Full opinion text
OPINION AND ORDER STEPHEN C. ROBINSON, District Judge. On January 17, 2008, the Court found that Plaintiffs had demonstrated that the Village of Port Chester’s at-large voting system for electing its Board of Trustees violated Section 2 of the Voting Rights Act of 1965. After careful consideration of the parties’ proposed remedial plans, the Court issued a summary order on November 6, 2009 concluding that Defendant, the Village, had proposed a legally acceptable remedy and ordered the implementation of at-large elections with cumulative voting. In furtherance of the implementation, the parties were ordered to submit to the Court a Consent Decree detailing the requisite education and outreach program. The Court also lifted the injunction on the Trustee elections, providing that the 2010 elections shall be held in June 2010 on a date agreed to by the parties to give sufficient time for the proper implementation of the new system. This opinion combines the Court’s findings in both the liability and remedial phase of the litigation and is the final order in this matter. I. Procedural Background The United States of America (the “Government”) filed a Complaint on December 15, 2006 against the Village of Port Chester (“Port Chester” or the “Village” or the “Defendant”), alleging a violation of Section 2 of the Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973. The Government claimed that the at-large system used to elect the six members of the Port Chester Board of Trustees denied the Hispanic population of the Village an equal opportunity to participate in the political process and to elect representatives of their choice. The Government sought a preliminary injunction pursuant to 42 U.S.C. § 1973j(d) to prevent the Village from holding its next election for the Board of Trustees, which was then scheduled for March 20, 2007. The Court issued a preliminary injunction on March 2, 2007, finding: (i) that there would be irreparable harm if the 2007 Trustee election were allowed to proceed under a structural framework that violated the Voting Rights Act; (ii) that the balance of the potential harms weighed in favor of granting an injunction; and (iii) that the Government had demonstrated that it was likely to succeed on the merits of its claim at trial. Accordingly, the Village was enjoined from holding its March 20, 2007 Trustee election pending a trial on the merits in this matter. On March 1, 2007, Cesar Ruiz (“Ruiz”; Ruiz and the Government are collectively referred to herein as the “Plaintiffs”) filed an Order to Show Cause why he should not be permitted to intervene in this action pursuant to Fed.R.Civ.P. 24. Following an oral argument, this Court granted Ruiz’s motion to intervene as a party plaintiff on April 6, 2007. After settlement negotiations proved unsuccessful, the parties reconvened for a six-day bench trial that concluded on June 5, 2007. In lieu of oral closing arguments, the parties were granted until July 9, 2007 to submit post-trial briefs in support of their respective positions. Further, an organization called FairVote—which describes itself as having a mission “to advocate for fair representation through voting systems changes”—was given permission to submit an amicus curiae brief. The Court concluded that Plaintiffs have established that Port Chester’s system for electing its Board of Trustees violates Section 2 of the Voting Rights Act, and directed the parties to submit proposed remedial plans. The Court held hearings on the remedial plans on July 17, 28, 29, 2008 and September 22 and 23, 2008. Port Chester proposed a voting scheme called cumulative voting that would give Hispanics greater opportunities to participate meaningfully in elections while maintaining the at-large system. Plaintiffs presented the districting plan developed in the liability phase as its proposed remedial plan. The Court issued a Summary Order on November 6, 2009 announcing its decision to choose Port Chester’s proposed plan, ordered the parties to develop an education and outreach program to ensure a thorough and non-discriminatory implementation of the new system, and lifted the injunction on the Trustee elections provided that the 2010 elections were delayed until June to give enough time to educate the community about cumulative voting. II. Port Chester’s Voting Rights Act Violation A. Legal Framework 1. Section 2 of the Voting Rights Act Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, reads: (a) No voting qualification or pre-requisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. (b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered; provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. There is no dispute here that Port Chester’s at-large system for electing its Board of Trustees is an electoral practice or procedure that is subject to challenge under this statute. 2. Gingles preconditions and Senate Factors The Supreme Court construed this statute in its amended version for the first time in an action challenging a multi-member at-large districting scheme. See Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). In Gingles, 478 U.S. at 34, 106 S.Ct. 2752, the Supreme Court set out three “preconditions” that must be met for a challenge under Section 2 of the Voting Rights Act to be successful: (1) the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group must be politically cohesive and vote as a bloc; and (3) the White majority must vote sufficiently as a bloc to enable it, in the absence of special circumstances, to defeat the minority’s preferred candidate. No specific showing of discriminatory intent is required to prove a Section 2 violation. See id. at 70-73, 106 S.Ct. 2752 (Brennan, J. plurality op.); Coleman v. Bd. of Educ. of the City of Mt. Vernon, 990 F.Supp. 221, 227 (S.D.N.Y.1997) (internal citation omitted); cf. Goosby v. Bd. of the Town of Hempstead, 180 F.3d 476, 498-504 (2d Cir.1999) (Leval, J. concurring) (hereinafter “Goosby III ”). An analysis of the three Gingles factors and whether each has been proven by a preponderance of the evidence is the first step in a two-part analysis of a vote dilution claim on behalf of minority voters. The Supreme Court has found, however, that the satisfactory establishment of the three Gingles preconditions alone is not sufficient for a Section 2 vote dilution claim to succeed. See Johnson v. DeGrandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). Accordingly, this Court must “consider whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process.” Goosby v. Bd. of the Town of Hempstead, 956 F.Supp. 326, 329 (E.D.N.Y.1997) (hereinafter “Goosby /”) (citing NAACP v. City of Niagara Falls, 65 F.3d 1002, 1007 (2d Cir.1995)). Various Circuit courts have recognized that “it will only be the very unusual case in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of Section 2 under the totality of the circumstances.” Niagara Falls, 65 F.3d at 1019, n. 21; see also Thompson v. Glades County Bd. of County Comm’rs, 493 F.3d 1253, 1261 (11th Cir.2007); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116 n. 6 (3d Cir.1993). Judicial assessment of the totality of the circumstances requires a “searching practical evaluation of the past and present reality.” Gingles, 478 U.S. at 45, 106 S.Ct. 2752. The key to this inquiry is an examination of the seven principal factors set forth in the Senate Judiciary Committee Report accompanying the 1982 amendments to Section 2 of the Voting Rights Act, the so called “Senate factors.” See S.Rep. No. 97-417, 97th Cong. 2nd Sess. 28 (1982), U.S.Code Cong. & Admin.News 1982, p. 177 (the “Senate Report”). The additional factors listed in the Senate Report are: 1. the extent of any history of official discrimination in the state or political subdivision that touched the right of members of the minority group to register, vote, or otherwise to participate in the democratic process; 2. the extent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder the ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial appeals; [and] 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. In addition, the Senate Report adds two other considerations that may have probative value in vote dilution cases, specifically: (1) whether there is a significant lack of responsiveness on the part of the elected officials to the particularized needs of the members of the minority group; and (2) whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. The list of factors is “neither comprehensive nor exclusive.” Gingles, 478 U.S. at 45, 106 S.Ct. 2752. Plaintiffs need not prove a majority of these factors, nor even any particular number of them in order to sustain their claims. Instead, “these factors are simply guideposts in a broad-based inquiry in which district judges are expected to roll up their sleeves and examine all aspects of the past and present political environment in which the challenged electoral practice is used.” Goosby I, 956 F.Supp. at 331. B. Findings of fact 1. Overview of the Village of Port Chester Port Chester is an incorporated village located within the Town of Rye, and is situated in southeastern Westchester County, New York, adjacent to the Connecticut border. According to the 2000 United States Census, Port Chester’s population was 27,867, an increase of 12.7 percent from the 1990 Census. From 1990 to 2000, the Hispanic population of the Village grew by 73 percent from 7,446 to 12,884; the Hispanic community now constitutes a plurality of Port Chester’s residents. As of the 2000 Census, Port Chester’s total population was 46.2 percent Hispanic, 42.8 percent non-Hispanic White, and 6.6 percent non-Hispanic black. Of Port Chester’s voting age population (“VAP”) of 21,585 in 2000, however, 45.7 percent were non-Hispanic White, 43.4 percent were Hispanic and 6.1 percent were non-Hispanic black. Meanwhile, as of 2000, the Village had a total citizen voting age population (“CVAP”) of 13,990, of whom 65.5 percent (9,160) were non-Hispanic White, 21.9 percent (3,070) were Hispanic and 8.9 percent (1,245) were non-Hispanic black. Plaintiffs’ expert Dr. Andrew Beveridge (“Dr. Beveridge”) estimated that as of July 2006, Port Chester’s CVAP totaled 14,259, of which Hispanics constituted 27.5 percent (3,928). Port Chester is governed by a Mayor and a six-member Board of Trustees, and all of these Village officials are elected pursuant to an at-large voting scheme. The Trustees serve staggered three-year terms, with two Trustee positions open for election each calendar year; the Mayor, who presides over the Board of Trustees, serves a two-year term, and thus must stand for election every other year. Each resident of the Village who is registered to vote may cast up to two votes for Trustee candidates. A voter cannot select the same candidate twice, but a voter may opt to cast just one of his or her two votes and withhold the other, a practice known as “single shot” or “bullet” voting. Village elections for Mayor and Trustees are held “off cycle”—that is, they are not conducted in November alongside other county, state, and national elections, but instead are held in the spring, usually on the third Tuesday in March. The Village is divided into 16 election districts for the purposes of voting administration. These districts determine at which polling place Port Chester’s voters east their ballots for both Village elections in March and “on-cycle” county, state, and national elections in November. In addition, it has been the practice of the Republican and Democratic parties in Port Chester to choose “district leaders” for each election precinct. To be clear, however, these precincts in no way correspond to any type of elected representation—voters in each of the Village’s election precincts choose from the same slate of candidates in local elections. The Town of Rye, which in addition to the Village of Port Chester also encompasses the incorporated village of Rye Brook as well as the Rye Neck section of Mamaroneck, consecutively numbered all of the election precincts within the Town; those that lie within Port Chester are precincts 5 through 19 and precinct 25. 2. First Gingles precondition: the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district a. Criteria for drawing proposed districts To demonstrate the existence of the first Gingles precondition in an at-large system, the Plaintiffs must be able to draw illustrative single-member districts following traditional districting principles to show that the Hispanic population is sufficiently large and compact so as to constitute a majority in a single-member district. Dr. Beveridge, an expert in the fields of demographics and redistricting, offered two alternative plans—Proposed Plan A (“Plan A”) and Proposed Plan A as Modified (“Modified Plan A”)—each of which divided the Village into six hypothetical single-member districts that would allow Port Chester to elect the six members of its Board of Trustees using a district-based, rather than an at-large, system. See Gov. Exs. 32 (Plan A) and 33 (Modified Plan A). To draw the proposed districts in each of the plans, Dr. Beveridge first sought to ensure equality in the total population of each district, and next endeavored to make each district “reasonably compact.” See Hearing Tr. at 599. Dr. Beveridge testified that he opted to draw the districts on the basis of total population because in his view “total population is the accepted standard method”; he did not know of any districting process in the United States that has used a method other than total population for drawing district lines. See Hearing Tr. at 600. Population equality and compactness are “two of the most relevant [re]districting principles” in smaller geographic areas—such as Port Chester—where districting experts need not be concerned about splitting towns and villages when drawing potential district boundaries. Id. Only after these principal criteria were met did Dr. Beveridge seek, to the extent possible, to keep together a portion of the Hispanic community of Port Chester within a single proposed district in a way that did not “pack” or “crack” the Hispanic population. Both of the proposed plans show very limited deviation in the total population among the six proposed districts based on data from the 2000 Census. Given a total Village population of 27,867, an equal division of the population for each district would yield approximately 4,645 individuals in each district. In Plan A, the district with the smallest population is District 5, which contains 4,528 people—117 less than the ideal—for a deviation of 2.51 percent. See Gov. Ex. 25 at Ex. F. The largest district by population in Plan A is District 3, which contains 4,793 people—149 more than the ideal—for a total deviation of 3.20 percent. Id. Thus the total population deviation in Plan A measured by the spread between the greatest downward deviation and greatest upward deviation within the districting plan is 5.71 percent, a figure that is comfortably within the bounds of acceptable 10 percent population deviation for state or local legislature districting purposes. See, e.g., Brown v. Thomson, 462 U.S. 835, 842-43, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Under Modified Plan A, the greatest downward deviation is again in District 5, though the difference in this model is only 1.50 percent; similarly, District 3 exhibited the greatest upward deviation in Modified Plan A, but with only a 1.84 percent departure from the ideal figure. See Gov. Ex. 26 at T. 2. Modified Plan A therefore has a total deviation of 3.34 percent, again well within acceptable population deviation parameters. Defendant’s expert Dr. Peter Morrison (“Dr. Morrison”), an expert in the fields of demography and drawing and evaluating single-member districts, agreed that the total population balance of both Plan A and Modified Plan A falls within acceptable limits. See Def. Ex. LL at 34. As to Dr. Beveridge’s second criterion, both Plan A and Modified Plan A are reasonably compact. The only challenge that can be construed as relating to the compactness of the proposed districts is the Village’s contention that the proposed districts for Trustee representation should have taken into account existing election precincts in the Village. Based on the current election precinct boundaries and the proposed district boundaries in Plan A and Modified Plan A, the district plans would create a system where the population of certain election precincts would be divided among one or more Trustee districts. For example, certain residents of election precinct 14 would be eligible to vote in Trustee District 1, while others would be eligible to vote in District 3, District 4, or District 5. In fact, 10 of the 16 current election precincts would experience these types of cleavages. See Def. Ex. X. Such a scenario raises administrative and logistical concerns for the Village, as Port Chester would have to ensure that voters are presented with the proper electoral choices when they arrive at their polling places. Assuming that the precinct boundaries remained the same and that the proposed districts were implemented, the Village might, for example, be forced to use different practices and procedures for March elections (which, under the current electoral framework, would implicate the Trustee district boundaries) and November elections (which would not). Dr. Morrison admitted, however, that this issue is a “purely economic consideration”— his concern is that “it would be an expense imposed on the taxpayers of the Village to have to have a different set of geographies used for elections”—though he also acknowledged that he did not analyze any potential expenses or savings that might result. Trial Tr. at 478, 556. Dr. Beveridge did not place great emphasis on election precinct boundaries given that they are simply an administrative mechanism for localities, and given that such precinct lines, in his experience, are commonly redrawn during districting or re-districting processes. See Hearing Tr. at 613. There was no evidence presented at any point in this proceeding to explain why Port Chester’s election precincts were drawn the way they were, or why it would be important to preserve those particular boundaries. On balance, the decision not to give any particular weight to election precinct lines here was sensible; these purely administrative designations do not signify anything of overwhelming import in Port Chester, and do not represent the types of political boundaries that are particularly deserving of deference when crafting proposed district borders. In no way would it have been advisable to place greater emphasis on the maintenance of existing precincts than on the other criteria employed by Dr. Beveridge in crafting Plan A and Modified Plan A. Finally, though he admits that he used race as part of his districting process, Hearing Tr. at 634, Dr. Beveridge did not, as Defendant suggests, use race as his only criterion, or even as his predominant criterion, in drawing either of the proposed plans. The proposed districts did not result in any impermissible packing or cracking of the Hispanic population of the Village. Indeed, the distribution of Hispanics across the proposed district lines under both Plan A and Modified Plan A results in four districts where Hispanics account for a greater percentage of the total population, VAP, and CVAP in those districts as compared with the Hispanic share of population, VAP, and CVAP in Port Chester as a whole. By way of illustration, the Hispanic community constituted 46.23 percent of the population of the Village based on 2000 data, as well as 43.34 percent of the VAP and 21.87 percent of the CVAP. Under Plan A, the Hispanic population shares of the following four proposed districts exceed these thresholds on all three metrics: District 5 (48.43 percent Hispanic population; 44.31 percent Hispanic VAP 26.00 percent Hispanic CVAP); District 6 (54.37 percent Hispanic population; 51.80 percent Hispanic VAP; 28.13 percent Hispanic CVAP); District 3 (54.45 percent Hispanic population; 51.67 percent Hispanic VAP; 29.95 percent Hispanic CVAP); and District 4 (75.40 percent Hispanic population; 73.83 percent Hispanic VAP; 50.51 percent Hispanic CVAP). Under Modified Plan A, the Hispanic populations of District 6, District 3, and District 4 constitute a greater percentage of the total population, VAP, and CVAP in those districts as compared with the Hispanic population of Port Chester as a whole, while the Hispanic population of District 5 accounts for a greater percentage of CVAP, but slightly smaller percentages of total population and VAP as compared to the Village generally. In addition to the favorable comparisons between intra-district ethnic compositions and the Village population as a whole, the inter-district distribution of the Village’s Hispanic population in both Plan A and Modified Plan A is well-balanced. For example, in Modified Plan A, District 3, District 4, District 5, and District 6 contain 82.05 percent of the total Hispanic CVAP of the Village, with each of those Districts accounting for no less than 19.33 percent and no more than 22.79 percent of the Village-wide share based on 2000 Census data. Similarly, those four districts include 83.94 percent of the Hispanic VAP of Port Chester and 83.47 percent of the total Hispanic population of the Village; while District 4 contains the greatest share of Village-wide Hispanic VAP (28.54 percent) and total Hispanic population (28.10 percent), the remaining three Hispanie-heavy proposed districts contain between 16 and 21 percent of the Village-wide share of Hispanic VAP and total population. Through cross-examination of Dr. Beveridge, Defendant attempted to demonstrate that the non-Hispanic White population of the Village was impermissibly packed under the proposed districting regime. Neither Dr. Beveridge’s methodology nor the resulting data support this contention, and the Court therefore rejects the notion that either Plan A or Modified Plan A packed the non-Hispanic White population of the Village. The mere fact that there are greater concentrations of non-Hispanic Wfliites in certain areas and greater concentrations of Hispanics in other areas does not indicate any sort of nefarious effort; instead, this merely is a reflection of the reality of residential segregation in Port Chester. Under Modified Plan A, 72.60 percent of the non-Hispanic White population of the Village is concentrated in District 1, District 2, and District 5, but the greatest proportion in any one district is the 30.18 percent of non-Hispanic Whites living in District 1. Similarly, those three districts also contain 72.18 percent of the non-Hispanic White VAP and 74.67 percent of the non-Hispanic White CVAP of the Village, but none of the districts contains more than a 30 percent share of the non-Hispanic White VAP or CVAP of the Village. These figures simply do not support a finding that the proposed districting plans create impermissible concentrations of the non-Hispanic White population in Port Chester. In sum, it is clear that the proposed districts in Plan A and Modified Plan A were drawn in accordance with traditional districting principles of population balancing and compactness, and there is no evidence in the record to indicate that race— of Hispanics or non-Hispanics—was the predominant factor in crafting the proposed district boundaries. b. Use of 2000 Census data and 2006 estimates As noted above, Dr. Beveridge relied on data from the 2000 Census in drawing the proposed districts in Plan A and Modified Plan A, and data from the 2000 Census formed the basis of the majority of his expert conclusions. The 2000 figures represent the most recent set of comprehensive Census information for Port Chester—no new complete Census information will be available until sometime in 2011. Various exhibits—such as Gov. Ex. 34— show the 2000 Census data broken down by the block level, indicating the number of individuals counted for all of the blocks of the Village that appear on that particular map. Defendant attempted to call into question the accuracy and reliability of the Census figures, but the Village’s efforts did not produce any clear, concrete, and comprehensive demonstration that the 2000 Census data for Port Chester is in any way significantly unreliable. As part of his analysis, Dr. Beveridge estimated the demographic changes that he believes have occurred in Port Chester since 2000 based on an extrapolation from the 2000 Census figures and the rate of change in voter registration in the Village. This Court takes Dr. Beveridge’s 2006 estimates for what they are: estimates provided by a demographics expert that, while not endowed with the same presumption of reliability as the decennial census, may nevertheless be used by this Court to understand relevant population trends in the Village. Nevertheless, there is no need to rely directly on the 2006 estimates in making any determinative findings of fact or conclusions of law with respect to the ultimate issues in this case. Accordingly, to the extent that the Court has reviewed and considered the 2006 data, it has only been for background informational purposes. As set forth throughout this Decision and Order, the data on which the Court relies for its assessment of the Gingles preconditions and the Senate factors is the data from the 2000 Census, c. Measuring the effective majority in a single-member district Within both Plan A and Modified Plan A, the proposed district that is meant to satisfy the first Gingles precondition for the Hispanic community is District 4. The best method to judge whether a particular minority group constitutes an effective majority in a single-member district is to examine the VAP and CVAP data for that district. The Hispanic community comprises 73.83 percent of the VAP in proposed District 4 under the Plan A boundaries, and constitutes 50.51 percent of CVAP according to 2000 Census data. In Modified Plan A, the Hispanic VAP in District 4 is 77.27 percent of the population there, and the Hispanic CVAP makes up 56.27 percent of the district. Even Dr. Morrison conceded that even taking into account possible data errors, Hispanics would constitute a majority of CVAP in District 4 in Modified Plan A. See Hearing Tr. at 1390,1429,1430,1456. Port Chester challenged the use of VAP and CVAP for measuring whether Hispanics constituted ' an effective majority in proposed District 4 under any of Plaintiffs’ plans by attacking the reliability of the VAP and CVAP figures and by offering alternative approaches to the effective majority question. However, Port Chester failed to convince the Court that there are documented discrepancies in VAP and CVAP or that the other methods it proposed, such as using “corrected” Census numbers, voter registration, or voter turnout, were more reliable measures. In particular, the Court finds that voter registration and voter turnout methods have serious shortcomings that render them inappropriate for this analysis. Voter registration overstates the. number of eligible voters in a given location because they are only scrutinized and updated from time to time. See Hearing Tr. at 1461-62. Records kept by the United States Election Assistance Commission (“EAC”) illustrate this problem; according to EAC voter registration data for New York State from the 2004 general election, a highly implausible 99.3 percent of the CVAP in Westchester County was registered to vote at the time of that election. See Gov. Ex. 92. In smaller counties, the 2004 data revealed complete mathematical impossibilities—according to those figures, 100.3 percent of the CVAP in Orleans County, New York was registered to vote, and 104.0 percent of the CVAP in Sullivan County, New York was on the registration rolls. Id. This Court also rejects the notion, offered in Dr. Morrison’s expert report, that a proper measure of an effective majority must include a consideration of voter turnout. Using Spanish Surname Analysis of voter sign-in sheets in Port Chester, Dr. Morrison calculated only between 9.4 and 11.8 percent of all people who cast votes in Village elections between 2001 and 2006 were Hispanic; the greatest percentage of Hispanic voters in any one year— 11.8 percent of turnout—came in the March 2006 elections. See Def. Ex. LL at 23 (Table 5). Based on the borders of proposed District 4 in Plan A, Dr. Morrison found that in those same elections, only between 2 1.0 and 28.2 percent of actual voters in the illustrative District were Hispanic, with the greatest percentage of Hispanic voters again occurring in March 2006. According to Dr. Morrison, these figures reveal that even if Hispanics constitute a majority of VAP and CVAP in District 4, they will not amount to an effective majority in that District because they do not turn out in sufficient numbers to elect candidates of their choice without assistance from other demographic groups. What this turnout analysis fails to consider is that there may very well be a correlation between the subject matter of this lawsuit'—the various circumstances and conditions that contribute to the inability of the Hispanic community to elect candidates of its choice—and the lower turnout by Hispanic citizens in Port Chester. Defendant’s expert Dr. Ronald Keith Gaddie (“Dr. Gaddie”), an expert in the fields of elections and voter participation, acknowledged that a district-based system with a majority-minority district would likely increase the number of Hispanic candidates who would run for office (and the number who would win), and that such candidates would likely stimulate increased voter participation—both in terms of registration and turnout—among the Hispanic population. Hearing Tr. at 1289 (qualifications); 1344-48. It is interesting to note that in the 2007 Mayoral election—held in the wake of this lawsuit, and less than two weeks after the issuance of the preliminary injunction halting the Trustee elections—Hispanic turnout both Village-wide and within the confines of proposed District 4 was the highest it had ever been for a Village election from the years 1995-2007 (15.3 percent Village-wide, and 44.5 percent within proposed District 4). See Def. Ex. LL at Table 5. Though these figures are subject to multiple interpretations, when they are combined with the testimony and other evidence presented in this case, it seems highly likely to this Court that a dramatic change in the electoral structure to give Hispanics a better opportunity to participate would likely result, for myriad reasons, in a marked change in voter turnout. Accordingly, it would be counterintuitive to determine that depressed turnout among Hispanics—a condition that may very well be a direct byproduct of the existing electoral regime—should be a reason to preclude the creation of a new electoral structure in Port Chester. On balance, the most reliable measure of whether Hispanics constitute an effective majority in proposed District 4 in Plan A and Modified Plan A is the CVAP data for Port Chester. As discussed above, Hispanics constitute a slight CVAP majority in District 4 under Plan A, and an even more substantial majority under Modified Plan A; Plaintiffs, therefore, have made a sufficient showing to satisfy this component of the first Gingles factor. 3. Second Gingles precondition: the minority group must be politically cohesive and vote as a bloc Plaintiffs’ expert, Dr. Lisa Handley (“Dr. Handley”), is an expert in the fields of racially polarized voting, analyzing voting behavior, statistical analysis of voting, and the effect of electoral practices of minority participation and representation. Hearing Tr. at 461. Dr. Handley used three methods of statistical analysis—bi-variate ecological regression analysis, ecological inference, and homogeneous precinct analysis—to review election data and to determine how voters east their ballots in those contests. Hearing Tr. at 480, 500. In her initial report in this case, Dr. Handley used voter registration data to estimate voter behavior—this was the only data that was available to her at the time she prepared the initial expert report. See Gov. Ex. 12. In her subsequent reports, however, Dr. Handley used sign-in data, which reflects actual voter turnout, and therefore provides a more reliable basis for estimating voter preferences. See Gov. Ex. 13. Defendant’s expert, Dr. Ronald Weber (“Dr. Weber”), is an expert in the fields of political science, state and local politics, quantitative analysis of voting behavior, and demography. Hearing Tr. at 894. In analyzing election data, Dr. Weber also used bivariate ecological regression analysis and ecological inference methodologies, and used voter sign-in data as the basis for his conclusions. Def. Ex. B; Hearing Tr. at 507. Both experts analyzed “endogenous” and “exogenous” elections as part of their work for this matter. Endogenous elections are those involving the specific office at issue in the lawsuit (i.e. Port Chester Trustee elections). Hearing Tr. at 470. This Court also treats Mayoral elections in Port Chester as endogenous elections in this case—the Mayoral elections are conducted in precisely the same manner as the Trustee elections with precisely the same set of voters, and in the structure of the Village government, the Mayor presides over meetings of the Board of Trustees and votes along with the Trustees on legislative initiatives. Exogenous elections are contests for positions other than Trustee or Mayor in the Village—for example, county-wide races for judgeships or the office of the district attorney, and statewide races for attorney general. Hearing Tr. at 471. To determine whether minority voters vote cohesively, Dr. Handley considers the degree to which those voters support the same candidates, and will look to the gap between the percentage of votes for the minority-preferred candidate and the non-preferred candidate rather than using a particular bright-line threshold for determining cohesion. For the years 2001-2007, Dr. Handley in her three reports analyzed 16 endogenous elections—12 of these were the Trustee contests in each of these six years (two positions were up for election each year), and the remaining four were the Mayoral races in 2001, 2003, 2005, and 2007. Dr. Handley testified that “in all of the 16 contests that [she] looked at, Hispanics were cohesive.” Trial Tr. at 13. According to Dr. Handley, this was especially true in 2001, when the Trustee election included Ruiz, a Hispanic candidate. Both Dr. Handley and Dr. Weber concluded that virtually 100 percent of Hispanics who voted in that election cast one of their votes for Ruiz, the Hispanic candidate. See Hearing Tr. at 483-84; Def. Ex. B at 29, 37. The data presented in Dr. Handley’s reports indicate that Hispanics also voted cohesively in endogenous elections where there was no Hispanic candidate. See Gov. Ex. 13. Dr. Weber testified that the Hispanic community is not cohesive, in his view, because with the exception of the 2001 Trustee election, the turnout of the Hispanic group is lower than the minimum threshold required to constitute cohesion. Hearing Tr. at 982. Dr. Weber defines the “minimum threshold” for cohesion as 10 percent of the CVAP. Hearing Tr. at 926. The Court rejected this bright-line rule that Dr. Weber conceded was an arbitrary figure that no court has explicitly used and no other expert in the field has adopted. Hearing Tr. at 981. Dr. Weber also conceded that if the Court rejected his 10 percent rule, then the Hispanic voters in Port Chester were cohesive in 13 of 15 Trustee and Mayoral elections and strongly cohesive in 10 of the 15 elections between 2001 and 2006. Hearing Tr. at 977-79. 4. Third Gingles precondition: the White majority must vote sufficiently as a bloc to enable it, in the absence of special circumstances, to defeat the minority’s preferred candidate a. Most probative election contests The parties’ experts offered substantially different views of which elections this Court should consider most important in analyzing the third Gingles precondition, though both sides agreed that the 2001 Trustee race in which Ruiz was a candidate was the most significant of the elections they studied. See Hearing Tr. at 469, 473-74; 984. The 2001 Trustee contest was the only endogenous election that involved a Hispanic candidate who was the candidate of choice of the Hispanic community; indeed, it was the only endogenous election from the 2001-2006 time period that involved a Hispanic candidate at all. Dr. Handley posited that after the 2001 Trustee race, the next most significant elections were three exogenous elections that included Hispanic candidates who were the candidates of choice of the Village’s Hispanic community. These included: (i) the 2001 and 2005 races for Westchester County District Attorney, in which Anthony Castro (“Castro”), a candidate of Portuguese ancestry, was defeated both times; and (ii) the 2000 race for Westchester County Family Court Judge, a contest in which Nilda Morales Horowitz (“Judge Morales Horowitz”), became the first person of Hispanic ancestry ever to win election to a countywide office in Westchester. Finally, Dr. Handley added that endogenous races that did not involve Hispanic candidates—so-called “White versus White” endogenous contests—were also of some probative value. Hearing Tr. at 476-77. In addition to the 2001 Trustee election, Dr. Weber believed that the most important contests for consideration were the 2000 Westchester County Family Court Judge election, the 2005 District Attorney election, and the 2002 race for New York State Attorney General. Hearing Tr. at 901-03. This final example—-the only one not listed by Dr. Handley—included a Hispanic candidate, though that candidate was clearly not the candidate of choice of the Hispanic community in Port Chester. Dr. Handley would have included among her most important elections the exogenous contests for the Port Chester-Rye Brook Board of Education (the “School Board”). Several of these races involved minority candidates, and the electorate for School Board seats includes all of Port Chester and only a small contingent of Rye Brook voters who live outside of the Village. Hearing Tr. at 474-75. Because these elections take place in a single voting precinct, however, it is not possible to perform the same types of statistical analysis for the School Board elections as were performed for all other endogenous and exogenous elections studied in this case. Hearing Tr. at 475. Given these limitations, Dr. Handley could not consider the School Board elections as part of her analysis. Nevertheless, the Government did attempt to use the School Board elections as evidence of non-Hispanic bloc voting by presenting information regarding the outcomes of various School Board elections. Testimony from various witnesses revealed difficulties with the exogenous elections described by these experts; specifically, in the three elections that involved Castro and Judge Morales Horowitz, there was considerable disagreement about whether voters perceived these candidates to be Hispanic. See, e.g., Hearing Tr. 182-84 (Vega testimony regarding Judge Morales Horowitz campaign); 778-79, 785 (Judge Morales Horowitz testimony regarding her campaign); Gov. Ex. 35. It is clear that these examples only retain the level of relevance attributed to them by Dr. Handley and Dr. Weber if these candidates were thought to be Hispanic. Otherwise, the elections would be no more important than other “White versus White” exogenous races. After careful consideration, this Court concentrated its examination on the endogenous elections—for Mayor and for various Trustee positions—-that were held exclusively within the Village of Port Chester. It is clear that the 2001 Trustee race took on special significance because of Ruiz’s candidacy, but the “White versus White” Trustee and Mayoral races also provided important insights into the behavior of Port Chester voters. While certain exogenous elections involving Hispanic candidates ordinarily would be of significant value—providing insight into how Hispanic voters in Port Chester behaved when presented with the option of a Hispanic candidate—the exogenous elections studied by the respective experts here do not allow for this type of understanding. There is insufficient evidence in the record for this Court to conclude confidently that Westchester voters viewed Castro and Judge Morales Horowitz as Hispanic candidates. Moreover, the inclusion of a Hispanic candidate in the 2002 Attorney General race does not make that contest probative for this Court, precisely because the Hispanic-preferred candidate was not the Hispanic candidate. In sum, the evidence from all of the endogenous contests studied here was both more convincing and less fraught with factual disputes about, for example, whether candidates were or were not perceived to be Hispanic and how that may or may not have factored into the electoral outcomes. Further, it is clear to this Court that in general, countywide and statewide elections interject a host of different influences and variables into the electoral analysis, not the least of which is that those elections are held “on cycle” in November. In addition, this Court opted not to consider the Government’s evidence about the School Board elections in support of the third Gingles precondition; because those elections could not be analyzed statistically, and because fact witnesses offered conflicting, and unverifiable, opinions about which candidates had the support of which communities in those elections, the Court does not find that evidence to be probative on this question. For all of these reasons, the Court concentrated its analysis on the endogenous elections in the Village, b. Methodologies Dr. Weber again proposed an arbitrarily assigned percentage for measuring non-Hispanic bloc voting: according to him, 60 percent or more of non-Hispanics have to coalesce or vote for a particular candidate to constitute bloc voting. Hearing Tr. at 926-28. Not only could he point to no court in the United States that has accepted his cohesion requirement for non-minority bloc voting, but he also admits that he knows of no other expert in the field who has adopted or agreed with his non-minority cohesion requirement. Hearing Tr. at 1005. The Court declines to be the first court to endorse a cut-off without any scientific or statistical basis other than it is “simply a number at which [Dr. Weber] feel[s] comfortable.” Hearing Tr. at 1001. Dr. Handley put forth a different analysis of the requirements of Gingles in this regard. She described a functional test that examines whether “the Whites [are] voting for the other candidates to such a degree that the Hispanic preferred candidate is losing.” Hearing Tr. 467. It is not necessarily important that the non-Hispanic voters coalesce behind a particular candidate or that a particular percentage of non-Hispanic voters vote for any one candidate—what matters most is that those voters do not cast votes for the Hispanic candidate of choice, and those votes usually result in the defeat of the minority-preferred candidates. Even Dr. Weber agrees with this statement as long as there is reliable data to review. Hearing Tr. at 1004. This Court believes that a more flexible, functional test, like that proposed by Dr. Handley, is appropriate when considering whether there has been non-minority bloc voting. c. Electoral outcomes Dr. Handley testified that non-Hispanic voters voted as a bloc to defeat Hispanic candidates of choice in 12 of the 16 endogenous elections she reviewed—a total of 75 percent of the time. Trial Tr. at 13. In all 10 Trustee contests between 2001 and 2005, the Hispanic candidates of choice were different from the non-Hispanic candidates of choice; the candidates of choice of the non-Hispanic voters won 9 of those 10 elections. Gov. Ex. 13 at 1-2. The only year in which a Hispanic candidate of choice ran for a position as Trustee was 2001, the year in which Ruiz was a candidate; notably, Ruiz was the Hispanic community’s top candidate of choice in that election according to Dr. Handley’s data, but he still was defeated. That election also provided an illustration of Dr. Handley’s functional approach to this issue; non-Hispanic votes were not concentrated on any one candidate, but rather were well distributed among the three White candidates who finished ahead of Ruiz in the balloting. See Gov. Ex. 13 at 1. The same pattern held true for the Mayoral elections in Port Chester in 2001, 2003, and 2005. In each of these endogenous contests, the Hispanic candidate of choice differed from the non-Hispanic candidate of choice; in each, the Hispanic candidate of choice was defeated. In 2006, the only year in the past six in which Hispanic candidates of choice were elected in both Trustee races, it is no coincidence that those candidates were also the candidates of choice of non-Hispanic voters. Similarly, in the 2007 Mayoral election, the Hispanic candidate of choice emerged victorious because non-Hispanic voters did not vote cohesively, and instead split their votes between the two candidates. See Gov. Ex. 46. Of course, the 2007 Mayoral election must be viewed somewhat differently; the election took place just weeks after this Court enjoined the Trustee election that was supposed to take place simultaneously, and the voting rights issues raised by this lawsuit played a prominent role in the campaign itself. See Gov. Exs. 70, 71, 77. 5. Senate Report factors—totality of the circumstances a. History of official discrimination Professor Smith testified concerning the history of discrimination against Hispanics in New York State, Westchester County, and Port Chester. Some of that testimony was related to historical events that occurred 30 or 40 years ago—including evidence of New York State’s literacy test for voting (abolished in 1966), see Hearing Tr. at 373-74, and a New York City lawsuit from the early 1970s concerning Spanish language assistance at polling places. See Hearing Tr. at 374. Of greater probative value to this Court were some of the more recent examples from Westchester County—including the 1985 Yonkers housing and education discrimination case, see Hearing Tr. at 377, a 2006 State Senate race in Yonkers, see Gov. Ex. 22 at ¶ 22, and the 2005 Consent Decree between the United States and Westchester County pertaining to language assistance at polling sites in the County, see Hearing Tr. at 378-87. Based on these data points and others, Professor Smith offered the general conclusion that there has been discrimination against Latinos in Westchester County. See Hearing Tr. at 376. Professor Smith analyzed the Consent Decree entered in United, States v. Westchester County, 05 Civ. 0650(CM), as a guidepost for what type of language assistance would be required at polling sites in Port Chester. See Hearing Tr. at 386-87. Based on the county-wide standard established in the Consent Decree—requiring at least one bilingual poll worker at each polling site located in an election precinct containing between 100 and 249 Spanish surnamed voters—Professor Smith concluded that Port Chester failed to provide sufficient Spanish language assistance at polling sites in the Village for the Trustee elections held between 2001 and 2006. See Hearing Tr. at 387-90. The Port Chester Village Clerk’s Office is responsible for conducting Village elections; those responsibilities include posting public notices, creating the official ballots, and assigning four election inspectors (two Democrats, two Republicans) to each of the 16 election precincts in the Village. See Trial Tr. at 79. Joan Marino (“Mari-no”), Port Chester’s Deputy Village Clerk, testified that since she began working there in 1997, it has not been the specific practice of the Village Clerk’s office to appoint Spanish-speaking poll workers for election precincts that contain a large number of Spanish speaking voters. See Trial Tr. at 80. Joanne Villanova, who is not a Spanish speaker, testified that she served as an election inspector for Village elections approximately 15 times over a period of approximately 25 years, and only once worked alongside a Spanish-speaking inspector. See Trial Tr. at 924-27. From 2001-2004, the Town of Rye provided the Village with lists of qualified election inspectors for each major party; these lists, however, did not indicate which inspectors, if any, spoke Spanish, and the Village Clerk’s Office made no independent effort to determine which inspectors spoke Spanish. See Trial Tr. at 80-86; Gov. Exs. 49-52. In 2005 and 2006, the lists of qualified election inspectors provided to the Village did denote which poll workers were Spanish speakers'—a total of four eligible poll workers were indicated to be Spanish speakers in 2005, and six were listed as Spanish speakers in 2006. See Trial Tr. at 87, 91 and Gov. Ex. 53 (2005 election); Trial Tr. at 92-95 and Gov. Ex. 54 (2006 election). During the 2005 election, only two of the four eligible Spanish-speaking inspectors actually worked at polling places; and only three of the six eligible inspectors worked at polling places during the 2006 election. Trial Tr. at 92, 96. For the 2007 Mayoral election, the Village Clerk’s Office obtained a list of bilingual inspectors from the Westchester County Board of Elections for the first time, see Gov. Ex. 56, and assigned 14 Spanish-speaking poll workers to various election precincts, a total higher than in any of Marino’s previous years working for the Village. See Trial Tr. at 98-100. Plaintiffs offered testimony from one Spanish-speaking poll worker—Luz Marina Chavista—who described several situations from her experiences as a poll worker in Port Chester where she observed Hispanic voters being treated differently from White voters. See, e.g., Trial Tr. at 844, 852. In addition, Richard Falanka, the former Village Clerk and Village Manager of Port Chester, testified that there are no Spanish-speaking employees at the Village Hall who would be able to take a complaint from a Spanish-speaking voter at the beginning of the polling day (from 7:00 a.m. until 9:00 a.m.) or at the end of the polling day (from 4:30 p.m. until 9:00 p.m.), though English-speaking employees are available to receive complaints during those times. See Hearing Tr. at 1272-73. Plaintiffs offered other examples of official discrimination against Hispanics that occurred in Port Chester itself. During his Hearing testimony, Nelson Rodriguez described the events surrounding his 1991 campaign for a seat on the School Board. According to Rodriguez, more than 40 Hispanic voters were turned away from the polls during that election because of poll workers’ inability to locate their names on voter lists. See Hearing Tr. at 295-301; Gov. Ex. 9 (affidavits of voters from 1991 School Board election). Rodriguez lost that election by 37 votes, Gov. Ex. 10 at 1, and subsequently challenged the election results by filing an appeal with the New York State Education Department. See Appeal of Nelson Rodriguez, Dec. No. 12,-704 (May 26, 1992) (available at http:// www.counsel.nysed.gov/Decisions/volume 31/dl2704.htm). The School Commissioner sustained the appeal and ordered a new election, finding that Rodriguez “amply demonstrated that there were irregularities in the conduct of respondent board’s election,” and that the “board’s failure to locate approximately 39 names is unacceptable.” Id. In 1992, the School Board scheduled a special “re-vote” election; Rodriguez ran again, and was defeated by 374 votes. See Gov. Ex. 10 at 2. Finally, the Government offered in evidence audio-visual recordings of two public hearings held in Port Chester in 2006 regarding the Government’s proposed districting plans. Gov. Exs. 101 and 102. The hearings mostly consisted of statements by various citizens of the Village either in support of or in opposition to the districting proposals, and therefore could not be viewed as evidence of official discrimination in the Village. However, there was a noteworthy comment at the first public hearing by Aldo Vitagliano, an attorney who would later be appointed by the Village to serve as special counsel to the newly-formed Voting Rights Commission created to study and evaluate the Government’s districting proposals. He suggested that Port Chester’s representatives in Congress should introduce an amendment to exempt the Village from the requirements of the Voting Rights Act. b. Extent of racially polarized voting Dr. Handley testified that “voting is polarized ... if Hispanics would have elected a different candidate or set of candidates than Whites, [and] it rises to the level of legal significance if, under these circumstances, the Hispanic preferred candidate usually loses.” Hearing Tr. at 467. According to Dr. Handley’s analysis, 13 of the 16 endogenous elections were polarized. Trial Tr. at 13. In many cases, the degree of polarization was significant; in the single-vote elections for Mayor, Hispanic preferred candidates received between 69.6 percent and 96.2 percent of the Hispanic vote in these two-candidate elections, according to Dr. Handley’s bivariate ecological regression estimates. Gov. Ex. 13 at 2; Gov. Ex. 46 at 1. It therefore follows that the candidates of choice of non-Hispanic voters received little support from Hispanic voters in these elections. In the “vote for two” Trustee elections—where 50 percent support would be the maximum achievable threshold absent “single shot” voting—10 of 12 Hispanic-preferred candidates received more than 40 percent of Hispanic voter support according to Dr. Handley’s bivariate ecological regression estimates. Gov. Ex. 13 at 1-2. Again it follows that the non-Hispanic candidates of choice received little support from Hispanic voters, with percentages often in single digits according to these estimates. For the same reasons discussed above in connection with the third Gingles factor, this Court does not consider evidence presented about the School Board elections as part of this determination. c. Electoral practices that enhance opportunities for discrimination There is no dispute that Port Chester holds its Trustee elections in March, and it is also evident that the six Trustees are elected to staggered three-year terms. See Gov. Ex. 4. Experts on both sides agree that generally, voter turnout is lower in March elections than in November elections, and that this general principle is true of the off-cycle elections in Port Chester for both the Hispanic and the non-Hispanic populations of the Village. Dr. Handley’s data demonstrates that Hispanic turnout was markedly greater for November elections in 2004, 2005, and 2006 than it was for March elections those same years. See Gov. Ex. 13 at 6-7; see also Hearing Tr. at 1377 (Dr. Morrison noted that “the participation levels of Hispanics turning out to vote varies widely from a March Trustee election to a November general election”). Meanwhile, Dr. Gaddie agreed that holding local elections off cycle generally results in depressed voter participation, and observed that “every March election has lower turnout than the November elections.” Hearing Tr. at 1343-44. d. Access to the candidate slating process Candidates for political office in Port Chester are selected through a caucus system organized and administered by the political parties in the Village. At each caucus, a majority of caucus attendees must vote in favor of a particular candidate for that candidate to formally receive the party’s nomination for Trustee. Prior to the official party caucus, however, the major political parties invite prospective candidates to interview before the parties’ respective nominating committees, which then select their two preferred individuals and forward those names to the parties’ caucuses for ratification. Hearing Tr. at 823-25 (describing the Republican Party process); Trial Tr. at 337 (describing the Democratic Party process). In theory, a candidate who did not win approval from the nominating committee could “storm” the caucus by bringing enough supporters to challenge the nominating committee selections—the formal rule is that the individuals who receive the most support at the caucus become the nominees. For both parties, however, the nod from the nominating committee is the critical step to getting onto the March ballot—no witness could identify a single instance where the nominating committee’s selections were defeated by a “storming” of the caucus. See, e.g., Trial Tr. at 163-64 (Pilla was not aware of any challenges at a caucus); 337 (former Village Democratic Party chairman testified that “the people nominated were always approved by the caucus”); Hearing Tr. at 828 (Village Republican Party chairman not aware of any candidate selected by nominating committee who did not become the nominee); 1166 (Rye Town Republican Chairman could not recall a contested caucus). Indeed, no witness could even identify a single bona fide attempt to storm the caucus. In fact, Dr. Janusz Richards, the Chairman of Port Chester’s Republican Committee, initially testified that he believed that candidates were required to interview with the nominating committee in order to receive the Republican nomination. Hearing Tr. at 841-42. Though he ultimately clarified this testimony to make clear that there was no party rule or regulation that r