Letter: NYCLU Urges Department Of Justice Not To Approve NY State’s State Senate Redistricting Due To The Effect On Minorities

June 12, 2002 Mr. Joseph D. Rich Chief, Voting Section, Civil Rights Division Department of Justice Washington, DC Re: Comments Under Section 5 of the Voting Rights Act Submission Number 2002-2633 New York State Reapportionment, Chapters 35 and 38 of the Laws of 2002 Dear Mr. Rich: The New York Civil Liberties Union urges that the Department of Justice deny preclearance to New York State’s plan for redistricting the State Senate. We reach this conclusion because the Senate plan will result in the “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise” (Beer v. United States, 425 U.S. 130, 141 (1976)) and will do so in two respects. First, the Senate plan increases the size of the Senate without increasing the number of majority-minority districts in New York’s three political subdivisions that are covered by Section 5 of the Voting Rights Act (Bronx, Kings and New York counties). Consequently, the Senate Plan that has been submitted for preclearance will result in a legislative body with a smaller percentage of majority-minority districts from the Bronx, Kings and New York counties than does the current districting arrangement. The new plan, therefore, has a “retrogressive effect” on the electoral opportunities of minority voters in those political subdivisions. Second, the consistent over-populating of downstate districts and the under-populating of upstate districts under the new plan has a disparate impact upon the rights of individual minority voters to equal electoral representation. This disparate impact is more pronounced under the proposed plan that it had been under the 1992 plan. In this respect, as well, the proposal has a “retrogressive effect.” Each of these matters will be addressed, in turn. 1. The Senate plan that has been submitted for preclearance increases the size of the Senate without increasing the number of majority-minority districts in covered political subdivisions and, therefore, has a “retrogressive effect” on the electoral opportunities of minority voters. If one applies the census data from the 2000 census, to the district lines for the State Senate that were approved by the Justice Department in 1992 , there are currently ten districts in the Bronx, Kings and New York counties with voting age populations of racial or ethnic minorities that exceed 50 percent of the districts’ total voting age population. Under the 1992 district lines, six districts (12, 18, 19, 20, 29 and 33) currently have a majority of African-American voting-age inhabitants. Under the 1992 district lines, four districts (17, 28, 31 and 32) currently have a majority of Hispanic voting-age inhabitants. The proposed Senate plan purports to retain ten districts in the Bronx, Kings and New York counties with minority populations that exceed 50% of the voting-age population in those districts. Six districts (Districts 18, 19 20, 21, 30 and 36) under the proposed Senate plan will contain African-American voting age populations that exceed 50% of the district-wide total population. Four districts (Districts 17, 28, 32 and 33) under the proposed Senate plan will contain Hispanic voting populations that exceed 50% of the district-wide total population. Questions have been raised as to whether one of the ten districts (District 21) contains a population that is sufficient to provide minority voters with a fair opportunity to elect candidates of their choice given the political cross-currents within that district. But, even assuming the viability of this district as a majority-minority district and assuming, therefore, that the proposed Senate plan contains ten majority-minority districts within the Bronx, Kings and New York counties, the new plan will have a “retrogressive” effect. This is so because the proposed Senate plan increases the size of the Senate from a 61 member body to a 62 member body. Accordingly, under the “benchmark” districting arrangement the ten majority-minority districts from the Bronx, Kings and New York counties currently constitute 16.4% of the legislative body. Under the new plan, the ten majority-minority districts from the covered political subdivision will constitute 16.1% of the total legislative body. This “retrogressive effect,” while perhaps, appearing to be de minimis cannot be excused if, as suggested by earlier comments, at least one more majority-minority district could have been created and “retrogression” could have been entirely avoided. See, e.g., Letter of May 20, 2002 from Richard D. Emery to Joseph D. Rich at 1, 10-11. 2. In overpacking the downstate districts and underpopulating the upstate districts, the proposed plan has a retrogressive effect on the electoral opportunities of minority voters. In many circumstances, the right to vote can best be understood as an individual right — as the right of an individual voter to cast a ballot and to participate equally in the electoral process. In other circumstances, however, the right to vote can best be understood as an “aggregate” or “group” right — as the right to associate with like-minded voters to affect electoral outcomes. See Gerken, “Understanding the Right to an Undiluted Vote.” 114 Harv. L.Rev. 1663 (2001). Thus, for example, vote dilution claims advanced under the federal Voting Rights Act by or on behalf of racial minorities often involve “aggregate” rights. Such claims are often premised upon the phenomenon of “racial bloc voting” where white voters consistently vote for white candidates and African-American or Hispanic or Asian voters consistently vote for candidates that share their racial or ethnic backgrounds. Where such voting patterns exist, district lines can be drawn in ways that debase the opportunities of minority voters to elect candidates of their choice. Sections 2 and 5 of the Voting Rights Act are often invoked to protect minority voters against such debasement or dilution of their electoral opportunities. These statutory provisions are often invoked to “require[] states to draw district lines that offer racial minorities fair opportunities to elect candidates of their choice.” Gerken, 114 Harv. L.Rev. at 1066. But, in such circumstances, the right to vote is properly understood as an “aggregate” right. Standing alone no individual’s right is significant. The right only becomes meaningful when voters, sharing the same racial identity and the same electoral interests, exercise their franchise in an aggregative fashion to affect electoral choice. The retrogression described previously with its focus upon the creation of majority-minority districts is premised on “racial bloc” voting and can best be understood as addressing a claim of “aggregate” or “group rights”. But, as noted, there are many circumstances where the right to vote is understood as an individual right. For example, when a law disenfranchises voters by imposing a durational residency requirement (See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972)), such law directly burdens the individual right to vote. Such right does not turn upon whether an individual will exercise the franchise in a way that will promote the interests of any racial group or partisan faction. It does not turn on the question of whether individual voters will aggregate their interests and vote for the same candidates. Rather, in such circumstances, the right to vote is understood as an individual right to express one’s views by casting a ballot and by participating in the electoral process on an equal basis with all other voters. Similarly, the constitutional concept of “one person/one vote” protects the individual right to vote. It turns on the equal right to cast a ballot for a legislator and the right of each individual to share representation on an equal basis. New York City Board of Estimate v. Morris, 489 U.S. 688, 693-694 (1989) (“Electoral systems should strive to make each citizen’s portion [of representation] equal. If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts.”) The Senate plan proposed by the State burdens this individual right and does so in ways that have both a racially disparate impact and a “retrogressive effect.” The proposed redistricting plan consistently under-populates the upstate districts and over-populates the downstate districts (including New York City and its northern suburbs), which comprise the majority of minority group voters. Senate Districts 10 through 38 contain 76.6% of the African-American voting-age population, 80.8% of the Asian voting-age population, and 81.5% of the Hispanic voting-age population in the State. In the proposed Senate plan, these districts are consistently over-populated as compared with the upstate districts. The average population of the downstate districts (10-38) is 313,334, versus 297,328 for the upstate districts (39-62). This means that close to 79% of minority voters in the State will find themselves in overpopulated districts whereas only about 31% of white voters in the State will find themselves in over-populated districts. On average, a voter in an over-populated downstate district will need to share a legislator with many more other voters (about 236,893) than will a voter in an upstate district (223,402). Accordingly, as voters in over-populated districts, most African-American or Asian or Hispanic citizens will be required to share their elected State Senator with many more constituents than will the average white voter in the State. This debasement of equal rights of electoral participation, therefore, occurs in a racially disparate way. Focusing on the three political subivisions that are covered by Section 5, 52.3% of the State’s minority voters live in wholly or partly covered districts whereas 17.2% of the State’s white voters live in these districts. Under the proposed Senate plan each of the districts in these three counties is significantly over-populated. On average a voter in a wholly or partly covered district will need to share a State Senator with about 234,088 other constituents. This again suggests racially disparate treatment when compared with the statewide average of one Senator for about 230,425 constituents. Not only does this denial of equal participation disadvantage minority voters to a disparate degree but such disparate treatment is more pronounced under the proposed plan than it was under the 1992 districting arrangement. The deviation from strict numerical equality in 2002 Senate Plan is 9.78 percent. This is over twice what it was in 1992 (4.29%). Moreover, the regional disparity between upstate and downstate districts is similarly unprecedented. The difference between the mean populations of the equivalent upstate and downstate districts under the proposed plan is 16,006. It was 3,410 in 1992. So understood, the population deviations that have a racially disparate impact on minority voters are far greater under the proposed plan than they were in 1992. The proposed plan is, therefore, retrogressive in its adverse disparate impact upon minority voters. Thank you for your consideration of these matters. If you have any questions, please feel free to call. Sincerely, Arthur Eisenberg