Pope v. Cnty. of Albany

94 F.Supp.3d 302

Anne POPE; Wanda Willingham; Geraldine Bell; Samuel Coleman; Lee Pinckney; Vicente Alfonso ; and Elaine Frazier, Plaintiffs

v.COUNTY OF ALBANY; and Albany County Board of Elections, Defendants.

No. 1:11–cv–0736 LEK/CFH.

United States District Court, N.D. New York.

Signed March 24, 2015.

Brittany L. Garmyn, Christopher A. Muller, Jonathan D. Fortney, Kyle J. Kolb, Anne M. Champion, Aric H. Wu, Gabriel K. Gillett, Mitchell A. Karlan, Gibson, Dunn Law Firm, New York, NY, Molly M. Claflin, Gibson, Dunn Law Firm, Washington, DC, Danielle R. Smith, Paul Derohannesian, II, Derohannesian, Derohannesian Law Firm, Albany, NY, for Plaintiffs.

Peter G. Barber, Murphy, Burns Law Firm, Bryan J. Goldberger, Goldberger and Kremer, Thomas Marcelle, Adam G. Giangreco, Lisabeth Jorgensen, Albany, NY, for Defendants.

MEMORANDUM–DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

TABLE OF CONTENTS

I.	INTRODUCTION	308
II.	LEGAL STANDARD	309

A.	Voting Rights Act	309
B.	Gingles Framework	310

III. FINDINGS OF FACT 311

A. Background 311

1.	Parties	311
2.	County Redistricting Process	311
3.	Prior Section 2 Litigation	311

a.	1991 Litigation	311
b.	2003 Litigation (“Arbor Hill” Litigation)	312

4.	2010 Census	313
5.	2011 County Redistricting	314

a.	The Commission	314
b.	Definition of Minority Used in Redistricting	315
c.	Draft Maps	316
d.	Public Involvement in Redistricting Process	316
e.	Local Law C	316

6. Alternative Plans 318

a.	Arbor Hill Environmental Justice (“AHEJ”) Plan	318
b.	Plaintiffs' Illustrative Plans	318

7. City Redistricting Process 319

B.	First Gingles Precondition: Compactness and Numerosity of Minority Community	319
C.	Statistical Methods Used to Determine Voter Behavior	319
D.	Second Gingles Precondition: Political Cohesion	320

1.	Expert Reports and Testimony	320
2.	Anecdotal Evidence	321

E. Third Gingles Precondition: Racial Bloc Voting that Usually Defeats Minority's Preferred Candidate 321

1.	Expert Reports and Testimony	321
2.	Additional Relevant Elections	323

F. Totality of the Circumstances 325

1.	History of Voting–Related Discrimination	325
2.	Racially Polarized Voting	325
3.	Dilution–Enhancing Voting Practices an d Procedures	325
4.	Access to Slating Process	325
5.	Effects of Past Discrimination	326
6.	Racial Appeals in Campaigns	327
7.	Past Election of Minority Group Members	327
8.	Responsiveness to Minority Needs	327

G. Spoliation 328

IV. CONCLUSIONS OF LAW 329

A.	Expert Testimony	329
B.	Spoliation	331
C.	Vote Dilution Claim	332

1.	Probative Elections	332
2.	Political Cohesion	333

a.	Statistical Evidence of Cohesion	333
b.	Anecdotal Evidence of Cohesion	334

3. Racial Bloc Voting that Usually Defeats the Minority–Preferred Candidate 335

a.	Racial Bloc Voting	336
b.	Minority–Preferred Candidate “Usually” Defeated	336

4. Totality of the Circumstances 341

a.	History of Voting–Related Discrimination	341
b.	Racially Polarized Voting	342
c.	Dilution–Enhancing Voting Practices and Procedures	343
d.	Access to Slating Process	343
e.	Effects of Past Discrimination	344
f.	Racial Appeals in Campaigns	345
g.	Past Election of Minority Group Members	345
h.	Responsiveness to Minority Needs	347
i.	Tenuousness Underlying Redistricting Policy	347
j.	Effective MMDs	349
k.	Proportionality	350

5. Conclusion 351

V. REMEDY 351

A.	Remedial Plan	351
B.	Attorney's Fees	351

VI. CONCLUSION 352

I. INTRODUCTION

Plaintiffs Anne Pope, Wanda Willingham, Geraldine Bell, Samuel Coleman, Lee Pinckney, Vicente Alfonso, and Elaine Frazier (collectively, “Plaintiffs”) commenced this action against Defendants County of Albany (the “County”) and Albany County Board of Elections (collectively, “Defendants”), challenging the 2011 redistricting of the Albany County Legislature (“Legislature”) under Section 2 of the Voting Rights Act of 1965 (“VRA”), 52 U.S.C. § 10301 (“Section 2”). See Dkt. No. 254 (“Second Amended Complaint”).¹ Plaintiffs allege that the VRA requires the creation of an additional majority-minority district (“MMD”) in the County Legislature following population shifts reflected in the 2010 Census.

This matter was tried at an eleven-day bench trial before the Court between November 6, 2014 and January 13, 2015.² See generally Dkt. Nos. 406–16 (collectively, “Trial Transcript”); see also Dkt. No. 336. At issue in the trial was whether: (1) the County's redistricting plan dilutes the voting strength of black voters under Section 2; (2) the County's plan dilutes the voting strength of a combined minority population of black and Hispanic voters under Section 2 (“coalition claim”); and (3) Plaintiffs are entitled to an adverse inference based on Defendants' spoliation of evidence. Prior to trial, the parties submitted a joint pre-trial stipulation. Dkt. No. 321 (“JPS”). In lieu of closing arguments, the parties submitted post-trial briefs, and proposed findings of fact and conclusions of law. Dkt. Nos. 421 (“Plaintiffs' Trial Brief”); 422; 424–1 (“Defendants' Trial Brief”).³ Both parties also filed Replies. Dkt. Nos. 425 (“Defendants' Reply Brief”); 426 (“Plaintiffs' Reply Brief”).

Based on the testimony at trial and evidence submitted, the Court finds that while laudable progress to address racial disparities in the County has been made, the County's redistricting plan diluted the voting strength of black voters in Albany County in violation of the VRA. This conclusion renders it unnecessary for the Court to reach the issue of Plaintiffs' coalition claim. The Court's specific findings of fact and conclusions of law follow.⁴

II. LEGAL STANDARD

A. Voting Rights Act

The VRA was enacted “to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall ‘be denied or abridged ... on account of race, color, or previous condition of servitude.’ ” Voinovich v. Quilter, 507 U.S. 146, 152, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (citing U.S. Constitution, Amdt. 15 and NAACP v. New York, 413 U.S. 345, 350, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973) ). “Congress enacted Section 2 of the [VRA] to eliminate discrimination in voting present since the end of the Reconstruction period in the 1870's.” Reed v. Town of Babylon, 914 F.Supp. 843, 861 (E.D.N.Y.1996). Section 2 provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a). Section 2 is violated if:

based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

Id. § 10301(b).

B. Gingles Framework

Courts assess the merits of Section 2 vote dilution claims under the three-step framework established in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). To prevail on a claim under Section 2, a plaintiff must prove that: (1) the alleged minority group is sufficiently numerous and geographically compact to compose a majority of a single-member district; (2) members of the minority group are politically cohesive; and (3) white bloc voting is usually sufficient to defeat the minority's preferred candidate. See generally id. at 30, 106 S.Ct. 2752 ; see also Growe v. Emison, 507 U.S. 25, 40–41, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) (holding that Gingles applies to single-member districting schemes). To prevail, a plaintiff must “prove each of these preconditions by a preponderance of the evidence.” Reed, 914 F.Supp. at 863 (citing Gingles, 478 U.S. at 50, 106 S.Ct. 2752 ).

Though Plaintiffs must satisfy the three Gingles preconditions in order to prevail on their claim, the preconditions alone “are not sufficient to prove a § 2 violation.” NAACP, Inc. v. City of Niagara Falls, N.Y., 65 F.3d 1002, 1019 (2d Cir.1995) (citing Johnson v. De Grandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) ). Although it would be “a very unusual case” where a plaintiff establishes the Gingles factors and fails to establish a Section 2 violation, courts still must consider the totality of the circumstances—additional indicia that tend to show a pattern and history of discrimination and a need for redress. Id. at 1019 n. 21 (quoting Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3d Cir.1993) ). This inquiry focuses on the following factors as “typically relevant to a vote dilution inquiry:”

the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.

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