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Pos i tiv eAs of Jun 02, 2011

PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC., and EVE-LYN CORCHARDO, Plaintiffs, v. DAVID GANTT, Co-Chairman of the New York

State Legislative Task Force on Demographic Research and Reapportionment;DEAN SKELOS, Co-Chairman of the New York State Legislative Task Force on

Demographic Research and Reapportionment; NEW YORK STATE TASK FORCEON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT; SAUL

WEPRIN, Speaker of the Assembly of the State of New York; RALPH MARINO,Majority Leader of the New York State Senate; MARIO CUOMO, Governor of theState of New York; STANLEY LUNDINE, Lieutenant Governor of the State of NewYork; THE SENATE OF THE STATE OF NEW YORK; THE ASSEMBLY OFTHE STATE OF NEW YORK; THE BOARD OF ELECTIONS OF THE STATEOF NEW YORK, Defendants. MICHAEL T. WARING, Plaintiff, v. DAVID

GANTT, Individually and as Co-Chairman of the Legislative Task Force on Demo-graphic Research and Reapportionment; DEAN SKELOS, Individually and as Co-Chairman of the Legislative Task Force on Demographic Research and Reappor-tionment; THE NEW YORK STATE TASK FORCE ON DEMOGRAPHIC RE-

SEARCH AND REAPPORTIONMENT; THE SENATE OF THE STATE OF NEWYORK; THE ASSEMBLY OF THE STATE OF NEW YORK; THE BOARD OFELECTIONS OF THE STATE OF NEW YORK; RONALD STARKWEATHER,Individually and as Commissioner of the Board of Elections of the County of Mon-

roe; M. BETSY RELIN, Individually and as Commissioner of the Board of Electionsof the County of Monroe, Defendants.

CV-92- 1521(SJ) , CV-92-1776(SJ)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEWYORK

796 F. Supp. 681; 1992 U.S. Dist. LEXIS 1 7475

June 26, 1 992, Dec ided

CASE SUMMARY:

PROCEDURAL POSTURE : Plaintiffs, a number ofvoters and interest groups , filed actions concerning theredistricting of the New York congressional districtsfollowing th e 1990 census , which required a reduction indistricts from 34 to 31 . The actions were consolidatedbefore th e cou rt, which appointed a special master tofashion the di strict s. Hi s map was before the cou rt forapproval . Various p laintiffs, a s we ll as defendants , th eNew Y ork s tat e o ffi c i a l s, objec t e d .

OVERVIEW: As the political processes had brokendown, it became the "unwelcome obligation" of thethree-judge court to supervise development of a redis-tricting plan that would satisfy the requirements of allapplicable provisions of the Voting Rights Act . The courtwas satisfied that the special master's plan satisfied allmandato ry and permissive criteria . The virtuall y-perfectmathematical allocation satisfied the one-person , one-vote standard as best as possible . There was no sugges-tion that the p lan ran afoul of the Fifteenth Amendmentby intentionally s ing lin g out a racial or ethnic gro up insuch a way a s to interfere with th at gro up' s m embers 'r i ght to v ote. The cou rt noted th at th e objecti o n s t o th e

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p l an we re mo re poli ti cal lo bbying than legal argument.The plan was fre e of any di s criminatory animus. Thecou rt concluded that the plan did not re flect the "exerciseo f l eg i s lativ e judgm ent , " whil e a plan initially adoptedby th e state cou rt and pas se d by the legislature would notbe valid until precleared under 42 U . S . C . S . § 1973c , andconditionally adopted the plan because further post-ponements would run counter Co the objectives of bothth e constitution and the Voting Rights Act .

OUTCOME : The cou rt adopted and approved the repo rtand redistricting plan of the special master, but did notorder that it take effect immediately. If a redistrictingplan adopted by the state was not in effect by July 8,1992, the court ordered that the special master's pl an wasCo automatically take effect on that date as the districtplan for the 1992 primary and general elections.

CORE TERMS: special master, redistricting, votingrights, votin g, voter , preclearance , election, minoritygroups , candidate , census , permissive, bloc, reappor-tionment, dilution, congressional districts, votingstrength , compactness, electoral, referees , policy choices ,discriminatory, precleared, compact, elect, communitiesof interest, sin gle-member , retrogression, precondition ,deviation , totality

LexisNexi s(R) Hea dnote s

Civil Rights Lrziv > Voting Rights > PreclearanceGovernments > Federal Government > Elections[I-1N 1]A decree of the United States District Court is notwithin reach of § 5 of the Voting Rights Act . However, alegislatively-approved plan requires preclearance by theDepa rtment of Justice . Of course, preclearance of a stateplan may not occur , or it may be delayed.

Civil Rights Law > Voting Rights > Racial Diserim ina-tlonConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > State & Territoria l Governments >Elections[HN2]Under applicable federal law, redistricting plansmust comply with two "mandatory" criteria: populationequality, or "one person, one vote," and racial fairness.Additionally, the "permissive" criteria of contiguity,compactness, respect for traditional boundaries, mainte-nance of communities of interest, and encouraging parCycompetition may also be considered.

Constitutional Law > Congressional Duties & Powers >Census > Appor[ionmenf & Redis trictingConstitutional Law > Congress ional Duties & Powers >Ceiesus > Composition of the U.S. CongressConstitutional Law > Elections, Terms & Voting >General Over view[HN3)The House of Representatives shall be composedof members chosen by the people of the several states,and shall be apportioned among the several states ac-cording to their respective numbers. U.S. Const. art . I, §2, cl. 3 (amended 1865). The United States SupremeCourt has interpreted this constitutional command tomean that as nearly as is practicable one man's vote in acongressional election is to be worth as much as an-other's.

Civil Rights Luw > Voting Riglats > Vote DilutionConstitutional Caw > Congressional Duties & Powers >Cer¢sus > General OverviewConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN4]The "as nearly as is practicable" standard requiresthat the state make a good-faith effort to achieve precisemathematical equality. Congressional redistricting plansare not per se unconstitutional because a smaller popula-tion deviation might be possible, however, all populationvariances from the ideal, no matter how small, must bejustified on legally-cognizable grounds. Legally-cognizable grounds for population variances, the Su-preme Court has said, are variances that are unavoidabledespite a good-faith effort to achieve absolute equal ity,or where justification, such as state requirements ofcompactness and contiguity, is shown.

Civil Rights Law > Voting Rights > [tacial Discrimina-tionCivil Rights Law > Voting Kights > Vote DilutionConstitution al Law > Equal Protection > Scope of Pro-tection[HNS]The equal protection clause of the FourteenthAmendment guarantees the opportunity for equal partici-pation by all voters , and redistricting plans that do notachieve fair and effective representation for all citizensi mpair the basic and fundamental rights secured by thisamendment . Thus, the adoption of electoral boundariesmust serve the interests of the entire community andcannot operate to cancel out the voting strength of racialor ethnic minorities .

Civil Rights Lmv > Voting Rights > Voting Rights Act >Interference

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796 F . Supp . 68 1, *; 1992 U . S . Dist. LEXIS 1747 5, *"

Constitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN6]The Fifteenth Amendment prohibits the denial ofvoting rights on the basis of race, color, or previous con-dition of servitude. When an identifiable racial or ethnicgroup is singled out for discriminatory treatment whichinterferes with the right to vote, the Fifteenth Amend-ment is violated.

Civil Rights Law > Contractual Relations & Aousing >Property Rights (sec. 1982) > General OverviewCivil Rights Law > Voting Rights > Racial Discrimina-tionConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[HN7]In addition to satisfying const itutional require-ments, congressional redistricting plan s must also com-ply with the Voting Rights Act of 1965, as amended in1970 , 1975 , and 1982. 42 U.S .C . S . § 1973 et seq. The actis intended to faci litate implementation of the FifteenthAmendment in protecting citizens from the denial orabridgement of the right to vote based on race or color.The primary purpose of the act is to rid the country ofracial discriminat ion in voting.

has u sed a "totality of the circumstances " test in holdin gthat a court must assess the impact of the contested s truc-ture or practice on minority electoral opportunities on thebasi s of objective factors . A violation exi sts where thepolitical process and opportunities to elect representa-tives of their choice are not equally accessible to mem-bers of a protected group and to other members of theelectorate .

Civil Rights Law > Voting Rights > Racial Discrimina-tionCivil Rights Law > Voting Rights > Vote DilutionGovernments > Federal Government > Elections[HNIOIMinority voting strength is diluted in violation ofthe act when a redistricting plan operates to minimize orcancel out the voting strength of minority groups. Minor-ity vote dilution can occur in two ways: either by frag-menting large concentrations of minority populations anddispersing them into separate electoral districts, or byconcentrating minorities into districts there they consti-tute an excessive majority. Thus, § 2 of the VotingRights Act, 42 U.S.C.S. § 1973, is violated where a mi-nority's vote is either too "fragmented" or too "paclced,"while a plan will survive § 2 scrutiny only where aproper balance is struck between the two extremes.

Civil Rights Law > Voting Rights > Language Dis-criminationConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > Elections[HN8]Section 2 of the Voting Rights Act, 42 U.S.C.S. &1973, is divided into two subsections. Subsection 2(a)prohibits any voting procedure that results in a denial orabridgement of the voting rights of a person on accountof race, co l or, or membership in a language minority. 42U.S.C.S. & 1973 (a). Subsection 2(b) provides that a vio-lation of subsection 2(a) is established by showing thatbased on the totality of the circumstances, members of aclass protected under subsection 2(a) have less opportu-nity than other members of the electorate to participate inthe political process and to elect representatives of theirchoice. 42 U.S.C.S. & 1973(b).

Civil Rights Law > Voting Rights > Racial Discrimina-tionCivil Rights Law > Voting Rights > Vote DilutionConstitutional Law > Equal Protection > Voting D6s-tricts & Representatives[HN9] App ly ing th e 1982 amendments t o § 2 of the Vot-i n g Rights Act , 4 2 U . S . C . S . 1973 , the Supreme Cou rt

Civil Rights Law > Voting Rights > Racial Discrimina-tionConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > Elections[HN11 ]The Supreme Court established three necessarypreconditions to sustain a Voting Rights Act § 2 claim inmulti-member districts: First, the minority group must beable to demonstrate that it is su ffi ciently large and geo-graphically compact to constitute a majority in a single-member district. Second, the minority group must beable to show that it is politically cohesive. Third , theminority must be able to demonstrate that the white ma-jori ty votes sufficiently as a bloc to enable it, in the ab-sence of special circumstance s , such as the minority can -didate runn ing unopposed, usually to defeat the minor-ity's preferred candidate. A group th at meets thes ethreshold conditions is entitled to have its claim consid -ered on the merits under the " totality of the circum -stances" test prescribed in § 2(b) of the Voting RightsAct, 42 U.S . C.S. & 1973(b) .

Civil Rights Law > Voting Rights > Vo te DilutionConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Local Governments > Elections

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[HN12]A min o rity group be sufficiently large and geo-graphica ll y compact to constitute a majority in a single-member district. In evaluating whether a minori ty groupi s " sufficiently large" to constitute a majority , mostcou rt s have held that it is appropriate to con si der the per-centage of votin g age population (VAP) in the districtrather than the total minority population , in recognitionof the higher ❑on-votin g age population percentages ,lower voter regi stration and lower voter turn out found inminor ity communitie s.

group is pol i tically cohes ive i f it v otes Yo geth er. In re a l-ity , th e precondition s o f political cohes ion of the minor-ity and bloc voting by the majority are not i nquiries to bemade apart from each other , b e c ause th e c entral focu s ofeach is on votin g patterns. The purpos e of inquiring intothe existence of racially polarized voting is twofold : toascert ain whether minority group members constitute apolitically cohesive unit and to determine whether wh i tesvote sufficiently as a bloc usually to de fe at the minori ty'spreferred candidates.

Civil Rights Law > Voting Rights > Vote DilutionGovernments > Federal Government > ElectionsGovernments > Local Governments > Elections[HN13]ConsistenY with its jurisprudence in other are asinvolving the Voting Rights Act, the Supreme Court hasdeclined to adopt bright-line formulae for determiningwhether the voting age populat ion (VAP) percentage of aminority group in a district is so low that a court shouldsuspect dilution of minority voting strength . Courts haveheld that more than simple majorities (51 percent) arerequired to create "safe" majority-minority districts.Even higher VAP percentages may be required in His-panic distr icts to account for their even lower citizenshipratio, lower voter turnout , and lower voter registration.The principle which motivates each of these cases is , asthe Supreme Court continually stresses , that resort toabsolutes is inappropriate in evaluating minority votingstrengths . Numerous other cases also illustrate that courtsshould consider the degree of racial polarization in vot-ing, minority voter turnout and voter registration, and thesuccess of minority candidates in seeking office withinthe jurisdiction . A too-low VAP can support a claim ofdilution, in li ght of the extreme racial polarization invoting.

Civil Rights I.uw > Voting Rights > Racial Discrimina-tionCivil Rights Law > Voting Rights > Vote DilutionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[ I-IN 14)Cou rts have reached varying conclusions withrespect to the "geographically compact" requirement .

Civil Rights Law > Voting Rights > Racial Discrimdna-tdonCivil Rights Law > Voting Rights > Vote DilutionGovernments > Federal Government > Elections[HNIS]The second precondition for sustaining a VotingRights Act § 2 claim is that the challenging m i nori tygroup must be able C o show that it i s politically cohesi ve ."C ohe s i o n " in thi s regard m ean s what it says : a minority

Civil Rights Law > Voting Rights > Racial Discrimina-tionCivil Rights Law > Voting Rights > Vote DilutionGovernments > Local Governments > Elections[HN16 1A showing that a significant number of minoritygroup members usually vote for the same candidates isone way of proving the political cohesiveness necessaryto a vote dilution claim , and , consequently, establishesminority bloc voting within the context of § 2 of the Vot-ing Rights Act, 42 U.S .C . S . § 1973(b) . And, in general, awhite bloc vote that normally will defeat the combinedstrength of minority suppo rt plus wh ite " crossover" votesri se to the level of legally significant white bloc voting.The amount of white bloc voting that can generally"minimize or cancel" black voters ' ability to elect repre-sentatives of their cho i ce , however, will vary from dis-tr ict to district according to a number of factors , includ-ing the nature of the all egedly dilutive electoral mecha-nism , the presence or absence of other potentially dilut-ive electoral devices , the percentage of registered votersin the district who are members of the minority group,and the size of the district .

Civil Rights Lew > Voting Rights > PreclearanceConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Local Governments > Elections[HNI7 1 Section 5 of the Voting Rights Act , 42 U . S . C . S . S1973c, is intended to ensure that the protections affordedby § 2 of the Act are in fact available in states, or coun -ties therein, that the United States Attorney General de-tenni nes are "covered jurisdictions" under § 4(b) of theAct. "Covered jurisdictions" are those states or countiestherein which maintained any "test or device," on No-vember 1, 1964 and November 1, 1 968, and in whichfewer than half of its voting age residents voted or wereregi stered to vote in the presidential elections of 1964 ,1968, or 1972 . 42 U . S . C . S . & 1973b(b) . Three counties inthe State of New York , Bronx, Kin gs, and N ew York , arecovered j uri sdictions under § 4(b) .

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Civil Procedure > Declaratory Judgment Actions >Federal Judgmenrs > General OverviewCivil Rights Law > Voting Rights > Preclearan ceLabor & Employment Law > Discrimination > RacialDiscrimination > Remedies > General Overview[HN18]Section 5 of the Voting Rights Act requires thatany proposed change in voting laws, practices, or proce-dures, including redistricting plans, affecting coveredjurisdictions must be precleared by the United StatesAttorney General or authorized by a declaratory judg-ment of a three-judge United States District Court for theDistrict of Columbia prior to implementation of the pro-posed change. 42 U.S.C.S. 5 1973c. This preclearancecannot occur unless the submitting jurisdiction showsthat the proposed change has no racially-discriminatorypurpose or effect. When the court, because of exigentcircumstances, actually fashions the plan itself instead ofrelying on a plan presented by a litigant, § 5 preclearanceis not necessary.

Civil Rights Law > Voting Rights > PreclearanceCivil Rights Law > Voting Rights > Racial Discrimina-tionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN 1 9]Despite the absence of a preclearance require-ment for court-drawn plans which do not reflect the pol-icy choices of the legislators, the Department of Justiceand case law have established that a cou rt -drawn planshould be drafted so that it will not lead to a retrogres-sion in the position of a racial or language minoritygroup with respect to their oppo rtunity to exercise theelectoral fr anchise effectively. 28 C . F.R . 51 . 54(a)

Civil Rights Law > Voting Rights > PreclearanceCivil Rights Law > Voting Rights > Racial Discrirre6rea-tionConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[FIN20]To meet the burden of proof imposed upon astate in a Voting Rights Act § 5 preclearance action , 42U.S.C.S. & 1973c, it must demonstrate that the red i strict-ing plan does not lead to a retrogression in the position ofracial minorities and it must demonstrate that the plan isfree of a discriminatory purpose . Even if a change is"ameliorative," it may violate § 5 if it so discriminates onthe basis of color as to violate the Constitution. In short,a redistricting plan must not dimini s h whatever votingstrength protected groups had before redi str ictin g.

Civil Procedure >.Iu[licia [ Ofjlcers > Masters > Ap-pointments

Civil Rights Law > Voting Rights > Racial Discrimina-tionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN2 1 ]Afte r complying with federal const itutional ands tatutory requirement s, a redi strictin g plan may properlybalance a wide array of secondary or equitable criteria .Among th e s e variou s equitable cr iter ia are: compactness,conti gui ty, pre s ervat ion of munic ipal boundaries , main-tenanc e of the cores of exi sting dis tricts , communities ofinterest, and politic a l fairness . However , these "permis-sive" criteria may be sacrific ed in a particular plan inorder to comply with the Voting Rights Act or the fed-eral constitution . Their enumeration in the case law iss imply to guide legislatures as to the criteria that theymay properly cons ider in drawing a plan .

Civid Riglats Law > Voting Rights > Vote DilutionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN22]Absolute population equality is the paramountobjective of appo rtionment . Although the Supreme Courthas never fixed a precise numerical standard for permis-s ible deviations, it has noted that precise mathematicalequality may be impossible to achieve in an imperfectworld .

Civil Rights Law > Voting Rights > Racial Discrimina-tionCivil Rights Carv > Voting Rights > Vote DilutionGovernments > Federal Government > Elections[HN23]The "zero deviation" required by both the consti-tution and the Voting Rights Act is sometimes achievedat the expense of other, "permissive," values, such ascompactness, contiguity, and communities or interes t .

Civil Rights Law > Voting Rights > Racial Discrimina-tionCivil Rights Law> Voting Rights> Vote DilutionConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[HN24]Neither the Fourteenth nor the FifteenthAmendment can invalidate an innocently-motivated ap-portionment scheme .

Civil Rights La w > Voting Rights > Vote DilutionGovernments > Federal Government > ElectionsLabor & Employment Law > Collective Bargaining &Labor Re[ntlorss > Unfair Labor Practices > Organizing& Voting

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[ HN 2 5]Congress amended § 2 oP the Voting Rights Actco restore the "effe cts " s tand a rd u sed by many lowercourt s prior to 1980 . The amendment made clear that aviolation of th e Votin g Rights Act could be s h own byproving discriminator y e ffect alone .

Civil Rights Law > Voting Rights > Racial Discrimina-tlonCivil Rights Law > Voting Rights > Vote DilutionGovernments > Federal Government > Elections[H1V26]To sustain a claim of a Voting Rights Act § 2violation, a complainant must show the existence of thethree preconditions of size and compactness , politicalcohesion , and majority bloc voting before its claim canbe evaluated against the " totality of the circumstances"test . Similarly, the typical § 2 claim is vote dilution,which occurs when a minority 's population is too "frag-mented" or too "packed . "

Civil Rights Law > Voting Rights > Racial Discrimina-tionCivil Rights Law > Voting Rights > Vote DilutionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN27]Every redistricting case is unique . The line be-tween "packing " minorities and " fragmenting " them i sfrequently a thin one, and each redistrict i ng effort re-quires an extremely fact-intensive evaluation. The law,of course, does not require a statistical certainty of elect-ing a minority candidate . It only requires a signific antopportunity to do so .

Constitutional Luw > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > ElectionsGovernments > Suete & Territorial Governments >General Overview[ HN28]No redistricting plan, no matter who holds thepen , will be without objection . This is why, as the Su-preme Court has stressed , the question of where to putthe pen is first and foremost a question re s erved for stategovernment to answer . But the constitution and the Vot-ing Rights Act , if they are to mean anything, must meanthat when state government fails to take up the pen intime to permit all would-be candidates to mount effectivecampaigns , then the burden falls upon the judiciary to dowhat is necessary to pres erve the elective franchise .

Civil Rights Law > Voting Rights > Racial Discrimina-tionConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[HN29]In a decl aratory j udgment action for preclear-ance, which may be brought only in the United StatesDistrict Court for the District of Colunibia under 42U . S . C.S . & 1973c , a submi tt ing jurisdiction has the bur-den of proving (A) that the redistricting plan does notlead to a retrogression in the position of racial minori ties,and (B) that the plan is free from a discriminatory pur-pose. Even if a change is "ameliorative," it may violate §5 of the Voting Rights Act if it discriminates on the basisof color in violation oEthe constitution.

Civil Rights Law > Voting Rights > Preclea rance[HN30]A court-drawn legislative redistricting plan is notsubject to preclearance by the United States Departmentof Justice. Only "legislative" plans are subject to pre-clearance. The essential characteristic of a legislativeplan is the exercise of legislative judgment, meaning aproposal reflecting the policy choices of the elected rep-resentatives of the people.

Civil Rights Law > Voting Rights > Preclearance[HN31]Changes ordered by a federal court are subject topreclearance only where they reflect the policy choicesoPthejurisdiction . 28 C . F . R . � 51 . 18(a) (1991)

Civil Procedure >.Iurlicia[ Officers > Masters > Ap-pointmentsCivil Proeedure > Judicial Officers > ReferencesCivil Rights Law > Voting Rights > Preclearance[HN32]A district court should make a factual determina-tion as to whether the plan reflects the policy choices ofthe state.

Civil Rights Law > Voting Rights > Preclearance[HN33]Untit a legislative plan is actually precleared , ithas no legal effect .

JUDGES: [** I] BEFORE : PRATT , Circuit Judge, andMARTIN , Jr . and JOHNSON, Jr. , District Judges .

OPINION BY: PER CURIAM

OPINION

Civil Procedure > Declaratory Judgment Actions >Federal Judgments > General Overview

[*684] OPINION

PER CURIAM :

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In order to aid th e court in it s ta sk of re di strict in g theState of N ew York from 34 Co 3 1 congressional di str icts,as mandate d by th e ] 990 federal census , thi s three-judgecou rt app oi nted th e H on . F red erick B . Lacey as s peci almaster on May 12, 1992. Two weeks late r , on May 26,1992, Judge Lacey presented a plan of 3 1 congressionaldistricts with a report recomm ending that this cou rt adoptthe plan as submitted . For the fo llow ing re asons , thisthree -j udge court agrees w ith Judge Lacey and condi-tionally adopts his proposed plan as the congressionaldistricts for New York based on the 1990 federal census.This opinion includes the three-judge cou rt 's findings offact and conclusions of law . Fed . R. Civ . P . 52(a) .

1. PROCEDURAL HISTORY

A . The 1990 c ensus , legislative deadlock and judi-c ial intervention .

In 1990 , the Bureau of the Census conducted a cen-sus of the United States. See U . S Const. art . 1, & 2, cl. 3.When the results o f his census were released, in early1991 , it b ecame apparent that New York ' s population hadnot grown as fast as had [ * "2] other states' ; as a result ,New York lost three seats in the House of Representa-tives , reducing its congress ional delegation from 34 to 31members . The New York Legislative Task Force onDemographic Research and Reapportionment (TaskForce) was charged with the task of preparing a redis-tricting plan for New York's congressio n al seats ; how-ever, because of political differences, the Task Force ,which had been " studying, discussing and negotiating theissue for nearly a year" was "not even close" to anagreement as of March 24 , 1992. Kevin Sack , Albany atImpass e in Redrawing Map of House Districts, N . Y.Times , Mar . 25 , 1992 , at Al (referenced in complaint ofPuerto Rican Legal Defense and Education Fund(PRLDEF) at P 26) .

fendants did not join i n thi s motion , Reid wa s remanded .to the Supreme Court of New York , Kings County onApril 17.

On May 5, 1992, this court issu ed a memorandumand order which, inter alia, decl ined to abstain in favorof the state court proceeding and granted various part ies'motions to enjoin the part ies in the state cou rt from pro-ceeding with that litigation. PRLDEF v. Gantt, No . CV-92 - 1521 , slip op . (E . D.N.Y. May 5 , 1992) . That injunc-tion was stayed by order of the United States SupremeCourt on May 13 , 1992 . Gantt v . Skelos . 118 L . Ed. 2d534, ll 2 S. Ct. 192G (1992).

B . Appointment ofSpecial Master Lacey.

As it became obvious that the [ **4] political proc-esses had broken down, it became the "unwelcome obli-gation" of this three-judge court to supervise develop-ment of a redistricting plan that would satisfy the re-quirements of federal law. Connor v. Finch 431 U.S .407. 415 , 52 L. Ed. 2d 465, 97 S. Ct. 1828 (1977). Byorder of May 12 , [ *685] 1992, this court appointed theHon . Frederick B. Lacey as Special Master , pursuant toFed. R. Civ. P. 53 . We instructed the Special Master ,inter alia, as follows:

1. The Special Master shall be empowered andcharged with the duty to prepare and recommend to thecourt for adoption a redis tricting plan for the State ofNew York, dividing the state into thirty-one congres-s ional districts in accordance with the 1990 federal cen-sus .

2. In developing the plan, the Special Master shalladhere to and, where possible , re concile the followingguidelines :

(a) Districts shall be of substantiall y equal popula-tion , compact , and contiguous .

On March 26 , 1992 , one of these consolidated ac-tions , Waring v . Gantt, was filed in the United StatesDistrict Cou rt for th e Western District of New York .That same day, Re id v . Marin o, Index no . 9567/92 , wascommenced in the New York Supreme Court, KingsCounty . On March 31 , the other of these consolidatedact i ons , PRLDEF v. Gantt, was fi led in the Un i ted StatesDistrict Cou rt for the Eastern District of New York.Three-judge panel s were appointed [* * 3] by the ChiefJudge of the Second Circu it in both the PRLDEF and theWaring action s. Waring, however , was transferred to thiscou rt by the three -judge cou rt convened in the WesternDistrict (Circuit Judge Van Graafeiland , Chief DistrictJudge Teles ca, and District Judge Larimer) on April 9 ,1992 ; Waring and PRLDEF were thereafter consolidatedpursuant to Fed . R . C i v . P . 4 2(a) .

Cert ain o f th e s tate court defend ant s remov ed th eReid ac t ion t o th i s court o n April 7, 199 2; s in ce all d e -

(b) The plan shall comply with 42 U . S . C . 6 1973(�and with a ll other applicable provi s ion s of the VotingRights Act .

3 . The court is acutely aware of the pressing needfor having a redistricting plan in place as soon as possi -ble, preferably [ ** 5] by June 9 , 1992 , which is the earli -est date established by the New York Elect ion Law forobtaining signatures on designating petitions. Accord-ingly, the court requests the Special Master to submit hisplan for redistricting to the court on May 26, 1992 , or assoon thereafter as he is able to complete a plan that meetsthe requirements of the law and of this order .

PRLDEF v. Gantt, No . CV-92-152 1(SJ) , at 2-3(E . D .N . Y . May 12 , 1992) (order appointin g special mas -ter) .

C . Work of the Spec ial Mas t er .

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In view of the l im i ted time available to him , SpecialMaster Lacey immediately determined that it would benecessary to hire an expert fam i liar with the process ofdistricting, the compar i s on of districting plan s, the re -quirements of the Vot ing Rights Act, and racial and par-ti s an patterns in voting. After contacting numerous per-s ons fam i liar with thes e processes, the Special Masterretained Professor Theodore S . Arrington of the Depa rt-ment of Polit i cal Science at the University of NorthCarolina-Charlotte . The Special Master also retainedJames Ford , a candidate for the Master of Public Policyand Administration degree at Columbia University, toassist Dr. Arrington . Dr. [**6] Ester Fuchs of BarnardCollege was later retained by the Special Master as aconsultant on the political and ethnic geography of NewYork .

Pursuan t to his authori ty under Fed. R. Civ. P. 53(c)and this court' s order , Special Master Lacey invited theparties, intervenors , and numerous other interested per-sons to attend a meeting on May 18 , 1992, to addresstheir concern s . Approximately sixty people attended thatmeeting, which included presentations of various redis-tricting proposals , responsive comments , and questioningby the Special Master.

On May 26, 1992 , Special Master Lacey filed hisproposed plan with the clerk of the United States DistrictCou rt for the Eastern District of New York. Consistentwith the order appointing Special Master Lacey, thiscourt received written objections to the proposed plan ,and convened a hearing on June 3, 1992 to hear argu-ment on those objections as well as on other matters per-tinent to thi s court's redistricting task.

D . The State Supreme Court and its Work.

Once the Reid action had been remanded to the NewYork Supreme Court, that court appointed a panel ofthree "referees" , which engaged in its own redistrictinge ffo rt. The result [ ** 7 ] of the referees' work was anotherplan of redistricting, which was distributed on June 4. Ina five-page "Memorandum" order and judgment, a jus-tice of the New York Supreme Cou rt, Kings County ,drew the following conclusions:

At the June 5th hearing , all parties and subsequentintervenors were given an opportunity to comment on themerits of the redistricting plan proposed by the referees.The cou rt recognizes that no reapportionment plan canbe perfect in every detail , and none can be drawn thatwill be satisfactory to everyone . However, upon l i steningto all of the comments and suggestions on various as-pects of the plan , an d based upon the [*686] court's ownexam i nation of the proposed plan, the cou rt finds theplan subm i tt e d by th e refe re e s Co b e complete and validunde r the constitutions of the United States and the Stateo f N ew York as we ll as th e Federal Votin g Right s Act .

The court furtli er conclude s that this plan i s th e only onepresently before any court that fu ll y comports with thes erequirements and other applicable cr i teria as set fo rt h inthe refere es ' repo rt. Th e court adopt s th e plan in its en-tirety, unchan ged , as the Congre ss ional Reapport ionmentPlan for the State of [ ** 8] New York and hereby prom-ulgates and establishes it to govern the election of Mem-bers of Congres s at the November 199 2 election andsubsequent elections.

Reid v . Marin o, No . 9567/92 , slip op , at 3 -4 (N.Y.Sup. Ct. , Kings Cty . , June 8 , 1992) . The judgment of theNew York Supreme Court appears to have been largelymooted by the legislature's passing of the referees' redis-tr icting pl an on June 9 , 1992 , and the govern or's approvalthereof.

E. Approval ofthe Special Master's Plan.

On June 11, 1992 , this three-judge court entered thefollowing order :

On June 3 , 1992 , thi s three-judge court heard objec-tions to and arguments concerning the congressionalredis tr icting plan submitted by Special Master FrederickB . Lacey. On that date , respective counsel for the senatemajority and for the assembly majority both representedto us that by Wednesday , June 10 , 1992 , the legislaturewould approve (1) a congressional redistricting planother than the one submi tted by the Special Master, and(2) an amendment to the New York Election Law thatwould provide , inter alia, that the process of gatheringsignatures on designating petitions shall begin on July 9,1992 , rather than June [ ** 9] 9 , 1992. Compare N.Y.Elec. Law 6S 6-134(61 and 6-158(1) (McKinney Supp .1992) .

This court indicated, on June 3, 1992 , that it would,soon after June 10th, enter an appropriate order with re-spect to the interrelationship between , and effect of, theSpecial Master's plan and the state plan .

Both houses of the state legislature have now ap -proved a bi ll adopting a reappo rtionment plan and a bi lladopting the promised changes in th e election laws . Bothbills have now been signed by the governor .

[HNI]"A decree of the United States District Courtis not within reach of Section 5 of the Voting RightsAct", Connor v. Johnson 402 U . S . 690 691, 29 L. Ed.2d 268 , 91 S. Ct . 1760 (1971) (per curiam) , thus , pre-clearance of the Special Master's plan by the Departmentof Justice is not required . However, a]egislatively-approved plan requires preclearance by the Departmentof Justice, see, e. g., McDaniel v. Sanchez, 452 U . S 130,149, 68 L. Ed. 2d 724, 1 01 S . Ct . 2224 (1981). Ofcourse, preclearance of the state plan may not occur, or itmay be delay ed . Since all part i es agre e th at a redistrict-ing pl an mus t be in pl ace b e fore th e signature-gathering

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process starts , so that candidates [ ** 10] can know th eboundaries of the districts they hope Co represent, wehereby ORDER the following:

1. The Special Master's plan a s submi tte d i s herebyaccepted and approved by this court as an appropriateand proper apportionment of New York' s 31 congres-sional districts .

2. Subject to further order of this cou rt, if the planadopted by the state legislature , or some duly approvedmodification thereof is not in place , i.e., both adopted aslaw in the State of New York and precleared, by 5:00 pmon July 8 , 1992 , then the Special Master's plan shall op-erate as the plan for congressional districts for the Stateof New York for the 1992 electi ons.

3 . A written opinion setting for the court 's reasonsfor not holding any further hearings , for approving theSpecial Master's plan, and for conditionally establishingthe Special Master's plan at this ti me will be filed in thenear future.

In view of some of the issues rai sed by the part ies'submissions to this court , we invite any interested part iesto submit briefs , by June 19 , 1992 , on the i ssue of[ * 687] the extent to which, if at all, this court may andshould pass on the legal ity of the state plan .

PRLDEF v. Gantt, No . CV -92-1521 [ ** IIJ (SJ)(E.D .N .Y . June 11, 1992) .

H. APPLICABLE CONSTITUTIONAL ANDSTATUTORY LAW

[HN2]Under applicable federal law, redistrictingplans must comply with two "mandatory " criteria : popu-lation equal ity (or "one person, one vote") , s eeKirkpatrick v. Preisler 394 U.S. 526 , 530-31, 22 L. Ed.2d 519, 89 S. Ct. 1225 (1969) and Wesberry v. Sanders376 U S 1, 7-8, 11 L. Ed. 2d 481, 84 S . Ct . 526 (1964),and racial fairness. See White v. ReMster, 412 U . S. 755,37 L. Ed. 2d 314, 93 S. Ct . 2332 (1973) . Additionally,the "permissive" criteria of contiguity, compactness, re-spect for traditional boundaries, maintenance of commu-nities of interest, and encouraging party competition mayalso be considered . See generally O'Sullivan v. Brier ,540 F. Supn. 1200 , 1203 (D . Kan . 1982) .

A . "Mandatory" criteria .

I. Population equality.

Art icle I § 2 of the United States Constitution pro-vides, in pert inent part :

U . S . Const . art . 1 , & 2 , cl . 3 (amended [**12] 1865) . TheUnited States Supreme Court has interpreted this con st i-tution a l command to mean that "as nearly as is practica -ble one man 's vo te in a congressional e l ection is to beworth as much as another's . " Wesberry v. ,Sanders 376U . S . at 7-8 .

[HN4]The " as nearly as is practicable" standard " re-quires that the State make a good - faith e ffo rt to achieveprecise mathematical equality . " Kirknatrick v . Preisler,394 U . S. at 530-31 . Congressional redistricting plans arenot per se unconstitutional because a smaller populationdeviation might be possible; however, all populationvariances from the ideal, no matter how small, must bejustified on legally-cognizable grounds . See Karcher v.DaQQett 462 U.S. 725, 730, 77 L. Ed. 2d 133 , 103 S. Ct .2653 (1983) (quoting Kirkpatrick v. Preisler. 394 U . S . at531 . Legally-cognizable grounds for population vari -ances , the Supreme Court has said , are there the vari -ances " are unavoidable despite a good -faith effort toachieve absolute equality" , or where justification (suchas state requirements of compactness and contiguity) isshown . Karcher v . Daugett 462 U.S . at 730-31. [ ** 13]

2. Racialfairness.

a. Constitutional provisions.

[HN5]The equal protection clause of the fourt eenthamendment guarantees the oppo rtunity for equal partici-pation by all voters, and redistricting plans that do notachieve fair and effective representation for all citizensimpair the basic and fundamental rights secured by thisamendment . Reynolds v . Sims 377 U . S. 533, 566, 12 L.Ed . 2d 506 , 84 S. Ct. 1362 (1964) . Thus, the adoption ofelectoral boundaries must serve the interests of the entirecommunity and cannot operate to cancel out the votingstrength of racial or ethnic minorities . Id at 565-66 . Seealso Karcher v . DaQQet1 462 U.S. at 747-48 (Stevens , J .,concurring).

Similarly , [HN6]the fifteenth amendment prohibitsthe denial of voting rights on the basis of race , color , orprevious condition of servitude . When an identi fi ableracial or ethnic group is singled out for discriminatorytreatment which interferes with the right to vote , thefifteenth amendment is violated . See Gomillion v.L� htloot 364 U.S. 339, 340, 346, 5 L. Ed. 2d 110 , 81 S.Ct. 125 (1960) (change in Tuskegee, Alabama's ci tyboundaries " from [* * 14] a square to an uncouth twenty-eight - sided figure" excluding vi rtually all of the city'sblack voters violated the fifteenth amendment).

[HN3]The House of Representative s shall be composedof Members chosen by the People of th e several States ,and * * * shall be appo rti oned among th e several States �* * according to th e ir res pect i v e Numbers ** * .

[ * 688] b . The Voting Rights A ct .

[HN7]In additi on to satisfyin g the abov e constitu-tional re quire ments , congressional red i str i cting p la n smust also comply w i th the V oting Rig hts Act o f 1 965, as

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amended in 1 97 0 , 19 75, and 1 9 8 2. See 42 U . S . C . § 1973et sea. The act i s i ntended to facilitate implementation ofthe fifteenth amendment , i .e., to protect ci t i zen s from thede ni a l o r abrid gement of the ri ght to vote b as ed on rac eor color . NAA CP v. New York, 413 U S . 345, 37 L Ed .2d 64 8, 93 S . Ct . 2 591 (1973) ; South Carolina v.Katzenbach, 383 U S 301 315, 15 L. Ed . 2d 769, 86 S .Ct . 803 (196 6) (primary purpose of the act is " to rid thecountry of racial disc ri mination in voting") .

I. Section 2.

[I-IN8]Seetion 2 of the Voting Rights Act, 42 U.S.C.1973, is div i ded into two subsections . Subsection 2(a)

prohibits any voting procedure that "results in a denial orabridgement of ' the voting rights of a person on accountof race, color, or membership in a language minority . 42U.S.C. § 1973 [**15 ] (a) . Subsection 2(b) provides thata violation of subsection 2(a) is established by showingthat "based on the totality of the circumstances", mem-bers of a class protected under subsection 2(a) "have lessoppo rtun ity than other members of the electorate to par-ticipate in the political proce ss and to elect representa -ti ves o£cheir choice." 42 U.S.C. & 1973(b) .

The leading case construing § 2 of the act isThornburg v. Gingles 478 U . S. 30, 92 L . Ed . 2d 25 , 106S . Ct. 2752 (1986). [HN9]Applying the 1982 amend-ments to § 2, the Gingles court used a "totality of thecircumstances" test in holding that " a court must assessthe impact of the contested structure or practice on mi-nority electoral opportunities 'on the basi s of objectivefactors' . " Id. at 44 (quoting S . Rep . No . 99-417, 97thCong., 2d Sess . 2 7, reprinted in 1982 U . S . C.C.A .N . 177 ,205). A v i olation exists where the political process andopportunities to elect representatives of their choice arenot equally accessible to members of a protected groupand to other members of the electorate. Chisom u Roe-mer. 1 1 5 L Cd. 2d 348 , 111 S . Ct . 23 54,2a65 (1991).[**r6 l

The typical § 2 challen ge is an asse rt ion of minorityvote dilution . [F-IN10]Minoriry voting strength is dilutedin violation of the act when a redistricting plan operatesto minimize or cancel out the voting strength of minoritygroup s. Hastert v. Stat e Bd of Elections 777 P . SuM.634 , 646 (N . D . IlL 1991) . Minority vote dilution canoccur in two ways : either by fragmenting large concen-trations of minority populations and dispers ing them intoseparate electoral districts , or by concentrating minoritiesinto districts there they constitute an excessive majority.Thornburg v. Giny[es 478 U . S . at 46 n . 11 (citing Eng-strom & Wildgen, Pruning Thorns From the Thicket: AnEmpirical Test of th e Existence of Racial Gerryma»der-ing, 2 Legi s. Stud . Q . 465 , 465-66 (1977)) . Thus , § 2 isviolated where a minori ty's vo te is eith er too "frag-mented" o r too "packe d" ; a plan wi ll s urviv e § 2 s crutiny

only where a proper ba l anc e is struck between the twoextreme s.

In Gingles, [HN11 ] the Court e stabli s hed three "ne c-essary precondition s" t o s us tain a § 2 claim in mu lti -member district s:

First, the minori ty group mus t be able to demon-strate [ * *17] that it i s sufficiently large and geographi -cally compact to con s titute a majori ty in a single-member district . * * * S econd, the minority group mustbe able to show that it is politically cohesive . * * * Third,the minority must be able to demonstrate that the whitemajority votes sufficiently as a bloc to enable it -- in theabsence of special circumstances , such as the minoritycandidate running unopposed * M * -- usually to defeatthe minority's preferred candidate .

Thornburg v. Gingles. 478 U . S. at 50-51. A group thatmeets these threshold conditions is entitled to have itsclaim considered on the merits under the "totality of thecircumstan ce s" test prescribed in § 2(b) of the VotingRights Act, 42 U S C . 1973(b). Although th e Court i nGingles specifically reserved the question of whether thethree quoted precondition s apply to challenges to sing le-member [*689] districts , see id. at 50 n . 16 , several dis-trict and circuit courts have applied the Gingles prerequi-siYes to claims challenging sin gle-member districts, as wehave here . See, e.g., Wvche v. Madison Parish PoliceJury, 635 F . 2d 1151, 1162 (5th Cir . 1981); [ ** 18]Hastert v. State Bd ofEle ctions 777 F. Supp. at 649-50;Jef(ers v. Clinton, 730 F . Supp. 196, 205 (E . D . Ark.),afj'd, 112 L. Ed . 2d 656 , 1 11 S . Ct. 662 (1991); Neal v.Coleburn 689 P . Supp . 1426, 1435 (E . D . Va. 1988). Butsee Armour v. State of Ohio, 775 F. Supp. 1044 , 1051(N D . Ohio 1991) (rejecting Gingles as inapplicable tosingle-member districts).

(A) Size and compactness .

Gingles re quires that [HN1 2 ]the minority group be"sufficiently large and geographically compact to consti -tute a majority in a Single -member district . " Thornburgv. GinQles . 478 U . S. at 50 .

In evaluating whether a minority group is "suffi-ciently l arge" to constitute a majority, most courts haveheld that it is appropriate to consider the percentage ofvoting age population (VAP) in the distr ict rather thanthe total minority population, in recognition of the"higher non -voting age population percentages, lowervoter registration and lower voter turn out found in mi-nority communities." Hastert v. State &d of Elections,777 F. Supp . at 647 n . 20 [ ** 19] (cit i ng Ketchum v .Bvrne 740 F.2d 1398, 1413-15 (7th Cir . 1984) , eert .denied, 471 U . S . 1 135, 86 L . Gd . 2d 692 105 S CY 267 3(1985)); see generally Dick inson v . lndiana State Elec-t ion Bcl. 9 33 F2d 497 . 5 03 ( 7 th C ir ._ 1991); United

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Stat es v. County Conz nv 'n Dallas Count� Alu . 8 5 0 F . 2d1433, 1438-40 (l lth Cir . 1 988) , cert. deni ed, 490 U . S .1030, 104 L. Ed. 2d 203, 109 S. Ct. 1768 (1989) ;McDanie [s v Mehfoud 702 F. Supp 5 88 5 92 (E . D . V a.1188).

[HN13]Consistent with its jurisprudenc e in other ar-e as involving th e Voting Rights Act, th e Supreme Cou rthas declined to adopt bright - line formulae for determin-ing whether th e VAP percentage of a m i nority group in adistrict is s o low that a cou rt should su sp e ct dilution ofminority voting strength. Courts have held that more thansimple majorities (51 percent) are required to create"safe " majority-minority districts. See Hastert v . StateBd of Elections 777 F. Supp . at 647; Neal v . Coleburn,689 F. Supp 1426, 1437 (E .D. Va. 1988) . The court inHast ert [ ** 20] noted that a 60 percent VAP is generallyregarded as the threshold for creating a "safe" minoritydistrict, 777 F . Supp. at 647 n. 20, but approved a plan inwhich the VAP of a proposed A frican -American districtfell slightly below that threshold. Id at 648 (approvingminority districts where VAP was around 59 percent) .Se e als o Solomon v. Liberty Countv Fla 865 F.2d 1566 ,1574 (Ilth Cir. 1988) (5 1 % VAP in African-Americandistr ict was effective under the Gingles "totality of thecircumstances" approach) , on rehearing in banc, 899F . 2d 1012 (llth Cir. 1990) (same result as originalpanel) , cert . denie d, 1 12 L. Ed. 2d 663, 111 S. Ct. 670(1991).

Even higher VAP percentages may be required inHispanic districts to account for their even lower citizen-ship ratio , lower voter turnout , and lower voter registra-tion, Ketchum v. Byrne 740 F.2d at 1414 . The principlewhich motivates each of these cases is , as the SupremeCou rt continually stresses , that resort to absolutes is in-appropriate in evaluati ng minority voting s2rengchs .[* * 21 ) Numerous other cases also illustrate that cou rt sshould consider the degree of racial polarization in vot-ing, e.g., Gunn v. Chickasaw County, Miss., 705 F . Suop .315, 320-22 (N.D. Miss. 1989), minority voter turnoutand voter reg i stration , e.g., Hastert v State Bd of Elec-tions 777 F. Supp . at 647 n.20 , and the success of minor-ity candidates in seeking offi ce within the jurisdiction.Gunn v. Chickasaw Counry Miss 705 F. Supo . at 320-22 . Gunn also illustrates , however , hat a too-low VAPcan support a claim of dilution . Id. (noting that 36% totalpopulation and 31% VAP of A fr ican - Americans, in lightof the extreme racial polarization in voting" , resulted invote dilution in violation of § 2).

Similarly , [HN14 ] courts have reached vary ing con -clusions with respect to the "geographically compact"requirement o f Gingles. [* 690] Some cou rt s have foundgeographical co mpactne ss when mino rity population i sconce ntrated in on e di sc r e t e are a , see, e.g., Campos v.Citv of !3 a+�town 840 P 2 d 1 240 1 244 ( S ih C i r . 1988),

cert . denied, 492 U S 905, 106 L. Ed. 2d 564. 109 S . Ct .3 2 13 (1989); [**22] still oth ers h ave found the criterions at i sfied where discrete but dense mino rity populationsfrom two are as are linke d . See, e.g., Hastert v. Sta te Bd.ofGlections 777 F. Supp . at 649 (Hi spanic district hadpopulation "clustered into two dense enclaves" on oppo-s ite sides of town , connected by a "narrow corridor" andforming a "C" shape) . Yet other courts have considered a" community of interests " (which is often considered as a" permis s ive criterion") in the "geographically compact"analysis . See, e . g., Hasterd v State Bd o,f Elections, 777F. Supp. at 649. The "community of interests" has beendefined by one court by inquiring whether the minoritygroups within the proposed districts would have the abil-ity to "relate to each other and their representatives" , an dwhether the representativ e s would have the ability "torelate effectively to their constituency". Wilson v. Eu. ICal. 4th 707 823 P .2d 545, 553 (Cal. 1992) .

(B) Po litical cohesion/bloc voting.

[HN15)The second Gingle,r precondition for sustain -ing a § 2 claim is that the challenging minority group"must be able to show that it is [ '`* 23] politically cohe-s ive " "Cohesion" in this re gard mean s what it says : "aminority group is politically cohes i ve if it votes to -gether." Cam�os v CitK o�avtown 840 F .2d at 1244. Inreality , however, the second and third Gingles precondi-tions - - polirical cohesion of the minority and bloc votingby the majority - - are not inquiries to be made apa rt fromeach other, because the central focus of each is on votingpa tterns . "The purpose of inquiring into the existence ofracially polar ized voting i s twofold: to asce rtain whetherminority group members constitute a politically cohesiveunit and to determine whether whites vote sufficiently asa bloc usually to defeat the minori ty's preferred candi-dates . " Thornburg v GinQles 478 U . S. at 56. Even theGingles cou rt itself treated these factors as interchange-able, id. at 52 n. 18 , so we wi ll follow its lead .

Although "there is no simple doctrinal test for theexistence of legally si gnificant racial bloc voting" , id at58 , the Court in Gingles was nevertheless able to laydown some general principles [ **24 1 for the applicationof § 2 . Noting that such i nquiries are necessarily fact-s ensitive , Justice Brennan wrote :

[HN16 1A showin g that a signific ant number of minor itygroup members usually vote for the same candidates isone way of proving the pol i tical cohesiveness necessaryto a vote dilution claim , and , consequently, establishesminority bloc voting within the context of § 2 . And, ingeneral, a white bloc vote that normally will defeat thecombined strength of minority support plus white" crossover " vote s ri s e to the leve l o f legally s i gnificantwhite blo c voting. The amount o f wh ite bloc vo t i n g thatcan gen e ra ll y "minimize o r can ce l" b la ck voters' abil ity

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to e lect representatives of the ir cho i ce , howev er , wi l lvary from di strict to di str ict acc ording to a number offactors , including the nature of the all egedly dilutiveel e ctoral mechani sm ; th e pre s enc e o r absence of otherpo t entially dilutiv e e lectoral d ev i ces *'" *; th e percent-age of registered voters i n the district who are membersof the minority group ; [and] th e s ize of the di strict[ .]

Thornburg v. Ginv[es 478 U . S. at 56 (citations omitted).

H. Section 5.

[HNI7 ]Section 5 of the Voting Rights [ ** 25) Act,42 U . S . C . S 1973c, is intended to ensure that the protec-tions afforded by § 2 of the Act are in fact available instates, or counties therein, that the United States Attor-ney General determines are "covered jurisdictions" under§ 4(b) of the Act . "Covered jurisdictions" are those statesor counties therein which maintained any "test or de-vice " , s ee 42 U S.C & 1973b(c), on November 1, 1964and November 1, 1968 , and in which fewer than half ofits voting age res i dents voted or were registered to vote( * 691] in the Presidential elections of 1964 , 1968 , or1972 . 42 U.S .C & 1973b(b) . Three counties in the Stateof New York -- Bronx, Kings , and New York -- are cov-ered jurisdictions under § 4(b) .

[IIN18]Section 5 requires that any proposed changein voting laws, "practices or procedure s ", including re-districting plans , affecting covered jurisdictions must beprecleared by the United States Attorney General or au-thorized by a declaratory judgment of a three-judgeUnited States Distr i ct Cou rt for the District of Columbiaprior to implementation of the proposed change. 42U.S.C. § 1973c . [ **26] See also State o Texas v.United States, 7 85 F. Supp. 201 (D D C 1992) (three -judge cou rt) . This preclearance cannot occur unless thesubmitting jurisdiction shows that the proposed changehas no racially-discriminatory purpose or effect . 28C.F.R q 5138(b); see also 1975 U.S.C.C.A.N. 774 , 781-82,

When "the court , because of exigent circumstances,actually fashions the plan itself instead of relying on aplan presented by a]itiganY" , § 5 preclear ance is not nec-essary. S . Rep . No . 94-295 , 94th Cong. , Ist Sess . 18-19 ,reprinted in 1975 U . S . C , C . A .N . 774 , 785 . The SupremeCourt agrees with this v iew , see Connor v. Johnson, 402U S 690, 691, 29 L Ed. 2d 268 91 S Ct . 1760 (197i)(per curiam), as does the Department of Justice , see 28C F R . & 51 . 18(a) (1991) (preclearan ce not requiredunless court-drawn plan "reflects the policy choi ces ofthe submitting authority"), whose construction of theVoting Rights Act merits considerable deference . SeePresley v Ftowah County Comm 'n 117 L. Ed. 2d 51,11 2 S Ct . 8 2 0, 8 31 C19�. The prec leara n ce requ i re-

ment is discu s sed at greate r l ength in part IV of thi s o pin-i on, infra.

[ **2 7 ] [HN19]Despite the ab senc e of a preclear-ance requirement for cou rt-drawn plans which do not" reflect the policy choices " of the legislators , the De-partment of Justice and case law have established that acourt-drawn plan should be drafted so that it will not" l ead to a retrogression in the position of a racial or lan -guage minority group with respect to their opportunity toexercise the electoral fr anchise effectively." 28 C.F.R. &51.54(a) Beer v . United States 425 U.S. 130, 140-42 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976)) . The UnitedStates District Cou rt for the District of Columbia hasrecently sketched out the follow ing explanation of[HN20]the burden of proof imposed upon a state in a § 5preclearance action :

First , it must demonstrate that the redis tricting plan doesnot lead to a retrogression in the position of racial mi-norities , s ee Beer v. Un ited States 425 U.S. 130 141, 96S. Ct. 1357, 1363-64 47 L .Ed .2d 629 (1976); second , theState must demonstrate that the plan i s free of a dis-criminatory purpose. Richmond v. United States, 422U S 358 362 95 S Ct. 2296 2299-2300, 45 L.Ed.2d245 , 95 S . Ct. 2296 (1975) ; [ **28] Busbee v. Smith . 549F. Supp . 494, 516 (D .D . C. 1982) , affd mem . , 459 U . S.1166 103 S Ct. 809 74 L. Ed . 2d 1010 (1983) . Even if achange is "ameliorative ," it may violate section 5 if it "sodiscriminates on the basis of color as to violate the Con-stitution . " Be er, 425 U . S . 141 , 96 S. Ct . at 1364 .

State o Texas v Unit ed States 785 F Supp at 203-04.In short, a redistricting plan must not diminish whatevervoting strength protected groups had before redistr i cting.Wilson v. Eu, 823 P.2d at 564 .

B. Permissive criteria.

[HN21]After complying with federal constitutionaland statuto ry requirements, a redistrictin g plan mayproperly balance a "wide array of secondary or equitablecriteria" . Good v . Austin, No . 91 -CV-74754 DT , slip op.at 6 (E. & W. D . Mich . March 23 , 1 992) . See alsoO'Sullivan v . Brier. 540 F. Supp. at 1203 . Among thesevarious equitable criteria are : compactness, contigu ity,preservation of municipal boundaries, maintenance of thecores [ **2 9] of existing di str icts, communities of inter-est , and political fai rn ess . Indeed, our order appointingJudge Lacey as Special Master specifically directed himto draw districts " of substantially equal population ,[which are] compact , and contiguous . " PRLDEF v.Gantt, No . CV-92-1521 (SJ) , slip op . at 2, P 2(a)(E . D .N . Y . May 12 , 1992) . However , the s e "permissive "criteria may [ * 692] b e sacrific ed in a pa rticul ar plan ino rd e r to comply with the Voting Rights Act or the fe d-e ral constitution; the i r en ume rati o n i n the ca se law i s

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s imply to guid e le g i s lature s as to the criteria that th eymay properly con s id er in drawing a plan .

interest . See infra; s ee generally Affidavit of Dr . Theo-dore S . A rr ington P 23 , at 11 .

III. THE SPECIAL MASTER'S PLAN

We are s atisfie d that th e Special Master' s plan sati s -fies all of the above criteria. We address each in turn .

A. "Mandatory" criteria.

1 . P opulation equality.

Wesberry, Kirkpatrick, and Karcher all teach that[HN22 ] "absolute population equality [is] the paramountobjective of apportionment". Karcher, 462 U.S. at 732.The most populous distr icts ( 1 0) in the master's planhave 580 , 338 people; the least populous (3) have580 ,336 . This deviation (of . 0000034 percent) couldscarcely [ ** 30 ] be reduced further ; thus, we find an dconclude that this deviation represents a good-faith efforton the part of the Special Master to achieve absoluteequality . Although the Supreme Cou rt has never fixed aprecise numer i cal standard for permissible deviations ,s ee Karcher v. Dagp,ett 462 U.S . at 731 ; KiYkpatrick v .Preisler, 394 U . S . at 530 , it has noted that "precisemathematical equality * * * may be impossible toachieve i n an imperfect world" , Karcher v . Daggett 462U . S. at 730 , and the Special Master's plan could be im -proved only by mov ing one person from three of the 10larger districts to each of the three districts containing580,336 persons . However, the census is an imperfectcount to begin with , and populations have continued toshift and change sin ce the 1990 census was taken . TheSpecial Master's plan suffers from no relevant mathe-matical imperfections, and no challenge to the contrarycould succeed. This surely i s " as near[] as practicable° tothe ideal , and commendable as well .

2 . Rac ialfairness .

a . Constitutional provis ions .

There can be no argument -- and , [* * 31 ] indeed ,none is made - - that the Special Master's plan violates thefourteenth amendment ' s equal protection clause . On thecontrary , the Special Master's virtually-perfect mathe-matical allocation satisfies the one-person, one-votestandard as best as poss ible . See, e. g., Gray v. Sanders .372 U S 368 382 9 L Ed 2d 821 83 S. Ct. 801 (1963)(Stewart , J ., concurring) ( "Within a given constituency ,there can be room for but a sing le constitutional rule --one voter , one vote . ") . See also Wesberrv v. Sanders, 376U.S. 1 8 11 L. Ed . 2d 481, 84 S. Ct . 526 (1964) ("Oneman 's vote * * * is to be wo rt h as much as another's . ") .[HN23]The " zero deviation" required by both the consti-tution and the Voting Rights Act , however , is sometimesachiev ed at th e expen se of other, "permis s ive " , values,such as compactness , co nti g uity , and communit i e s or

Similarly, on this record there i s no suggestion , norcould there be , that the Speci a l Master' s plan runs afoulof the fi fteenth amendment, by intentionally sin g ling outa racial or ethnic group in such a way as to interfere withthat group's members' right to [**32] vote . See gener-ally Laurence H . Tribe , Am erican Constitutional Law §13-8, at 1076-80 (2d ed. 1988) (Tribe) . Since[I-IN24]neither the fourt eenth nor the fifteenth amend -ment can invalidate an innocently-motivated appo rt ion-ment scheme, see City ofMobile v. Bolden, 446 U . S . 55,62, 66, 64 L. Ed. 2d 47 100 S. Ct 1490 (1980) (opinionof Stewart , J., joined by Burger, C . J., and Powell andRehnquist, JJ.) (setting forth intent re quirement); id_at94 (White, J. , concurring) (explicitly adopting intentstandard); id. at 80 (Blackmun, J ., concurring) (assumingintent standard), we easily find and conclude that theplan submi tted by Judge Lacey does not violate thefourteenth or fifteenth amendments .

[ * 693] b. Voting Rights Act.

[HN25 ] Congress responded to the Supreme Cou rt 'sBolden opinion by amending § 2 of the Voting RightsAct to restore the "effects" standard used by many lowercourt s prior to 1980 . See S. Rep. No. 97-417, at 36(1982); Tribe § 13-8 , at 1079. The amendment madeclear that a violation of the Voting Rights Act could beshown by proving discriminatory effect alone , andadopted as the appropriate legal standard [ ** 33) the testenunciated by the Supreme Court in Whitcomb v . Chavis403 U.S. 124, 29 L. Ed. 2d 363 , 91 S. Ct. 1858 (1971)and White v. Revester , 412 U S 755, 37 L . Ed. 2d 314,93 S. Ct. 2332 (1973). It is against this backdrop that themajor objections to the Special Master's plan fall .

At its June 3 hearing, th i s three-judge cou rt askedany parties wishing to challenge the Special Master'splan to submit an expert witness affidavit containing awritten offer of proof by June 5, 1992. Four affidavitswere timely filed, and we are convinced that none of theaffidavits proffers evidence that even if assumed to betrue would be suffic ient to overturn the Special Master' sfindings . In reviewing those findings, we address th eobjections raised in the offers of proof.

i. Section 2.

As we have noted above , [HN26]to sustain a § 2claim , a complainant must show the existence of thethree Gingles preconditions (size and compactness, po-litical cohesion , and majori ty bloc voting) before itsclaim can be evaluated agai n st the "YOtali ty of th e cir-cumstances" test . Similarly , as we have noted , th e typic a l§ 2 claim i s vote dilution , which occurs wh en a minor-ity's popul ation is too "fragmented" [**3 4] or too

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" packed ". See Affidavit of Dr . Theodore S . Arrington PP2 8-29 , at 13 . See generally Derfiier , Rac ial Discrimina-tion and th e Right t o Vote, 26 Vand. L . Rev. 523 , 553(197 3 ) (not i n g possible m ethod s of vote dilution a s"submerging" , "fracturing", and "packing" potential vot-i ng age majoritie s) . We find and conclude that thosegroups purpo rt ing to rep resent the African-American andLatino voters have establi shed their initial burden underGingles .

The court received the following submissions in re-sponse to its June 3 order :

I. Affidavit of Esmeralda Simmons, counsel for theMajori ty Coalition for Fair Reapportionment.

2. Affidavit of Wayne C. Winborne , consultant forand member of the Majority Coalition for Fair Reappor-tionment .

3 . Affidavit of Luther Blake , consultant for plaintiff-intervenor A frican American Political Action Commit-tee .

4 . Affidavit of Paul Wooten , counsel to plaintiff-intervenors Major R . Owens, Carl B. Morgan and Pene-lope F . Willgrodt .

In addition, Intervenors Madison Homeowners As-sociation, et a1., made a request for an evidentiary hear-ing, but that submis sion contained no affidavit.

As the Special [* "35) Master recogn i zed in his re-sponse to these affidavit s, the positions of the variousaffiants could be summarized in the following manner:

l . Distr icts 5, 7 , and 15 in the Special Master's Plandilute the minority vote because the Afr ican-AmericanVAP is no greater than 59% in any of those districts .(Affidavit of Wayne C . Winborne PP 4,8).

2 . Districts 10, 14 , and 16 weaken Latino votingstrength because the Latino VAP is no greater than 59%in any of tho se districts . (Affidavit of Wayne C. Win-borne PP 5 , 8) .

3 . African-American registration may be overesti-mated in districts 5 and 7 ; if it is, that feature of thosedistricts, combined with turnout rates for African-American voters that are lower than those for white vot-ers , jeopardizes the opportunity of African-Amer i canvoters in those districts to part icipate in the politicalprocess and elect their candidates of choice . (Affidavit ofLuther Blake PP 15-19; Affidavit of Paul Wooten P 21).

4 . The Special Master did not use appropr i ate or rea-sonably accurate election data to analyze the likely re -sults of elections in the minority "control or influence"districts he proposes. (Affidavit [*694 1 of Wayne C .Winbome PP 7 , 12 ; Affidavit [ ** 36] of EsmeraldaSimmons PP 1 2 , 1 3 ; Affidavit of Paul Wooten PP 17-18,20) .

5 . The Spe cial Master did not conduct an appropri-ate analysi s before drawing his proposed d istri cts . (Affi -davit of Wayne C . Winbome PP 6, 12) .

6. The , Special Master ignored relevant differencesbetween A frican-American voters within New York Cityand in neighboring suburban communities . (Affidavit ofWayne C . Winborne PP 9, 10; Affidavit of Paul WootenPP 19, 22) .

7 . The Special Master did not link clusters of Asian-American voters in New York Ci ty. (Affidavit of WayneC. Winborn e P 11).

The first and second concerns, i.e., the claimed dilutionsof African-American and Latino voting strength throughthe use of an insufficient VAP, are meritless . Some liti-gants have contended that a 65% minority populationand a 60% VAP are required to provide a re asonableopportunity to exercis e political con trol over that district.See, e.g., United Jewish Organizations ofWilZiamsbur2hInc. v. Care 430 U.S. 144 , 164, 51 L . Ed. 2d 229, 97 S.Ct . 996 (1977). However, as Professor Arrington pointedout, because minority communities today may be betterorganized and m inori ty citizens mode likely to register[ ** 37 1 and vote , "it is not always necessary to have a 60percent A frican-American VAP district to assure A fr i-can-Americans the oppo rt unity to elect candidates oftheir choice . " Affidavit of Dr. Theodore S . Arr ington P31, at 14 (citing Brace , Grofrnan , Handley and Niemi,Minority Voting Equality: The 65 Percent Rule in Theoryand Practice, 10 Law & Pol ' y 43 (1988)). The SpecialMaster agreed with this conclusion and drew his planaccordingly .

The Special Master's plan created four African-American districts (CDs 5 , 7, 8 , and 15) and three Latinodistricts (CDs 10 , 14 , and 16) . All seven have over a55% VAP of the relevant minority. Affidavit of Dr .Theodore S. Arrington P 40, at 19 . The VAP of each ofthose distr icts is as follow s:

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The figures in parentheses represent an estimatedpercentage of registered Democrats who are Hispanic .Se e Exhibit 2 to Affidavit oPDr. Theodore S . Arrington .

Significantly, none of [ ** 38] the affidavits submit-ted to this court indicate that a certain minimum VAP isnecessary for effective minority districts in the NewYork City metropolitan area . On the contrary, courtshave approved minority districts with VAPs of 33.6%,see Wilson v. Eu, 823 P.2d at 594; 40 . 3% see id.; 42 .7%,se e id.; 51% see Solomon v. LibertLtv.. Fla.. 899 F.2d1012, 1018 (l lth Cir. 1988) (in banc), cert . denied, 1 1 2L. Ed . 2d 663, 111 S . Ct . 670 (1991); 51 . 8%, seeMcOhee v. Granville County, 860 F.2d 110, 113 (4th Cir.1988) ; and 55.4% se e McDaniels v . Mehfoud 702 F.Supn. 588, 592 (H.D. Va . 1988) . What this proves i s thatthere is no bright-line rule for discerning an appropriateVAP level within a district that passes Voting Rights Actmuster .

This case-by-case approach is underscored by therealities that [HN27]every redistricting case is unique ,that the line between "packing" minorities and " frag-menting" them is frequently a th in one , and that [ * 695]each redistricting effort requires an extremely fact-intensive evaluation. The law, of course, does not [ ** 39]require a statistical certainty of electing a minority can-didate; it only requires a significant opportunity to do so .Based on Dr. Arrington's data (which is recapitulated inhis affidavit) , the Special Master concluded that theabove minori ty control districts would walk the fine linebetween "packing" and "fragmenting" the minority citi-zens oP the multicultural New York City area . In view ofthe fact that none of the objectors has offered proof of amore appropriate standard, we adopt the findings of theSpecial Master in this regard .

Dr . Luther Blake advances the possibility that thepresence of significant numbers of noncitizen African-American populations in CDs 5 and 7 of the SpecialMaster's plan have led to an overstatement of the A fr i-can-American VAPs in those districts . However , theSpecial Master relied on actual votes cast (rollon) inprior elections (e.g., those in which A frican-AmericansJess e Jackson and David Dinkins were running for Presi -dent and New York Mayor, res pectivel y) to conduct hisanalysis o f the lik e l y votin g behavior of hi s distric ts.Thi s st ati s ti ca l method wo u ld n ot include nonc i ti zens

(and , thus, nonvoters) ; therefore , the conclusion s i n the[ *` 40 ) Blake affidavit even if proven by admissible evi-dence would not show the Special Master's conclusionsto be erroneous.

Wayne C . Winborne suggests , via affidavit, that"obvious socio-economic differences " between A fr ican-Americans in New York City and Westchester Countymake the linkage of populations in CD 15 of the SpecialMaster's plan undesirable. This broad generalization isby no means "obvious"; in fact , the Concerned MinorityCitizens of Westchester requested that the Special Master"maximize minority voting potential in WestchesterCounty" by creating an influence district "which joins theAfrican -American and Hispanic communities throughoutWestchester County with the Kingsbridge and Wakefieldsections of No. Bronx , " indicating that at least one groupdoes not see the socioeconomic differences as so "obvi-ous" . As the Special Master noted :

Based on all the information before him, the SpecialMaster concluded that the Afr ican-American populationin New York County is simply not large enough to createa majority A frican-American district in that boroughwithout submerging the Hispanic voting age populationthere. He chose to reject the argument that Afr ican -Americans in [* *41 ] Westchester County can elect can -didates of choice by choosing Non-Hispanic White De-mocrats over Non-Hispanic White Republicans . Hechose, instead, to add a significant concentration of Afri-can-Americans in Westchester County to a majori ty -minority district and , simultaneously, to draw two Hi s-panic districts in Northern Manhattan and the Bronx .

These conclusions represent a commendable judg-ment to follow the intent of the Voting Rights Act byachieving at lea st one additional Hispanic district withoutreducing the number of African-American districts .

Finally, we must address the contentio n that theSpecial Master's plan does not treat Asian-Americanvoters fairly or appropriatety . The Asian -American popu-lation of New York City is insuffi cient to create a "con-trol" district for these voters . Affidavit of Dr . TheodoreS . Arrington P 125, at 50 . Although , as the Special Mas-ter noted , "it is theoretica ll y possible to draw a di strictlinking concentration s of Asian-Americans from threeborough s, the Speci a l Master r e l i e d o n testim ony an danecdotal e vid ence gath ere d by him to con c lud e tha t

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resid ents o f Chinatown did not wi s h Co b e joined in adistrict with other Asian-American voter s [ ** 42 ] i nother boroughs . The Winborne affidavit contains noth ingthat , if prov e n , would show th e fact s underlyin g th e Spe-cial Mas ter' s choic e to keep Chinatown in a district l yingl argely in Manhattan to be erroneous.

In sum, we note that the object ions Co the SpecialMaster's plan are more in the nature of political lobbyin gthan in the nature of legal argument . Moreover , they pre-sent no significant evidentiary conflicts . [ * 696)[HN28]No redistricting plan , no matter who holds thepen, will be without objection. This is why , as the Su-preme Cou rt has stressed , the question of where to putthe pen is first and foremost a question reserved for stategovernment to answer. But the constitut ion and the Vot-ing Rights Act, if they are to mean anything , must meanthat when state government fails to take up the pen intime to permit all would-be candidates to mount effectivecampaigns , then the burden falls upon the judiciary to dowhat is necessary to preserve the elective franchise. Tenyears ago , legislative delay required a federal cou rt 'sintervention to protect the people of the State of NewYork, s ee Flateau v . Anderson, 537 F . Supp. 257(S.D .N .Y . 1982) (per curiam), [ **43] appeal dis-missed, 458 U . S . 1123, 73 L . Ed. 2d 1394 103 S. Ct. 5(1983), and the same has happened this decade. We canonly hope that the census of 2000 will not give birth toyet anotherjudicial redistr icting drama in 2002 ,

ii. Section 5.

As the United States District Court for the District ofColumbia has recently noted , [HN29]in a declaratoryjudgment action for preclearance (which may be broughtonly in that court, see 42 U . S . C. & 1973c) , a submittingjurisdiction has the burden of proving (A) that the redis-tricting plan does not lead to a retrogression in the posi -tion of racia l minorities, and (B) that the plan is freefrom a discriminatory purpose . Even if a change is "ame -l i orative", it may v i olate § 5 if it discriminates on thebasis of color in violation of the constitution. State oTexas v. United State.r 785 F. Supp. at 203-04. The Spe-cial Master's plan easily avoids these problems.

The Special Master's plan does not lead to a " retro-gession" in the position of racial minorities; on the con-tr azy, it subs tantially fu rthers the elective franchise ofAfrican-Americans and Latinos by creating more " con-trol" districts [ ** 44) for each than was previously pre-sent . Especially in view of the fact that New York lostcongressional seats due to the 1990 census, the SpecialMaster's effort s to draw m or e districts for these minoritygroups is commendable . Moreover , each of those dis-tricts was drawn to encompass a VAP, at least 55 %,which would give those m i nor itie s a reasonable opportu-niTy to e x e rc i se po li t i c a l c ontrol over th at district. In

sho rt, no s eriou s argument can be made that the Speci a lMaster' s plan l e ad s to a retro gre ss i on in minority enfran -chisement .

Similarl y, as we have "e a s il y" concluded above , theSpecial Master's plan i s fre e of any di s criminatory ani-mus. No a ll egati o n of that sort is made , and in any event,no evidence i s pres ent, th at any di scriminatory animusmotivated the Spec ial Master' s plan . On the contrary, theSpecial Master, who served 16 years as an outstandingfederal di str ict judge and who has since performed ex-tens ive and courageous tasks for the federal courts, pre -sents an apolitical record of exceptional ability, absoluteintegrity, and unquestionable impart iality. We thus findand conclude that the Special Master' s redistricting plansatis fi es the requirements [* *45 ] of § 5 of the VotingRights Act .

B. Permissive eri t eria.

The permissive criteria cited in the caselaw are justthat -- permissive . In no way is any of them required bythe Voting Rights Act . This cou rt has heard objections tothe Special Master's plan from a number of groups andindividuals , who variously allege that this county or townshould be placed in a district with that county or town , orthat a particular municipal subdivision should not be splitbetween two districts, or that the lines drawn by the Spe -cial Master do not adequately reflect part icular commu-nities of interest. As the Special Master noted , "to theextent that these factors did not impair my ability tocomply with constitutional and Voting Rights Act re-quirements , they were considered and honored in draft-ing the Special Master's plan. " The "permissive" criteriaare designed to guide legislative discretion , but since thelegislature abdicated its responsibil i ty to draw the initialplan , that same discretion in line-drawing must be trans-ferred to the judiciary. We are s atis fi ed that the SpecialMaster took evidence on , and considered , these "permis -sive" criteria , [*697] and that he incorporated theseconsiderations [" "46] into his plan as best as possiblewithout running afoul of the constitutional and statutorymandates . The facts that some choices had to be madeand that each choice necessarily disappointed somegroup are simply in e vitable consequences of the redis -trictin g process .

IV . REQUIREMENTS OF PRECLEARANCEAND TIMING

It is well established that [HN30 ] a court-drawn leg-islative redistricting plan i s not subject to preclearanceby the United States Department of Ju s tice . Connor v .Johnson, 402 U.S . at 691 . Only "legislative " plan s aresubject to preclearance . McDanie l v. Sanchez, 4 52 U. S .130, 1 3 7 68 L. Ed 2d 724101 S C t 2224 1981 ). "Theesse ntial characteri s tic o f a legislative pl a n is th e exe r-c is e o f legislative j udgm en t [, r.e.,J p r opos a l re fl ectin g

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the policy choice s o f th e e l e cted repre s entative s o f thepeople" . Id. at 1 5 2 -5 3 . See a lso 2 8 C . F . R . 51 . 1 8 ( a)1( 991) [HN31](changes ord ered by a federa l cou rt s ub-je ct to prec l earance only wh ere "they re fl e ct th e po l i c ychoices of the " jurisdicti on) . Cf Wesch v. Fiunt 7 8 5 F.Sanp. 1485, 1499-I500 (S . D. Ala . 1992 ) (where co urtadopted plan [ * *47] propo sed by plaintiff, cou rt con-cluded that " there is no requirement that the pl a n whichwe now adopt be precleared before it b ecomes opera-tive. " ) , af/'d, 120 L. Ed. 2d 907, 112 S. Ct . (1992) .

We find and conclude that the Special Master's plan,which we have approved, does not reflect the "exerciseof legislative judgment". Wise v. Lipscomb, 437 U.S .535 , 548, 57 L . Ed . 2d 411, 98 S. Ct . 2493 (1978) (Pow-ell , J ., concurr ing) . Indeed , we could draw this conclu-sion almost a fortiori from the legislature's vehementdislike for Judge Lacey's plan, expressed through theirvi rtually-immediate adoption of the plan drawn by thestate cou rt re ferees . However, we base our conclusion ona comparison of the Special Master's plan to those le g is-lative proposals which this ttuee -judge cou rt receivedduring the processes leading up to the Special Master'sappointment and which were considered and rejected bythe Special Master himself. We thus agree with amicuscuriae the United States of America that [HN32]a distr ictcourt should make a factual determination as to whetherthe plan "reflect s the policy choices of the [state]. "Memorandum for the United States as Amicus Curiae at4 (May 11 , 1992) (quoting [ **48) 28 C .F . R. 51 . 18(a)) .Having concluded as a matter of fact that the SpecialMaster's plan does not reflect th e policy choices of NewYork's legislators, we conclude as a matter of law thatpreclearance of the Special Masters plan by the Depart-ment of Justice is not required . In any event , as we havenoted, supra, the Special Master's plan , as drawn, com-ports with the same § 5 standards the Department of Jus-tice would use in preclearing a legislative pl an.

V . THE STATE PLAN

Virtually from its inception, this three-judge cou rthas been inundated with requests to defer to New York'slegislative and judicial bodies . Indeed , the primary reliefsought by the plaintiffs in PRLDEF v. Gantt was to orderthe legislature to act . At our second hearing, for instance ,the cou rt made the following statement :

We have not abandoned hope that the preferred solu-tion to this problem can be reached , and that is by theproper action of the state legislature and the governor.They have not acted yet. It is not for us to tell them toact. I can only say what we will do i f they fail to act . Soif we have not b een informed by a week from today thata plan has been ado pte d thr ough [ **491 the normalchanne ls, we wi ll ap poi nt eith e r a cou rt - ap po inte d expe rt

or special master. The instructions that we will give tothat person will be to draw a reappo rtionment plan for us .

Tran s cript of hearing at 8 , PRLDEF v . Gantt, No .C V-92 - 152 1 (E . D .N . Y . May 5 , 1992) . Although we havedeclined to abstain, and enjoined the p art ies in the statecou rt proce eding, see PRLDEF v. Gantt, No . CV-92-1 521 , s l ip o p. at 9- 1 0 ( E. D .N . Y . May 5 , 1992) , that in-junct i on was stayed by the United States Supreme Courtpending disposition of the [ * 698] state cou rt plaintiffs'appeal in that Court, which i s set for argument this Octo -ber .

Thus, the state cou rt continued in developing itsplan , which was released only days after the SpecialMaster's plan was releas ed. The state legislators , whountil then had not been able to agree upon a plan whichsatisfied both sides of the political aisle, promptly em-braced the state cou rt 's plan as their own and enacted it .We are advised that that plan is currently undergoing thepreclearance process before the Civil Rights Division ofthe United States Department of Justice in Washington ,DC; however , [HN33 ] until a legislative plan is actuallyprecleared , it has [ * *SOj no l egal effect

Because of thi s, we have approved the Special Mas-ter's plan and stand ready to implement it s hould a validlegislatively-adopted reapport ionment plan not be inplace by 5 : 00 pm on July 8, 1992 .

VI. CONCLUSION

We are dealing here with an exquisite blend of fun-damental constitutional and statutory problems on onehand , and extremely practical timing considerations onthe other. A fair election process requires adequate timefor candidates to make themselves and their positionsknown to their constituents . A bare four months remainsbefore election day . Well before that time , the primarynomination process must be completed . By an amend-ment to the Election Law , New York's legislature andGovernor have already postponed the commencement ofthis process by one month . We are , of course , inclined todefer to the state's judgment as to how much time is fairand proper to run the electoral system , so we have as -sumed that the process must begin on July 9 . However,in order to beg in , there must be a valid plan in effect . Atthis point the only valid plan is the Special Master's . Theplan initially adopted by the state cou rt and passed by thelegislature wi ll not (* * 51] be valid until precleared. 42U . S . C . 1973c .

Theoretically, the date for commencement of thepro ce ss could be postponed still fu rt her . Each postpone-ment , however , tend s to favor incumb ents and organizedpo litical part i es ov e r ch alleng ers and minori ty group s. Asa res ult , fu rth er postponements will run counter to the

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obje c tiv es of both th e constitution and the Votin g RightsAct .

None of the submis s ions to this court o ffers to p r ovefact s that wo u l d und erm i n e the Special Master' s ultimateconclusion s. Thus , no ev i dent i ary hearing is n e ces sary .We there fore adopt and approve the report and redistr ict-in g plan of the Special Master filed with th i s court onMay 26, 1992. B ecaus e of the institutional preference fora legi s latively - adopted reapportionment, we do not orderthat th e Spec i al Master's plan take effect immediatelyand thereby supersede the le gislative plan . There is still apossibility that the leg islative plan may be precleared bythe Department of Justice and thereby become law intime for candidates to begin collecting signatures on des -ignating petitions on July 9 , 1992, the deferred date setby the State of New York for commencement of that[** 5 2] process . However, if no other valid redistrictingplan is in place by 5 : 00 pm , Eastern Daylight Savings

Time, on July 8 , 1992 , the Special Master 's plan s hallautomatically take effect as the plan of congressionaldi strict for the 1992 pr imary and general elections in theStat e ofNew York .

SO ORDERED.

George C . Pratt

United States Circuit Judge

John S . Martin, Jr .

United States District Judge

Sterling Johnson , Jr .

United States District Judge

Dated: Brooklyn, NY

June 26th, 1992

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