united states district court for the …...jeffrey alan williams willkie farr & gallagher 787...

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) Case: 1:11-cv-05632-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).

Case 1:11-cv-05632-DLI-RR-GEL Document 420 Filed 06/29/12 of 3 PageID #: 8335

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Dated: June 29, 2012 Respectfully submitted,

/s/Michael A. Carvin Michael A. Carvin (MC 9266) 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

(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. ¶¶ 111–128 (Counts V-VII); Ramos Intervenors’ Am. Compl. ¶¶ 75–80 (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.


3

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 10019 Attorneys for Plaintiffs

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

Leonard M. Kohen 67 E. 11th Street #703 New York, NY 10003 Attorney for Defendants John L. Sampson and Martin Malave Dilan

Jonathan Sinnreich SINNREICH KOSAKOFF & MESSINA LLP 267 Carleton Avenue, Suite 301 Central Islip, NY 11722 Attorney for Defendant Robert Oaks

Harold D. Gordon Couch White, LLP 540 Broadway Albany, NY 12201 Attorney for Defendant Brian M. Kolb

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

James D. Herschlein KAYE SCHOLER LLP 425 Park Avenue New York, NY 10022 Attorney for Intervenors Lee, Chung, Hong, and Lang

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



MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) Case: 1:11-cv-05632-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, http://quickfacts.census.gov/qfd/states/36000.html.

2. According to the 2010 Census, New York City has a total population of 8,175,133

people. See id.

Case 1:11-cv-05632-DLI-RR-GEL Document 420-1 Filed 06/29/12 Page 1 of 25 PageID #: 8338

2

3. 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 19,363,397.1 See 2010 Amended

Population (Prisoner Readjustment), available at http://www.latfor.state.ny.us/data/?sec=

2010amendpop.

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).3

7. 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 2010.

2 All CPOP estimates are based on data collected in the Census Bureau’s American Community Survey 2006-2010. See American Community Survey, available at http://www.census.gov/acs/www/data_documentation/2010_release/.

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 2006-2010. See American Community Survey, available at http://www.census.gov/acs/www/data_documentation/2010_release/.


3

11. 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, 2012. (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, 2012. 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, 2012. 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).


4

21. 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 performing6 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 districts7 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.


5

29. 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 districts8 is 7,916,595. See id.

32. The average estimated CPOP in the twenty-eight upstate districts is 282,736


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 districts9

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.


6

38. 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


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


45. The Senate Plan overpopulates the twenty-eight upstate districts by 5.49% of the


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.


7

50. 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


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


8

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


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.


9

67. 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


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


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



10

76. 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,

http://www.latfor.state.ny.us/maps/.

79. 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 population12

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 ¶¶ 81-86 are to total population according to the U.S.

Census, without adjustment to reflect prisoner reallocation under Chapter 57 of the Laws of 2010.


11

86. 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,

http://quickfacts.census.gov/qfd/states/36000.html.

87. 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, 2012. Breitbart Decl. ¶ 8 (DE 327).

91. The Breitbart Plan was filed publicly in this Court on April 26, 2012. 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.


12

94. 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

37-63.

99. The Breitbart Plan overpopulates the nine Long Island Districts by 2.54% of the

ideal district size as measured by total population. DE 327-2 at 27.

100. 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).

101. The average estimated CPOP in the Breitbart Plan’s twenty-seven New York City


102. 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.


13

103. The estimated CPOP in the Breitbart Plan’s twenty-seven upstate districts is

7,887,125 people. See id.

104. The average estimated CPOP in the Breitbart Plan’s twenty-seven upstate districts

is 292,116. See id.

105. The Breitbart Plan overpopulates its twenty-seven upstate districts by 6.87% of

the ideal district size as measured by estimated CPOP. See id.

106. 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).

107. 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.

108. 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.

109. The estimated CVAP in the Breitbart Plan’s nine Long Island districts under the

Breitbart Plan is 1,938,115 people. See id.

110. The average estimated CVAP in the Breitbart Plan’s nine Long Island districts is


111. The Breitbart Plan overpopulates the nine Long Island districts by 4.32% of the


112. The estimated CVAP in the Breitbart Plan’s twenty-seven New York City


113. The average estimated CVAP in the Breitbart Plan’s twenty-seven New York City



14

114. 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.

115. The estimated CVAP in the Breitbart Plan’s twenty-seven upstate districts is


116. The average estimated CVAP in the Breitbart Plan’s twenty-seven upstate

districts is 225,011. See id.

117. The Breitbart Plan overpopulates its twenty-seven upstate districts by 9% of the


118. The estimated CVAP in the Breitbart Plan’s putative fifteen New York City Black

or Hispanic districts is 2,662,206 people. See id.

119. The average estimated CVAP in the Breitbart Plan’s putative fifteen New York


120. 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.

121. The total voter enrollment in the Breitbart Plan’s twenty-seven New York City


122. The average voter enrollment in the Breitbart Plan’s twenty-seven New York City


123. 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.

124. The average voter enrollment in the Breitbart Plan’s putative fifteen New York



15

125. The total voter enrollment in the Breitbart Plan’s twenty-seven upstate districts is


126. The average voter enrollment in the Breitbart Plan’s twenty-seven upstate districts

is 176,852 people per district. See id.

127. 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.

128. 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.

129. 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.

130. The average voter turnout in the Breitbart Plan’s twenty-seven New York City


131. 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.

132. 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.

133. The total voter turnout in the Breitbart Plan’s twenty-seven upstate districts in the

2008 election was 3,721,624 people. See id.

134. 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.


16


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.

136. 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.

137. The total voter turnout in the Breitbart Plan’s twenty-seven New York City


138. The average voter turnout in the Breitbart Plan’s twenty-seven New York City


139. 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.

140. 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.

141. The total voter turnout in the Breitbart Plan’s twenty-seven upstate districts in the

2010 election was 2,531,299 people. See id.

142. 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.


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.


17

144. 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, 2012. Beveridge Decl. ¶ 79 (DE 331).

146. The Common Cause 63-seat Senate Plan (“Common Cause Plan”) was proposed

on February 29, 2012. Beveridge Decl. ¶ 79 (DE 331).

147. 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).

148. The Common Cause Plan does not create more minority districts that are Black-

majority or Hispanic-majority than the Senate Plan. See id.

149. The Common Cause Plan pairs the residences of eighteen incumbents in the same

districts. See Incumbent Pairings (Ex. E).

150. 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).

151. 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


18

population from Westchester), and twenty-seven districts upstate. Common Cause Plan’s

District Statistics (Ex. I); Bronx District Charts (Ex. O).14

152. 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.

153. 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).

154. The average estimated CPOP in the Common Cause Plan’s twenty-seven New

York City districts is 247,833 people per district. See id.

155. 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.

156. The estimated CPOP in the Common Cause Plan’s twenty-seven upstate districts

is 7,928,070 people. See id.

157. The average estimated CPOP in the Common Cause Plan’s twenty-seven upstate


158. 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.

159. 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.

160. 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.


19

161. 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.

162. The estimated CVAP in the Common Cause Plan’s nine Long Island districts is


163. The average estimated CVAP in the Common Cause Plan’s nine Long Island


164. 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.

165. The estimated CVAP in the Common Cause Plan’s twenty-seven New York City


166. The average estimated CVAP in the Common Cause Plan’s twenty-seven New


167. 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.

168. The estimated CVAP in the Common Cause Plan’s twenty-seven upstate districts

is 6,105,070 people. See id.

169. The average estimated CVAP in the Common Cause Plan’s twenty-seven upstate


170. 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.

171. 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.


20

172. 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.

173. 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.

174. The total voter enrollment in the Common Cause Plan’s twenty-seven New York

City districts is 4,030,553 people. See id.

175. The average voter enrollment in the Common Cause Plan’s twenty-seven New


176. 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.

177. 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.

178. The total voter enrollment in the Common Cause Plan’s twenty-seven upstate


179. The average voter enrollment in the Common Cause Plan’s twenty-seven upstate


180. 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.

181. 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


21

Common Cause Plan’s upstate districts as measured by enrollment and calculated as described in

¶ 58. See id.

182. The total voter turnout in the Common Cause Plan’s twenty-seven New York City


183. 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.

184. 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.

185. 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.

186. The total voter turnout in the Common Cause Plan’s twenty-seven upstate


187. The average voter turnout in the Common Cause Plan’s twenty-seven upstate



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.


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



22

190. The total voter turnout in the Common Cause Plan’s twenty-seven New York City


191. 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.

192. 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.

193. 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.

194. The total voter turnout in the Common Cause Plan’s twenty-seven upstate


195. The average voter turnout in the Common Cause Plan’s twenty-seven upstate



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.


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


D. Unity Plan

198. The Unity Plan was proposed in late 2011. Unity Plan’s District Statistics

(Ex. L).


23

199. 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.

200. The Unity Plan consecutively numbers its proposed districts 10-38. See id.

201. The Unity Plan pairs the residences of four incumbents in the same districts. See

Incumbent Pairings (Ex. E).

202. 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).

203. 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).


24






25
















MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) No. 1:11-cv-05632-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 20001-2113 202/879-3939 202/869-3637




i

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 ............. 10

C. The Senate Plan Promotes Traditional Redistricting Policies ............................. 16

1. The Senate Plan Adheres To Appropriate State Policies ......................... 17

2. Drayton’s And Ramos’s Racial Discrimination Allegations Do Not Salvage Their One-Person, One-Vote Claims ......................................... 21

CONCLUSION ............................................................................................................................ 25


ii

TABLE OF AUTHORITIES

Page(s) CASES

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


iii

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. 1022 (D. Md. 1994) ..............................................................................................6

Md. Comm. for Fair Rep. v. Tawes, 377 U.S. 656 (1964) .................................................................................................................15

NAACP v. Snyder, No. 2:11-cv-15385 (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


iv

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. § 1973 ............................................................................................................................23

42 U.S.C. § 1973c(c)..............................................................................................................4, 5, 25

OTHER AUTHORITIES

New York Constitution ..................................................................................................................13

Public Hearing Schedule—Second Round, available at http://www.latfor.state.ny.us/hearings/docs/20120125hrg_schedule.pdf. ...............................21


1

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, 366–71 (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 366–69.

The 2002 plan had a maximum population deviation of 9.78%,1 which is below the 10%

“minor” deviation presumed constitutional. See id. at 362–65. 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.


2

deviation. See id. at 366–71. As the court pointed out, the 2002 plan actually underpopulated

New York City districts and overpopulated “upstate” districts as measured by citizen voting age

population (CVAP) and registered voters. See id. at 369. And the 2002 plan did not result

“solely” from an illegitimate purpose because it “promote[d] the traditional principles of

maintaining the core of districts and limiting incumbent pairing.” Id. at 370. The Supreme

Court summarily affirmed the judgment in a decision binding on this Court. See 543 U.S. 997;

see also Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).

The Drayton Intervenors, Lee Intervenors, Ramos Intervenors, and Senate Minority

(collectively, “Intervenors”) bring exactly the same equal-population challenge to the Senate

Plan that Rodriguez rejected a decade ago. The Senate Plan has a maximum deviation of only

8.8%, which is smaller than the 9.78% in the plan Rodriguez upheld and well within the 10%

constitutional presumption. See Statement of Material Facts 17 (“SMF”). As this Court has

recognized, Rodriguez held that such a presumptively constitutional minor deviation violates the

one-person, one-vote rule only where it “‘resulted solely from impermissible considerations.’”

5/16/12 Op. at 22 (quoting Rodriguez, 308 F. Supp. 2d at 368 (emphasis added)) (DE 367). The

Senate Minority—in a letter joined by Lee (DE 385) and Ramos (DE 387)—has conceded that

that Rodriguez’s “‘solely’ standard would be virtually impossible to satisfy.” (DE 383 at 2).

Yet like the Rodriguez plaintiffs, Intervenors contend that the Senate Plan violates one-

person, one-vote because it does not place a 27th district in New York City, and recycle the

theory that the Plan is discriminatory because it overpopulates New York City districts and

underpopulates “upstate” districts. See Drayton Am. Compl. ¶ 105 (DE 254); Lee Am. Compl.

¶¶ 103, 110 (DE 256); Ramos Am. Compl. ¶ 42 (DE 257); Cross-Claim ¶¶ 1–10 (DE 370). Like

the Rodriguez plaintiffs, Drayton and Ramos also allege racial discrimination and nakedly assert


3

that the Plan has a discriminatory effect on New York City Black and Hispanic voters. See

Drayton Am. Compl. ¶¶ 110, 114, 116, 123; Ramos Am. Compl. ¶¶ 49–50. Finally, Intervenors

have claimed that the Plan’s creation of the 63rd seat was “all inextricably bound with” their

equal-population claim (4/20/12 Hr’g tr. at 48), yet the New York Court of Appeals has

unanimously endorsed creation of the 63rd seat, thus vitiating the premise of Intervenors’ equal-

population claim. See Cohen v. Cuomo, No. 135 (N.Y. May 3, 2012) (per curiam) (DE 351).

As Intervenors’ own letters have confirmed, this Motion presents no factual dispute. (See

DE 383 at 2). Instead, this Motion turns on the purely legal questions of (1) whether CVAP and

voter registration can be used to assess whether under-10% population deviations have a

cognizable adverse effect and (2) whether the Rodriguez “solely” standard applies in this case.

The answer to both questions is yes, and the Court should therefore grant the Motion.

Specifically, Rodriguez squarely forecloses Intervenors’ claim for at least four reasons.

First, as with the 2002 plan, “the practical effect” of the Senate Plan “is to dilute the

votes of ‘upstate’ residents, not those who reside ‘downstate’” because it underpopulates New

York City districts and overpopulates upstate districts as measured by CVAP, registered voters,

and turnout. Rodriguez, 308 F. Supp. 2d at 369. In fact, even if Intervenors’ regional

discrimination theory were cognizable, it would fail even on total population measures, since the

Assembly Plan and the Senate Plan award New York City one whole seat more—not less—in

the Legislature than its population would justify on strict proportional representation. This

regional bias is even starker when measured by CVAP because the enacted Plans give New York

City nearly ten whole seats more in the Legislature than its CVAP would entitle it to—and the

Senate Plan alone gives New York City just under two whole extra districts. Intervenors’ claims

of regional bias against New York City plainly fail under these indisputable facts.


4

Second, as Intervenors appear to recognize (DE 383 at 2), they cannot possibly establish

that the Senate Plan’s presumptively constitutional deviations “result[ed] solely from an

unconstitutional or irrational state purpose.” Rodriguez, 308 F. Supp. 2d at 366 (emphasis

added). To the contrary, the Plan adhered to other “appropriate” state policies. Id. The Plan

offsets (although it does not eliminate) the dilution in upstate voting strength caused by both the

CVAP overpopulation and the Assembly Plan’s disproportionate representation of New York

City. Moreover, the Plan “promotes the traditional principles of maintaining the core of districts

and limiting incumbent pairing,” id. at 366, 370, and, as Intervenors concede, does so better than

Intervenors’ proposed alternatives. See Breitbart Decl. ¶¶ 49–56 (DE 327).

Third, Intervenors’ allegations of political purpose are completely irrelevant because

there is no negative effect, and because any political considerations could not be the “sole”

justification since the Plan serves the identified legitimate interests. And Intervenors’ allegation

that the Legislature overpopulated politically disfavored areas is irreconcilable with the fact that

the Senate Plan favors predominantly Democratic New York City, overpopulates all districts on

Republican-leaning Long Island, and “underpopulates” upstate Democratic districts.

Finally, Drayton’s and Ramos’s racial discrimination allegation is irreconcilable with the

fact that, under CVAP, voter registration, and turnout measures, the Senate Plan overvalues the

votes of citizens in New York City Black and Hispanic districts even more heavily than the votes

of other New York City voters. And this racial allegation is even more meritless here than in

Rodriguez because it has been expressly rejected by the Justice Department, which is required

under Section 5, as amended in 2006, to ensure that the Plan, including the creation of the 63rd

seat, is free of any racially discriminatory purpose. See 42 U.S.C. § 1973c(c). In contrast, in the

2002 redistricting cycle, the Justice Department was foreclosed from making such a


5

discriminatory purpose inquiry and did not do so prior to the Rodriguez opinion.2

The Court should grant summary judgment to Defendants.

ARGUMENT

I. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON ALL EQUAL-POPULATION CHALLENGES TO THE SENATE PLAN

As they admit (DE 383 at 2), Intervenors cannot show that the Senate Plan’s

presumptively constitutional deviations “result[ed] solely from an unconstitutional or irrational

state purpose.” Rodriguez, 308 F. Supp. 2d at 366 (emphasis added). Intervenors, in fact,

merely rehash the same equal-population theory that the Rodriguez court rejected on summary

judgment, and whose rejection the U.S. Supreme Court summarily affirmed in a binding

decision. Intervenors thus ignore the undisputed facts that the Senate Plan both greatly

overvalues the weight of a New York City vote compared to an “upstate” vote, and that the

Plan’s minor deviations reflect “appropriate” state policies. Id.

A. Population Deviations Under 10% Must Be Shown To Harm Voting Equality And To Result Solely From An Unconstitutional Or Irrational Purpose

In a one-person, one-vote case, such as this one, where the maximum population

deviation is under 10%, there is no injury absent extraordinary circumstances. That is because

the “one-person, one-vote” principle obviously “protects the right of all qualified citizens to

vote.” Reynolds v. Sims, 377 U.S. 533, 554 (1964) (emphases added). Given differences in

registration and turnout, it is, of course, impossible to make all citizens’ votes precisely equal in

weight. The Fourteenth Amendment thus requires only “that the vote of any citizen is

2 In 2000, the Supreme Court held that Section 5 did not “prohibit[] preclearance of a

redistricting plan enacted with a discriminatory but nonretrogressive purpose.” Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 328 (2000). Congress overruled this holding in 2006, when it amended Section 5 to require the party seeking preclearance to prove that the redistricting plan does not have “any discriminatory purpose.” 42 U.S.C. § 1973c(c) (emphasis added).


6

approximately equal in weight to that of any other citizen in the State.” Reynolds, 377 U.S. at

579 (emphasis added); see id. at 568 (an “individual’s right to vote for state legislators is

unconstitutionally impaired when its weight is in a substantial fashion diluted when compared

with votes of [other] citizens” (emphasis added)). And since population equality is only a rough

proxy for voting equality, “it makes little sense to conclude from relatively minor ‘census

population’ variations among legislative districts that any person’s vote is being substantially

diluted.” Gaffney v. Cummings, 412 U.S. 735, 745–46 (1973).

Based on these principles, the Supreme Court has “established, as a general matter, that

an apportionment plan with a maximum population deviation under 10% falls within this

category of minor deviations” that impose no cognizable injury. Brown v. Thomson, 462 U.S.

835, 842 (1983); Gaffney, 412 U.S. at 745. A plaintiff challenging such a plan thus bears the

heavy burden to establish that it is one of the rare instances where under-10% deviations are not

de minimis and harmless. See, e.g., Brown, 462 U.S. at 842; Gaffney, 412 U.S. at 745.

Moreover, “an apportionment plan with a maximum population deviation under 10%”

“require[s] [no] justification by the State.” Brown, 462 U.S. at 842. The plaintiff therefore must

also demonstrate that “the minimal deviation results solely from an unconstitutional or irrational

state purpose” and not even in part from “appropriate” state policies. Rodriguez, 308 F. Supp.

2d at 366. In light of these dual daunting obstacles, it is hardly surprising that “nearly no state

districting plan with a maximum deviation below ten percent has ever been struck down by a

court as violating population equality.” Id. at 364; see also Marylanders for Fair Rep. v.

Schaefer, 849 F. Supp. 1022, 1031 (D. Md. 1994) (three-judge court).

That is, if a plaintiff meets the daunting burden of showing that the under-10% deviation

has more than a “minor” effect, he then must show that it serves no rational purpose. This


7

burden on plaintiffs to prove irrationality is simply the flip side of the rule that even over-10%

deviations are permissible if they “may reasonably be said to advance a rational state policy.”

Brown, 462 U.S. at 843 (emphases added); Mahan v. Howell, 410 U.S. 315, 328 (1973). This is

an objective test that upholds over-10% deviations without regard to whether the Legislature’s

subjective motivation was political or “illegitimate.”3 Since over-10% deviations are permissible

if they objectively advance a rational policy, those rare under-10% deviations with a cognizable

effect are a fortiori permissible if they are objectively rational. And since there is no burden on

the State to justify under-10% deviations, plaintiffs must disprove the existence of such rational

state policies. See Brown, 462 U.S. at 843; Mahan, 410 U.S. at 328.

In short, the burden is on the plaintiff to prove that the only purpose of the deviations is

an impermissible one. Thus, in Rodriguez, the parties cross-moved for summary judgment, and

the three-judge court granted the defendants’ motion because the under-10% deviation resulted

in part from “the traditional principles of maintaining the core of districts and limiting incumbent

pairing,” even though the plan allegedly reflected improper regional, political, and racial bias

against the New York City area. 308 F. Supp. 2d at 360–61, 366, 370.

This dooms Intervenors’ claim because they concede that “the ‘solely’ standard would be

virtually impossible to satisfy.” (DE 383 at 2). And this Court has recognized that Rodriguez

applied the “solely” standard. See 5/16/12 Op. at 22 (Rodriguez upheld “a just-below-10%

disparity plan despite evidence of political motive because [the] plan was supported by

traditional redistricting criteria and the plaintiffs did not show that the deviations resulted solely

from impermissible considerations”). Intervenors thus make two main attempts to escape the

3 The Supreme Court typically does not even look at legislators’ testimony in equal-

population cases, but simply refers to counsel’s arguments or alternative plans. See Brown, 462 U.S. 835; Mahan, 410 U.S. 315; Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Swann v. Adams, 385 U.S. 440 (1967); Roman v. Sincock, 377 U.S. 695 (-1964); Reynolds, 377 U.S. 533.


8

“solely” standard, both of which fail.

First, although Drayton concedes that Larios v. Cox imposes a “similar . . . burden on

plaintiffs” as Rodriguez (4/20/12 Hr’g tr. at 8), Lee, Ramos, and the Senate Minority contend

that Larios changed the law governing equal-population claims and, thus, somehow undermined

the Rodriguez rule. See Ramos Memo. at 7–17 (DE 337); 5/14/12 Hr’g tr. at 4. But as

Intervenors well know, Rodriguez was both decided by the three-judge court and summarily

affirmed by the U.S. Supreme Court after Larios. Compare, e.g., Larios v. Cox, 300 F. Supp. 2d

1320 (Feb. 10, 2004), summ. aff’d, 542 U.S. 947 (June 30, 2004), with Rodriguez, 308 F. Supp.

2d 346 (Mar. 15, 2004), summ. aff’d, 543 U.S. 997 (Nov. 29, 2004). This alone conclusively

demonstrates that Rodriguez is binding here and that Larios did not alter this Court’s obligation

to follow it. Thus, Intervenors’ burden is to persuasively distinguish their claims here from their

claims in Rodriguez; it is plainly not Defendants’ burden to distinguish Larios. This is

particularly obvious because, after assessing Mr. Hecker’s claims that Larios is in tension with

Rodriguez on precisely the same grounds offered here (see Rodriguez Juris. Stmt. at 20 (DE 356-

8)), the Supreme Court affirmed Rodriguez summarily.4 Thus, this claimed “tension” between

Larios and Rodriguez did not even raise a “substantial question” warranting submission of briefs.

In re Primus, 436 U.S. 412, 414 (1978); Sanks v. Georgia, 401 U.S. 144, 145 (1971). This was

obviously a conscientious determination, since eight Justices disagreed with Justice Stevens’

contention that probable jurisdiction and full briefing should be granted. See 543 U.S. 997.

In any event, Larios is completely compatible with Rodriguez, as the Rodriguez court

recognized. See 308 F. Supp. 2d at 367–71 & nn.23, 27. In fact, Larios seemed to apply the

4 That summary affirmance “without doubt reject[s] the specific challenges presented in

the statement of jurisdiction [and] prevent[s] the lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided.” Mandel, 432 U.S. at 176.


9

same standard as Rodriguez, but came to a different result on different facts. In Larios, the

deviations did have the unusual effect of “dilut[ing] . . . the weight of certain citizens’ votes.”

300 F. Supp. 2d at 1322. Specifically, there were no relevant citizenship or registration

deviations in Larios, so systematic, politically motivated overpopulation did dilute voting power.

See Larios Mot. to Affirm at 19 (Geremia Decl. Ex. N). Thus, Larios is distinguishable since,

unlike Rodriguez and this case, the challenged plans had an adverse effect on voting equality.

And no case anywhere has found a one-person, one-vote violation without such an effect.

Moreover, in Larios there was “no evidence that the population deviations in the plans

were driven by the neutral and consistent application of any traditional redistricting principles.”

300 F. Supp. 2d at 1349 (emphasis added); see also id. at 1349–50 (“[T]he record evidence

squarely forecloses the idea that any . . . legitimate reasons could account for the deviations.”

(emphasis added)). Thus, Larios is also distinguishable because the 2002 plan in Rodriguez and

the Senate Plan in this case further some “traditional redistricting principle.”

Second, Intervenors contend that Rodriguez’s “‘solely’ standard cannot be reconciled

with Roman v. Sincock, 377 U.S. 695, and its progeny.” (DE 383 at 2). That contention must be

rejected because the Rodriguez plaintiffs advanced it in their jurisdictional statement seeking

Supreme Court review. (See DE 356-8 at 3, 16–19); see also Mandel, 432 U.S. at 176 (summary

affirmance “without doubt reject[s] the specific challenges presented in the statement of

jurisdiction”). In all events, there is nothing to that contention. As noted, post-Roman Supreme

Court cases have held that even an over-10% deviation is permissible if it may “reasonably be

said to advance a rational state policy.” Brown, 462 U.S. at 843 (emphases added); Mahan, 410

U.S. at 328. It would, of course, make no sense to inject a subjective inquiry into the analysis of

under-10% deviations—which presumptively cause no harm—when no such inquiry is


10

authorized with respect to over-10% deviations, which presumptively do cause harm.

The lower court case Intervenors rely upon, Daly v. Hunt, 93 F.3d 1212 (4th Cir. 1996)

(cited at DE 383 at 2), recognizes this reality. After the Daly court quoted Roman’s language

regarding “any taint of arbitrary discrimination,” it went on to explain that “the [Supreme]

Court’s apportionment decisions subsequent to Roman” indicate “willingness to recognize a de

minimis level below which population variances are deemed acceptable.” Id. at 1220. Contrary

to Intervenors’ assertion, this rule does not mean that under-10% deviations are “immune from

constitutional scrutiny.” (DE 383 at 1). Instead, it means that such minor deviations are

judicially reviewable and may be overturned only in the rare circumstances where they somehow

harm voters and are imposed solely for an illegitimate purpose.

Here, Intervenors cannot possibly establish that the Senate Plan’s minor deviations

“result[] solely” from an improper purpose, Rodriguez, 308 F. Supp. 2d at 366 (emphasis added),

much less that their claims satisfy Larios’s extraordinary circumstances. In any event, as we

presently explain, the Court should not even reach the purpose question because the Senate Plan

has no discriminatory effect on New York City and indeed, overvalues New York City votes.

B. The Senate Plan Benefits, Rather Than Harms, New York City Voters

Intervenors’ central thesis is that the Senate Plan harms New York City voters by

“overpopulating” New York City districts on the basis of total population. Thus, the threshold

dispositive question is whether the Senate Plan did, in fact, inflict cognizable harm on the New

York City area. Indeed, if New York City voters are not being treated worse than others, then it

is a non sequitur to ask whether the (nonexistent) adverse treatment was motivated by racial or

political or legitimate purposes. Thus, because the Senate Plan has no discriminatory effect on

New York City voters, Intervenors’ equal-population claims fail.

First, Intervenors do not dispute that the Senate Plan underpopulates New York City


11

districts, and overpopulates “upstate” districts, in terms of CVAP—so, like the plan Rodriguez

upheld, it actually discriminates in favor of New York City. See 308 F. Supp. 2d at 369. Since

the entire point of population equality is to prevent “dilution of the weight of a citizen’s vote,”

Reynolds, 377 U.S. at 555 (emphasis added), CVAP is a basic measure for determining whether

a one-person, one-vote violation even potentially exists, see Rodriguez, 308 F. Supp. 2d at 369.

Moreover, the Fourteenth Amendment’s equal-population requirement is satisfied by

“substantial equivalence” of districts “in terms of voter population or citizen population,” as well

as total population, so the Supreme Court makes “no distinction between the acceptability of” a

test based on those measures “and a test based on total population.” Burns v. Richardson, 384

U.S. 73, 91 (1966) (emphases added). In the New York case of WMCA, Inc. v. Lomenzo, 377

U.S. 633 (1964), the Supreme Court “treated an apportionment based upon United States citizen

population as presenting problems no different from apportionments using a total population

measure” and the Court has never “suggested that the States are required to include aliens,

transients . . . or persons denied the vote for conviction of crime in the apportionment base by

which their legislators are distributed.” Burns, 384 U.S. at 91–92 (emphasis added). Since the

Legislature could have used “voter population or citizen population” as the measure of equal

population, it obviously cannot be found to have disfavored New York City residents when those

residents are favored under those measures. See id. at 91 n.20.

CVAP figures demonstrate that the Senate Plan underpopulates the New York City

districts by 7.41% and overpopulates “upstate” districts by 5.49%. SMF 42, 45.5 Moreover,

because there are fewer registered voters in the New York City districts than in the upstate

5 Like Intervenors, the Senate Majority uses CVAP figures that have not been adjusted to

reflect prisoner reallocation under New York law. See Breitbart Decl. ¶ 80 (using such data because “[i]mprisoned felons . . . are disenfranchised until the expiration of their sentences”).


12

districts, the average weight of a New York City citizen’s vote under the Senate Plan is 10%

more than the average weight of an upstate citizen’s vote as measured by voter registration.

SMF 57.6 And because voter turnout is lower in New York City than in upstate, the average

weight of a New York City voter’s vote in the most recent Presidential (2008) and State Senate

(2010) elections is approximately 30% and 65% more than the weight of an upstate voter’s vote.

SMF 67, 76. Thus, “[t]he practical effect” of the Senate Plan “is to dilute the votes of ‘upstate’

residents, not those who reside ‘downstate.’” Rodriguez, 308 F. Supp. 2d at 369. And at the

same time it visits this dilution on voters in Republican-leaning upstate, the Senate Plan also

disfavors Republican-controlled Long Island, where it overpopulates all nine districts by 2.54%

as measured by total population and 4.32% as measured by CVAP. SMF 27, 39.7

Obviously, no court should exacerbate this dilution of “upstate” voting strength in the

name of ensuring that “one person’s vote . . . be counted equally with those of all other voters.”

Reynolds, 377 U.S. at 560. Intervenors’ proposed plans, however, seek to do precisely that.

According to Intervenors’ CVAP data, the Breitbart Plan underpopulates New York City districts

by 10.44% and overpopulates upstate districts by 9%. SMF 114, 117. The Breitbart Plan also

inflates the average weight of a New York City citizen’s vote, as measured by registered voters,

to 18% more than the average weight of an upstate citizen’s vote. SMF 127. Measured by

recent voter turnout, the Breitbart Plan increases the average weight of a New York City voter’s

vote to 38% and 76% more than the average weight of an upstate voter’s vote. SMF 135, 143.

The Common Cause Plan is even more drastic. Measured by CVAP, it underpopulates

6 The Rodriguez court relied on a similar vote-weight comparison in concluding that the 2002 plan discriminated in favor of New York City and, thus, in rejecting the equal-population challenge to it. See Rodriguez, 308 F. Supp. 2d at 369.

7 An analysis of the citizen total population (CPOP) data confirms the Senate Plan’s bias in favor of New York City. On that measure, the Senate Plan underpopulates the New York City districts by 5.68%, and overpopulates upstate districts by 3.44%. SMF 30, 33.


13

New York City districts by 10.98% and overpopulates upstate districts by 9.54%. SMF 167–70.

It also increases the average weight of a New York City citizen’s vote, as measured by registered

voters, to 19% more than the average weight of an upstate citizen’s vote. SMF 180. And when

measured by voter turnout, it increases the average weight of a New York City citizen’s vote to

40% and 79% more than the average weight of an upstate citizen’s vote. SMF 188, 196.8

Intervenors do not dispute that the Senate Plan discriminates in favor of New York City

on these measures, but instead seek to sweep aside this dispositive showing on the assertion that

“[t]he New York Constitution requires that Senate districts be apportioned on total population.”

(DE 383 at 3 (emphasis in original)). But, of course, New York’s use of total population to

apportion districts in no way refutes that the under-10% deviation has no adverse effect on

voting equality because, when measured on the basis of eligible (citizen) and registered voters,

no “[New York City citizen’s] vote . . . is in a substantial fashion diluted when compared with

votes of [other New York] citizens.” Reynolds, 377 U.S. at 568. Rodriguez patiently explained

this truism to Intervenors when it rejected precisely the same meritless argument and noted that

“the state constitution has no bearing on whether [this Court] may analyze CVAP numbers in

assessing the viability of a one-person, one-vote cause of action under the United States

Constitution.” 308 F. Supp. 2d at 370 n.25. Thus, the court granted summary judgment to the

defendants because the CVAP data demonstrated that the plan “dilute[d] the votes of ‘upstate’

residents, not those who reside ‘downstate.’” Id. at 369. Here as well, Defendants are entitled to

summary judgment because CVAP data confirms that the Senate Plan’s presumptively

constitutional deviations do not harm any voters. See id.

8 By CPOP, the Breitbart Plan underpopulates New York City districts by 8.78% and

overpopulates upstate districts by 6.87%, and the Common Cause Plan underpopulates New York City districts by 9.33% and overpopulates upstate districts by 7.42%. SMF 102, 105, 155, 158.


14

Second, Intervenors attempt to change the law by suggesting that the equal-population

principle, rather than guaranteeing equality for voters, guarantees proportional representation for

cities. See, e.g., Drayton Memo. at 1–2 (DE 307); Lee Letter at 2–3 (DE 340); Cross-Claim

¶¶ 5–10. But the Equal Protection Clause “protect[s] citizens and not geographic areas.”

Rodriguez, 308 F. Supp. 2d at 369 (emphasis added); see also Reynolds, 377 U.S. at 562

(“Legislators are elected by voters, not farms or cities or economic interests.” (emphasis added)).

Indeed, the Supreme Court conclusively rejected Intervenors’ proportional representation theory

in Mahan, where it upheld a 16.4% deviation even though the plan discriminated against

Northern Virginia by systematically underpopulating Tidewater districts. See 410 U.S. at 319.

The Supreme Court reached a similar result in Burns, where it held that regional

overpopulation visits no cognizable harm if voters within that region are not substantially

disfavored as measured by citizen population or registered voters. In Burns, Hawaii populated

districts based on registered voters. See 384 U.S. at 90–91. Thus, even though Oahu had 79% of

Hawaii’s total population, it received only 71% of the seats in the Hawaii House, or three fewer

seats than it would have received on proportional representation. See id. The Supreme Court

nonetheless upheld Hawaii’s approach. See id. at 90–98; cf. LULAC v. Perry, 548 U.S. 399, 436

(2006) (“We proceed now to the totality of the circumstances, and first to the proportionality

inquiry, comparing the percentage of total districts that are Latino opportunity districts with the

Latino share of the citizen voting age population.” (emphasis added)).

In all events, even if Intervenors’ proportional representation theory were not foreclosed,

it still would fail because, even in terms of total population, New York City has greater

representation in the state legislature than its 42.2% of statewide population warrants. SMF 3.

The Assembly Plan has 150 districts, and the Senate Plan has 63 districts, for a total of 213


15

legislative seats. SMF 21, 79. On proportional representation based on total population, New

York City would receive 42.2% of those seats, or 89.886 seats. SMF 3. But the Assembly Plan

and the Senate Plan apportion 91 of the 213 seats to New York City—which is more than one

whole seat and 0.5% more than the City’s portion of statewide population. SMF 21, 79. These

facts belie any contention that the Senate Plan harmed New York City voters. See Md. Comm.

for Fair Rep. v. Tawes, 377 U.S. 656, 673 (1964) (“It is simply impossible to decide upon the

validity of the apportionment of one house of a bicameral legislature in the abstract, without also

evaluating the actual scheme of representation employed with respect to the other house.”).

Moreover, even focusing on the Senate in isolation, New York City’s 42.2% population

share corresponds to 26.586 senators, and the Plan places 26 districts in New York City. SMF

21. This 0.586 difference is much smaller than the three-seat deviation upheld in Burns—so, a

fortiori, it does not have any cognizable effect on New York City voters. See 384 U.S. at 90–98;

Rodriguez, 308 F. Supp. 2d at 370 (rejecting equal-population claim where “the overall effect of

the deviation is only one seat (actually, two-thirds of a seat) in a 62-seat Senate”).

The overrepresentation of New York City is even more pronounced when measured by

CVAP. New York City has 38.2% of the statewide CVAP. SMF 11. Thus, on a strictly

proportional CVAP representation, New York City would receive 81.366 of the 213 legislative

seats, and 24.066 of the 63 Senate seats. Yet the Assembly Plan and the Senate Plan award New

York City nearly ten whole seats more (91 total) than its CVAP would support—and the Senate

Plan itself awards New York City just under two whole extra seats (26 total). SMF 21, 79.

Finally, Intervenors’ suggestion that the placement of a new Senate district in the Hudson

Valley does not fairly reflect the State’s population growth trend (see Drayton Am. Compl.

¶ 105; Lee Am. Compl. ¶ 103) is fundamentally flawed and provides no basis for distinguishing


16

Rodriguez. Intervenors correctly allege that New York City had 2.06% population growth over

the last decade, but that was lower than the statewide population growth of 2.12% that

Intervenors also correctly note. See Breitbart Decl. ¶ 68; SMF 83–84. By stark contrast, in the

1990s growth relevant to Rodriguez, New York City experienced 9.3% population growth, which

was significantly higher than the statewide population growth of 5.5%. SMF 81–82.

As a matter of simple math, New York City’s below-average population growth over the

last decade must have been offset by above-average population growth elsewhere in the State.

And while Intervenors’ “self-serving and defective” “upstate” region, Rodriguez, 308 F. Supp.

2d at 369, as a whole had lower population growth than New York City (see Breitbart Decl.

¶¶ 70–73), the growth in the area where the new Senate district was actually placed far exceeded

New York City’s growth. The Hudson Valley experienced 5% population growth, and the five

counties in the new Senate district experienced 3.36% growth. SMF 85-86.

Moreover, the Hudson Valley lies between the rest of upstate and New York City, and the

three districts in the Westchester area are nearly perfectly populated. SMF 87–89. Thus,

Intervenors are inviting the Court to collapse a pre-existing upstate district and move it to New

York City, thereby disrupting district cores and pairing incumbents far beyond what the Senate

Plan does. The Court should decline that invitation and grant Defendants summary judgment.

C. The Senate Plan Promotes Traditional Redistricting Policies

Even if Intervenors had established harm from the Senate Plan, this would not open up an

inquiry into the Legislature’s purpose. Even where, unlike here, a plan’s maximum deviation is

over 10%, the only relevant inquiry is the objective one whether the deviation “may reasonably

be said to advance a rational state policy,” not a subjective one into legislators’ motivations.

Brown, 462 U.S. at 843 (quoting Mahan, 410 U.S. at 328 (emphasis added)). And “[p]roving the

motivation behind official action is often a problematic undertaking,” Hunter v. Underwood, 471


17

U.S. 222, 228 (1985), and “an unsatisfactory venture” because “[w]hat motivates one legislator

to vote for a statute is not necessarily what motivates scores of others to enact it.” Pac. Gas &

Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 216 (1983).9

But even if the Court were to engage in such an inquiry, it still should reject Intervenors’

equal-population claims because the Senate Plan’s minor deviation did not “result solely from an

unconstitutional or irrational state purpose.” Rodriguez, 308 F. Supp. 2d at 366 (emphasis

added). Intervenors appear to concede as much (DE 383 at 2), with good reason: the Senate Plan

plainly adheres to “appropriate” state policies. Rodriguez, 308 F. Supp. 2d at 366.

1. The Senate Plan Adheres To Appropriate State Policies

The Senate Plan adheres to at least four “appropriate” state policies, any one of which is

sufficient to defeat Intervenors’ equal-population claims. Rodriguez, 308 F. Supp. 2d at 366.

First, the Legislature served the traditional policy of preventing the further “dilution of

the weight of a citizen’s vote” in the “upstate” region due to those districts’ higher CVAP levels

as compared to New York City districts. Reynolds, 377 U.S. at 555. As measured by CVAP, the

Senate Plan overvalues New York City votes and gives New York City nearly two whole

districts more than its population would warrant on proportional equality. Intervenors’ proposed

alternatives would exacerbate this “upstate” dilution by systematically overweighting New York

City votes even further.

Second, the Legislature also served the legitimate objective of offsetting (although not

eliminating) the Assembly Plan’s disproportionate representation in favor of New York City. It

9 See also Palmer v. Thompson, 403 U.S. 217, 224–25 (1971) (“[I]t is extremely difficult

for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment” and “to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators.”); Flemming v. Nestor, 363 U.S. 603, 617 (1960) (“Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed.”).


18

is axiomatic that “apportionment in one house could be arranged so as to balance off minor

inequities in the representation of certain areas in the other house.” Reynolds, 377 U.S. at 577.

The Assembly Plan effects such inequities by underpopulating nearly every New York City

district—and, even when combined, the Assembly Plan and the Senate Plan still award New

York City approximately one whole seat more than its total population would warrant on

proportional representation and nearly ten whole seats more than its CVAP would support.

The Legislature thus was faced with a choice whether to round the 26.586 Senate districts

New York City would receive on a proportional total population measure up to 27 or down to 26.

Rounding up would have exacerbated the existing bias in favor of New York City. Rounding

down partly alleviated that bias and therefore was the rational, sensible legislative option.

Third, as in 2002, the Legislature consistently served the valid policy of “preserving the

cores of prior districts.” Karcher v. Daggett, 462 U.S. 725, 740 (1983). As Intervenors concede,

in the Senate Plan, “the average district takes 77.24% of its population from a single preexisting

(2002 enactment) district,” while in the Breitbart Plan, the average district takes only “69.46% of

its population from a single pre-existing (2002 enactment) district.” Breitbart Decl. ¶ 54.

Fourth, again as in 2002, the Legislature served the valid state policy of “avoiding

contests between incumbent [r]epresentatives.” Karcher, 462 U.S. at 740; see also Rodriguez,

308 F. Supp. 2d at 370. The Senate Plan pairs only two incumbents, while the New York City-

only Unity Plan pairs four incumbents and the Common Cause Plan pairs eighteen incumbents.

SMF 19, 149, 201. Intervenors attempt to reduce their incumbent pairings in their post hoc

Breitbart Plan, but that plan still pairs eight incumbents, including four Republicans. SMF 93.

Among those four Republicans is Senate Majority Leader Skelos. SMF 94.

Thus, Intervenors’ inability to satisfy “the ‘solely’ standard” does not result from the


19

Senate Plan merely “pay[ing] lip service to traditional redistricting objectives” or merely tak[ing]

some account” of those objectives. (DE 383 at 2). Rather, the Senate Plan serves those

objectives in ways that Intervenors’ alternative plans do not. The Legislature’s advancement of

even one of these “appropriate” policies defeats Intervenors’ equal-population claims.

Rodriguez, 308 F. Supp. 2d at 366. Accordingly, Intervenors’ allegation that the Legislature

acted with a political purpose (see, e.g., Lee Letter at 2-3; Cross-Claim ¶¶ 1–10) is completely

irrelevant. Indeed, the Rodriguez court rejected an identical claim and was summarily affirmed

by the Supreme Court “despite evidence of political motive.” 5/16/12 Op. at 22.

Larios does not hold otherwise because there “the record evidence squarely foreclose[d]

the idea that any . . . legitimate reasons could account for the deviations” and the court expressly

reserved the question of “whether or when partisan advantage alone may justify deviations.”

300 F. Supp. 2d at 1349–50, 1352 (emphasis added). And it is difficult to imagine how a

political purpose could turn a presumptively constitutional deviation into a constitutional

violation because “[p]olitics and political considerations are inseparable from districting and

apportionment.” Gaffney, 412 U.S. at 753. Thus, if the Court were to find that the Senate

pursued the compelling policy of avoiding dilution of upstate votes because a disproportionate

number of Republicans reside upstate, it still would have no warrant to overturn that legitimate

policy and penalize upstate voters (Republican and Democratic) by further diluting their votes.

Intervenors’ political discrimination theory, moreover, contradicts the evidence because

the Senate Plan overpopulates Republican-leaning Long Island even on Intervenors’ preferred

total population measure and overpopulates upstate as measured by CVAP. SMF 27, 45. Thus,

to the extent the Senate Plan discriminates at all, it discriminates in favor of Democratic New

York City and against Republican upstate and Long Island.


20

Intervenors thus invoke memoranda written by Mark Burgeson in 2001 regarding the

Legislature’s 2002 redistricting, and contend that they encouraged adoption of a 62-seat Senate

on the view that a 63-seat Senate would be politically disadvantageous to the Senate Majority.

(DE 288-1). Yet the Rodriguez court found the memoranda insufficient to prove improper

political motive because, even “[p]utting aside the . . . questionable assumption that Burgeson’s

motives are a proxy for those of the Legislature,” they “reveal[] many permissible redistricting

considerations,” including preserving cores and avoiding incumbent pairings. 308 F. Supp. 2d at

367. If the memoranda did not prove a constitutional violation in 2002 when the Legislature

embraced their recommendation, they cannot possibly evince such a violation in 2012 when it

contradicted that recommendation and exercised its discretion to apportion 63 Senate seats.10

And the Rodriguez court’s discussion of the memoranda reinforces the point that service of

traditional redistricting principles suffices to validate minor population deviations, regardless of

10 In any event, Intervenors’ use of these memoranda is a complete non sequitur. Even

though Intervenors assert that the memoranda established that a 63-seat Senate was politically disadvantageous in 2002, they ask the Court to infer that a 63-seat Senate was politically advantageous in 2012. Intervenors simply cannot have it both ways: the memoranda might establish that a 63-seat Senate is either bad or good for the Senate Majority, but not both.

Intervenors attempt to reconcile this inconsistency by saying that a 63-seat Senate is now advantageous to the Senate Majority because population growth patterns allow the 63rd seat to be placed in Republican-leaning “upstate.” See, e.g., Lee Letter at 2–3. This “changed circumstances” argument is multiply flawed. First, it is an explicit concession that the memoranda are irrelevant because they deal with a different political environment. Second, and in any event, it distorts the memoranda, which discussed adding the 63rd seat to Long Island, which is just as Republican as “upstate.” Third, the memoranda viewed the 63rd seat in 2000 as politically advantageous, not harmful as Intervenors consistently incorrectly allege. See 7/20/01 Burgeson Memo. at 1 (DE 288-1 at 47). Thus, their only relevance is their proof that the Senate will reject politically helpful Senate-size options if they unduly conflict with neutral redistricting principles. See Rodriguez, 308 F. Supp. 2d at 367. Finally, the fact that the 63rd seat on Long Island would have helped Republicans by combining “politically undesirable” areas and “strengthen[ing]” adjacent Republican districts (see 7/20/01 Burgeson Memo. at 1 (emphasis added)) refutes Intervenors’ premise that only an extra seat in a Republican area is politically advantageous. Thus, if politics was the sole criterion, the Legislature could have had the best of both worlds by adopting a 64-seat plan with one extra district in friendly territory “upstate” and one extra district combining politically undesirable areas in and around New York City.


21

whether political objectives are also a factor, “primary” or otherwise.

Finally, Intervenors’ allegation that the timing of LATFOR’s announcement of its 63-seat

Senate Plan evinces political motivation (see, e.g., Ramos Memo. at 4–10) likewise fails. By the

time of this announcement in January 2012, the Senate size already had been extensively

discussed in LATFOR public hearings across the State—including by Mr. Breitbart. (See DE

288-2 at 58). After LATFOR’s announcement, the 63-seat Senate Plan was the subject of

another round of public hearings throughout the State, and Common Cause had plenty of time to

propose its 63-seat alternative plan before the Legislature acted. See Public Hearing Schedule—

Second Round, available at http://www.latfor.state.ny.us/hearings/docs/20120125hrg_schedule.pdf.

And, of course, this argument was extensively presented to the New York Court of Appeals,

which nonetheless upheld the Plan’s creation of a 63rd seat. (DE 351).

2. Drayton’s And Ramos’s Racial Discrimination Allegations Do Not Salvage Their One-Person, One-Vote Claims

Lee has abandoned—and the Senate Minority has never even advanced—the accusation

that the Senate Plan’s presumptively constitutional minor deviation reflects a racially

discriminatory purpose or effect. (DE 381). Drayton and Ramos, however, continue to press

this accusation. See 4/20/12 Hr’g tr. at 6–8, 33; see also Drayton Am. Compl. ¶¶ 110, 114, 116,

123; Ramos Am. Compl. ¶¶ 49–50, 77. But this accusation fails to distinguish this case from

Rodriguez and is demonstrably false.

Drayton’s and Ramos’s allegation of racially discriminatory effect was advanced—and

rejected—in Rodriguez. The Rodriguez court rejected the allegation that the purported

overpopulation of “downstate” districts “ha[d] a discriminatory effect” on New York City

minority voters, see 308 F. Supp. 2d at 366 n.22, because, as measured by CVAP and voter

registration, the 2002 plan “dilute[d] the votes of ‘upstate’ residents, not those who reside


22

‘downstate,’” id. at 369. Here as well, the Senate Plan overvalues New York City votes (see

supra Part I.B), so it has a beneficial disparate effect on New York City minority voters. In fact,

the Senate Plan overvalues New York City minority votes even more heavily than it overvalues

New York City votes generally. According to CVAP figures, the Senate Plan underpopulates its

14 New York City Black and Hispanic districts by 12.04%. SMF 48.11 With respect to

registered voters, the average weight of a vote in a New York City Black or Hispanic district is

11% more than the average weight of an upstate vote. SMF 59. And with respect to voter

turnout, the average weight of a vote in a New York City Black or Hispanic district is 31% and

76% more than an upstate vote. SMF 69, 77. Thus, far from discriminating against New York

City minority voters, the Plan greatly enhances the value of their votes. And, of course, the

Legislature was not required to aggravate this distortion in the name of achieving voter equality,

see Reynolds, 377 U.S. at 560, as Intervenors’ proposed plans do.12

Drayton and Ramos suggest that their racially discriminatory purpose allegation

distinguishes Rodriguez and invalidates the Plan if proven, (see 4/20/12 Hr’g tr. at 6–8), but this

assertion is multiply flawed. First, the absence of any discriminatory effect on New York City

minority voters obviously forecloses any showing of a discriminatory purpose. See Thornburg v.

11 As measured by CPOP, the Senate Plan underpopulates New York City Black and Hispanic districts by 7.35% and overpopulates upstate districts by 3.44%. SMF 33, 36.

12 The Breitbart Plan underpopulates its putative 15 New York City Black and Hispanic districts by 9.03% as measured by CPOP and 14.02% as measured by CVAP, and overpopulates upstate districts by 6.87% as measured by CPOP and 9% as measured by CVAP. SMF 105, 108, 117, 120. Measured by enrollment and turnout, the Breitbart Plan inflates the average weight of a vote in a New York City Black or Hispanic district to between 19% and 88% more than the average weight of an upstate vote. SMF 128, 136, 143. The Common Cause Plan underpopulates its putative 14 New York City Black and Hispanic districts by 10.24% as measured by CPOP and 14.61% as measured by CVAP, and overpopulates upstate districts by 7.42% as measured by CPOP and 9.54% as measured by CVAP. SMF 158, 161, 170, 173. Based on enrollment and turnout, the Common Cause Plan increases the average weight of a vote in a New York City Black or Hispanic district to between 21% and 92% more than the average weight of an upstate vote. SMF 181, 188, 197.


23

Gingles, 478 U.S. 30, 44 (1986) (a plaintiff that fails 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.”). Moreover, contrary to Drayton’s and Ramos’s representation, the Rodriguez

plaintiffs did allege racially discriminatory purpose, but were forced to abandon that allegation

because they offered nothing to support it. See 308 F. Supp. 2d at 366 & n.22.

Second, for the reasons stated, Intervenors must show that the Plan’s presumptively

constitutional minor deviation “result[ed] solely from an unconstitutional or irrational state

purpose.” Intervenors have not alleged and cannot allege that the deviations resulted solely from

race because, as demonstrated, the Plan reflects “appropriate” state policies. 308 F. Supp. 2d at

366 (emphasis added); see also supra Part I.C.1.

Third, Drayton and Ramos do not even properly plead a claim of racial purpose, because

they nowhere allege 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). Ramos’s barebones equal-population counts do not even touch on

race-based allegations. See Ramos Am. Compl. ¶¶ 68–74. While Drayton asserts that the Senate

Plan “intentionally discriminates,” the support for this assertion is that the plan “den[ied]”

Intervenors “an equal opportunity to participate in the political process, to elect candidates of

their choice[,] and to have any meaningful or significant influence in election for members of the

New York State Senate.” Drayton Am. Compl. ¶ 109. But that supporting assertion merely

echoes the discriminatory results proscribed by Section 2. See 42 U.S.C. § 1973.


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Fourth, even if it had been pled, there is no basis for a “plausible” claim of a

discriminatory purpose 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, Drayton and Ramos cannot demonstrate that

the Plan’s minor deviations somehow caused the absence of an additional Black-majority or

Hispanic-majority district. Prior to the Senate Plan’s enactment, no party proposed a 63-seat

plan that added a majority-Black or majority-Hispanic district to the Senate Plan’s minority

districts. The 2002 plan contained 8 performing Black districts and 6 performing Hispanic

districts in New York City. SMF 23-25. The Senate Plan retained those 14 districts and added a

majority-Asian district in Queens. SMF 26. Neither the Common Cause Plan nor the New York

City-only Unity Plan (both proposed prior to the Senate Plan’s enactment) created an additional

minority district that was majority-Black or majority-Hispanic, even though both plans

underpopulated New York City districts. (Intervenors cobbled together the Breitbart Plan which,

they allege, creates one more majority-Hispanic district than the Senate Plan only after the

Senate Majority’s counsel made this point at the April 20 hearing (see Apr. 20 Hr’g tr. at 77).)

Thus, none of the alternative proposals suggested any connection between “overpopulation” of

New York City districts and additional majority-minority districts, which refutes the notion that

the purpose of the “overpopulations” was to prevent this (nonexistent) “extra” minority district.

In any event, there is no plausible basis for saying the Plan deliberately imposes race-

based differential treatment because (1) all upstate residents, whether blacks in Buffalo and

Rochester, or whites elsewhere, are in underpopulated districts as measured by total population;

(2) all New York City districts—white, black, or Hispanic—are overpopulated as measured by

total population; (3) all Long Island districts are overpopulated, regardless of their minority

populations; and (4) no plan introduced into the Legislature was able to use placement of the


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63rd seat in the City to create an additional minority district that was majority-Black or majority-

Hispanic. Since the only possible basis for differential population treatment was “region,” rather

than race or ethnicity, and since the placement of the 63rd seat upstate could not rationally have

been motivated by a desire to deny minorities a nonexistent “extra” seat, the Attorney General, in

his Section 5 review, was compelled to find that the State carried its burden to prove the absence

of “any discriminatory purpose” in the Senate Plan. 42 U.S.C. § 1973c(c) (emphasis added).

Finally, Drayton and Ramos cannot show that the challenged action—i.e., the addition

of the new Senate district in upstate rather than New York City—is attributable to “race rather

than politics.” Easley v. Cromartie, 532 U.S. 234, 243 (2001) (emphasis added). Because “race

and political affiliation” often “are highly correlated,” plaintiffs in redistricting cases must

decouple the two and establish that racial, rather than political, purpose caused a discriminatory

effect. Id. at 242, 258. Here, the correlation between race and politics is quite clear, since

allegedly disadvantaged New York City is both less white and more Democratic than the

allegedly advantaged “upstate.” Drayton and Ramos, however, do not even attempt to

disentangle race and politics. See Drayton Am. Compl. ¶¶ 105, 109; Ramos Am. Compl. ¶¶ 42,

49–51. This failure is fatal, particularly since it is far more likely that the Legislature acted with

a political purpose to disadvantage Democratic-leaning New York City (although any such

political purpose clearly was not its sole purpose, see supra) than that it acted with a racial

purpose in a Plan that overvalues minority voting strength. See NAACP v. Snyder, No. 2:11-cv-

15385 at 20 (E.D. Mich. Apr. 6, 2012) (DE 356–13) (dismissing claim because pairing of five

minority incumbents was consistent with both political and racial purpose).

CONCLUSION

The Court should grant summary judgment to Defendants.


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