Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 1 of 12 PageID #: 10833 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) Case: 1:11-cv-05632-DLI-RLM ) ORAL ARGUMENT REQUESTED ANDREW M. CUOMO, et al. ) Date of Service: August 3, 2012 ) ) Defendants. ) ) SENATE MAJORITY S REPLY TO RAMOS INTERVENORS OPPOSITION TO 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) David J. Strandness (admitted pro hac vice) JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001-2113 202/879-3939 Todd R. Geremia (TG 4454) JONES DAY 222 East 41st Street New York, NY 10017-6702 212/326-3939 David Lewis (DL 0037) LEWIS & FIORE 225 Broadway, Suite 3300 New York, NY 10007 212/285-2290 Attorneys For Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 2 of 12 PageID #: 10834 The Ramos Intervenors Opposition to the Senate Majority s Motion For Summary Judgment On All Equal-Population Claims (see DE 458 ( Opp. )) largely rehashes the misguided and meritless arguments that the Senate Minority peddles in its Opposition (DE 453) ( Sen. Min. Opp. ), and that cannot defeat the Senate Majority s dispositive showing that the equal-population challenges to the Senate Plan fail under Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004) (per curiam), summ. aff d, 543 U.S. 997 (2004). See DE 420-2 ( Memo. ); see also Reply To Sen. Min. s Opp. To Mot. For Summ. J. On Equal-Population Claims at 1 10 (filed Aug. 3, 2012) ( Reply To Sen. Min. ). For his part, Ramos fails even to mention the controlling standard adopted by the three-judge court and summarily affirmed by the Supreme Court in Rodriguez, which requires him to demonstrate that the Senate Plan s presumptively constitutional minor deviation result[ed] solely from the promotion of an unconstitutional or irrational state policy and not even in part from other state policies recognized by the Supreme Court to be appropriate reasons for deviations. See 308 F. Supp. 2d at 365 66 (emphasis added); 5/16/12 Op. at 22. This failure is unsurprising because, like the Senate Minority, Ramos does not identify any harm to any voter, and does not dispute that the Plan promotes the legitimate state policies of offsetting (although failing to eliminate) the further dilution of upstate voting strength and representation, preserving district cores, and avoiding incumbent pairings. See Opp. at 10 13; see also Memo. at 10 21; Reply To Sen. Min. at 8 9. These undisputed facts, without more, warrant summary judgment in Defendants favor. See Memo. at 10 21. 1 Ramos thus seeks to save his meritless claim from summary judgment with attempts to 1 For the reasons explained in the Senate Majority s Reply To The Senate Minority s Opposition, Ramos grossly mischaracterizes the Supreme Court s controlling authorities and Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.), summ. aff d, Cox v. Larios, 542 U.S. 947 (2004), when he argues that the governing test is whether the map drawer subjectively made an honest and good faith effort to eliminate all population deviations. Opp. at 12; see also Reply To Sen. Min. at 1 10. 1
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 3 of 12 PageID #: 10835 change the governing law and to manufacture factual disputes, both of which fail. First, Ramos s inflammatory accusations of racial discrimination are completely false, and change absolutely nothing about the application of the controlling Rodriguez standard to his unmeritorious equal-population claim. Second, Ramos s inapposite cases cannot defeat the dispositive showing that the Senate Plan benefits, rather than harms, New York City and minority voters, and the legislative deliberations and attorney-client communications he seeks to discover are privileged and wholly irrelevant. The Court should grant summary judgment. ARGUMENT I. RAMOS S INFLAMMATORY INVOCATION OF RACE DOES NOT SAVE HIS CLAIM Ramos attempts to shift attention away from his inability to satisfy Rodriguez s controlling standard by reiterating the accusation that the Senate Plan, and in particular its placement of the new district in upstate rather than New York City, evinces a racially discriminatory intent. See Opp. at 6 7, 10, 12. Of course, Ramos cannot credibly allege a racially discriminatory effect because he has abandoned his claim of such an effect under Section 2 of the Voting Rights Act. See DE 459. This absence of a discriminatory effect forecloses any showing of discriminatory purpose and, without more, defeats the racial discrimination accusation. See Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (a plaintiff failing to prove discriminatory effect cannot satisfy the inordinately difficult burden of proving discriminatory purpose (quoting S. Rep. No. 97 417, at 36 (1982)); Garza v. Cnty. of Los Angeles, 918 F.2d 763, 771 (9th Cir. 1990) ( [P]laintiffs must show that they have been injured as a result of the allegedly intentional discrimination. ) (cited at Opp. at 18 n.2); see also Memo. at 22 23. In all events, Ramos s inflammatory invocation of race also fails as a matter of pleading, 2
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 4 of 12 PageID #: 10836 law, and fact. First, Ramos concedes that [t]o prove intentional vote[] dilution... is a heavy burden (Opp. at 11) so heavy, in fact, that Ramos has not even pled such a claim. See Memo. at 23 24. Indeed, Ramos nowhere alleges that the state legislature[] selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Personnel Adm r v. Feeney, 442 U.S. 256, 279 (1979); Washington v. Davis, 426 U.S. 229, 240 (1976). Second, even now, Ramos claims only that he may eventually be able to show that the Senate Plan was motivated, in part, by race discrimination. Opp. at 11 (emphasis added). But such a showing is facially inadequate in an equal-population case challenging a deviation under 10%. Instead, Ramos like the Rodriguez plaintiffs who also alleged racial discrimination must demonstrate that the Senate Plan s minor deviation result[ed] solely from improper discrimination. Rodriguez, 308 F. Supp. 2d at 366 (emphasis added); see Reply To Sen. Min. at 1 8. But Ramos does not even attempt to make this showing, presumably because the Plan s undisputed advancement of at least one (and, in fact, four) legitimate state policies conclusively forecloses it. See Memo. at 16 23. Thus, Ramos s claim of a racially discriminatory motive, like the Senate Minority s allegation of regional and political discrimination, is insufficient as a matter of law, because the wholly undisputed facts establish that the Plan serves legitimate state policies (even if race was a factor). Third, the objective record evidence destroys any plausible basis for inferring any racial discrimination here. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the first place, the Senate Plan discriminates in favor of voters in New York City minority districts because it overweights their votes as measured by citizen voting age population ( CVAP ), voter enrollment, and turnout and Ramos cannot 3
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 5 of 12 PageID #: 10837 prove that the Plan s minor deviation somehow caused the absence of an additional Blackmajority or Hispanic-majority district. See Memo. at 21 24. Moreover, on Ramos s own theory, the Plan (1) places all upstate residents, regardless of race, in underpopulated districts as measured by total population; (2) overpopulates all New York City districts, regardless of racial composition, as measured by total population; (3) overpopulates all Long Island districts, which are predominantly white and Republican-leaning; and (4) creates as many majority-black and majority-hispanic districts as any proposed alternative plan. See id. at 24 25. Thus, the only possible basis for differential treatment was region but such treatment, even if it sinks to the level of regional discrimination, is not actionable under the Fourteenth Amendment s equalpopulation principle. See, e.g., Reynolds v. Sims, 377 U.S. 533, 562 (1964); Rodriguez, 308 F. Supp. 2d at 369. For this reason, the Attorney General was compelled to recognize the virtual incoherence of Ramos s inflammatory invocation of race when he concluded, in his review under Section 5 of the Voting Rights Act, that the State carried its burden to prove that the Senate Plan did not evince any discriminatory purpose. 42 U.S.C. 1973c(c) (emphasis added); see also Memo. at 24 25. Fourth, Ramos cannot show that placement of the new Senate district in upstate is attributable to race rather than politics. Easley v. Cromartie, 532 U.S. 234, 243 (2001) (emphasis in original). Here, the correlation between race and politics is overwhelming: the allegedly disadvantaged New York City is both less white and more Democratic than the allegedly advantaged upstate. See Memo. at 25. In fact, Ramos affirmatively concedes that politics was at least one factor motivating the Legislature by contending that excessive partisanship and other factors motivated the Plan. Opp. at 10. And Ramos s leap from the Breitbart Plan (although a prior version that does not incorporate Mr. Breitbart s attempted 4
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 6 of 12 PageID #: 10838 correction of the fatal error in his analysis, see id. at 11, 14; see also Breitbart Decl. 6 (DE 456)) to racial discrimination is at war with the Senate Minority s position that the Breitbart Plan establishes political and not racial discrimination. See Sen. Min. Opp. at 19 24. This irreconcilable conflict is unsurprising because Ramos and the Senate Minority both seek to transform a nonexistent regional disparity in New York City s Senate representation that does not harm voters into an actionable equal-population violation. In all events, the Senate Minority s view only underscores that it is far more likely that the Legislature acted with the political purpose to disadvantage Democratic-leaning New York City than that it acted with a racial purpose in a plan that overvalues minority voting strength. See Memo. at 25. Since Ramos cannot decouple race and politics, his racial discrimination allegation fails. See id. Finally, Ramos s assertion that the placement of the new district fails to reflect the State s population growth trend (Opp. at 14 17) is fundamentally flawed, and offers no support to his accusation of race-based discrimination. In the first place, New York City s growth outpaced the statewide average in the 1990s, but the Rodriguez plaintiffs nonetheless were forced to abandon their allegation that placement of the new Senate district in the slower-growing upstate was racially discriminatory. See Memo. at 16; 308 F. Supp. 2d at 366 & n.22. Here, Ramos s inference is even more implausible because, as he recognizes, the Hudson Valley s population growth rate exceeded New York City s population growth rate over the past decade. See Opp. at 15 16; see also Memo. at 16. Moreover, Ramos myopically focuses on total population and voting age population ( VAP ) (see Opp. at 14 17) and thus ignores that, even with the addition of a new district, upstate districts still have higher CVAP, voter enrollment, and voter turnout levels than New York City districts, and the Senate and Assembly Plans continue to provide disproportionate 5
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 7 of 12 PageID #: 10839 representation in favor of New York City. See Memo. at 14 15, 17 18. The Legislature rationally and sensibly chose to round down, rather than up, the number of Senate districts that New York City would receive on a strict proportional representation basis in an attempt to offset (although failing to eliminate) this regional bias in favor of New York City. See id. at 17 18. Yet Ramos would remove this inherently policy-based legislative decision from the Legislature because he would prevent any offsetting of the Senate and Assembly Plans anti-upstate bias, and would exacerbate that bias by transferring yet another Senate district to New York City to combat nonexistent racial discrimination. This concocted racial discrimination theory thus fails, and the Court should grant summary judgment. II. THE COURT SHOULD GRANT SUMMARY JUDGMENT NOW Building on the untenable foundation of his racial discrimination accusation, Ramos asks the Court to postpone the inevitable dismissal of his unmeritorious claim. Yet Ramos offers no argument that affects, much less defeats, the dispositive showing that the Senate Plan benefits, rather than harms, voters in New York City s minority districts. And he fails to identify any material disputed fact or open question that requires delaying summary judgment. 2 A. Ramos Cannot Rebut The Dispositive Showing That New York City Voters Benefit From The Senate Plan Ramos fails to identify any harm to any voter from the Senate Plan s presumptively constitutional minor deviation. Nor could he do so because the Senate Plan overweights the value of New York City votes and even more grossly overweights the value of votes in 2 In fact, Ramos is deemed to [have] admitted the facts in the Senate Majority s Rule 56.1 statement because he did not specifically controvert[] them. Local R. 56.1(c); DE 460. And Ramos s suggestion that the Senate Majority s exhibits are inadmissible is of no moment because the exhibits were prepared by an individual with personal knowledge. Opp. at 9. Ramos also embraces Mr. Breitbart s declarations and even on Mr. Breitbart s view of the facts, the Motion should be granted. See, e.g., supra Part I. 6
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 8 of 12 PageID #: 10840 minority districts according to CVAP, voter enrollment, and voter turnout. See Memo. at 10 16, 21 22. Thus, because the practical effect of the Senate Plan is to dilute the votes of upstate residents, not those who reside downstate, in New York City or minority districts, the equal-population challenges fail and the Senate Majority is entitled to summary judgment. Rodriguez, 308 F. Supp. 2d at 369 (emphases added); see also Memo. at 10 16, 21 22. Ramos attempts to gloss over this dispositive showing with citations to authorities using VAP data to assess a plaintiff s satisfaction of his threshold burden under Section 2. See Opp. at 18 & n.2 (citing Pope v. Albany Cnty., 2012 WL 1918523, *5 n.6 (2d Cir. May 29, 2012) (leaving open the alternative possibility of employing [CVAP] in evaluating a Section 2 claim )). Bizarrely, Ramos claims that courts are legally foreclosed from considering the relative weight of a citizen s vote in a one-person, one-vote case because lower courts are split on whether the first Gingles precondition for a Section 2 claim, see 478 U.S. at 50, should be assessed by CVAP or VAP. See Opp. at 18. But, of course, whether a majority under Gingles s first prong is assessed by citizens or all persons has absolutely no effect on whether courts should assess a plan s effect on voting equality by considering the only relevant group eligible voters. In that context, it is well-established (and binding here) that courts may analyze the CVAP numbers in assessing the viability of a one-person, one-vote cause of action under the United States Constitution to gauge the practical effect of a plan on actual voters. Rodriguez, 308 F. Supp. 2d at 369, 370 n.25. Moreover, the only arguably relevant Section 2 analogue is the assessment of whether the minority group s voting strength is equal to other groups statewide, which is somewhat analogous to the equal-population inquiry into whether the disfavored, overpopulated districts have voting strength equivalent to the favored, underpopulated districts. And in that Section 2 7
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 9 of 12 PageID #: 10841 scenario, the Supreme Court compar[es] the percentage of total districts that are Latino opportunity districts with the Latino share of the citizen voting-age population. LULAC v. Perry, 548 U.S. 399, 436 (2006) (emphasis added). Finally, while CVAP estimates may not be sufficiently accurate or reliable to draw districts or to accurately determine the precise presence of citizens in a single district, they are unquestionably sufficiently reliable to demonstrate in the aggregate the obvious point that New York City contains a far greater percentage of non-citizens than upstate, which is more than sufficient to ameliorate any differences in total population between the two areas. Cf. Benavidez v. City of Irving, 638 F. Supp. 2d 709, 720 21 (N.D. Tex. 2009) (holding that CVAP data produced by the Census Bureau s American Community Survey is accurate and reliable, and that the Census Bureau intends for it to be relied upon in decisions such as Voting Rights Act compliance ). Ramos certainly does not contest this obvious fact or suggest that there is any remotely rational basis for viewing citizenship rates that renders the votes of New York City residents in any way inferior to the favored upstate districts. B. There Is No Basis To Delay Summary Judgment Pending Discovery Plaintiffs alternatively contend that summary judgment should be delayed until after they obtain probing discovery into legislative deliberations and attorney-client communications regarding what the Legislature was advised, considered, and concluded (Sen. Min. Opp. at 25); the motives, intentions and biases... of the architects of the plan (Opp. at 11); and the reasons for the Legislature s actions (DE 452 at 5 ( Drayton Opp. )). Yet Ramos admits that [t]he relevant substantive law determines the facts material to the litigation s outcome (Opp. at 8) and, as demonstrated, the relevant substantive law conclusively forecloses the equalpopulation claims. See supra Parts I II(A); see also Memo. at 10 25. Thus, the fact that Plaintiffs suspect that the Senate Plan reflects discrimination (Opp. at 7) does not warrant 8
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 10 of 12 PageID #: 10842 discovery. See, e.g., Concourse Rehabilitation & Nursing Center Inc. v. Whalen, 249 F.3d 136, 146 (2d Cir. 2001); see also Reply In Further Support Of Mot. For Summ. J. On Section 2 Claims at 1 5 (filed Aug. 3, 2012). Moreover, all of the matters that Plaintiffs seek to discover are shielded by legislative and attorney-client privilege, and none is even remotely relevant to Plaintiffs heavy burden to overcome the Senate Plan s presumptive constitutionality. See DE 397, DE 405, DE 442. The Court should not delay dismissing unmeritorious claims to accommodate Plaintiffs proposed fishing expedition into privileged and irrelevant matters. CONCLUSION The Court should grant summary judgment to Defendants. 9
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 11 of 12 PageID #: 10843 Dated: August 3, 2012 Respectfully submitted, /s/michael A. Carvin Michael A. Carvin (MC 9266) Louis K. Fisher (admitted pro hac vice) David J. Strandness (admitted pro hac vice) JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001-2113 202/879-3939 Todd R. Geremia (TG 4454) JONES DAY 222 East 41st Street New York, NY 10017-6702 212/326-3939 David Lewis (DL 0037) LEWIS & FIORE 225 Broadway, Suite 3300 New York, NY 10007 212/285-2290 Attorneys For Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez
Case 1:11-cv-05632-DLI-RR-GEL Document 468 Filed 08/03/12 Page 12 of 12 PageID #: 10844 CERTIFICATE OF SERVICE I hereby certify that, on this 3rd day of August, 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 10019 Attorneys for Plaintiffs Leonard M. Kohen 67 E. 11th Street #703 New York, NY 10003 Attorney for Defendants John L. Sampson and Martin Malave Dilan Kevin M. Lang Couch White, LLP 540 Broadway Albany, NY 12201 Attorney for Defendant Brian M. Kolb James D. Herschlein KAYE SCHOLER LLP 425 Park Avenue New York, NY 10022 Attorney for Intervenors Lee, Chung, Hong, and Lang Joshua Pepper Assistant Attorney General 120 Broadway, 24th Floor New York, NY 10271 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 11722 Attorney for Defendant Robert Oaks Joan P. Gibbs Center for Law and Social Justice 1150 Carroll Street Brooklyn, NY 11225 Attorney for Intervenors Drayton, Ellis, Forrest, Johnson, Woolley, and Wright Jackson Chin LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 Attorney for Intervenors Ramos, Chavarria, Heymann, Martinez, Roldan, and Tirado Jeffrey Dean Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY 10112 Attorney for Rose Intervenors /s/michael A. Carvin