UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK … · 2012-02-16 ·...

70916-0014/LEGAL22310080.1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x MARK A. FAVORS, HOWARD LEIB, LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, and WEYMAN A. CAREY,

Plaintiffs,

and DONNA KAY DRAYTON, EDWIN ELLIS, AIDA FORREST, GENE A. JOHNSON, JOY WOOLLEY, and SHELIA WRIGHT,

Plaintiff-Intervenors, and LINDA LEE, SHING CHOR CHUNG, JULIA YANG, JUNG HO HONG,

Plaintiff-Intervenors,

and JUAN RAMOS, NICK CHAVARRIA, GRACIELA HEYMANN, SANDRA MARTINEZ, EDWIN ROLDAN, MANOLIN TIRADO,

Plaintiff-Intervenors, and LINDA ROSE, EVERET MILLS, ANTHONY HOFFMANN, KIM THOMPSON-WEREKOH, CARLOTTA BISHOP, CAROL RINZLER, GEORGE STAMATIADES, JOSEPHINE RODRIGUEZ, and SCOTT AUSTER,

Proposed Plaintiff-Intervenors,

v.

ANDREW M. CUOMO, as Governor of the State of New York, ROBERT J. DUFFY, as President of the Senate of the State of New York, DEAN G. SKELOS, as Majority Leader and President Pro Tempore of the Senate of the

: : : : : : : : : : : : : : : :

Case No. 1:11-cv-05632 (DLI)(RR)(GEL)

NOTICE OF MOTION TO INTERVENE

Case 1:11-cv-05632-DLI-RR-GEL Document 81 Filed 02/15/12 of 3 PageID #: 867

-2- 70916-0014/LEGAL22310080.1

State of New York, SHELDON SILVER, as Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCEON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT (“LATFOR”), JOHN J. McENENY, as Member of LATFOR, ROBERT OAKS, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR,

Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Proposed Intervenors Linda Rose, Everet Mills, Anthony Hoffmann, Kim Thompson-

Werekoh, Carlotta Bishop, Carol Rinzler, George Stamatiades, Josephine Rodriguez, and Scott

Auster (“Proposed Intervenors”) move to intervene as plaintiffs as of right and, in the alternative,

for permissive intervention under Federal Rule of Civil Procedure 24(a)-(b). Multiple parties

have consented to this motion, including Plaintiffs, the Drayton Intervenors, the Lee Intervenors,

and Defendants Governor Cuomo and President of the Senate Duffy. Proposed Intervenors have

contacted the other parties to the action to determine their positions on this motion and are

awaiting responses from them. The accompanying Memorandum in Support of Motion to

Intervene as Plaintiffs demonstrates that Proposed Intervenors satisfy the requirements of Rule

24(a) and (b), and Proposed Intervenors respectfully request that the Court grant this motion and

allow them to defend their voting rights by participating in this litigation.

DATED this 15th day of February, 2012.


-3- 70916-0014/LEGAL22310080.1

Respectfully submitted, By:/s/ Jeffrey D. Vanacore Schuyler G. Carroll Jeffrey D. Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY 10112-0085 Phone: (212) 262-6900 Fax: (212) 977-1635 [email protected] [email protected] John Devaney (pro hac vice forthcoming) Marc Elias (pro hac vice forthcoming) Perkins Coie, LLP 700 13th St., N.W., Suite 600 Washington, D.C. 20005-3960 Phone: (202) 654-6200 Fax: (202) 654-6211 [email protected] [email protected] Kevin J. Hamilton (pro hac vice forthcoming) Perkins Coie, LLP 1201 Third Ave, Suite 4800 Seattle, WA 98101-3099 Phone: (206) 359-8000 Fax: (206) 359-9000 [email protected] Attorneys for Proposed Plaintiff-Intervenors


70916-0014/LEGAL22309995.3



Plaintiffs,







v.


: : : : : : : : : : : : : : : : : :


PROPOSED INTERVENORS’ MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE AS PLAINTIFFS

Case 1:11-cv-05632-DLI-RR-GEL Document 81-1 Filed 02/15/12 Page 1 of 19 PageID #: 870

70916-0014/LEGAL22309995.3

State of New York, SHELDON SILVER, as Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCEON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT (“LATFOR”), JOHN J. McENENY, as Member of LATFOR, ROBERT OAKS, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR,

Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


TABLE OF CONTENTS

Page

-i- 70916-0014/LEGAL22309995.3

I. INTRODUCTION ............................................................................................................. 1

II. PROPOSED INTERVENORS .......................................................................................... 1

III. FACTS ............................................................................................................................... 4

A. New York Lost Two Seats in the United States House of Representatives........... 4

B. New York’s Current Congressional Districts Are Unconstitutional...................... 4

C. New York Has Failed to Draw New Congressional Districts................................ 5

IV. ARGUMENT..................................................................................................................... 8

A. Intervention as of Right Should Be Granted.......................................................... 8

1. Proposed Intervenors’ Motion Is Timely................................................... 8

2. Proposed Intervenors Have a Direct Interest in this Case........................ 10

3. The Disposition of this Case Will Likely Impair Proposed Intervenors’ Interests ............................................................................... 11

4. Proposed Intervenors’ Interests Cannot Be Adequately Represented by Existing Parties............................................................... 12

B. In the Alternative, Proposed Intervenors Should Be Granted Permissive Intervention .......................................................................................................... 14

V. CONCLUSION................................................................................................................ 15


-1- 70916-0014/LEGAL22309995.3

I. INTRODUCTION

Proposed Intervenors seek intervention as a matter of right because they have a direct

interest in challenging New York’s unconstitutional congressional districts. Proposed

Intervenors are voters residing in New York and are committed to protecting their voting rights

as the Court draws new congressional districts.

The task of drawing new districts falls to the Court because the New York Legislature

and its Governor are at an impasse and cannot agree on a new redistricting plan or even agree on

the process for drawing it. The Governor has sworn to veto any plan that comes from the

Legislature rather than from an independent process, and no independent process has been

approved, much less begun. The failure to draw constitutional congressional districts impairs

Proposed Intervenors’ ability to effectively participate in the electoral process and, if not

remedied, will deprive Proposed Intervenors of representation in the United States House of

Representatives. The existing parties to this suit cannot adequately represent Proposed

Intervenors’ interests, and intervention therefore is required to protect those interests. Proposed

Intervenors alternatively seek permissive intervention under Fed. R. Civ. P. 24(b) because their

claims share with the main action common questions of law and fact, and intervention will not

prejudice the existing parties or delay any deadlines or litigation. Accordingly, Proposed

Intervenors respectfully request that the Court grant their motion for intervention as of right, or,

in the alternative, for permissive intervention.

II. PROPOSED INTERVENORS

Linda Rose is a registered voter living in Smithtown, New York. She currently resides in

Congressional District (“CD”) 1. According to the 2010 Census, CD 1 has 705,559 residents and

is overpopulated relative to other New York congressional districts. For instance, CD 1 contains

93,721 more residents than CD 28, New York’s least populated district. Ms. Rose intends to


-2- 70916-0014/LEGAL22309995.3

show her vote is diluted in violation of the United States Constitution, and that this Court should

draw new congressional districts to allow Ms. Rose to participate in the 2012 congressional

elections.

Everet Mills is a registered voter living in Springfield Gardens, New York. She currently

resides in CD 6. According to the 2010 Census, CD 6 has 651,764 residents—39,926 more

residents than CD 28—and is therefore overpopulated relative to other New York congressional

districts. Ms. Mills intends to show that her vote is diluted in violation of the United States

Constitution, and that this Court should draw new congressional districts to allow Ms. Mills to

participate in the 2012 congressional elections.

Anthony Hoffmann is a registered voter living in New York, New York. He currently



districts. Mr. Hoffmann intends to show that his vote is diluted in violation of the United States

Constitution, and that this Court should draw new congressional districts to allow Mr. Hoffmann

to participate in the 2012 congressional elections.

Kim Thompson-Werekoh is a registered voter living in Brooklyn, New York. She

currently resides in CD 10. According to the 2010 Census, CD 10 has 677,721 residents—

65,883 more residents than CD 28—and is therefore overpopulated relative to other New York

congressional districts. Ms. Thompson-Werekoh intends to show that her vote is diluted in

violation of the United States Constitution, and that this Court should draw new congressional

districts to allow Ms. Thompson-Werekoh to participate in the 2012 congressional elections.

Carlotta Bishop is a registered voter living in Brooklyn, New York. She currently resides

in CD 11. According to the 2010 Census, CD 11 has 632,408 residents—20,570 more residents


-3- 70916-0014/LEGAL22309995.3

than CD 28—and is therefore overpopulated relative to other New York congressional districts.

Ms. Bishop intends to show that her vote is diluted in violation of the United States Constitution,

and that this Court should draw new congressional districts to allow Ms. Bishop to participate in

the 2012 congressional elections.

George Stamatiades is a registered voter living in Long Island City, New York. He

currently resides in CD 14. According to the 2010 Census, CD 14 has 652,681 residents—

40,843 more residents than CD 28—and is therefore overpopulated relative to other New York

congressional districts. Mr. Stamatiades intends to show that his vote is diluted in violation of

the United States Constitution, and that this Court should draw new congressional districts to

allow Mr. Stamatiades to participate in the 2012 congressional elections.

Carol Rinzler is a registered voter living in New York, New York. She currently resides

in CD 14. According to the 2010 Census, CD 14 has 652,681 residents—40,843 more residents


Ms. Rodriguez intends to show that her vote is diluted in violation of the United States

Constitution, and that this Court should draw new congressional districts to allow Ms. Rinzler to

participate in the 2012 congressional elections.

Josephine Rodriguez is a registered voter living in the Bronx, New York. She currently



districts. Ms. Rodriguez intends to show that her vote is diluted in violation of the United States

Constitution, and that this Court should draw new congressional districts to allow Ms. Rodriguez

to participate in the 2012 congressional elections.


-4- 70916-0014/LEGAL22309995.3

Scott Auster is a registered voter living in Carmel, New York. He currently resides in

CD 19. According to the 2010 Census, CD 19 has 699,959 residents—88,121 more residents


Mr. Auster intends to show that his vote is diluted in violation of the United States Constitution,

and that this Court should draw new congressional districts to allow Mr. Auster to participate in

the 2012 congressional elections.

III. FACTS

A. New York Lost Two Seats in the United States House of Representatives

The results of the 2000 Census revealed that, as of April 1, 2000, New York had a

population of 18,976,457. In 2010, the United States Census Bureau determined New York’s

population to be 19,378,102. New York grew by only 401,645 people, or 2.1 percent, in the last

decade—far below the national growth rate of 9.7 percent. Consequently, New York lost two

congressional districts. Starting in 2012, New York will have 27 seats in the United States

House of Representatives.

B. New York’s Current Congressional Districts Are Unconstitutional

New York must redraw its congressional districts to account for its loss of two districts

and to ensure that each district has the same number of residents. Article I, Section 2 and the

Fourteenth Amendment of the United States Constitution require that each congressional district

have the same number of residents; this mandate helps to guarantee the principle of “one person,

one vote.” See Karcher v. Daggett, 462 U.S. 725, 730 (1983); see also Reynolds v. Sims, 377

U.S. 533, 565 (1964). The 2010 census data reveal substantial population variation among New

York’s congressional districts. As a result, the residents of congressional districts with larger

populations are underrepresented, as the weight or value of their votes is less than that of other


-5- 70916-0014/LEGAL22309995.3

voters residing in districts with smaller populations. This under-representation violates both

Article I, Section 2 and the Equal Protection Clause of the United States Constitution. Id.

Under the existing congressional plan, Anthony Hoffmann, for example, is under-

represented in violation of the United States Constitution. Mr. Hoffmann is a registered voter

and lives in CD 8, which comprises part of Brooklyn and Manhattan and has 713,512 people. By

contrast, CD 28, which is located on New York’s western border, has 611,838 people—almost

100,000 fewer than CD 8. As a result, Mr. Hoffmann and the other residents of CD 8 are under-

represented because their votes are diluted relative to votes cast by residents of CD 28. This

inequality is unconstitutional and must be remedied.

Linda Rose is also under-represented because she lives in CD 1, which has 705,559

people. Like CD 8, this district has almost 100,000 more residents than CD 28, and Ms. Rose’s

vote is diluted in violation of the Constitution. Similarly, CDs 6, 10, 11, 14, 16, and 19, in which

the other Proposed Intervenors reside, each has far more residents than CD 28, resulting in

unconstitutional vote dilution in violation of the “one person, one vote” principle.

C. New York Has Failed to Draw New Congressional Districts

New York’s congressional districts are drawn by the enactment of a law approved by the

Legislature and the Governor. See Koenig v. Flynn, 258 N.Y. 292, 179 N.E. 705, aff’d, 285 U.S.

375 (1932); N.Y. State Law, Art. 7, § 111. Soon after the United States Census Bureau

published its New York population data on March 24, 2011, New York legislators began to

sketch districts that would remedy the constitutional infirmity described above. The New York

Legislative Task Force on Demographic Research and Reapportionment (“LATFOR”),

comprised of and working with legislators, began to compile data and hold public hearings to

understand the various ideas and opinions about a new congressional plan. See The New York


-6- 70916-0014/LEGAL22309995.3

State Legislative Task Force on Demographic Research and Reapportionment, Hearings and

Meetings, http://www.latfor.state.ny.us/hearings/ (last visited Feb. 6, 2012).

Based on its research, LATFOR began drawing new district maps for consideration by the New

York Legislature. Thomas Kaplan, Group Sues Over Albany Redistricting, Saying ‘12 Elections

Are in Jeopardy, N.Y. Times, Nov. 18, 2011 at A16.

But Governor Cuomo has refused to approve any plan adopted by the Legislature. He

has stated publicly on numerous occasions that he would only approve a redistricting plan

created through a process independent of the New York Legislature and would veto any plan

proposed by the Legislature. Jimmy Vielkind, Governor sees redistricting veto ‘chaos’, Times

Union, Oct. 26, 2011, http://www.timesunion.com/local/article/Governor-sees-redistricting-veto-

chaos-2238347.php (last visited Feb. 6, 2012). Accordingly, in February 2011, before the

Census data were released, Governor Cuomo proposed the Redistricting Reform Act of 2011,

which would establish a redistricting commission independent of the Legislature, but the

Legislature did not pass the bill. Moreover, despite the Governor’s ultimatums, the Legislature

has not approved any independent process for drawing congressional and state legislative

districts. Thomas Kaplan, Group Sues Over Albany Redistricting, Saying ‘12 Elections Are in

Jeopardy, N.Y. Times, Nov. 18, 2011 at A16. As recently as January 27, 2012, Governor

Cuomo repeated his veto threats, calling the recently proposed state legislative districts

“unacceptable” and announcing he would veto them. Associated Press, Cuomo Says He Will

Veto Redistricting Plan, Wall St. J., January 27, 2012,

http://online.wsj.com/article/APe3af7ba8048443c6a3f707932f4d990d.html (last visited Feb. 6,

2012). The Legislature and the Governor are at an impasse, and as the 2012 election cycle nears,

New York’s congressional districts remain unconstitutional.


-7- 70916-0014/LEGAL22309995.3

The deadlines for the 2012 election cycle are fast approaching. On January 27, 2012, the

United States District Court for the Northern District of New York ordered New York to conduct

its congressional primaries on June 26, 2012. See Dkt. # 65; see also Memorandum Decision

and Order, United States v. State of New York, Case No. 10-cv-01214, Dkt. # 59 (GLS)

(N.D.N.Y. Jan. 27, 2012). New York’s election laws require candidates to submit petitions for

candidacy “the tenth Monday before, and not later than the ninth Thursday preceding the primary

election.” N.Y. Elec. Law § 6-158. Thus, candidates for Congress must register between April

23 and April 26, 2012. Signatures for the petitions for candidacy cannot be collected more than

thirty-seven days before the deadline for submitting petitions. N.Y. Elec. Law § 6-134(4).

Consequently, candidates for Congress can start collecting signatures for petitions of candidacy

on March 20, 2012. Because some New York jurisdictions are covered by Section 5 of the

Voting Rights Act, any statewide congressional redistricting plan enacted by the Legislature

must be precleared by either the Department of Justice or the United States District Court for the

District of Columbia. See Flateau v. Anderson, 537 F. Supp. 257, 261 (S.D.N.Y. 1982) (“Any

redistricting plan enacted by New York State reapportioning New York congressional, Senate

and Assembly districts will have to be . . . precleared pursuant to Section 5 of the [Voting Rights

Act]”). The Department of Justice has sixty days to respond to New York’s request for

preclearance, 42 U.S.C. § 1973C(a), and judicial preclearance would likely take even longer. As

such, candidates for Congress will not be able to begin collecting signatures for petitions for

candidacy by March 20, 2012, and New York must adopt new congressional districts and submit

them for preclearance no later than February 26, 2012—less than two weeks from now—to allow

candidates to meet the April 26, 2012, registration deadline.


-8- 70916-0014/LEGAL22309995.3

IV. ARGUMENT

A. Intervention as of Right Should Be Granted

A party has a right to intervene in an action when, on timely motion, it

claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a)(2). The United States Court of Appeals for the Second Circuit has

interpreted this rule to allow a moving party to intervene as of right when it shows that (1) its

motion is timely, (2) it has an interest in the litigation, (3) the disposition of the action will

impair or impede its ability to protect that interest, and (4) its interest is not adequately

represented by existing parties. See United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir.

1994). Citizens seeking to protect their voting rights are often granted intervention in

redistricting cases. See, e.g., Georgia v. Ashcroft, 539 U.S. 461, 477 (2003); Reynolds, 377 U.S.

at 541-42; Fairley v. Patterson, 493 F.2d 598, 601 (5th Cir. 1974). In particular, the Federal

District Courts of New York regularly grant intervention in cases like this. See, e.g., United

States v. Village of Port Chester, 704 F. Supp.2d 411, 417 (S.D.N.Y. 2010); Rodriguez v. Pataki,

308 F. Supp.2d 346, 351 (S.D.N.Y. 2004); Puerto Rican Legal Defense and Educ. Fund, Inc. v.

Gant, 796 F. Supp. 681 (E.D.N.Y. 1992); Flateau, 537 F. Supp. at 258.

1. Proposed Intervenors’ Motion Is Timely

Timeliness is “evaluated against the totality of the circumstances before the court.”

Farmland Dairies v. Comm’r of N.Y. State Dep’t of Agric. & Mkts., 847 F.2d 1038, 1044 (2d Cir.

1988). Circumstances considered when determining timeliness include “(1) how long the

applicant had notice of the interest before [he] made the motion to intervene; (2) prejudice to

existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied;


-9- 70916-0014/LEGAL22309995.3

and (4) any unusual circumstances militating for or against a finding of timeliness.” D’Amato v.

Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001) (internal quotation marks and citation omitted).

Here, Plaintiffs filed their Complaint on November 17, 2011, and a three-judge panel was

designated only yesterday, February 14, 2012. Some of the Defendants still have not filed

responses to the Complaint, and to our knowledge, none of the parties has taken any discovery.

Moreover, none of the existing parties would be prejudiced by adding Proposed Intervenors at

this early stage. Indeed, as described, several parties have already consented to this motion.1 In

contrast to the absence of any prejudice that would result from intervention both the existing

parties and Proposed Intervenors would be prejudiced by denial of this motion. Specifically,

Proposed Intervenors would be forced to commence a separate case addressing many of the same

factual and legal issues, further requiring all parties to incur additional costs and fees for

participating in parallel matters. Because Proposed Intervenors file this motion for the reasons

contemplated by Rule 24, namely to protect their interests, and because very little time has

elapsed since the filing of this case, this Motion is timely. See, e.g., Haddock v. Nationwide

Financial Services, Inc., 262 F.R.D. 97, 102 (D. Conn. 2009) (motion to intervene filed years

after commencement of litigation is timely); Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co.

Americas, 262 F.R.D. 348, 352 (S.D.N.Y. 2009) (motion to intervene filed years after

commencement of litigation is timely); Medical Diagnostic Imaging, PLLC v. Carecore Nat’l,

LLC, 542 F. Supp. 2d 296, 304 (S.D.N.Y. 2008) (motion to intervene filed months after learning

of litigation is timely).

1 Proposed Intervenors have contacted representatives of all of the parties to the action. They have not yet heard from all of the existing parties whether they consent to Proposed Intervenors’ intervention but have not been informed of any objections to their intervention. Proposed Intervenors will inform the Court regarding the remaining parties’ consent or objection as soon as they learn the parties’ positions.


-10- 70916-0014/LEGAL22309995.3

2. Proposed Intervenors Have a Direct Interest in this Case

The “interest” requirement is satisfied if the claimed interest is “direct, substantial, and

legally protectable.” Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010);

see also Brennan v. N. Y. City Bd. Of Education, 260 F.3d 123, 129 (2d Cir. 2001). Parties

seeking to protect their voting rights have a direct interest that permits intervention. See, e.g.,

Ashcroft, 539 U.S. at 476-77. Plaintiffs’ Complaint challenges New York’s current

congressional districts under Article I, Section 2, and the Fifth and Fourteenth Amendments to

the United States Constitution and asks the Court to redraw New York’s unconstitutional

districts. Compl. at 24. Proposed Intervenors have a direct, substantial, and legally protectable

interest in this claim.

Each of the Proposed Intervenors lives in a congressional district that currently has

substantially greater population than New York’s other congressional districts. Ms. Rodriguez,

for example, lives in CD 16, which has 693,819 people—approximately 80,000 more people

than CD 28. Ms. Rodriguez, like the other Proposed Intervenors, is under-represented, and her

vote is diluted in violation of the United States Constitution. Proposed Intervenors, including

Ms. Rodriguez, have an interest in protecting their voting rights and ensuring that New York has

congressional districts that comply with the “one person, one vote” principle embodied in the

Constitution.

Proposed Intervenors also have an interest in helping the Court draw new congressional

districts. Each proposed intervenor is a member of a distinct community and has an interest in

helping the Court draw constitutional congressional districts that respect the contours and

character of their communities. See League of Unit. Latin Amer. Citizens v. Perry, 548 U.S. 399,

433 (2006) (recognizing importance of communities of interest when drawing districts that

comply with the Voting Rights Act). Ms. Rodriguez, for example, is Hispanic and lives in a


-11- 70916-0014/LEGAL22309995.3

largely Hispanic neighborhood in the Bronx, New York. She has a distinct interest in providing

the Court with information relevant to this community to help the Court decide whether to

accommodate its interests or not. Without Ms. Rodriguez’s participation in this case, the

interests of her community might not be represented. These contributions are particularly

important because Courts drawing remedial districting plans must comply with the Voting Rights

Act and should avoid drawing districts that dilute the votes of minority citizens like Ms.

Rodriguez. See Abrams v. Johnson, 521 U.S. 74, 90 (1997).

In short, Proposed Intervenors, like voters in previous “one person, one vote” cases, have

a direct and immediate interest in this case. See, e.g., Wright v. City of Albany, 306 F. Supp.2d

1228, 1230 (M.D. Ga. 2003) (voters allowed to intervene in case alleging “one person, one vote”

claim); Pataki, 308 F. Supp.2d at 354 (addressing claims of plaintiff-intervenors); Corbett v.

Sullivan, 202 F. Supp.2d 972, 974 (E.D. Mo. 2002) (voters allowed to intervene in case alleging

“one person, one vote” claim); Colleton Cnty. Council v. McConnell, 201 F. Supp.2d 618, 625

(D.S.C. 2002) (same); Wesch v. Hunt, 785 F. Supp. 1491, 1493 (S.D. Ala. 1992) (same).

3. The Disposition of this Case Will Likely Impair Proposed Intervenors’ Interests

When deciding whether disposition of a case will impair a proposed intervenor’s

interests, courts in the Second Circuit examine the general consequences of denying intervention.

See, e.g., Sec. and Exch. Comm’n v. Everest Mgmt. Corp., 475 F.2d 1236, 1239 (2d Cir. 1973)

(intervention denied where only effect is proposed intervenor must duplicate efforts of SEC);

Authors Guild v. Google Inc., 2009 WL3617732, Case No. 05-cv-8136(DC) at *3 (S.D.N.Y.

Nov. 4, 2009) (intervention denied where settlement did not prejudice proposed intervenor’s use

of property or ability to bring claims). Denying this motion may prevent Proposed Intervenors

from protecting their voting rights. Plaintiffs have asked the Court to draw New York’s

congressional districts because the New York Legislature and Governor have not been able to do


-12- 70916-0014/LEGAL22309995.3

so. Consequently, this Court is almost certainly the forum in which New York’s new

congressional districts will be drawn. If denied intervention, Proposed Intervenors would have

no alternative but to protect their interests by commencing their own suit challenging New

York’s congressional districts. If that occurs, however, Proposed Intervenors could face the

contention that a decision by this Court in this action has preclusive effects that bar Proposed

Intervenors from protecting their voting rights or from contributing to the drawing of new

congressional districts in another action. In addition, Proposed Intervenors might not have time

to pursue an effective challenge to the Court’s plan in another action before the 2012 election

deadlines. Because Proposed Intervenors likely will not have an opportunity to bring their own

challenge and protect their voting rights if denied intervention in this case, intervention should be

granted.

4. Proposed Intervenors’ Interests Cannot Be Adequately Represented by Existing Parties

The burden to show that existing parties cannot adequately represent Proposed

Intervenors’ interests is “minimal.” Trbovich v. United Mine Workers of America, 404 U.S. 528,

538 n.10 (1972). Proposed Intervenors need only show that representation of their interests

“‘may be’ inadequate.” Id. Moreover, the Second Circuit has held that an intervenor satisfies

this requirement by showing that it would make “a more vigorous presentation” of certain

arguments. N.Y. Pub. Interest Research Group, Inc. v. Regents of Univ. of State of N.Y., 516

F.2d 350, 352 (2d Cir. 1975). In the voting rights context, intervenors have successfully

represented their own interests after other parties stopped litigating, showing that intervention

should be granted in these types of cases to allow voters to protect their own interests. See, e.g.,

City of Lockhart v. United States, 460 U.S. 125, 130 (1983) (intervenor continued to challenge


-13- 70916-0014/LEGAL22309995.3

covered jurisdiction under Section 5 after government ended its challenge); Blanding v. Du Bose,

454 U.S. 393, 394 (1982) (citizen group successfully pursued appeal of Section 5 decision).

Here, neither the Plaintiffs nor the previous intervenors can adequately represent

Proposed Intervenors’ interests. Proposed Intervenors have an interest in representing their

individual voting rights, and Plaintiffs and previous intervenors neither have the incentive nor the

information to adequately protect Proposed Intervenors’ individual interests.

Similarly, Plaintiffs and previous intervenors do not have the incentive or means to

protect the interests of Proposed Intervenors’ local communities. Because the new congressional

lines drawn by the Court will affect the lives of Proposed Intervenors and their neighbors, they

have a particular interest in this litigation. They also have knowledge about the impact new

congressional districts will have on their local communities that the other parties not only do not

have, but have little incentive to discover and protect. None of the Plaintiffs or previous

intervenors, for example, resides in current Congressional Districts 1, 8, or 14—districts in

which some of the Proposed Intervenors reside. Proposed Intervenors have a particular interest

in the composition of the congressional districts encompassing and abutting their communities

that Plaintiffs and previous intervenors simply do not share.

Plaintiffs and previous intervenors, moreover, are private individuals and interest groups,

and their resources and commitment to this litigation are unknown. The individuals may not

have the ability or motivation to pursue this litigation to its conclusion, and the interest groups

may have competing or conflicting priorities that prevent them from committing the necessary

resources to it.

In sum, Proposed Intervenors have a greater interest in their own voting rights, a greater

interest in the shape and composition of their districts, a greater incentive to pursue litigation,


-14- 70916-0014/LEGAL22309995.3

and a greater ability to provide the Court with relevant local information. Accordingly, Proposed

Intervenors have a right to intervene.

B. In the Alternative, Proposed Intervenors Should Be Granted Permissive Intervention

Rule 24(b) allows permissive intervention when, upon a timely motion, a party shows it

has “a claim or defense that shares with the main action a common question of law or fact.” Fed.

R. Civ. P. 24(b). Permissive intervention “is discretionary with the trial court.” H.L. Hayden

Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986). In exercising this

discretion, courts consider (1) whether intervention will unduly delay or prejudice the existing

parties; (2) the nature and extent of the intervenors’ interests; (3) whether existing parties

adequately represent intervenors’ interests; and (4) whether parties seeking intervention will

contribute to development of a full factual record and to the just and equitable adjudication of

legal issues. Id. The “principal consideration,” however, is simply “whether the intervention

will unduly delay or prejudice the adjudication of the rights of the original parties.” U.S. Postal

Serv. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978).

Proposed Intervenors submit this motion less than three months after Plaintiffs filed the

Complaint, and, as explained above, the motion is timely. The three-judge panel was designated

yesterday; only a few Defendants have filed motions to dismiss, while others have yet to file any

response to the Complaint. The litigation has barely begun, and the existing parties will not be

prejudiced or the case delayed by granting intervention. Proposed Intervenors will abide by all

deadlines and will not delay the resolution of this matter. Meanwhile, Proposed Intervenors will

contribute additional facts and information providing unique insights into the effects of proposed

congressional districts.


-15- 70916-0014/LEGAL22309995.3

Proposed Intervenors’ claims that New York’s congressional districts are unconstitutional

and must be redrawn share with Plaintiffs’ claims many factual and legal issues, and Proposed

Intervenors will assist the Court in developing a complete factual record and in reaching just

legal conclusions. They are dedicated to conscientiously and thoroughly litigating this case to its

conclusion, and the existing parties cannot adequately protect these interests as Plaintiffs do not

have adequate reason or ability to protect Proposed Intervenors’ particularized interests.

In sum, permissive intervention should be granted to allow Proposed Intervenors to show

that New York’s congressional districts are unconstitutional and to defend their voting rights as

the Court draws a new congressional plan.

V. CONCLUSION

For all of the foregoing reasons, Proposed Intervenors respectfully request that the Court

grant their Motion to Intervene.



-16- 70916-0014/LEGAL22309995.3

Respectfully submitted, By: /s/ Jeffrey D. Vanacore Schuyler G. Carroll Jeffrey D. Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY 10112-0085 Phone: (212) 262-6900 Fax: (212) 977-1635 [email protected] [email protected] John Devaney (pro hac vice forthcoming) Marc Elias (pro hac vice forthcoming) Perkins Coie, LLP 700 13th St., N.W., Suite 600 Washington, D.C. 20005-3960 Phone: (202) 654-6200 Fax: (202) 654-6211 [email protected] [email protected] Kevin J. Hamilton (pro hac vice forthcoming) Perkins Coie, LLP 1201 Third Ave, Suite 4800 Seattle, WA 98101-3099 Phone: (206) 359-8000 Fax: (206) 359-9000 [email protected] Attorneys for Proposed Plaintiff-Intervenors


EXHIBIT A


70916-0014/LEGAL22450281.1 -1-



Plaintiffs,







v.


: : : : : : : : : : : : : : : : : :


[PROPOSED] INTERVENORS’ COMPLAINT


-2- 70916-0014/LEGAL22450281.1

State of New York, SHELDON SILVER, as Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT (“LATFOR”), JOHN J. McENENY, as Member of LATFOR, ROBERT OAKS, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR,

Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

COMPLAINT

Intervenors Linda Rose, Everet Mills, Anthony Hoffmann, Kim Thompson-Werekoh,

Carlotta Bishop, Carol Rinzler, George Stamatiades, Josephine Rodriguez, and Scott Auster

(“Intervenors”) bring this action to challenge the validity of New York’s congressional districts

on grounds that they contravene the United States Constitution. Intervenors, for their cause of

action against Defendants, state and allege as follows:

PARTIES

1. Intervenor Linda Rose is a United States Citizen and registered voter in the State

of New York. She resides at 306 Mt. Pleasant Road in Smithtown, New York. Under the

current congressional redistricting plan, she resides in Congressional District 1. She voted in the

2010 election and intends to vote in the 2012 election for the United States House of

Representatives.

2. Intervenor Everet Mills is a United States Citizen and registered voter in the State

of New York. She resides at 183-24 140th Avenue in Springfield Gardens, New York. Under


-3- 70916-0014/LEGAL22450281.1

the current congressional redistricting plan, she resides in Congressional District 6. She voted in

the 2009 election and intends to vote in the 2012 election for the United States House of

Representatives.

3. Intervenor Anthony Hoffmann is a United States Citizen and registered voter in

the State of New York. He resides at 100 Bank Street in Manhattan, New York. Under the

current congressional redistricting plan, he resides in Congressional District 8. He voted in the

2010 election and intends to vote in the 2012 election for the United States House of

Representatives.

4. Intervenor Kim Thompson-Werekoh is a United States Citizen and registered

voter in the State of New York. She resides at 130 Lefferts Place in Brooklyn, New York.

Under the current congressional redistricting plan, she resides in Congressional District 10. She

voted in the 2010 election and intends to vote in the 2012 election for the United States House of

Representatives.

5. Intervenor Carlotta Bishop is a United States citizen and registered voter in the

State of New York. She resides at 881 Washington Avenue in Brooklyn, New York. Under the

current congressional redistricting plan, she resides in Congressional District 11. She voted in


Representatives.

6. Intervenor Carol Rinzler is a United States Citizen and registered voter in the

State of New York. She resides at 160 E 48th Street in Manhattan, New York. Under the current

congressional redistricting plan, she resides in Congressional District 14. She voted in the 2010

election and intends to vote in the 2012 election for the United States House of Representatives.


-4- 70916-0014/LEGAL22450281.1

7. Intervenor George Stamatiades is a United States Citizen and registered voter in

the State of New York. He resides at 38-21 31st Street in Long Island City, New York. Under

the current congressional redistricting plan, he resides in Congressional District 14. He voted in


Representatives.

8. Intervenor Josephine Rodriguez is a United States Citizen and registered voter in

the State of New York. She resides at 1182 Anderson Avenue in the Bronx, New York. Under

the current congressional redistricting plan, she resides in Congressional District 16. She voted

in the 2010 election and intends to vote in the 2012 election for the United States House of

Representatives.

9. Intervenor Scott Auster is a United States Citizen and registered voter in the State

of New York. He resides at 65 High View Drive in Carmel, New York. Under the current

congressional redistricting plan, he resides in Congressional District 19. He voted in the 2010

election for the United States House of Representatives and intends to vote in the 2012 election

for the United States House of Representatives.

10. Defendant Andrew M. Cuomo is the Governor of the State of New York. He is

being sued in his official capacity.

11. Defendant Robery J. Duffy is the Lieutenant Governor and President of the

Senate of the State of New York. He is being sued in his official capacity.

12. Defendant Dean G. Skelos is the Majoirty Leader and President Pro Tempore of

the Senate of the State of New York. He is being sued in his official capacity.

13. Defendant Sheldon Silver is the Speaker of the Assembly of the State of New

York. He is being sued in his official capacity.


-5- 70916-0014/LEGAL22450281.1

14. Defendant John L. Sampson is the Minority Leader of the Senate of the State of

New York. He is being sued in his official capacity.

15. Defendant Brian M. Kolb is the Minority Leader of the Assembly of the State of

New York. He is being sued in his official capacity.

16. Defendant LATFOR is the New York State Legislative Task Force on

Demographic Research and Reapportionment. LATFOR is charged by statute with researching

the techniques and methodologies that the U.S. Census Bureau used in the decennial census and

with providing a technical plan to meet the timeline for redistricting based on the census.

17. Defendants John J. McEneny, Robert Oaks, Roman Hedges, Michael F. Nozzolio,

Martin Malavé Dilan, and Welquis R. Lopez are members of LATFOR. They are being sued in

their official capacities.

JURISDICTION AND VENUE

18. This Court has jurisdiction to hear Intervenors’ claims pursuant to 42 U.S.C. §§

1983 and 1988, and 28 U.S.C. §§ 1331 and 1343(a)(3)-(4). This Court has jurisdiction to grant

declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.

19. A three-judge district court is required pursuant to 28 U.S.C. § 2284(a), as

Intervenors’ action “challeng[es] the constitutionality of the apportionment of congressional

districts” in New York.

20. Venue is proper under 28 U.S.C. § 1391(b).

FACTUAL ALLEGATIONS

21. New York’s current congressional districts were established by the New York

State Assembly and Senate in 2002 based on the results of the 2000 Census. New York’s current

congressional districts are set forth in N.Y. State Law, Art. 7, § 111.


-6- 70916-0014/LEGAL22450281.1

22. The results of the 2000 Census revealed that, as of April 1, 2000, the population

of New York was 18,976,457. The 2002 redistricting legislation drew twenty-nine congressional

districts with an overall range of deviation of zero percent (1 person) from the ideal population of

654,360 per congressional district.

23. Based on the results of the 2010 Census, the population of New York was

19,378,102 in 2010. Because New York’s population increased by only 401,645 people, or 2.1

percent, between 2000 and 2010, New York lost two congressional districts. After the 2012

congressional elections, New York will only have twenty-seven congressional seats. The ideal

population for each of the twenty-seven congressional districts is 717,707 (19,378,102 divided

by twenty-seven).

24. The official 2010 Census figures for New York show that population shifts during

the last decade have generated substantial inequality among New York’s congressional districts,

whose populations now range from a low of 611,838 in Congressional District 28 to a high of

713,512 in Congressional District 8. Thus, the total population deviation is now 101,674

persons.

25. The population decrease in New York has caused several New York

congressional districts, including Congressional Districts 1, 6, 8, 10, 11, 14, 16, and 19, to

become overpopulated relative to others. The existing malapportionment of congressional

districts in New York dilutes the voting strength of Intervenors residing in overpopulated

congressional districts, as the weight or value of Intervenors’ votes is less than that of other

voters residing in underpopulated congressional districts.

26. The New York State Assembly and Senate failed to enact a congressional

redistricting plan in 2011.


-7- 70916-0014/LEGAL22450281.1

27. Governor Cuomo has repeatedly threatened to veto any congressional

reapportionment plan adopted by the New York Legislature. He has proposed legislation that

would establish a commission independent of the Legislature to draw New York’s electoral

districts. The New York Legislature has not adopted any legislation that would create an

independent redistricting commission.

28. The New York Legislature and the Governor are at an impasse, and on

information and belief, will be unable to resolve this dispute and enact a new congressional

redistricting plan before New York’s statutory deadlines for registering congressional nominees

and conducting congressional primary and general elections.

29. A designating petition to register a candidate for a congressional election must be

filed “not earlier than the tenth Monday before, and not later than the ninth Thursday preceding

the primary election.” N.Y. Elec. Law § 6-158. Because the primary election for New York’s

congressional candidates will be held on June 26, 2012, candidates must be registered by April

26, 2012.

30. Bronx County, Kings County, and New York County are covered by Section 5 of

the Voting Rights Act, 42 U.S.C. § 1973c et al. Consequently, any New York congressional

reapportionment plan must be approved by the Department of Justice or the United States

District Court for the District of Columbia. If approval is sought from the Department of Justice,

the Department has sixty days to review and object to the reapportionment plan. Litigating a

Section 5 preclearance suit before the United States District Court for the District of Columbia

generally takes much longer. Thus, any reapportionment plan must be adopted by New York at

least sixty days before the candidate registration deadline to ensure that the plan will be

precleared before the deadline passes. To ensure timely submission to the Department of Justice


-8- 70916-0014/LEGAL22450281.1

and provide additional time to make any changes requested by the Department, New York must

adopt new congressional districts much earlier than sixty days before the candidate registration

deadline.

31. New York must adopt new congressional districts no later than February 26,

2012, to avoid missing the candidate registration deadline and causing other delays to New

York’s 2012 election calendar.

32. On information and belief, New York will be unable to resolve the impasse and

adopt a congressional reapportionment plan before February 26, 2012.

33. The failure to enact and implement a New York congressional redistricting plan

based on the 2010 Census results has violated and is violating rights guaranteed to Intervenors

and all other similarly situated individuals under the United States Constitution.

34. On information and belief, absent an injunction by this Court, Defendants intend

to and will conduct primary and general elections for the United States House of Representatives

on the basis of the congressional districts set forth in N.Y. State Law, Art. 7, § 111.

35. Intervenors intend to and will vote in the state primary and general elections to be

held in 2012 and thereafter for candidates for the United States House of Representatives. If

those elections are conducted by Defendants on the basis of the congressional districts set forth

in N.Y. State Law, Art. 7, § 111, Intervenors and all other similarly situated individuals will be

further deprived of rights guaranteed by the United States Constitution.

36. In order to ensure that congressional districts that comply with the United States

Constitution are in place for the 2012 election, it is necessary for this Court to order into effect a

congressional redistricting plan for New York.

CAUSE OF ACTION


-9- 70916-0014/LEGAL22450281.1

37. Intervenors restate and incorporate by reference the allegations of paragraphs 1

through 36 above as though fully set forth herein.

38. Article I, Section 2 of the United States Constitution provides in relevant part:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . . Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . . .

39. The Fourteenth Amendment of Section 1 of the United States Constitution

provides in relevant part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

40. The Fifth Amendment of the United States Constitution provides in relevant part:

“No person shall . . . be deprived of life, liberty, or property, without due process of law.”

41. The above provisions of the United States Constitution guarantee that New York

voters will have a fair and equal opportunity to cast a meaningful ballot for the United States

House of Representatives, regardless of the congressional districts in which they reside, and that

voters in more highly populated congressional districts will not be subject to unlawful

discrimination.

42. New York’s current congressional districts set forth in N.Y. State Law, Art. 7, §

111 are malapportioned on the basis of the 2010 Census results, unlawfully discriminating

against Intervenors and other similarly situated individuals.


-10- 70916-0014/LEGAL22450281.1

43. The congressional redistricting plan set forth in N.Y. State Law, Art. 7, § 111

deprives Intervenors and all similarly situated individuals of rights guaranteed to them under the

United States Constitution.

PRAYER FOR RELIEF

Accordingly, Intervenors respectfully request that this Court:

1. Declare that the current New York congressional redistricting plan as set forth in

N.Y. State Law, Art. 7, § 111 is invalid for failure to comply with the requirements of the United

States Constitution;

2. Issue a permanent injunction and judgment barring Defendants from calling,

holding, supervising, administering, or certifying any further elections under the current New

York congressional redistricting plan, as Intervenors have no adequate remedy at law and will be

irreparably harmed by the continued violation of their constitutional rights;

3. Hold hearings, consider briefing and evidence, and otherwise take actions

necessary to determine and order into effect a new congressional redistricting plan for the State

of New York;

4. Retain jurisdiction of this action to render any and all further orders that the Court

may from time to time deem appropriate; and

5. Grant such other or further relief the Court deems to be appropriate, including but

not limited to an award of Intervenors’ attorneys’ fees and reasonable costs.



-11- 70916-0014/LEGAL22450281.1

Respectfully submitted, By: /s/ Jeffrey D. Vanacore Schuyler G. Carroll Jeffrey D. Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY 10112-0085 Phone: (212) 262-6900 Fax: (212) 977-1635 [email protected] [email protected] John Devaney (pro hac vice forthcoming) Marc Elias (pro hac vice forthcoming) Perkins Coie, LLP 700 13th St., N.W., Suite 600 Washington, D.C. 20005-3960 Phone: (202) 654-6200 Fax: (202) 654-6211 [email protected] [email protected] Kevin J. Hamilton (pro hac vice forthcoming) Perkins Coie, LLP 1201 Third Ave, Suite 4800 Seattle, WA 98101-3099 Phone: (206) 359-8000 Fax: (206) 359-9000 [email protected] Attorneys for Proposed Plaintiff-Intervenors


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK … · 2012-02-16 ·...

Documents

Transcript of UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK … · 2012-02-16 ·...