, Esq. and Dr. Andrew A. Beveridge that was presented at today s hearing. Very truly yours, NEWMAN FERRARA LLP. By: s/randolph M. Mclaughlin Randolph M. McLaughlin rmclaughlin@nfllp.com Co-Counsel for the Drayton Intervenor Plaintiffs cc: Counsel for all parties via ECF

2 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 1 of 6 PageID #: 2215 TESTIMONY OF ESMERALDA SIMMONS, ESQ. Good afternoon, your honor. My name is Esmeralda Simmons and I am one of the attorneys for Plaintiffs-Interveners Donna K. Drayton et al. Professor Andrew Beveridge and will be presenting today on behalf of these intervenors. I will present to the development of the Unity Map and why we believe it should serve as the benchmark for drawing congressional districts in New York City and the adjacent areas. Dr. Beveridge will provide an analysis of the Unity Maps and the maps presented by the parties in light of the criteria set forth in Rodriguez v. Pataki, 207 F. Supp. 2d 123, 125 (S.D.N.Y. 2002) and in light of the criteria set forth by this Court. The Unity Map is a non-partisan plan was created as a joint effort of four voting rights advocacy organizations for the protected groups in New York City. In addition, to the Center for Law and Social Justice, these organizations included the Asian American Legal Defense and Education Fund, LatinoJustice and the National Institute for Latino Policy. During the creation process of the UNITY plan all four organizations independently accumulated data on defining communities of interest through meetings with its residents as well as historic sources. When the actual lines were drawn boundaries were mutually agreed upon that took into consideration all community of interest perspectives. The plan 1

3 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 2 of 6 PageID #: 2216 reflects a mutual respect for those communities from the perspective of the Asian and Latino as well as Black communities. Specifically this includes geographic theaters where any of the communities are in close proximity. In Brooklyn the emerging Asian community of Borough Park is recognized as well as the existing Black community of East Flatbush/Flatbush and the Hispanic community of Sunset Park. The Northeast Brooklyn the communities of Bushwick and Bedford-Stuyvesant were kept whole based upon the feedback we received from the Hispanic as well as Black communities in these areas. In Queens, the areas of discussion where agreement was reached included Jamaica, Queens Village, Richmond Hill and Ozone Park where both Black and Asian communities of interest reside. In the Bronx, the Williamsbridge/ Co-op City and Norwood neighborhoods were taken into account. Furthermore it was felt that the Latino and Black Communities of Westchester County should be included within the same Congressional district as the Black Communities of Northern Bronx. In developing the Unity Map, we endeavored to follow the guidelines set forth by the Court in Rodriguez v. Pataki, 207 F. Supp. 2d 123(124 (S.D.N.Y. 2002). Namely that congressional maps must be substantially equal in population, 2

4 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 3 of 6 PageID #: 2217 compact and contiguous and, last but not least, must comply with the Voting Rights Act. The Unity Map satisfies each of the requirements. First, it is substantially equal in population as eleven of its sixteen districts are exactly equal to the ideal population of 717,707. The other five are within one person of that average. Second, as will be more fully discussed by Professor Beveridge, the Unity Map s districts are compact and contiguous. The Unity Map also complies with the Voting Rights Act. Although the Supreme Court has held that redistricting plans prepared and adopted by a federal court are exempt from Section 5 review, see Connor v. Johnson, 402 U.S. 690, 691 (1971). However, the Court should consider whether the submitted plans are retrogressive. The Supreme Court has made clear that court-ordered plans must meet the requirements of Section 2 of the Voting Rights Act. See e.g., Winter v Brooks, 461 U.S. 921 (1983) (mem). As the Court is aware, Section 2 of the Voting Rights Act prohibits any state or political subdivision from imposing any voting qualification, standard, practice or procedure that deprives voters of an effective opportunity to nominate and elect candidates of choice because of their race, color or status as a member of a language minority group. 42 U.S.C. Section 1973(a). Generally, in the reapportionment context, Section 2 challenges involve claims by protected groups that their communities have been packed or fractured. In brief, packing occurs when a minority group is concentrated into 3

5 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 4 of 6 PageID #: 2218 one or more districts so that the group constitutes an overwhelming majority in those districts, thus minimizing the number of districts in which the minority could elect candidates of their choice. See e.g., Voinovich v. Quilter, 507 U.S. 146, (1993). Fracturing, cracking or splitting occurs when a group of minority voters is broken off from a concentration of minority voters and added to a large majority district. Gingles v. Edmisten, 590 F. Supp. 345, (E.D. N. C. 1984), aff d in part, rev d in part sub nom. Thornburg v. Gingles, 478 U.S. 30 (1986). Of all of the plans submitted by the parties as well as the non-parties herein, the Unity Map best affords Black, Hispanic and Asian voters the opportunity to elect candidates of their choice and does not have either a retrogressive or a dilutive effect. In the Unity plan there are three Congressional Districts with a Black majority of eligible voters (52-54%). Two are in Central & Southeast Brooklyn; one covers Southeast Queens & Elmont. Two additional districts provide their Black communities with a significant influence, by keeping the populations whole, as part of majority minority districts (32% of eligible voters in each). One is based in Northern Manhattan and wholly contains Harlem. The other is located in the Northern Bronx and Westchester. Unlike, the plans submitted by Common Cause, the Assembly Majority, the Assembly Minority, the Senate Majority and the Rose Intervenors, as detailed in greater detail in Joan P. 4

6 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 5 of 6 PageID #: 2219 Gibbs s recent letter to the Court and in Dr. Beveridge s second declaration, the Unity Plan neither packs, fractures, cracks or splits Black voters and communities. Rather, it is based on careful consideration of existing communities of interest of Black, as well as Hispanic and Asian people, as will be discussed in greater detail co-counsel and provides each of these protected groups with the opportunity to elect the candidates of their choice in those districts where they make up the majority of the voting age population. Similarly, where there is substantial protected group population in a geographic area, but insufficient, whole within a congressional district. Finally, the Unity Map is nonpartisan, as it was developed without regard incumbency or the political interests of either of the major political parties. By contrast, the plans of the Assembly Majority, the Assembly Minority and the Senate Majority are partisan plans. As such, these plans do not represent the will or sentiment of the Legislature as they have not been adopted by the Legislature. Accordingly, under Perez v. Perry, there is no Legislative plan that is entitled to any deference and the Court is free to adopt the plan that comports with the Constitution and the Voting Rights Act. Lastly, the fact that the Unity Map is not a map for the entire state of New York is of no moment as it focuses on the areas in which the largest number of Blacks, Asians and Hispanics New York is of no moment as which the largest number of Blacks, Asians and Latinos reside in New York State and the three counties covered by Section 5 of the Voting Rights Act, the Bronx, Brooklyn and 5

7 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 6 of 6 PageID #: 2220 Kings. We urge the Court to adopt the Unity Map in developing a congressional plan for New York. Thank you. 6

8 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 1 of 5 PageID #: 2221 TESTIMONY OF DR. ANDREW A. BEVERDIGE Good afternoon your honor. My name is Andrew A. Beveridge. I am a Professor of Sociology at Queens College and the Graduate Center, City University of New York (CUNY) and have served as an expert in redistricting political bodies both working for such bodies, and as an expert for plaintiffs challenging such bodies. I have been retained by the Center for Law and Social Justice, and Newman Ferrara LLP, counsel for a plaintiff intervenor in the case Favors et al., v. Cuomo, et al. The Unity Map coalition includes: Latino Justice, the Asian American Legal Defense Fund, the Center for Law and Social Justice and the National Institute for Latino Policy. The coalition was formed for a number of reasons: 1. To work together to protect districts which had a majority of one of the groups; 2. To develop a non-partisan map following normal redistricting principles that would lead to an increase, if possible, in the number of minority-majority districts; 3. To present that map as a benchmark so that plans drawn would take into account the concerns of the Unity Map Coalition, In my two declarations, I presented data about the Congressional redistricting plan drawn by the Unity Map Coalition, and commented on the plans submitted by other parties in this case. Today, I would like to highlight several points, and to amplify some of my comments that were in the declaration. As everyone knows, this process has been moving at lightning speed during the last week. As Esmeralda Simmons notes, the Unity Coalition chose to develop a benchmark plan for the part of New York State where the vast proportion of African Americans, Latinos and 1

9 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 2 of 5 PageID #: 2222 Asian Americans live. This was done so that careful analysis could be carried out regarding the exact communities that were assigned to each Congressional District. Furthermore, the interest of the coalition was in protecting the interests of Asian Americans, Latinos and African Americans, so it was important to work on districts in the portions of New York where such groups either singly or in coalition would have a reasonable chance to elect a candidate of their choice. The plan was drawn with care, so that deviations among their 16 districts were either zero or one person. In this way, the Unity plan would fit easily into a statewide plan, which would meet the standards regarding population equality. As the data that were presented makes plain, this was accomplished. So the Unity Coalition Congressional Plan could easily serve as the bench mark as it was designed to be, and the districts could be adopted, in tact, if that was the choice. As noted in my earlier declaration, except for the Common Cause plan, the Unity Coalition Plan overall was the most compact for the area where it created districts. In the districts in the Common Cause plan with the highest concentrations of African Americans and Hispanics of voting age, those percentages are lower than those in the Unity Plan. Indeed, the Common Cause plan only has two districts that have at least a majority of African Americans of voting age, and though it has three such districts with respect to Latino voting age population, it has none when Citizens of Voting Age are considered Finally, in several districts including at least one with a minority member of Congress, the Common Cause plan paired two incumbents, a practice that could easily make it difficult for a minority group to elect their candidate of choice. In short, it appears that Common Cause was not mindful of the impact of their plan on the ability of Hispanics and African Americans to elect a candidate of their choice. 2

10 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 3 of 5 PageID #: 2223 Three plans were submitted by legislative caucuses. Since these plans have not been adopted by the Legislature they do not represent the will or sentiment of the Legislature. Indeed, the very fact that there are three such plans, indicate that there is no agreement between the majorities in the Senate and the Assembly on a plan for Congressional redistricting. Because of this, none of the legislative plans are entitled to any deference and the Court is free to adopt the plan that comports with the Constitution and the Voting Rights Act. This understanding is based upon communication with the attorneys assisting the coalition. As examples of what might be appropriate, I should note that for the 16 districts that overlap the territory in the Unity Map, these plans are less compact, and in two majority plans have lower concentrations of Latinos and African-Americans in the districts with the highest concentrations than does the Unity Plan. It is true that the Assembly minority plan does have slightly higher proportions of African American and Latino population for their most concentrated districts, than does any other plan. When a careful analysis done of how the Assembly minority plan was drawn, it is plain that they achieved this by carving up some communities that traditionally had been together: For instance, in the 15th Congressional District in Manhattan the plan adds Astoria, Queens and part of Upper West Side while subtracting Kingsbridge and Norwood. The result is a district 39.2% Latino VAP and 23% Black VAP in the Assembly minority Plan vs. 49.4% and 26.5% (respectively) for the Unity Plan. Similar carving was done in district 6 in Queens, and districts 11 and 12 in Brooklyn. It may have been the intent of this plan to maximize Hispanic and African American percentages in a few districts without regard to which communities of interest were split. 3

11 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 4 of 5 PageID #: 2224 As noted in my declaration, the Rose plan has deficiencies similar to that found in the two legislative majority plans. It should also be noted that only the Common Cause and Unity plan have any district where the Asian voting age population percentage exceeds 35 percent. Thus, none of the legislative plans, nor the Rose plan has any district where one could expect any real influence in the choice of representative to be influenced by the Asian community. Though voting age and citizens of voting age proportions of various groups do give some indication of the likelihood of a given racial and ethnic group having an effective majority, it should be noted that performance analysis based upon Racial Polarized Voting using the socalled Goodman regression technique and the method developed by Gary King to keep the estimates within appropriate bounds would give a better estimates of likely performance. We would urge the Court to conduct a performance analysis on the districts before adopting them, to be completely sure that the ability of Latinos and African-Americans to elect a candidate of their choice is possible in the new districts. At the same time, given the time and effort that the Unity Map coalition expended in together identifying areas of high concentrations of African-Americans, Latinos and Asians, and together deciding what was the most appropriate district for each area, it is very likely that the performance of candidates of choice of the three groups will perform well in the appropriate districts, and may even coalesce together in some. In conclusion, I want to note that the emergence of the non-partisan Unity Map coalition should be taken by the court as a positive step towards the protection of the rights of African- American, Latino and Asian New Yorkers in the redistricting process. As noted, it had as its goal the development of common map that respected the population growth and change of each 4

12 Case 1:11-cv DLI-RR-GEL Document Filed 03/05/12 Page 5 of 5 PageID #: 2225 group, while working to jointly protect the rights of a group by itself and in coalition with other groups. I do hope the Court will take the results of the efforts of the Unity Coalition into serious consideration, as it crafts its plan for redistricting New York State s Congressional Districts. 5