U.S.A v. Vill. Of Port Chester

704 F.Supp.2d 411

UNITED STATES of America, Cesar Ruíz, Plaintiffs,v.VILLAGE OF PORT CHESTER, Defendant.

No. 06 Civ. 15173(SCR).

United States District Court S.D. New York.

April 1, 2010.

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David J. Kennedy, U.S. Attorney's Office, New York, NY, for Plaintiffs.

Richard E. St. Paul, Patsy D. Gouldborne & Associates, Bronx, NY, John William Carroll, Wolfson & Carroll, New York, NY, for Intervenor Plaintiff.

Anthony George Piscionere, Piscionere & Nemarow, Rye, NY, for Defendant.

OPINION AND ORDER

STEPHEN C. ROBINSON, District Judge.

On January 17, 2008, the Court found that Plaintiffs had demonstrated that the Village of Port Chester's at-large voting system for electing its Board of Trustees violated Section 2 of the Voting Rights Act of 1965. After careful consideration of the parties' proposed remedial plans, the Court issued a summary order on November 6, 2009 concluding that Defendant, the Village, had proposed a legally acceptable remedy and ordered the implementation of at-large elections with cumulative voting. In furtherance of the implementation, the parties were ordered to submit to the Court a Consent Decree detailing the requisite education and outreach program. The Court also lifted the injunction on the Trustee elections, providing that the 2010 elections shall be held in June 2010 on a date agreed to by the parties to give sufficient time for the proper implementation of the new system. This opinion combines the Court's findings in both the liability and remedial phase of the litigation and is the final order in this matter.

I. Procedural Background

The United States of America (the “Government”) filed a Complaint on December 15, 2006 against the Village of Port Chester (“Port Chester” or the “Village” or the “Defendant”), alleging a violation of Section 2 of the Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973. The Government claimed that the at-large system used to elect the six members of the Port Chester Board of Trustees denied the Hispanic population of the Village an equal opportunity to participate in the political process and to elect representatives of their choice.

The Government sought a preliminary injunction pursuant to 42 U.S.C. § 1973j(d) to prevent the Village from holding its next election for the Board of Trustees, which was then scheduled for March 20, 2007. The Court issued a preliminary injunction on March 2, 2007, finding: (i) that there would be irreparable harm if the 2007 Trustee election were allowed to proceed under a structural framework that violated the Voting Rights Act; (ii) that the balance of the potential harms weighed in favor of granting an injunction; and (iii) that the Government had demonstrated that it was likely to succeed on the merits of its claim at trial. Accordingly, the Village was enjoined from holding its March 20, 2007 Trustee election pending a trial on the merits in this matter.¹

On March 1, 2007, Cesar Ruiz (“Ruiz”; Ruiz and the Government are collectively referred to herein as the “Plaintiffs”) filed an Order to Show Cause why he should not be permitted to intervene in this action pursuant to Fed.R.Civ.P. 24. Following an oral argument, this Court granted Ruiz's motion to intervene as a party plaintiff on April 6, 2007.

After settlement negotiations proved unsuccessful, the parties reconvened for a six-day bench trial that concluded on June 5, 2007.² In lieu of oral closing arguments, the parties were granted until July 9, 2007 to submit post-trial briefs in support of their respective positions. Further, an organization called FairVote-which describes itself as having a mission “to advocate for fair representation through voting systems changes” ³-was given permission to submit an amicus curiae brief. The Court concluded that Plaintiffs have established that Port Chester's system for electing its Board of Trustees violates Section 2 of the Voting Rights Act, and directed the parties to submit proposed remedial plans.

The Court held hearings on the remedial plans on July 17, 28, 29, 2008 and September 22 and 23, 2008. Port Chester proposed a voting scheme called cumulative voting that would give Hispanics greater opportunities to participate meaningfully in elections while maintaining the at-large system. Plaintiffs presented the districting plan developed in the liability phase as its proposed remedial plan. The Court issued a Summary Order on November 6, 2009 announcing its decision to choose Port Chester's proposed plan, ordered the parties to develop an education and outreach program to ensure a thorough and non-discriminatory implementation of the new system, and lifted the injunction on the Trustee elections provided that the 2010 elections were delayed until June to give enough time to educate the community about cumulative voting.

II. Port Chester's Voting Rights Act Violation

A. Legal Framework

1. Section 2 of the Voting Rights Act

Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, reads:

(a) No voting qualification or pre-requisite 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.

(b) A violation of subsection (a) of this section is established if, based on the totality of the 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) of this section 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.

There is no dispute here that Port Chester's at-large system for electing its Board of Trustees is an electoral practice or procedure that is subject to challenge under this statute.

2. Gingles preconditions and Senate Factors

The Supreme Court construed this statute in its amended version for the first time in an action challenging a multi-member at-large districting scheme. See Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). In Gingles, 478 U.S. at 34, 106 S.Ct. 2752, the Supreme Court set out three “preconditions” that must be met for a challenge under Section 2 of the Voting Rights Act to be successful:

(1) the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district;

(2) the minority group must be politically cohesive and vote as a bloc; and

(3) the White majority must vote sufficiently as a bloc to enable it, in the absence of special circumstances, to defeat the minority's preferred candidate.

No specific showing of discriminatory intent is required to prove a Section 2 violation. See

id. at 70-73, 106 S.Ct. 2752 (Brennan, J. plurality op.); Coleman v. Bd. of Educ. of the City of Mt. Vernon, 990 F.Supp. 221, 227 (S.D.N.Y.1997) (internal citation omitted); cf.

Goosby v. Bd. of the Town of Hempstead, 180 F.3d 476, 498-504 (2d Cir.1999) (Leval, J. concurring) (hereinafter “ Goosby III ”).

An analysis of the three Gingles factors and whether each has been proven by a preponderance of the evidence is the first step in a two-part analysis of a vote dilution claim on behalf of minority voters. The Supreme Court has found, however, that the satisfactory establishment of the three Gingles preconditions alone is not sufficient for a Section 2 vote dilution claim to succeed. See Johnson v. DeGrandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). Accordingly, this Court must “consider whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process.” Goosby v. Bd. of the Town of Hempstead, 956 F.Supp. 326, 329 (E.D.N.Y.1997) (hereinafter “ Goosby I ”) ( citing NAACP v. City of Niagara Falls, 65 F.3d 1002, 1007 (2d Cir.1995)). Various Circuit courts have recognized that “it will only be the very unusual case in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of Section 2 under the totality of the circumstances.” Niagara Falls, 65 F.3d at 1019, n. 21; see also Thompson v. Glades County Bd. of County Comm'rs, 493 F.3d 1253, 1261 (11th Cir.2007); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116 n. 6 (3d Cir.1993).

Judicial assessment of the totality of the circumstances requires a “searching practical evaluation of the past and present reality.” Gingles, 478 U.S. at 45, 106 S.Ct. 2752. The key to this inquiry is an examination of the seven principal factors set forth in the Senate Judiciary Committee Report accompanying the 1982 amendments to Section 2 of the Voting Rights Act, the so called “Senate factors.” See S.Rep. No. 97-417, 97th Cong. 2nd Sess 28 (1982), U.S.Code Cong. & Admin.News 1982, p. 177 (the “Senate Report”). The additional factors listed in the Senate Report are:

1. the extent of any history of official discrimination in the state or political subdivision that touched the right of members of the minority group to register, vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, majority vote

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