By Jeff Wice & Alexis Marking
This week- Nassau County Legislative Map Trial Gets Underway, NYS Voting Rights Act Appeal
N.Y. VOTING RIGHTS ACT LITIGATION
Nassau County Legislature: Coads et al. v. Nassau County & NY Communities for Change (NYCC) v. Nassau County
A trial gets underway tomorrow where the most serious challenge to Nassau County’s legislative maps since 1994 gets underway in White Plains. The case was removed from Nassau to Westchester County where a judge will hear the case.
On December 9th, the defendants (Nassau County and the Nassau County Legislature) filed their 151-page proposed findings of fact and conclusion of law that included six main points. First, they argue that the map enacted in Local Law 1 does not violate Section 23 of the New York Home Rule Law’s prohibition on partisan gerrymandering rounds. Second, they maintain that the N.Y. Voting Rights Act’s (NYVRA) district-based vote-dilution provisions are unconstitutional.
Third, these provisions of the NYVRA are at least unconstitutional as they were applied to Nassau County. Fourth, the plaintiffs’ identified preferred candidates will not “usually be defeated” under Local Law 1 in Nassau County. Fifth, they argue Local Law 1 does not violate the NYVRA’s provisions under the statute’s “totality-of-the-circumstances” Inquiry. Sixth, Local Law 1 does not violate Section 34’s prohibition on racial gerrymandering.
On December 9th, the plaintiffs (Nassau County voters and N.Y. Communities for Change) filed a consolidated proposed findings of facts and conclusion of law consisting of 214 pages. Three conclusions were provided.
First, the enacted map violates N.Y. Municipal Home Rule Law’s redistricting requirements for county legislatures because the map violates the prohibitions on drawing districts (1) with the intent to favor a political party and (2) with the effect or intent of discriminating against minority voters. The plaintiffs argue that the NYVRA’s Gingles preconditions are satisfied and that, under the “totality of the circumstances,” the enacted map violates both the NYVRA and the federal Voting Rights Act. Second, the enacted map dilutes the voting strength of Black, Latino, and Asian voters in Nassau County and thus violates the NYVRA. Third, the plaintiffs are entitled to a full and complete remedy.
On December 10th, Nassau County filed a letter with the court stating that the plaintiffs’ questioning in the depositions of attorney Misha Tseytlin and expert Dr. Sean Trende must stay within four parameters: (1) Tseytlin’s testimony at the public legislative hearings; (2) Tseytlin and Trende’s roles in the redistricting process; (3) the drafting of Tseytlin’s law firm memos; and (4) Trende’s social science analyses as conducted for the redistricting process. If the plaintiffs venture beyond these parameters, the defendants reserve the right to petition to the Court of Appeals. Filing would trigger an automatic stay.
On December 11th, the Appellate Department’s Second Department ruled in three orders that the trial court properly exercised its discretion in (1) granting the plaintiffs’ application to compel Tseytlin and Trende to produce documents in compliance with the subpoenas served; (2) directing the defendants to disclose disputed documents and communications to the plaintiffs; and (3) denying motions by Tseytlin and Trende to quash the subpoena served upon them and for protective orders.
On December 12th, the Court ruled that both cases are certified for trial.
On December 13th, the NYCC plaintiffs filed a note of issue and requested a trial without a jury.
Orange County: Clarke v. Newburgh
The Appellate Division will hear arguments appealing the Orange County state supreme court decision striking the entire NYVRA on Wednesday, December 18 in Brooklyn.
On December 9th, the Appellate Division granted the Town of Cheektowaga leave to appear before the Court as amicus curiae. Cheektowaga is facing a similar challenge to its at-large town board.
Also on December 9th, Cheektowaga filed a brief in support of the Town of Newburgh and Newburgh Town Board (defendants-respondents). The brief consisted of three main arguments. First, the Town stated that the NYVRA is “explicitly race-based” and is thus subject to strict scrutiny. Second, the NYVRA lacks the “vital constitutional safeguards” from Thornburg v. Gingles, which are the guardrails that allow the VRA to withstand constitutional scrutiny. Third, the Town argued that New York State lacks the constitutional enforcement authority to enact the NYVRA.
Later on December 9th, the plaintiffs-appellants (Newburgh voters) filed a reply brief. First, the residents argued that the Town lacked capacity to challenge the NYVRA. Second, the NYVRA is facially constitutional because (1) it does not employ racial classifications, (2) the NYVRA is narrowly tailored to preventing and remedying racial discrimination in voting, and (3) the Court must consider the NYVRA’s “undeniably lawful” applications. Third, the Town supports the Orange County Supreme Court’s nullification of the rest of the NYVRA.
Intervenor New York State Attorney General Letitia James (NYSAG) filed a reply brief on December 9th. The brief centered around four arguments. First, the Town fails to show that it has capacity to challenge the NYVRA. Second, the NYVRA comports with the Equal Protection Clauses of the U.S. and New York Constitutions. Third, in the event that strict scrutiny applied, the defendants’ challenge to the vote-dilution provision would still fail. Lastly, it is undisputed that the Orange County Supreme Court “improperly ordered relief not sought by any party.”
EVENTS
Today- December 16- The NYC Campaign Finance Board (CFB) will hold a public meeting at 10:00 AM. Members of the public may tune in to the meeting remotely via Zoom, or attend in-person at the CFB’s Lower Manhattan office at 100 Church Street, on the 12th Floor. The Board will release public funds payments to eligible candidates for mayor, city council, comptroller, public advocate, and borough president candidates.
January 28, 2025- Hold the Date- “ACS On The Road:” New York Law School and several other organizations including Engage NY, the New York Community Trust, CUNY Graduate Center, N.Y. Civic Engagement Table, New York Immigration Coalition, and others will host a half day conference on how to work with American Community Survey census data. Presentations will be made by the New York City Planning Department and U.S. Census Bureau. The event goes from 9:00 AM to 2:00 PM and will be held at New York Law School, 185 West Broadway. Register here: https://nyls.wufoo.com/forms/qnqo80v1iobqqa/
INSTITUTE RESOURCES
The New York Elections, Census and Redistricting Institute has archived many resources for the public to view on our Digital Commons Page.
Our Redistricting Resources page contains resources on the John R. Lewis Voting Rights Act. You can access the page
here: https://digitalcommons.nyls.edu/redistricting_resources/
Archived Updates can be accessed
here: https://digitalcommons.nyls.edu/redistricting_roundtable_updates/
Please share this weekly update with your colleagues. To be added to the mailing list, please contact Jeffrey.wice@nyls.edu
The N.Y. Elections, Census & Redistricting Institute is supported by grants from the New York Community Trust, New York Census Equity Fund, the Alfred P. Sloan Foundation, and the New York City Council. This report was prepared by Jeff Wice & Alexis Marking.