Full opinion text
OPINION AND ORDER PER CURIAM. TABLE OF CONTENTS I. INTRODUCTION.351 II. BACKGROUND.354 III. ONE-PERSON, ONE-VOTE CLAIM (COUNT I) CO ZD CO A. Legal Standards. CO ZD CO B. Analysis . hD <D CO IV. VOTING RIGHTS ACT CLAIMS. t-H tr-CO A. Section 2 Legal Standard. t — I t-CO B. Long Island: Nassau County and Suffolk County (Counts V and VI) CO t> CO 1. Suffolk County (Count VI). C"“ t— CO 2. Nassau County (Count V). r-H co CO (a) The First Gingles Factor: Majority-in-a-District and the Potential to Elect. CO CO to (b) Racial Polarization and the Second and Third Gingles Preconditions. CO 00 i) The Methodology of Dr. McDonald. CO 00 -a ii) Elections Analyzed . 00 CO oo iii) The Second Gingles Precondition: Cohesion. CO ZD to iv) The Third Gingles Precondition: White Bloc Voting Sufficient Usually to Defeat the Black Candidate of Choice CO CO to (e) Electability. CO CO rf*. i) Recompilation. CO CD cn ii) Supplemental Electability Analysis. CO ZD iii) Turnout, Warming, and Other Statistical and Anecdotal Evidence.400 C. The Bronx (Count III). 404 1. Introduction. 404 2. Background to Plaintiffs’ Proposed District 36. 406 3. The First Gingles Precondition. 408 (a) The Appropriate Measure. 409 (b) Electability. 410 i) Recompilation. 410 ii) Supplemental Electability Analysis. 412 4. The Second Gingles Precondition. 413 5. The Third Gingles Precondition. 422 6. Totality of Circumstances. 426 (a) Substantial Proportionality. 427 (b) Legislative Policies Underlying the Contested Practices 429 (c) The Degree of Racially Polarized Voting and Political Partisanship. CO CO (d) Official Discrimination. CO (e) Socioeconomic Disparities. CO ÜT (f) Electoral Mechanisms. CO 05 (g) Other Totality Factors CO Oi 7. Conclusion . 437 D. The Statewide Vote-Dilution Claim (Count II).437 E. The LVRC Intervenors: Senate District 31 (Count IV).437 F. The Rivers/Barbour Intervenors: Congressional District 17 (Count VIII).441 V. EQUAL PROTECTION CLAIM: SENATE DISTRICT 34 (COUNT VII).444 A. Applicable Law.445 B. Analysis .446 1. Senate District 34 .447 2. 2002 Redistricting.448 3. The Plaintiffs’ Case.449 (a) Shape and Boundary Lines.449 (b) Information Available to the Legislators in 2002.452 (c) Wolpoff Case Submissions.454 (d) Burgeson 2001 Memoranda.456 4. Traditional Districting Principles.457 5. Politics/Race: Cromartie II.459 VI. CONCLUSION, .460 I. INTRODUCTION These consolidated actions include constitutional and statutory challenges to the State Senate and congressional redistriet-ing plans enacted by the New York State Legislature in April 2002 (following the 2000 census) and precleared by the United States Department of Justice in June 2002. Seven of the eight counts in the Joint and Consolidated Amended Complaint, dated January 24, 2003 (“Complaint”), pertain to the 2002 New York State Senate redistricting plan (“Senate Plan”), and one count pertains to New York’s 2002 congressional redistricting plan (“Congressional Plan”). Two of the eight counts raise constitutional challenges under the Fourteenth Amendment, U.S. Const. amend. XIV, § 1: a one-person, one-vote challenge to the Senate Plan as a whole and a racial gerrymandering challenge to Senate District (“SD”) 34. Six counts raise challenges under section 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973(b) (the “VRA”), including challenges by the lead plaintiffs to redistricting in the Bronx, Long Island, and the state as a whole, as well as challenges by plaintiffs-intervenors to SD 31 and Congressional District (“CD”) 17. On November 6, 2003, this three-judge District Court concluded that the plaintiffs had raised no triable issues of material fact with respect to Counts I, II,.IV,, VI, and VIII of the Complaint and granted summary judgment to the defendants on those claims. We indicated that an opinion explaining the decision would follow. Following trial, the Court has concluded that the plaintiffs have failed also to establish the claims set forth in Counts III, V, and VII by a preponderance of the evidence. Our opinion with'respect to those counts on which we granted summary judgment together with our findings of fact and conclusions of law with respect to all counts are detailed below, but some of the overarching considerations that inform our decision are as follows: First, New York’s 2002 redistricting laws are well within the purview and political prerogative of the State Legislature. See, e.g., Miller v. Johnson, 515 U.S. 900, 915, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) (“Federal-court review of districting legislation represents a serious intrusion on the most vital of local functions.... Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests.”); see also Georgia v. Ashcroft, 539 U.S. 461, 123 S.Ct. 2498, 2511-12, 156 L.Ed.2d 428 (2003); Md. Comm. for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964). Second, the 2002 Senate Plan reflects traditional districting principles including: maintaining equality of population, preserving the “cores” of existing districts, preventing contests between incumbents, and complying with the requirements of the Voting Rights Act, See Marylanders for Fair Representation, Inc. v. Schaefer, 849 F.Supp. 1022, 1056 (D.Md.1994) (three-judge court); see generally Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga.2004) (three-judge court). Third, the 2002 redistricting continues New York’s check and balance in its bicameral Legislature. In the State Assembly, which has been dominated by Democrats since 1974, six seats were gained by Democrats in 2002 and the balance of Democratic to Republican assemblyper-sons changed from 97/53 to 103/47. In the State Senate, which has been dominated by Republicans since 1966, the balance of Republican to Democratic senators shifted from 36/25 to 38/24, including the post-election change in party affiliation (from Democratic to Republican) of one senator. Fourth, the Senate Plan reflects less than a 10% deviation in population between any two Senate districts. See Brown v. Thomson, 462 U.S. 835, 842, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (“[A]n apportionment plan with a maximum population deviation under 10% falls within [the] category of minor deviations.”). The plaintiffs do not assert that racial discrimination accounts for the population deviation. (See Transcript of .Oral Argument of Motions for Summary Judgment, dated Nov. 4, 2003, at 65 (“Summ. J. Tr.”).) Rather, they argue that the Senate Plan discriminates geographically, favoring underpopulated “upstate” districts over overpopulated “downstate” districts, and that the single Senate seat added by the Legislature in 2002 should have been located south of Putnam County. Fifth, politics surely played a role in redistricting in New York in 2002 — -as it does in most every jurisdiction. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 753, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (“Politics and political considerations are inseparable from districting and apportionment. ... The reality is that districting inevitably has and is intended to have substantial political consequences.”). For example, the Republicans’ 62-seat Senate Plan, which became the plan that was enacted, paired four incumbent Democrats to run against each other. The plan initially proposed by the Democrats for a 61-seat Senate paired twenty incumbents, seventeen of whom were Republican. At the same time, the Senate and Assembly joined political forces in developing the State’s 2002 Congressional Plan (which was required by the census returns to reflect the loss of two seats from New York’s congressional delegation) to pah-two Democrats and two Republicans, resulting in the loss of one member from each party. Sixth, the Senate Plan achieves substantial proportionality of minority representation in the Bronx. “[D]ilution may be found to be absent under the totality of the circumstances when the protected minority groups ‘constitute effective voting majorities in a number of districts ... substantially proportional to their share in the population.’ ” Session v. Perry, 298 F.Supp.2d 451, 477 (E.D.Tex.2004) (quoting Johnson v. De Grandy, 512 U.S. 997, 1024, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994)). Four of the five Bronx Senate districts are majority-minority districts, including three Hispanic districts and one black district. Hispanics and blacks combined are 76.1% of the Bronx citizen voting age population (“CVAP”) and 77.5% of the voting age population (“VAP”). Seventh, the relief sought by the plaintiffs in this case cannot be justified under the Voting Rights Act. For example, in Suffolk County, the plaintiffs propose to create a new minority-coalition “influence” district, even though blacks and Hispanics would constitute only 40.2% of the VAP and 33.7% of the CVAP in the proposed district and the plaintiffs concede that the proposed district would not provide minorities with the ability to elect candidates of choice. In Nassau County, the plaintiffs propose to create a new “ability to elect” district by gathering substantially all of the county’s black population in one district. Nonetheless, in the proposed Nassau County district, blacks would constitute less than 37% of the VAP and CVAP and, we conclude, would still not have the ability to elect candidates of their choice. The plaintiffs propose to create a fifth majority-minority district in the Bronx by reducing the minority populations in all four majority-minority districts and dismantling the only majority-white district. They argue that the Voting Rights Act requires that this additional majority-minority district be created even though minorities have more than substantially proportionate representation in the Bronx. The claims by the plaintiffs-intervenors similarly seek to create a supermajority Latino district and a Hispanic-black minority-coalition district, respectively, but cannot satisfy the prerequisites for showing vote-dilution under section 2. In short, the plaintiffs have failed to establish their claims that the 2002 State Senate or congressional redistricting plans violated the Fourteenth Amendment of the United States Constitution or the Voting Rights Act. II. BACKGROUND Based upon the 2000 census results, which reflected New York’s lower population growth relative to that of other states, the State Legislature was required to reduce the State’s congressional seats from 31 to 29. See Act of June 5, 2002, 2002 N.Y. Laws 86; see also U.S. Const. art. I, § 4; 2 U.S.C. § 2a. The 2000 census figures, which showed population gains in some New York counties and losses in others (see Pls.’ Ex. (“PX”) 6 tbl. 3), also obligated the Legislature to “readjust” State Senate and Assembly districts so that each district would contain, consistent with applicable districting principles, “an equal number of inhabitants, excluding aliens, and be in as compact form as practicable.” N.Y. Const, art. III, § 4. The entity responsible for developing redistricting plans for the New York State Legislature is the State Legislative Task Force on Demographic Research and Reapportionment (“LATFOR”), which was initially created in 1978. In connection with the 2002 redistricting, LATFOR began holding public hearings throughout the State, including hearings held in Syracuse, Binghamton, each of the five boroughs of New York City, Suffolk County, Westchester County, Rochester, and Buffalo, in May-July 2001, and received written comments and proposals from the public regarding Senate, Assembly, and congressional districts. During March 2002, LATFOR received additional public comment during a second round of hearings throughout the State (Stip-¶ 13), including hearings held in Buffalo, Rochester, Brooklyn, Queens, the Bronx, Manhattan, Suffolk County, and Albany. Despite its efforts, by the end of 2001, LATFOR had not yet proposed plans for the state legislative or congressional districts. On January 25, 2002, the plaintiffs, who include black, Hispanic, and white New York voters, filed companion lawsuits against various New York State officials, including Governor George E. Pataki, in the New York State Supreme Court, New York County (“Allen ” case), and in this Court (“Rodriguez ” case), seeking declaratory and injunctive relief against the use of the State’s then-existing congressional and state legislative districts. (Stip. ¶¶ 8-9); Allen v. Pataki, No. 101712/02 (N.Y.Sup.Ct.) (Cahn, J.); Rodriguez v. Pataki, No. 02-618 (S.D.N.Y. filed Jan. 25, 2002). The lawsuits alleged, among other things, that, “based on the 2000 Census, those districts violate the United States Constitution and the Voting Rights Act of 1965 as amended.” (See Rodriguez, Compl. J 1 (Jan. 25, 2002).) The plaintiffs requested that each court “set a reasonable deadline for state authorities to enact redistricting plans and obtain [United States Department of Justice] pre-clearance thereof’ and adopt and promulgate new districts in the event of a failure by the Legislature to act in time for the 2002 elections. {Id. at 17.) The two cases proceeded along parallel tracks until approximately May 20, 2002 when Allen was removed to this Court and then consolidated with Rodriguez. The cases have been heard by this three-judge Court because of the assertion of interrelated constitutional and Voting Rights Act claims. See 28 U.S.C. § 2284(a); Order at 1, Rodriguez, No. 02-618 (RMB), 2002 WL 818086 (Apr. 8, 2002) (granting “plaintiffs’ request for the appointment of a three-judge district court pursuant to 28 U.S.C. § 2284(a), which provides that ‘[a] district court of three judges shall be convened ... when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body’ ”); see also Page v. Bartels, 248 F.3d 175, 190 (3d Cir.2001) (“[B]ecause statutory Voting Rights Act challenges to statewide legislative apportionment are generally inextricably intertwined with constitutional challenges to such apportionment, those claims should be considered a single ‘action’ within the meaning of § 2284(a).”). Meanwhile, on February 14, 2002, LAT-FOR publicly released preliminary proposals for new Senate and Assembly districts — but not for congressional districts. (StipJ 10.) The Senate Plan, which was developed and supported by the Republican Senate majority and which was ultimately enacted, proposed to increase the size of the Senate from 61 to 62 seats. It also added three new majority-minority districts within New York City: a majority-Hispanic district principally in Manhattan (with part in the Bronx), a majority-black district in Brooklyn, and a majority-Hispanic district in Queens. The Senate Plan’s ideal population for each district is 306,072 persons; its maximum deviation— that is, the difference between the most populated and the least populated districts — is 9.78%; and the average deviation from the ideal district size is 2.22%. (StipJH 44-45, 47.) Senate Democrats devised two alternative plans, one of which was a 61-seat plan prepared by the Senate Minority and submitted to LATFOR in late 2001 and early 2002 (“the Senate Minority 61-seat plan”) (see Aff. of Mark Burgeson, dated Nov. 12, 2003, ¶ 3 (“Burgeson Aff.”)), and the other was a 62-seat plan first made public by (then) LATFOR Co-Chairman and Democratic Sen. Richard Dollinger immediately prior to the enactment of the Senate Plan on April 8, 2002 (“Dollinger 62-seat plan”). The Dollinger 62-seat plan proposed adding a fifth majority-minority district in the Bronx (44.8% Hispanic VAP; 18.9% black VAP; 27.4% white VAP) (Stip. ¶ 73; Def. Ex. (“DX”) 67) and eliminating the majority-white district included in the Senate Plan. At the public hearings in the Bronx both before and after the LATFOR Task Force released its redistricting plan for public comment in February 2002, no speaker had ever suggested the creation of an additional Hispanic district in the Bronx or a majority-Hispanic/black “coalition” district in Bronx/Westchester; and prior to April 8, 2002, no one had ever publicly suggested a fourth Hispanic district. (Stip-¶¶ 72,151.) The 2002 Assembly Plan (“Assembly Plan”) was developed by the Democratic Assembly. It maintains the number of Assembly districts at 150. The Assembly Plan’s maximum deviation is 9.43% and its average deviation is 2.67%. (Id. ¶¶ 46, 48.) In the Assembly Plan, the seven majority-Hispanic districts in the Bronx have an average Hispanic VAP of approximately 59%. (Id. ¶ 158.) In March 2002, Thomas Doty et al. filed a petition in the New York State Supreme Court, Tioga County, challenging the proposed Assembly districts. Justice Herman Cahn of that court ordered that the Doty action be consolidated with the. Allen action, and the issues involved in Doty’s application appear to have been resolved prior to the removal of Allen to federal court. At a public meeting held on April 8, 2002, LATFOR adopted final proposals for Senate and Assembly districts. (Id. ¶ 16.) At the same meeting, Sen. Dollinger stated that he was not, in fact, submitting his 62-seat plan as a proposal for the LATFOR Task Force to consider and adopt: “I do not intend to move its adoption. If I can convince you that you should adopt this plan’s underlying principles, you will still undoubtedly wish to make many changes. The plan I put before you is a legal benchmark.” (DX 133 (Tr. of LATFOR Public Meeting, dated Apr. 8, 2002, at 17).) Two days later, on April 10, 2002, the Legislature enacted Assembly Bill No. 11014, which incorporated LATFOR’s proposed new Senate and Assembly districts. All three Hispanic senators representing Bronx districts (Sens. Olga Mendez (SD 28), Pedro Espada (SD 32), and Efrain Gonzalez (SD 31)) voted in favor of the Senate Plan (see DX 135), along with Sen. Guy Yelella (SD 34), who is white. Sen. Ruth Hassell-Thompson, the only black senator from the Bronx, did not vote in favor of the Senate Plan but testified before the vote that she “supported the lines that were drawn that would configure her district.” (StipY 107.) On April 22, 2002, the Legislature passed Senate Bill No. 7300, which included certain chapter amendments to the redistricting legislation. Governor Pataki signed Assembly Bill No. 11014 into law (Chapter 35 of the Laws of 2002) on April 22, 2002, and he signed Senate Bill No. 7300 into law on April 24, 2002 (Chapter 38 of the Laws of 2002). (Id. ¶¶ 17-19.) On April 25, 2002, the plaintiffs amended their complaint to challenge the newly enacted Senate Plan and also to seek judicial intervention with respect to the looming congressional redistricting impasse. (Id. ¶ 20.) See Rodriguez, Am. Compl. ¶¶ 215, 277-78 (Apr. 25, 2002). On the same day, the Allen plaintiffs moved in state court for a preliminary injunction prohibiting the use of the Senate Plan for the 2002 elections and seeking to impose a court-ordered plan in its place. (StipY21.) On May 9, 2002, following a hearing, Justice Cahn denied the plaintiffs’ application in Allen, finding that neither injunctive relief nor an expedited trial was warranted. See Allen, Order at 2, 5 (May 9, 2002). By order dated April 26, 2002, this Court appointed former United States District Judge Frederick B. Lacey as Special Master, pursuant to Fed.R.Civ.P. 53, to assist in developing a redistricting plan dividing New York into 29 congressional districts. Rodriguez, 207 F.Supp.2d 123, 125 (2002) (“[T]he ‘eleventh hour’ is upon us, if indeed it has not already passed. It is therefore necessary ... to prepare for the possibility that this Court will be required to adopt an appropriate [congressional] redistricting plan.”). Following a series of comprehensive public hearings, and after conferring with leading redistricting experts, on May 13, 2002, Special Master Lacey filed his Report and Plan for congressional redistricting with this Court (“Lacey Plan”). On May 20, 2002, Referee Kenneth Bialkin filed a similar congressional redistricting plan in the state court action. See Rodriguez v. Pataki, Nos. 02-618 (RMB), 2002 WL 1058054, at *3 (S.D.N.Y. May 24, 2002) (three-judge court). On May 24, 2002, this Court adopted the Lacey Plan and ordered its use for the 2002 congressional elections, stating “Special Master Lacey’s Plan meets all applicable legal requirements and ... its immediate adoption is required to ensure a timely and orderly New York State Congressional election process.” Id. at *4. The Court specifically noted that it was “willing, even eager, to accommodate timely state action and ... open to the possibility of withdrawing the Plan we are adopting if the State were to enact an appropriate and lawful plan of its own that allows for a full, fair, and orderly election process.” Id. at *8. Shortly thereafter, on June 5, 2002, the Legislature did adopt a congressional redistricting plan of its own and passed Senate Bill No. 7356, which Governor Pataki signed into law the same day (Chapter 86 of the Laws of 2002). Precleamnce Because several New York counties, namely, New York, Bronx, and Kings (Brooklyn) Counties, are “covered” jurisdictions under section 4(b) of the Voting Rights Act, 42 U.S.C. § 1973b(b), the legislature’s 2002 Senate, Assembly, and Congressional Plans were each submitted to the United States Department of Justice for “preclearance.” (See, e.g., PX 27 at 1 (“The 2002 Senate districts in [the covered] boroughs, as well as those in non-covered jurisdictions, were designed to avoid any retrogression in minority voting strength. By increasing the number of electable districts without compromising minority electoral opportunities in the preexisting districts, the 2002 plan clearly enhances minority voting strength.”).) On June 17, 2002, the Department of Justice precleared the Senate and Assembly Plans, including specifically the increase in Senate districts from 61 to 62. (See, e.g., DX 138.) The Department of Justice pre-cleared the Congressional Plan on June 25, 2002. (Stip.f 35.) After the Congressional Plan was precleared, this Court withdrew the Lacey Plan. See Rodriguez, 2002 WL 1334733, at *1 (June 25, 2002) (three-judge court). In November 2002, the first New York elections were held under the new state legislative and congressional redistricting plans. The Democrats had a net gain of six seats in the Assembly, giving them a 103/47 majority. The Republicans had a net gain of one seat in the Senate (in addition to the post-election change to the Republican party of Sen. Mendez), increasing their majority to 38/24. The congressional redistricting, which had paired two incumbent Democrats (Reps. Louise Slaughter and John LaFalce) and two incumbent Republicans (Reps. Benjamin Gil-man and Sue Kelly), resulted in the loss of one Democratic congressional seat and one Republican congressional seat after Reps. LaFalce and Gilman each decided to retire rather than run against another incumbent. The Joint and Consolidated Amended Complaint On January 24, 2003, the plaintiffs and plaintiffs-intervenors filed a Joint and Consolidated Amended Complaint (“the Complaint”) that stated the following causes of action: • Count I — the Senate Plan violates the “one person, one vote” requirement of the Fourteenth Amendment (Compl. ¶ 278 (“The Legislature did not make an honest or good-faith effort to construct Senate districts as nearly of equal population as is practicable.”)); • Count II — the Senate Plan violates section 2 of the Voting Rights Act (id. ¶ 299 (“By failing to draw additional districts in which minority voters would have the opportunity to elect the candidate of their choice, the State Senate Plan dilutes the votes of African-American and Latino voters.”)); • Count III — Bronx-based Senate districts violate section 2 of the Voting Rights Act (id. ¶ 305 (“Three discrete discriminatory practices resulted in the Legislature’s failure to draw a majority-minority district in northern Bronx and southern Westchester counties.”)); • Count IV — SD 31 in Manhattan/Bronx violates section 2 of the Voting Rights Act (id. ¶ 314 (“The 31st district in the State Senate Plan has the result and effect of denying or abridging the right of Latinos to vote .... ”)); • Count V — Nassau County Senate districts violate section 2 of the Voting Rights Act (id. ¶ 316 (“By fragmenting into multiple districts politically cohesive, compact African-American and Latino communities in Nassau County, who are sufficiently numerous to form a majority-minority district, the State Senate Plan has the result of diluting the voting power of [these] voters .... ”)); • Count VI — Suffolk County Senate districts violate section 2 of the Voting Rights Act (id. ¶ 323 (“By fragmenting into multiple districts the politically cohesive, compact African-American and Latino communities in Suffolk County, who are sufficiently numerous to form a district in which minority voters would have the opportunity to elect the candidate of their choice, the State Senate Plan has the result of diluting the voting power of [these] communities .... ”)); • Count VII — SD 34 in the Bronx/West-chester is a racial gerrymander in violation of the Fourteenth Amendment (id. ¶ 336 (“The predominant purpose of the lines of Senate District 34 was to include non-Hispanic white persons on the basis of race and segregate those non-Hispanic white persons from minority communities in adjoining majority-minority districts.”)); and • Count VIII — CD 17 in the Bronx, Westchester, and Rockland counties violates section 2 of the Voting Rights Act (id. ' ¶ 347 (“As drawn and implemented, the newly enacted Congressional District 17 has the result and effect of diluting the voting strength of Black voters ... in Bronx County and throughout the City of New York.”)). The defendants filed their Answer to the Complaint on July 18, 2003, denying each of the plaintiffs’ claims. On March 7, 2003, the defendants moved to dismiss Counts I, II, VI, VIII, and IX of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). On June 24, 2003, following extensive briefing and oral argument, the Court denied the motion. Rodriguez v. Pataki, 274 F.Supp.2d 363, 364 (S.D.N.Y.2003) (three-judge court) (“Taking the allegations in the ... Complaint as true as the Court must upon a motion to dismiss, it is appropriate to allow discovery to proceed rather than to resolve these counts at this time. The Court is not here ruling upon the ultimate merits of the parties’ respective claims.” (citations omitted)). Extensive discovery ensued and was completed on or about September 26, 2003. Summary Judgment Motion On October 3, 2003, the defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56 with respect to all pending claims, and the plaintiffs thereafter cross-moved for summary judgment on Count I. In addition to the extensive briefing, the Court heard lengthy oral argument on November 4, 2003. On November 6, 2003, the Court granted summary judgment in favor of the defendants with respect' to Counts I, II, IV, VI, and VIII of the Complaint, and advised the parties that a full opinion incorporating .the counts decided on summary judgment would issue following the trial of Counts III, V, and VII. Rodriguez, Nos. 02-618 & 02-3239, 2003 WL 22853022, at *1 (S.D.N.Y. Nov.6, 2003) (three-judge court). Trial The trial was held before this Court between November 20 and November 25, 2003. It was preceded by the submission of extensive written filings by all parties which included, among other things, some 273 proposed exhibits; 252 stipulated facts (with subparts); legal memoranda; and proposed findings of fact and conclusions of law. Because no jury was involved, and in order to expedite the trial, the parties also submitted 243 pages of direct testimony by affidavit or declaration in advance of trial. The plaintiffs’ witnesses included: Professor Michael P. McDonald, an expert on voting behavior; Professor Andrew A. Beveridge, an expert on demographics and statistically-based social science data; Professor Ronald Hayduk, an expert, on voter participation; Dr. Lisa Handley, an expert on redistricting and voting rights; Professor John Powell, an expert on the socioeconomic status of minorities; State Senator and Minority Leader David A. Paterson; Councilwoman Dorothy L. Goosby, Town of Hempstead (Nassau County); Roger Corbin, Nassau County Legislator; former New York State Assemblywoman Barbara Patton; and Donald Shaffer, a civil rights attorney. The defendants’ witnesses included: Professor Harold W. Stanley, an expert on voting behavior and elections; Professor Stephan Thernstrom, an expert on social, political, historical, and economic issues; and Mark Burgeson, an expert on redistricting and the assistant to the (Republican) Co-Chairman of LATFOR. Following trial, on December 8, 2003, the parties submitted 454 pages of additional proposed findings of fact and conclusions of law; on December 11, 2003, they filed responses to each other’s post-trial submissions. The parties also submitted letters describing recent redistricting decisions in other jurisdictions. Our decision is based upon a close review of the extensive record. Legal Standards for Summary Judgment and Trial With respect to Counts I, II, IV, VI, and VIII, we have applied the standards for granting summary judgment based on the papers submitted to the Court and the record developed with respect to the motions for summary judgment. Summary judgment may not be granted unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). But summary judgment is appropriate “when the nonmovant fails to demonstrate that there is sufficient summary judgment evidence to allow a reasonable fact finder to find in its favor on all essential issues as to which it would bear the burden of proof at trial.” Chen v. City of Houston, 206 F.3d 502, 505 (5th Cir.2000) (discussing summary judgment standards in context of racial gerrymandering claim); see also Marylanders for Fair Representation, Inc. v. Schaefer, 849 F.Supp. 1022, 1030 (D.Md.1994) (three-judge court) (explaining that to survive summary judgment dismissal plaintiff must show “there is sufficient evidence from which a reasonable factfinder could find in its favor”). The substantive law governing the case will identify those facts that are material and “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In the context of voting rights cases, a court’s summary judgment analysis should account for “the sensitive nature of redistricting and the presumption of good faith” owed to state legislatures. See Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); see also id. at 916-17, 115 S.Ct. 2475 (cautioning courts, in context of racial gerrymandering claim, to “recognize these principles, and the intrusive potential of judicial intervention into the legislative realm, when assessing under the Federal Rules of Civil Procedure the adequacy of a plaintiffs showing at the various stages of litigation” (citing Fed.R.Civ.P. 56; Celotex, 477 U.S. at 327, 106 S.Ct. 2548)); Chen, 206 F.3d at 505. With respect to the claims in this case, Count I is a “one person, one vote” challenge under the Equal Protection Clause. For such claims, where the population deviation in the legislature’s plan is sufficiently minor and the plan is prima facie constitutional — as, for the reasons explained herein, it is in this case — the plaintiffs must produce evidence that raises a genuine issue of fact as to whether the plan was adopted based on “unconstitutional or irrational” reasons. Marylanders, 849 F.Supp. at 1032; see also Baines v. Masiello, 288 F.Supp.2d 376, 386-87 (W.D.N.Y.2003). Counts II, IV, VI, and VIII are vote-dilution claims under section 2 of the Voting Rights Act. On a motion for summary judgment, such claims are viewed in light of the three threshold requirements articulated in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). See Marylanders, 849 F.Supp. at 1045 (explaining that three “Gingles preconditions” act as threshold for summary judgment). With respect to Counts III, V, and VII, which were tried, we have carefully reviewed the extensive record and assessed the demeanor and credibility of the witnesses at trial. Our decision with respect to those counts includes our Findings of Fact and Conclusions of Law as required by Fed.R.Civ.P. 52(a). The plaintiffs bear the burden of proving their claims by a preponderance of the evidence. See, e.g., Easley v. Cromartie, 532 U.S. 234, 258, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (providing standard for burden of proof in racial gerrymandering claim); Miller, 515 U.S. at 916, 115 S.Ct. 2475; see also Voinovich v. Quilter, 507 U.S. 146, 155-56, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (finding district court in error,, in section 2 vote-dilution claim, for placing burden of justifying apportionment on State); id. at 157, 113 S.Ct. 1149 (stating that, under Gingles, “plaintiffs claiming vote dilution ... must prove three threshold conditions,” and “plaintiffs can prevail on a dilution claim only if they show that, under the totality of the circumstances, the State’s apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class”). III. ONE-PERSON, ONE-YOTE CLAIM (COUNT I) A. Legal Standards The “one person, one vote” principle is grounded in the Equal Protection Clause of the Fourteenth Amendment. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). It prohibits the dilution of individual voting power by means of state districting plans that allocate legislative seats to districts of unequal populations and thereby diminish the relative voting strength of each voter in overpopulated districts. In Reynolds, the Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” The Court required states to “make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable.” Id. at 577, 84 S.Ct. 1362. While the Supreme Court has held that absolute population equality is required for congressional districts, Karcher v. Daggett, 462 U.S. 725, 732-33, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983), districting plans for state legislative seats require only “substantial” population equality. See Gaffney v. Cummings, 412 U.S. 735, 748, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). The Court has recognized that minor deviations from absolute population equality may be necessary to permit states to pursue other legitimate and rational state policies. See Reynolds, 377 U.S. at 577-81, 84 S.Ct. 1362; see also Mahan v. Howell, 410 U.S. 315, 321-22, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). Particular state policies that justify minor deviations from ábsolute population equality generally include “making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives.” Karcher, 462 U.S. at 740, 103 S.Ct. 2653. Because the promotion of these important state policies will often necessitate “minor deviations” from absolute population equality, the Court has held that such minor deviations, alone, are insufficient to establish a prima facie ease of invidious discrimination. Voinovich v. Quilter, 507 U.S. 146, 160-62, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993). In Brown v. Thomson, 462 U.S. 835, 842, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983), the Court held that redistricting plans with a maximum population deviation below ten percent fall within the category of minor deviations that are insufficient to establish a prima facie violation of the Equal Protection Clause. “Thus, a redistricting plan with a maximum deviation below ten percent is. prima facie constitutional and there is no burden on the State to justify that- deviation.” Marylanders for Fair Representation, Inc. v. Schaefer, 849 F.Supp. 1022, 1031 (D.Md.1994) (three-judge court); see Holloway v. Hechler, 817 F.Supp. 617, 623 (S.D.W.Va.1992) (three-judge court), aff'd mem., 507 U.S. 956, 113 S.Ct. 1378, 122 L.Ed.2d 754 (1993); Fund for Accurate & Informed Representation, Inc. v. Weprin, 796 F.Supp. 662, 668 (N.D.N.Y.) (three-judge court), aff'd mem., 506 U.S. 1017, 113 S.Ct. 650, 121 L.Ed.2d 577 (1992); Gorin v. Karpan, 788 F.Supp. 1199, 1201 (D.Wyo.1992) (three-judge court); Cosner v. Dalton, 522 F.Supp. 350, 357 n. 11 (E.D.Va.1981) (three-judge court). Compliance with Brown’s “ten percent rule” does not end the inquiry. There is still a question of how the “ten percent rule” dovetails with Reynolds and its progeny, which require a “good faith effort” by the state to achieve “as nearly of equal population as is practicable.” Reynolds, 377 U.S. at 577, 84 S.Ct. 1362. For example, a three-judge court in Hastert v. State Board of Elections, 777 F.Supp. 634, 645 (N.D.Ill.1991), suggested that “minute population deviations remain legally significant.” The court in Corbett v. Sullivan, 202 F.Supp.2d 972, 987 n. 7 (E.D.Mo.2002) (citing Karcher, 462 U.S. at 738-40, 103 S.Ct. 2653), held that “[e]ven deviations smaller than the census margin of error must be the result of a good faith effort to achieve population equality.” The defendants’ summary judgment brief argued, in substance, that the “ten percent rule” effectively creates a “safe harbor” that forecloses all challenges to redistricting plans in which the maximum deviation is below that percentage. Supporters of this per se rule point to the fact that nearly no state districting plan with a maximum deviation below ten percent has ever been struck down by a court as violating population equality. Moreover, the language of some recent decisions seem to support the per se rule. The Weprin court, for example, indicated that plaintiffs who fail to demonstrate a maximum population deviation in excess of ten percent cannot survive a motion to dismiss. See Weprin, 796 F.Supp. at 668 (“[AJbsent credible evidence that the maximum deviation exceeds 10 percent, plaintiffs fail to establish a prima facie case of discrimination under [the one-person, one-vote] principle sufficient to warrant further analysis by this [c]ourt.”). But see Cecere v. County of Nassau, 274 F.Supp.2d 308, 311-12 (E.D.N.Y.2003) (finding claims where deviation is less than ten percent justiciable if some other discriminatory purpose is shown over and above obvious political motivations); Licht v. Quattrocchi, 449 A.2d 887 (R.I.1982) (striking plan with five-percent deviation). The plaintiffs concede that if the maximum population deviation between districts in a redistricting plan is under ten percent, the state has no burden to justify that deviation. The plaintiffs argue, however, that they may successfully challenge a plan with a maximum deviation below ten percent if they can prove that the “minor deviation” does not result from the promotion of other legitimate state policies, but rather from an impermissible or irrational purpose. We think that Brown, Mahan, Gaffney, and Abate v. Mundt, 403 U.S. 182, 187, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), lend support to the proposition that the “ten percent rule” is not meant to protect a state that is systematically disadvantaging groups of voters with no permissible rational justification for the disproportion. We conclude, with Marylanders, 849 F.Supp. at 1032, that a plan within the “ten percent rule” is not per se immune from judicial review. No decision explicitly adopts the per se rule. Weprin — the case that comes closest to stating the rule — did not involve a plaintiff claiming unconstitutional or irrational state policies. See Weprin, 796 F.Supp. at 668. Thus, “if the plaintiff can present compelling evidence that the drafters of the plan ignored all the legitimate reasons for population disparities and created the deviations solely to benefit certain regions at the expense of others,” a one-person, one-vote action will lie even with deviations below ten percent. See Legislative Redistricting Cases, 331 Md. 574, 629 A.2d 646, 657 (1993); see also Licht, 449 A.2d at 887 (finding deviation of five percent to violate one-person, one-vote requirement because deviation “negate[d] the effects of reapportionment”). Moreover, in light of recent technological changes, there is a reason not to allow the state systematically to dilute the votes of certain classes of citizens simply because the state is able to keep its discrimination within a ten-percent deviation. The powerful computer programs of today allow states to manipulate districting lines to alter voting patterns within a district with a high degree of precision. Under these circumstances, we see no reason to give a state operating within the ten-percent margin immunity from all review as to whether it is acting irrationally or under-' taking invidious discrimination. The benefit of flexibility to pursue legitimate state policies that states receive under the “ten percent rule” since Brown carries with it a responsibility not to use the rule to frustrate the very purpose of the decennial census and systematically discriminate against a group of voters. Appropriate review can be achieved under the burden-shifting regime upheld in Marylanders where a plaintiff [can], with appropriate proof, successfully challenge a redistricting plan with a maximum deviation below ten percent. To prevail, though, the plaintiffs have the burden of showing that the deviation in the plan results solely from the promotion of an uncon-, stitutional or irrational state policy. Thus, the plaintiffs ... must demonstrate ... that the asserted unconstitutional or irrational state policy is the actual reason for the deviation. See Karcher, 462 U.S. at 740-44, 103 S.Ct. 2653. In addition, the plaintiff must prove that the minor population deviation' is not caused by the promotion of legitimate state policies. Marylanders, 849 F.Supp. at 1032 (emphasis added). If the burden on the plaintiffs in minor-deviation cases were anything less than this substantial showing, then the plaintiffs would be able to challenge any minimally .deviant redistricting scheme based upon scant evidence of ill will by district planners, thereby creating costly trials and frustrating the purpose of Brown’s “ten percent rule.” B. Analysis The maximum deviation between Senate districts in the Senate Plan is 9.78%, while the average deviation of the Senate districts from the ideal district population is 2.22%. Because the plaintiffs have failed to establish a prima facie ease of unconstitutional discrimination under Brown, the defendants have no burden to justify the plan’s minor deviation. Marylanders, 849 F.Supp. at 1033 (citing Voinovich, 507 U.S. at 160, 113 S.Ct. 1149; Brown, 462 U.S. at 842-43, 103 S.Ct. 2690). We denied the defendants’ initial motion to dismiss this count of the Complaint, see Rodriguez v. Pataki, 274 F.Supp.2d 363 (S.D.N.Y.2003), to give the plaintiffs an opportunity to meet their burden to show that the minimal deviation results solely from an unconstitutional or irrational state purpose rather than from other state policies recognized by the Supreme Court to be appropriate reasons for deviations. Such policies, announced in Karcher, include “making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent [rjepresenta-tives.” Karcher, 462 U.S. at 740, 103 S.Ct. 2653. Following discovery, the defendants moved for summary judgment, arguing that the plaintiffs have failed to raise disputed issues of fact that, if resolved in their favor, could support a finding that they carried their burden. The plaintiffs cross-moved for summary judgment on this count, arguing that they have met their burden with uncontradicted evidence. The plaintiffs assert that the Senate redistricting scheme impermissibly and arbitrarily discriminates against “downstate” residents (defined by the plaintiffs as Senate Districts 10-38 — notably excluding the Long Island-based districts, Senate Districts 1-9) by systematically overpopulating all of those districts and systematically underpopulating all of the “upstate” districts (defined by the plaintiffs as Senate Districts 39-62). These discriminatory actions, the plaintiffs allege, result in a single Senate district being retained by voters located in the “upstate” area when it should have been eliminated and an additional “downstate” district created. The plaintiffs maintain that this qualifies as invidious discrimination because Reynolds itself disallowed discrimination against rural as opposed to urban residents of the state and thus made “regional discrimination” actionable. The plaintiffs also argue, as they must to meet their burden, that the defendants’ systematic overpopulation and underpopulation lacked any rational or constitutionally permissible purpose. By implication, the plaintiffs suggest that racial bias may have animated the plan because all fourteen majority-minority Senate districts were overpopulated and are “downstate,” where most of the state’s minority population lives. Finally, the plaintiffs urge that the defendants made no “honest and good faith effort,” as required under Reynolds, to achieve real population equality, but rather adhered to the “ten percent rule” (just barely) because they believed it to be a “safe harbor.” It is effectively undisputed that in their redistricting plan the defendants were plainly mindful of the “ten percent rule,” as demonstrated by various memoranda of the chief architect of the plan, Mark Burgeson. No invidious purpose can be inferred from such conduct alone; indeed, Brown invites adherence to the “ten percent rule.” Consistent with Marylanders and Farnum v. Burns, 561 F.Supp. 83, 93 (D.R.I.1983) (three-judge court), we find that an express objective of staying within a ten-percent deviation while pursuing other legitimate goals provides no support to the plaintiffs’ claim of invidious or arbitrary discrimination or of bad faith. See Marylanders, 849 F.Supp. at 1034 (reasoning that objective of staying within ten-percent window rather than achieving absolute population equality “merely recognize[s] the flexibility that the State had in order to accommodate other legitimate state policies” and “demonstrates nothing more than the objective of crafting a plan with constitutional population equality”). To be sure, Vigo County Republican Central Committee v. Vigo County Commissioners, 834 F.Supp. 1080 (S.D.Ind.1993), held that merely trying to stay below ten-percent deviation could not be considered good faith. But Vigo arose under idiosyncratic facts, where the plan’s total deviation when the litigation started was 37%; only to avoid losing in court did the planners consciously try to eliminate pre-existing bad faith by drawing a plan within the ten-percent parameter. See id. at 1085-86. The Vigo court essentially found that the defendants there did too little too late — a finding inapposite here. In sum, in the case before us, the defendants’ conscious use of the “ten percent rule” cannot, without more, support an inference that no legitimate state policies accounted for a minor deviation in a districting plan or that adherence to the “ten percent rule” was a mere pretext for impermissible considerations.- The plaintiffs have not produced evidence of irrational or unconstitutionally discriminatory behavior by the Legislature, notwithstanding their reliance and emphasis upon Burgeson’s memorandum of July 20, 2001, which the plaintiffs claim reveals the defendants’ intention to discriminate against the “downstate” region. (Netburn Decl., Ex. 39 (Memorandum from Mark Burgeson to Sen. Skelos, dated July 20, 2001).) In that memorandum, Burgeson expresses a preference against increasing the Senate to 63 seats; he suggests that the only place to add a district to a 62-seat plan would be on Long Island to “combine politically undesirable areas.” (Id. at 1.) He further emphasizes that an extra seat cannot be added “upstate” because those districts are already drawn “light, to avoid migration downstate.” (Id.) The plaintiffs argue vigorously that the memorandum’s references to “politically undesirable” areas prove invidious discrimination. Putting aside the plaintiffs’ questionable assumption that Burgeson’s motives are a proxy for those of the Legislature, a fair reading of the memorandum reveals many permissible redistricting considerations. The memorandum shows that LATFOR was interested in contiguity, compactness, preserving the cores of existing districts, desiring not to pit incumbents against one another, respecting then-current political subdivisions and county lines, and staying within the ten-percent-deviation parameter of Brown. (See generally id.); cf. Marylanders, 849 F.Supp. at 1034. Indeed, this contemporaneous memorandum assists the defendants at least as much as it assists the plaintiffs because it plainly invokes the permissible policies that Karcher contemplates. Moreover, to the extent that it refers to areas that would be represented by Democrats as “politically undesirable,” we cannot understand what invidious discrimination this phrase supposedly signals: there is no political or racial gerrymandering claim embedded in this count, nor is it surprising that a memorandum to the Republican State Senate in control of redistricting would describe a potential Democratic district as comprised of “undesirable” voters. Finally, it was plainly Democrats on Long Island in Senate Districts 1-9 who were potentially disadvantaged by this decision, not people in the “downstate” region, defined by the plaintiffs as Districts 10-38. Accordingly, the memorandum does not help the plaintiffs meet their burden; it evinces permissible motives and fails to show that the deviations resulted solely from impermissible considerations. On the record before us, still other reasons support summary judgment in favor of the defendants apart from the fact that the plaintiffs failed to show that the deviation was not caused by the promotion of court-approved state policies. First and foremost, the plaintiffs only beg the question in repeatedly asserting that the pattern of overpopulation and underpopulation “reflects an illegitimate effort to overrepresent an entire region of the State in order to maintain its ascendancy in the Senate, at the expense of another large region which the 2000 Census data showed had grown much more substantially over the past decade.” (Pis. Mem. at 9.) How can we conclude, given the “ten percent rule” we reaffirm today, that the minimal underpopulation of “upstate” districts was driven by regional discrimination rather than other permissible considerations? Just as in the racial context where courts must deal with the overlap of racial identity and partisan identification and still conclude that the districting is racially — and not simply politically— drawn to find an equal protection violation, see, e.g., Easley v. Cromartie, 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001), so in the one-person, one-vote context must the plaintiffs who challenge a plan with less than a ten-percent deviation present some evidence that the dis-tricting can be traced to impermissible considerations. In New York State, the traditional correlation between “upstate” districts and Republican political identification (21 out of 24 incumbent Senators upstate are Republican) means that the plaintiffs here needed to proffer more than a mere assertion of a Senate conspiracy for “upstate” ascendancy to meet their burden of showing a violation of the one-person, one-vote principle. Second, to the extent that the plaintiffs seek to use the regional aspect of their claim as a proxy for a claim to that a group of voters were systematically disadvantaged, their proposed definitions of “upstate” and “downstate” are self-serving and defective. Cf. Reynolds, 377 U.S. at 562, 84 S.Ct. 1362 (stating that principle of population equality in districting is aimed to protect citizens and not geographic areas: “Legislators are elected by voters, not farms or cities or economic interests.”). The plaintiffs identified the “downstate” region as Districts 10-38, including New York City, Rockland. County, most of Westchester County, and two towns in Orange County. (Comply 106.) They defined upstate as Districts 39-62, including the northern portion of Westchester, most of Orange County, and all of the counties north and west of Westchester and Orange Counties. (Id.) We are unable to discern why certain border counties that reach north of New York City — and why only portions of two of those counties — are classified as “downstate” on any basis other than that they are overpopulated. Moreover, the Long Island districts (1-9), while decidedly “downstate” geographically, are conveniently excluded from plaintiffs’ “downstate” calculus because they are not overpopulated; they are populated at close to the ideal level. The deposition of the plaintiffs’ witness, Todd Breitbart, confirmed that at least he is “not aware of any generally accepted practice for defining upstate and downstate.” (Stip-¶ 51.) In sum, the plaintiffs have offered no persuasive basis for embracing their selective definition of state regions, which appears to be tailored to suit their litigation strategy- Finally, the affidavits on summary judgment establish that if every district were apportioned with perfect equality, the difference in “downstate” representation from what was accorded under the enacted plan would be insignificant. New York City would have been entitled to 26.2 seats as compared with the 26 seats accorded to New York City under the enact-, ed plan (with a s.eat defined as representing a district controlled or predominantly controlled by city-based voters). See Marylanders, 849 F.Supp. at 1035 n. 12 (discussing concept of “regional discrimination” and dismissing argument where county “controlled] precisely the number of State Senators that its population indicates it should control”). We- consider one final point. The defendants, in response to the plaintiffs’ allegation of systematic “downstate” overpopulation, urge us to reassess this allegation in light of population variants: citizen voting age population (“CVAP”) and voting age population (“WAP”), instead of total population (which includes ineligible voters). Using these alternative counting methods, both parties stipulate that the New York City districts within the “downstate” districts would then be substantially underpopulated rather than overpopulated. According to the plaintiffs’ CVAP figures, the New York City districts in the Senate Plan are underpopulated by 12.0% and “upstate” districts are overpopulated by 15.4%. With respect .to registered voters, the Weight óf one New York City resident’s vote, depending on the district of comparison, is worth 29.9% to 63.6% more than an “upstate” citizens vote. (See Stip. ¶¶ 16-17, 22.) Although total population figures are the generally accepted basis for redistricting calculations, the practical effect- of the Senate Plan on those who actually vote shines a very different light on the plaintiffs’ argument that the Senate Plan discriminates against New York City and its voters: the underpopulated “upstate” districts have more eligible citizens and actual voters. The practical effect of the Senate Plan; then, is to dilute the votes of “upstate” residents, not those who reside “downstate.” ■ It does not appear that the New York legislature employed CVAP data in creating its 2002 Senate Plan, and thus the issue is not whether the court should defer to the state’s decision to use a measure other than total population. See, e.g., Burns v. Richardson, 384 U.S. 73, 94-96, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (upholding Hawaii’s use of registered voter statistics in apportionment because “[t]otal population figures may ... constitute a substantially distorted reflection of the distribution of state citizenry” and because use of registered voter statistics “substantially approximated [the apportionment that] would have appeared had state citizen population been the guide”). This is also not a situation where a state’s apportionment plan is within the ten-percent window under one measure but is challenged for being beyond it under a different measure. See Daly v. Hunt, 93 F.3d 1212, 1222 (4th Cir.1996) (involving issue of “the determinative statistic for measuring compliance with the one person, one vote principle” where plan complied with total-population proportionality, but it allegedly “produced an unacceptably high deviation in terms of voting-age population”). In raising the issue of the CVAP distribution in New York State, we are not attempting to promote any particular theory of proportional representation. We simply find that under the circumstances of this case, including the fact that the plan is prima facie constitutional, we do not need to ignore the reality that the overpopulation of New York City districts has not, in fact, diluted the voting strength of “downstate” voters. Even accepting the plaintiffs’ argument that the Senate Plan was designed to draw upstate districts “light, to avoid migration [of a Senate seat] downstate” (see Netburn Decl. Ex. 39, at 1 (Burgeson Memo, dated July 20, 2001)), we find no constitutional harm. The overall population deviation is within the ten-percent margin of Brown, and the plan is prima facie constitutional. The plan promotes the traditional principles of maintaining the core of districts and limiting incumbent pairing. In this case, the overall effect of the deviation is only one seat (actually, two-thirds of a seat) in a 62-seat Senate. Accordingly, we granted the defendants’ motion for summary judgment on Count I, the population equality count of the Complaint, and we denied the plaintiffs’ cross-motion for summary judgment on the same count. No genuine issues of material fact warranted a trial on this count, and the plaintiffs failed to meet their burden. IV. VOTING RIGHTS ACT CLAIMS The Complaint asserts six separate claims of vote dilution pursuant to section 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973, including five State Senate district challenges and one congressional district challenge. The State Senate claims, in the order discussed herein, relate to Suffolk County (Count VI); Nassau County (Count V); the Bronx and a small portion of .West-chester County (Count III); the Senate Plan in its entirety (Count II); and Manhattan and a small portion of the Bronx (Count IV). The congressional claim relates to CD 17, which is located in Bronx, Westchester, and Rockland Counties (Count VIII). A. Section 2 Legal Standard Section 2(a) of the Voting Rights Act (“VRA”) provides that “[n]o voting qualification or prerequisite to voting or standar