Flores v. Town of Islip (382 F. Supp. 3d 197, 2019)

United States District Court for the Eastern District of New York 2019-05-28

Internal Revenue Code Voting and Elections

Citations

Full opinion text

SPATT, District Judge.

This is an action brought under Section Two of the Voting Rights Act of 1965, 52 U.S.C. § 10301 et seq ("VRA"). The plaintiffs, Hispanic residents of the Town of Islip (the "Town" or "Islip") as well as two community advocacy organizations, contest the at-large voting procedure used in the Town to elect the four councilpersons of the Town Board of the Town of Islip (the "Town Board") (together with the Town, the "Islip Defendants"). The Plaintiffs complain that the at-large system dilutes the voting strength of the Hispanic minority, in violation of the VRA. They seek a preliminary injunction that enjoins the Islip Defendants and the Suffolk County Board of Elections ("BOE") from holding elections for the Town Board under the current system and establishes a transition to single-member districts for all future elections. The BOE has not taken a position in this litigation but objects to the issuance of a preliminary injunction. In response to this motion, the Court conducted an evidentiary hearing at which 16 witnesses testified over a period of 12 days. The hearing concluded with closing arguments on May 2, 2019 and the Court reserved its decision.

In deciding the instant motion, the Court notes that "enjoining an election is an 'extraordinary remedy' involving far-reaching power, which is almost never exercised by federal courts prior to a determination on the merits[.]" Cano v. Davis , 191 F.Supp.2d 1135, 1137 (C.D. Cal. 2001) (quoting Oden v. Brittain , 396 U.S. 1210, 1211, 90 S.Ct. 4, 24 L.Ed.2d 32 (1969) ).

I. LEGAL STANDARDS

A. Preliminary Injunction

In general, a preliminary injunction may be granted when the party seeking the injunction shows that (1) absent injunctive relief, she will suffer irreparable injury and (2) either (a) a likelihood of success on the merits, or (b) that there are sufficiently serious questions going to the merits of the claims to make them a fair ground for litigation, and a balance of hardships tips decidedly in her favor. N. Am. Soccer League, LLC v. U.S. Soccer Fed'n, Inc. , 883 F.3d 32, 37 (2d Cir. 2018) ; Wright v. Giuliani , 230 F.3d 543, 547 (2d Cir. 2000) ; Brenntag Int'l Chems., Inc. v. Bank of India , 175 F.3d 245, 249 (2d Cir. 1999). If, on the other hand, "the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction will be granted only if the moving party meets the more rigorous likelihood-of-success standard." No Spray Coal., Inc. v. City of New York , 252 F.3d 148, 150 (2d Cir. 2001) (per curiam) (internal citations and quotation marks omitted).

As here, when the movant seeks an injunction against the government that "will alter rather than maintain the status quo, the movant must show ... [a] substantial likelihood of success." Id. (internal citations and quotation marks omitted); Torres v. New York State Bd. of Elections , 462 F.3d 161, 183 (2d Cir. 2006) ("[w]here ... the relief that plaintiffs seek either (1) stays governmental action taken in the public interest pursuant to a statutory scheme, or (2) mandates an affirmative action, plaintiffs must demonstrate a 'clear' or 'substantial' likelihood of success on the merits of their claim"), rev'd on other grounds , 552 U.S. 196, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008) ; see, e.g. , Pankos Diner Corp. v. Nassau Cty. Leg. , 321 F.Supp.2d 520, 523 (E.D.N.Y. 2003) (requiring a clear or substantial likelihood of success on the merits where the plaintiffs sought "to enjoin enforcement of and, ultimately, void a statute that was already in effect at the time that the Complaint was filed").

An injunction in this case will alter the status quo by not only enjoining the Town and the BOE from holding elections under the current at-large structure, but requiring a transition to single-member districts on a preliminary basis. As a result, the Plaintiffs are required to establish a substantial likelihood of success on the merits. See Queens Cty. Republican Comm. ex rel. Maltese v. New York State Bd. of Elections , 222 F.Supp.2d 341, 345-46 (E.D.N.Y. 2002) (Spatt, J.). In addition, the Plaintiffs must also demonstrate that they will suffer irreparable harm in the absence of an injunction and that it is in the public interest "to grant injunctive relief [when] faced with an impending election." Montano v. Suffolk Cty. Legislature , 268 F.Supp.2d 243, 260 (E.D.N.Y. 2003) (Spatt, J.).

B. Voting Rights Act

Section Two of the VRA, as amended, establishes the following:

(a) No voting qualification or prerequisite 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, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of 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) 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.

52 U.S.C.A. § 10301 (emphasis in original). A plaintiff is not required to prove discriminatory intent in order to prove a violation under Section Two. See Chisom v. Roemer , 501 U.S. 380, 394, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991).

In Thornburg v. Gingles , 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court established a framework to establish a Section Two cause of action. First, a plaintiff is required to satisfy three "preconditions": (1) the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it must be politically cohesive; 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. Id. at 50-51, 106 S.Ct. 2752. Regarding the third prong, the Supreme Court instructed that "in general, a white bloc vote that normally will defeat the combined strength of minority support plus white 'crossover' votes rises to the level of legally significant white bloc voting." N.A.A.C.P. v. City of Niagara Falls , 65 F.3d 1002, 1007 (2d Cir. 1995) (quoting Gingles , 478 U.S. at 56, 106 S.Ct. 2752 ).

While the satisfaction of the Gingles preconditions is required to prove a Section Two violation, a court's inquiry at that stage is far from complete. Next, a district court must consider whether, under the totality of the circumstances, "(1) the political processes for nomination and election (2) are not equally open to participation by members of the protected class (3) because the class members have less opportunity than others to participate and elect their representatives of choice." Goosby v. Town Bd. of Town of Hempstead , 180 F.3d 476, 491 (2d Cir. 1999). In other words, a court must determine whether the minority group's political power is actually diluted. Johnson v. De Grandy , 512 U.S. 997, 1013, 114 S.Ct. 2647, 2658, 129 L.Ed.2d 775 (1994). To do that, the Supreme Court identified nine factors, which are listed in the Senate Report accompanying the 1982 amendments to Section Two of the VRA, as relevant to such an inquiry. Those factors are as follows:

(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to 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 their ability to participate effectively in the political process;

(6) whether political campaigns have been characterized by overt or subtle racial appeals;

(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;

(8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and

(9) 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.

S. Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07. As noted in Gingles , "[t]he Report stresses, however, that this list of typical factors is neither comprehensive nor exclusive. Though the enumerated factors will often be pertinent to certain types of § 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered." Gingles , 478 U.S. at 45, 106 S.Ct. 2752 (citing S. Rep. at 29-30). In its inquiry, the Court must utilize "a 'functional' view of the political process." Id.

II. FINDINGS OF FACT

A. The Parties

The plaintiffs are Ana Flores ("Ana"), Rene Flores ("Rene"), Maria Magdalena Hernandez ("Hernandez"), Magali Roman ("Roman"), Make the Road New York ("MRNY"), and New York Communities for Change ("NYCC") (together, the "Plaintiffs"). Ana, Rene, Hernandez and Roman are registered voters and Hispanic residents of Brentwood, a census designated place ("CDP") in the Town. Ana is a member of NYCC and Hernandez is a member of MRNY. NYCC is an organization registered under 26 U.S.C. § 504(c)(4). Its mission is to use "direct action to defend and uplift its members' communities and fight back against racist structures and economic policies that continue to extract wealth from its members' communities and neighborhoods." Docket Entry ("Dkt.") 1, ¶ 20. MRNY is an organization registered under 26 U.S.C. § 501(c)(3). Its mission is to "build the power of Latino and working class communities to achieve dignity and justice through organizing, policy innovation, transformative education, and survival services." Id. ¶ 19. A majority of the members of MRNY are undocumented immigrants. Although the term "Hispanic" focuses on individuals of Spanish-speaking origin and "Latino" refers to people of Latin American origin, the Court will use these terms interchangeably for the purposes of deciding this motion.

The defendants are Islip, the Town Board, and the BOE (together, the "Defendants"). Islip is a town in the County of Suffolk, which is organized and operated under the laws of the State of New York. Town Hall is located at 655 Main Street, Islip, New York 11751. The Town Board is the legislative body which governs the Town. The BOE is the agency charged with the implementation of elections within the County of Suffolk.

B. The Town of Islip

Islip is the third most populous town in the State of New York. It encompasses approximately 100 square miles of land and 59 square miles of water. Located in Suffolk County, the Town includes four incorporated villages and all or part of 23 CDPs. The four villages, Ocean Beach, Saltaire, Bright Waters, and Islandia all perform certain local government functions. The responsibilities of Suffolk County, the Town and the villages are distinct, and vary by location. According to the 2010 decennial census, the total population in the Town is 335,543. According to the 2017 one-year American Community Survey ("ACS"), Islip has a population of 333,701, of which 34.5% is Hispanic. The majority of Islip's Latino community is located in Brentwood, Central Islip and North Bay Shore. The below table shows the racial/ethnic composition of the Town:

Population Category ACS 2005-2009 ACS 2013-2017 Citizens of Voting Age 218,645 100.00% 221,830 100.00% Non-Latino White 160,100 73.22% 146,975 66.26% Latino 32,785 14.99% 45,340 20.44% Non-Latino Black 20,430 9.34% 22,795 10.28% Non-Latino Asian 4,350 1.99% 5,535 2.50% Non-Latino All Other 980 0.45% 1,185 0.53% Citizens 303,515 100.00% 297,870 100.00% Non-Latino White 207,290 68.30% 185,120 62.15% Latino 57,520 18.95% 72,665 24.39% Non-Latino Black 30,575 10.07% 30,380 10.20% Non-Latino Asian 6.650 2.19% 7,880 2.65% Non-Latino All Other 1,480 0.49% 1,825 0.61% Citizens Under 18 84,870 100.00% 76040 100.00% Non-Latino White 47,190 55.60% 38,145 50.16% Latino 24,735 29.14% 27,325 35.94% Non-Latino Black 10,145 11.95% 7,585 9.98% Non-Latino Asian 2,300 2.71% 2,345 3.08% Non-Latino All Other 500 0.59% 640 0.84% Total Population 336,755 100.00% 335,310 100.00% Non-Latino White 210,795 62.60% 187,230 55.84% Latino 81,635 24.24% 103,245 30.79% Non-Latino Black 33,355 9.90% 33,020 9.85% Non-Latino Asian 9,490 2.82% 9,930 2.96% Non-Latino All Other 1,480 0.44% 1,885 0.56%

Exhibit ("Ex.") 108 at 22. There is substantial diversity within Islip's Latino community. Approximately 33% are Salvadorian, 15% are Columbian, 15% are Ecuadorian, 15% are Peruvian, and 11% are Dominican.

Islip is governed by a Supervisor, Town Clerk, Receiver of Taxes, and four Councilpersons. The Town Board is composed of the four councilpersons and the Supervisor. All are elected to four-year terms, and the elections for councilperson are staggered. Two councilpersons are up for election every odd year. The Supervisor, Town Clerk, Receiver of Taxes and four Councilpersons are all elected by the voters in Islip in an arrangement commonly referred to as an at-large system. Each voter in Islip is able to vote for one person for each vacant seat on the Town Board as well as one candidate for Supervisor, Town Clerk, and Receiver of Taxes. Voters may choose to vote for one or two candidates for the Town Board or decline to vote for any of them. The Town Board candidates who receive the most and second most votes are elected. For the other three town-wide positions, the candidate who receives the most votes are elected. A referendum to change the electoral system in the Town to single-member districts was rejected by the Town's voters in 2006.

The four councilpersons are part-time employees who earn $ 77,000 per year. The Town Supervisor is a full-time employee, the chief executive of the Town and a voting member of the Town Board. The current Supervisor is Angie M. Carpenter ("Carpenter"). None of the current members of the Town Board live in predominantly Hispanic neighborhoods.

Carpenter supervises the following departments: Assessor, Comptroller, Environmental Control, Municipal Parking, Parks Recreation and Cultural Affairs, Planning and Development, Public Safety, Public Works, Receiver of Taxes, Senior Citizen Services, the Town Attorney, and the Town Clerk, among others. Thomas Owens is currently the commissioner of the Department of Public Works and the Department of Parks Recreation and Cultural Affairs. The Suffolk County Police Department ("SCPD") patrols the Town and investigates criminal activity. The SCPD is operated by Suffolk County.

Although the Republican, Democrat, Conservative, Independence, Women's Equality and Working Families parties are all active in Islip elections, the Republican Party has largely dominated town-wide elections. Currently, all town-wide elected positions are held by Republicans.

C. The Gingles Preconditions

1. Precondition One

The Plaintiffs introduced Dr. Andrew Beveridge, an expert in the field of districting to determine if the Latino citizens of voting age population ("CVAP") are sufficiently numerous and geographically compact to create one majority-Latino CVAP district in a four-district plan that is drawn in accordance with traditional districting principles. Dr. Beveridge is a Professor of Sociology at Queens College and the Graduate Center of the City University of New York and has provided expert opinions and testimony regarding proposed districting plans in several cases.

Dr. Beveridge used the decennial census, one-year ACS files, and five-year ACS files to draw his conclusions. The decennial census is the most accurate data, but it is only collected once every 10 years. The ACS survey uses a "rolling sample" method, collecting data continually through monthly surveys based on a random selection of households. Excluding the census, the one-year ACS files provide the most up to date information and the five-year ACS files provide the most accurate data. The most recent one-year ACS survey was conducted in 2017 and the most recent five-year ACS survey was conducted from 2013 through 2017. The total aggregate sample size for the five-year ACS file is similar to that of the long-form decennial census, which was discontinued in 2005.

Dr. Beveridge drew two demonstrative districting plans to illustrate that the Latino CVAP is sufficiently numerous and geographically compact. In doing so, he reviewed the following traditional districting principles: population equality, contiguity, compactness, and preserving existing political and geographic subdivisions. Both plans were created using the 2013-2017 five-year ACS redistricting files.

The first plan was based upon preserving census blocks ("Census Block Plan"). Census blocks are the smallest geographic units delineated by the Census Bureau. They are not based on population but serve as the building components to create larger geographic units. There are more than 11 million census blocks in the United States. Dr. Beveridge split Islip up into four districts, with District One consisting of 54.4% of the total CVAP of that district. District One was made up of Brentwood, North Bay Shore, and two portions of Central Islip. The total population deviation was 1.55%, significantly less than the maximum deviation for local districting plans. Other than the island areas, all four districts were contiguous and considered compact. To measure compactness, Dr. Beveridge used the Roeck measure, which compares the area of each district to the area of a circumscribing circle. Using the Roeck test, District One scored 0.61, which is considered very compact. Three CDPs, Central Islip, Ronkonkoma and Islip, were split to preserve population equality and some districts split election district boundaries. Below is a map that illustrates Dr. Beveridge's Census Block Plan:

Ex. 105 at 36.

The second plan was based upon preserving election districts ("ED Plan"). Once again, Dr. Beveridge split the Town into four districts. In District One, Hispanics constituted 54.4% of the total CVAP of the district. District One was composed of Brentwood, North Bay Shore, and two portions of Central Islip. The total population deviation was 1.01%, all four districts were contiguous and considered very compact. Using the Roeck test, District One scored 0.61, which is considered very compact. Central Islip, Ronkonkoma and Islip were also split to preserve population equality and some of the boundaries of election districts were breached to preserve census blocks. Below is a map that illustrates Dr. Beveridge's ED Plan:

Ex. 105 at 39.

While both plans split certain communities that one would expect to be preserved, i.e. Central Islip, these examples are limited and do not drastically impact compactness. Both plans are considered very compact; however, District Three, which includes the barrier islands, is naturally less compact than the remaining districts.

Both of these plans demonstrate that it is possible to create a district that has a majority Hispanic CVAP in Islip based upon a four-district plan that complies with traditional districting principles.

2. Precondition Two

The Plaintiffs' expert, Dr. Michael D. McDonald, is a Professor of Political Science and the Director of the Center on Democratic Performance at the State University of New York at Binghamton. He examined seven Town Board general elections from 2005 to 2017 using both bivariate regression analysis ("regression analysis") and ecological inference. Regression analysis applies a regression to derive a best fitting line in order to determine if a correlation exists between the racial makeup of an election district and the racial breakdown of votes cast. Ecological inference is "the statistical process of drawing inferences about individuals from aggregate data." Bruce M. Clarke & Robert Timothy Reagan, Fed. Judicial Ctr., Redistricting Litigation: An Overview of Legal, Statistical, and Case-Management Issues 53 (2002). In the context of a VRA case, it produces estimates of voting patterns by race by analyzing the bounds of the data to produce maximum likelihood statistics. In all seven elections, the candidates of choice for the Hispanic community were the two nominees of the Democratic Party. In three of those elections, one of the two Hispanic-preferred candidates were Latino. The point estimate measured by regression analysis for the Hispanic candidate of choice ranged from 52.7% to 77.7% of Hispanic voters, and from 53.9% to 88.8% using ecological inference. The three Latino candidates for Town Board received between 58.3% and 77.7% of Hispanic voters using regression analysis and from 56.1% to 88.8% using ecological inference.

The Islip Defendants' expert in this area is Dr. John Alford, a Professor of Political Science at Rice University. In an effort to normalize the vote-for-two Town Board Elections so as to better compare it with vote-for-one elections, Dr. Alford converted Dr. McDonald's ecological inference results from the number of votes to the number of voters. In this analysis, each Hispanic candidate of choice received between 35.5% and 52.8% of the votes, a combined average of 83.1% of the Latino vote for both candidates.

With the exception of 2007, all Town Board elections examined by Dr. McDonald resulted in the Hispanic candidates of choice losing to the Republican slate of candidates. Further, the only election examined where the Latino candidate of choice received greater than 50.4% of white votes was 2007.

The 2007 Town Board election results are properly considered a special circumstance. A special circumstance is defined as an extraordinary situation that impacts election results. In 2006, Peter McGowan, Islip's supervisor at the time, pled guilty to three criminal charges relating to kickbacks and misappropriation of campaign funds and resigned from his position with the Town. See Julia C. Mead, Ex-Supervisor of Islip Gets 3 Months, a Light Term , N.Y. Times (May 5, 2006), https://www.nytimes.com/2006/05/05/nyregion/05suffolk.html. The Court accepts the Plaintiffs' contention that this astonishing turn of events at least partially impacted town-wide elections in 2006 and 2007.

Dr. McDonald also analyzed town-wide, county, state, and federal elections for political cohesiveness. In the nine town-wide elections examined, the Hispanic candidate of choice received between 64.1% and 78.6% of the Latino vote using regression analysis and 68.5% and 90.7% using ecological inference. A review of Suffolk County elections reveals that in the eight elections analyzed since 2005, the Hispanic candidate of choice received between 63.0% and 91.0% of the Latino vote using regression analysis and between 67.4% and 94.6% using ecological inference. In the nine New York State elections examined since 2005, the Hispanic candidate of choice garnered between 73.4% and 86.5% of the Latino vote using regression analysis and 76.0% and 94.6% using ecological inference. Finally, Dr. McDonald analyzed eight federal elections since 2005 and found that Hispanic candidates of choice received between 83.3% and 95.5% of Latino votes using regression analysis and 91.0% and 96.1% of votes using ecological inference. The Court does not credit the results of elections for the Second Congressional District from either expert. These elections did not include approximately a dozen electoral districts within the Town. Without knowing more about which election districts were excluded, these results cannot be compared to results that include the entire town.

3. Precondition Three

The parties each presented expert testimony during the hearing regarding the voting patterns of Hispanics and whites in Islip. Dr. McDonald analyzed the same 14 Town Board elections as described in Section II.C.2. In 12 of the 14 elections, the Hispanic candidate of choice lost to the two candidates preferred by whites. In those 12 elections, between 51.2% and 65.6% of white voters did not vote for the Hispanic-preferred candidate using regression analysis and between 50.1% and 66.0% using ecological inference. Further, Dr. McDonald estimated that white crossover voting, that is the number of white voters who voted for the Hispanic candidate of choice, ranged from 23.8% to 35.9% using regression analysis and 25.0% to 36.5% using ecological inference. In the elections that featured Latino candidates for Town Board, white crossover voting was between 23.8% and 29.8% using regression analysis and between 25.0% and 29.9% using ecological inference. The two remaining elections occurred during 2007, which, as explained in Section II.C.2., were the result of special circumstances.

Dr. Alford also analyzed all 14 Town Board elections since 2005 using ecological inference. He determined that, after correcting for certain errors, the winning candidates in the 12 elections that resulted in a victory for white candidates of choice received combined support from whites of between 61.0% and 64.8% of votes. White crossover voting for the two Hispanic candidates of choice in each election was measured between 35.2% and 39.0% of votes. The three Latino candidates since 2005 received 18.5%, 18.3% and 15.5% of white votes. The most recent Latino candidate, Samuel Gonzalez, received the second highest percentage of white votes of any Democratic Town Board candidate since 2012.

Both Dr. McDonald and Dr. Alford evaluated nine town-wide elections since 2005. Since then, the Hispanic candidate of choice was unsuccessful in seven of the nine elections. For those seven races, Dr. McDonald calculated white crossover voting at between 22.7% and 41.0% of voters using regression analysis and 23.5% and 40.9% using ecological inference. Dr. Alford calculated that white crossover at between 27% and 45% of voters using ecological inference. The remaining elections, the 2006 and 2007 supervisor races, are considered special circumstances. Both experts found similar levels of racial polarization in the Town Board races they reviewed.

A review of exogenous elections at the county, state, and federal levels yields more significant white crossover voting patterns than endogenous elections. Dr. McDonald estimates that since 2005, white crossover voting ranged from 27.0% to 55.9% using regression analysis and 28.4% and 57.3% using ecological inference in county elections, 34.5% to 58.4% using regression analysis and 35.1% to 58.8% using ecological inference in statewide elections, and 30.8% to 55.1% using regression analysis and 33.7% to 57.1% using ecological inference in federal elections. Using ecological inference, Dr. Alford contends that white crossover voting for the same elections was between 30% and 61% for county elections, 39% and 62% for statewide elections, and 36% and 59% for federal elections.

Dr. McDonald also conducted a projection analysis that examined the election results for Suffolk County Legislature District Nine to determine what would happen in a Town Board election under a single-member district with a majority of Hispanic voters. From this analysis, Dr. McDonald concluded that the Hispanic candidates of choice would have been more successful in Town-wide elections if the relevant elections had been held in a majority-Latino district.

Using the data described in this section, Dr. McDonald concluded that white bloc voting consistently precludes the Hispanic candidates of choice from being elected to the Town Board. Dr. Alford believes that the levels of white bloc voting observed are explained by partisan polarization rather than racial polarization.

The Islip Defendants contend that Dr. McDonald's results were impacted by three major errors: (1) Dr. McDonald analyzed the number of voters that submitted a ballot in Town Board elections; (2) Dr. McDonald did not account for varying degrees of voter turnout in his ecological inference analysis; and (3) Dr. McDonald analyzed white bloc voting rather than non-Hispanic bloc voting. The Court addresses these arguments in Section III.B.1.c.

D. The Senate Report Factors

1. History of Official Discrimination

There has been no evidence of any official policy of discrimination against Hispanics in New York State or Islip. The Islip Defendants offered the testimony of Dr. Stephan Thernstrom, the Winthrop Professor of History Emeritus at Harvard University to discuss the history of discrimination in New York State. Dr. Thernstrom explained:

The starting point of any assessment of an alleged Voting Rights Act violation must be an examination of the history of the jurisdiction in which the complaint has been filed. If a state or any of its political subdivisions had demonstrably had such a history, it would be plausible to think that any current racial disparities (the focus of the fifth Senate Report factor) are at least in part attributable to that history.... New York has been a pioneer in combatting discrimination.

...

Not much has been written about the history of Islip, and what little I was able to locate offered nothing relevant to the issues in the present case. But there is an abundance of scholarly literature on the history of racial and ethnic groups in the state of New York, and on the long story of the state's efforts to combat discrimination against such groups. Even a brief glance at this literature would have shown the plaintiffs that over the course of more than a century the people of New York have demonstrated a strong commitment to minority rights by supporting the development of a rich body legislation designed to prevent discrimination based on race, religion, or national origins.

...

Throughout the twentieth century, New York more often than not led the nation in enacting laws to attack discriminatory practices.

...

Most directly relevant to the issues in this case are the efforts of New York in recent decades to guarantee the voting rights of its minority citizens. Eligible voters no longer need to show up at the office of the local board of election. These voters may mail in forms obtainable by mail or phone request (registration by mail was authorized by the legislature in 1975). Voter registration also is available while applying for a driver's license, or appearing at public assistance or disability services offices.

Ex. A, ¶¶ 13-15, 19.

In 2012, the New York State Department of Motor Vehicles ("DMV") developed an online registration process that allowed voters to complete the voter registration process online. This used a signature drawn from the DMV's existing records to complete the registration. During the 2012 general election, the BOE refused to accept certain voter registrations obtained using the DMV's online system due to a software error that rendered signatures unreadable. It is unclear how many registered voters were impacted by the glitch. The 2012 general election is the only election impacted by the BOE's refusal to accept DMV online registrants. Since then, the DMV has maintained a policy of accepting online registrations through the DMV and Nicholas LaLota, the BOE's Republican Chairman has personally encouraged residents to register via the DMV's website. There is no evidence that this issue disproportionately impacted communities of color in general or the Hispanic community in particular.

Dr. Daniel Altschuler, the Director of Civic Engagement and Research at MRNY and an Adjunct Assistant Professor of Public Service at New York University testified on behalf of the Plaintiffs. During the 2012 election, he supervised a non-partisan election protection operation in collaboration with the New York Civil Liberties Union and Common Cause New York. Dr. Altschuler testified regarding a handful of isolated incidents in Islip during the 2012 general election. In one notable episode, a female Latino voter complained that a white male poll worker instructed her to vote for Mitt Romney, the Republican candidate for President of the United States. This incident purportedly occurred at 8:00am at a polling place in Brentwood. The BOE was notified and the police were dispatched to the polling place. The call log only identified the complainant as "Jessica H." Dr. Altschuler also recalled at least one incident of a poll worker inappropriately requesting identification from a voter. There was nothing in the record to indicate that any registered voters were prevented from voting in recent elections in Islip. While the Court credits Dr. Altschuler's testimony, the incidents he recalled lacked sufficient detail to conclude that that Hispanic voters experienced unfair or discriminatory treatment. His ambiguous testimony of isolated incidents may demonstrate that certain poll workers need additional education, but it did not establish that they engaged in discriminatory behavior.

The BOE has hired two Hispanic Outreach coordinators, who ensure proper translation of all materials into Spanish. Spanish BOE materials and ballots are available to all Hispanic voters. The BOE also hired Spanish-speaking poll workers who can answer any questions at polling locations. The website of the BOE is also able to be translated into Spanish. The BOE trains approximately 6,000 poll inspectors and utilizes 10% of its employees to staff a call center on election day. SCPD is responsible for responding to any incidents that arise throughout Election Day.

2. Degree of Racially Polarized Voting

The Court has already reviewed much of the factual record associated with racially polarized voting and incorporates Sections II.C.2. and II.C.3. into the findings of fact on this Senate factor. The Islip Defendants contend that partisan affiliation rather than race better explains voting patterns in Islip.

The Plaintiffs' expert, Dr. McDonald, only examined two non-partisan elections: the 2013 and 2015 Democratic primary elections for Suffolk County Legislative District 9. As Dr. McDonald acknowledged in his expert report, these elections were not racially polarized. Hispanics and whites each supported the winning candidate in both contests. These elections are particularly noteworthy even though they do not represent all of Islip because they are the only two elections where ethnicity is eliminated as a variable. Moreover, these elections take place in a majority Latino district and are illustrative of a majority minority single-member district. See Ex.118, ¶¶ 55-62. Dr. McDonald did not examine the influence of partisan politics in Town Board elections.

Dr. Alford reviewed the elections-at-issue in this case for evidence of partisan voting. In all 51 elections examined by Dr. McDonald, the Hispanic candidates of choice ran as Democrats in the general election. These candidates received substantial support from white voters. In Town Board elections, the Hispanic candidates of choice averaged over 37% of white votes, even after removing the 2007 election. These numbers increased to over 40% when examining town-wide and exogenous elections. Dr. Alford calculated that an average of 42.1% of white voters supported Hispanic-preferred candidates in town-wide races. That number became 45.8% for county elections, 46.6% for state elections, and 49.75% for federal elections. In 12 of 34 town-wide and exogenous elections (35.3%), the Hispanic candidate of choice received at least 50% of white votes.

In the only analysis that reviews the impact of both race and political affiliation, Dr. Alford examines the 2017 Town Board election using Dr. Beveridge's individual voter records. Here, Trish Bergin Weichbrodt and James O'Connor, both white Republicans, ran against Samuel Gonzalez and Jason Fenley. Gonzalez is Latino and Fenley is white. First, Dr. Alford replicated Dr. McDonald's regression analysis estimates for the election and found similar results. He then added a variable for the proportion of the voters in each election district that were registered as Democrats. That equation reveals that when holding all other variables constant, an increase of 10% in the proportion of registered Democrats yields an expected increase in the vote for Gonzalez of 9.94%. If the same equation is used to illustrate an increase of 10% of the Hispanic CVAP proportion and all other variables are held constant, the change yields a slight decrease in the vote for Gonzalez of 0.57%. This regression reveals that in only five of the over 40 election districts where Gonzalez received more than 60% of the votes, the election district also had greater than 60% Hispanic CVAP. The proportion of Hispanic CVAP in an election district had no predictive power when controlling for all other variables, while the percentage of registered Democrats did have predictive power.

3. Electoral Mechanisms that Enhance Vote Dilution

There are no anti-single shot provisions or majority vote requirements in Islip Town Board elections. Elections for the Town Board occur on the primary and general election dates in odd years. In each Town Board election, two of the four council seats are open. The two candidates with the most votes are elected. Voters may vote for two, one or none of the candidates.

The Plaintiffs contend that Islip is an unusually large election district. To support this argument, they introduced the testimony of Renee Ortiz, who ran for the Town Board in 2011 and Gonzalez, who is now the current Suffolk County Legislator for the Ninth District. The Ninth District comprises a large portion of Islip's Latino community, including Central Islip and parts of Brentwood. As stated supra , Gonzalez ran for the Town Board in 2017. Both individuals testified that the size of Islip posed a challenge during their Town Board campaigns. Specifically, they believed that they did not receive enough funds to run a town-wide campaign. Yet, Gonzalez did not exclusively campaign in the predominantly Hispanic portions of Islip. He canvassed and attended events throughout the Town, including events in Sayville and Bay Shore. The fruits of these efforts are demonstrated in the election results. Gonzalez received more votes than any other Latino candidate for Town Board and collected more votes than the four winners of the last two Town Board elections.

The Plaintiffs have not introduced any evidence that the Town is unusually large compared to other districts in New York State. Carpenter testified that the size of Islip did not pose any particular challenges to her campaign. An examination of Suffolk County reveals that Islip is smaller than many districts in county or state races. In the Suffolk County Legislature, there are multiple districts that are considerably larger than Islip. The Second Legislative District is comprised of the entire South Fork of Long Island and encompasses approximately 250 square miles of land. The First Legislative District is even larger, stretching the over 70 miles from Brookhaven to Fisher's Island. Further, there are numerous large towns on Long Island that feature at-large election systems.

4. Access to Candidate Slating Process

The Republican Party is the dominant political party in Islip's town-wide elections. All current Islip elected positions are filled by Republicans and since 2009, no Democrat has been elected to the Town Board.

The Islip Republican Committee has an open screening process that allows any interested person to apply to run for elected office. All candidates that apply are screened for all available positions. An open interview is then conducted, which allows any registered Republican to attend and ask questions of the candidate. During that process, the candidates may make opening and closing statements and attendees have the opportunity to rate each candidate. An executive committee of approximately 18 committee members selects the candidates who receive the party's nomination. If candidates who are not nominated still wish to run, the party holds a primary election to determine the nominee. In 2017, 17 candidates were screened for the two available Town Board positions and approximately 80 voters attended the screening event. Since 2005, the Islip Republican Committee has not slated a Hispanic candidate. Neither party has produced information regarding party nominations prior to 2005. There is no evidence that anyone from the Islip Latino community ever sought the Republican Party's nomination for the Town Board or that there are any structural impediments that preclude a Hispanic Republican from seeking or obtaining the nomination. The Suffolk County Republican Committee is composed of the 10 town committees, including Islip. The current chairman is Jesse Garcia.

Since 2005, the Islip Democratic Committee has nominated three Hispanics for the Town Board: Gonzalez in 2017, Ortiz in 2011 and Kellie Alvarez in 2005. This represents approximately 21% of all nominations for the Town Board during that timeframe, which is substantially similar to Islip's Hispanic CVAP. There is no evidence regarding how many Latino residents sought the Democratic Party's nomination for Islip Town Board or how many Latino candidates were slated prior to 2005. In 2015, Maxima Castro was nominated by the Democratic Party for the position of Town Receiver of Taxes.

Neither party in this case has introduced evidence of the nominating process for exogenous elections outside Islip nor how many Hispanic residents sought their political party's nomination for the various local, state, and federal elected positions. The record does reflect, however, that in 2012, Gonzalez and Philip Ramos competed in the Democratic Party primary for the nomination for New York State Assembly District 6. Further, in 2013 Monica Martinez and Ricardo Montano both sought the Democratic Party's nomination for Suffolk County Legislative District Nine and in 2015, Montano ran against Tom Licari for the Democratic Party's nomination for Islip Town Supervisor.

5. Discrimination in Other Areas Which Hinders Hispanics' Ability to Participate in Political Process

The Plaintiffs offered the expert testimony of Dr. John Logan regarding the socioeconomic status of Hispanics in Islip. Dr. Logan is a Professor of Sociology at Brown University and has provided expert reports in a series of housing related cases. In his expert report and testimony, he focused on socioeconomic characteristics, public health, public education, policing and environmental hazards.

There are significant differences between Hispanics and whites in Islip. The median household income of Hispanics is $ 75,543 as compared to $ 93,766 for whites. However, Latinos have a slightly lower unemployment rate than whites in Islip. 84.9% of whites are employed in professional or managerial roles compared to 62.1% of Hispanics. There are two times as many white residents than Latinos in Islip with some college experience. Whites are also 20% more likely to be homeowners than Hispanics in Islip.

Yet, the Latino community also exhibits telltale signs of an immigrant community on the rise. More than 53.5% of Latino citizens were naturalized compared to 2.9% of white citizens. In other words, over 97% of white citizens were born in the United States as opposed to 46.5% of Latino citizens. More than 40% of whites have lived at their residence for over 20 years compared to 15.5% of Hispanics in Islip. Greater than 30% of Latinos have lived at their current residence for less than five years. The Hispanic community's English language adoption also falls far behind their white counterparts. 98.3% of whites in Islip either speak only English or speak English very well. Only 57.5% of Hispanics can say the same. That leaves 42.5% of Latinos with a significant gap in language ability, which is a limiting factor for upward mobility. Dr. Logan obtained the above information from the 2012-2016 five-year ACS survey. He acknowledged during his testimony that Hispanic citizens in the Town likely exhibit higher socioeconomic characteristics than non-citizens.

Dr. Thernstrom contends that examining Islip in a nationwide context reveals that Islip's Latino community is a successful immigrant community on the rise. Using the 2017 ACS one-year survey, the median household issue of Hispanics rose to $ 86,572 as compared to 98,400 for whites and $ 92,955 for all of Islip. The nationwide median household income was $ 60,336 for all households and $ 49,793 for Hispanic households. When examining poverty levels, Dr. Thernstrom found that 10.5% of Hispanics in Islip were below the poverty level compared to 4.9% of whites and 7.3% of the entire town. Nationwide, 19.4% of Hispanics, 9.6% of whites, and 13.4% of all Americans were below the poverty level.

In an effort to explain these numbers, Dr. Thernstrom notes the following:

The continuing flow of Latino newcomers into Islip, both from abroad and from other parts of the United States, inevitably means that the group will lag behind the local average in its socioeconomic characteristics, because migration streams tend to be selective of the young, the less educated, those who are not qualified for professional or managerial jobs, and the like.

...

As a historian of American immigration, I am not in the least surprised to see such a pattern in any community that has recently experienced a large influx of newcomers from abroad. Exactly the same generalizations apply to the Irish of New York, Philadelphia, and Boston in the 1840s and 1850s, and the Italians, Poles, and East European Jews who settled in New York, Philadelphia, and Pittsburgh in the late-nineteenth century. It also appeared in the northern communities-Detroit, Cleveland, and Chicago-that were the destinations of southern blacks in their original Great Migration northward (1915-1929) and their Second Great Migration to northern cities that began at outbreak of World War II and petered out in the 1970s. In each case, the migration stream was selective of the socioeconomically disadvantaged.

Ex. A, ¶¶ 28-29.

Turning to educational achievement and public health, Dr. Logan opines that there are significant disparities in health and education outcomes. The proportion of Latinos with no health insurance is four times higher than whites. Latinos are also more likely to be covered by Medicaid than whites. Approximately 44.7% of Latinos either have no health insurance or are insured through Medicaid. Yet, as Dr. Logan acknowledges, "[individuals] who speak a primary language other than English and have limited English proficiency were more likely to be uninsured." Ex. 115, ¶ 33 (internal citations omitted). Dr. Logan also examined birth and mortality figures and concludes that Latinos in New York State are more likely than whites to experience issues related to insufficient prenatal care and primary care. Although the Court credits this testimony, these statewide statistics have limited persuasive value in this application. The Economic Opportunity Council of Suffolk's Community Needs Assessment, cited in Dr. Logan's report, describes significant differences between Suffolk County and New York State health-related statistics.

Dr. Logan uses data from the New York State Education Department to examine public education disparities. He cites statistics from six school districts in Islip: Brentwood, Central Islip, Bay Shore, Islip, East Islip, and West Islip. The data shows that Brentwood and Central Islip, which are predominantly Latino districts, score lower on average in Mathematics and English than East Islip and West Islip, which are largely white districts. Brentwood and Central Islip also have the highest English as a second language students of the six districts examined. All six of these schools have independent boards that are run by elected members of the community. The Town has no control over school taxes and does not make policy-based decisions.

There are several potential problems with Dr. Logan's data. In his expert report, Dr. Logan only examines six school districts in the Town, even though there are 12 school districts that enroll students in Islip. Dr. Logan also failed to provide evidence on per person spending, the quality or quantity of teachers, the conditions of the schools, the sizes of classrooms, or anything else that contributes to overall performance. The comparative information regarding the six schools he chose for analysis is therefore less compelling.

Dr. Logan next turns to disparate treatment in Islip regarding policing and public safety. Ten of his 21 citations in this section are to a 2009 report by the Southern Poverty Law Center ("SPLC") entitled Climate of Fear: Latino Immigrants in Suffolk County. While the Court is well aware of the excellent work done by the SPLC in advancing civil rights in this country, it also recognizes that at its core, SPLC is an advocacy organization. The Court does not credit any portion of the report or testimony that is sourced from the SPLC report.

Dr. Logan also cites a series of reports from the U.S. Department of Justice ("DOJ") to conclude that the SCPD has not established enough trust within the Latino community, which leads to public safety issues. In January 2014, the DOJ entered into a settlement agreement with the SCPD "to ensure that police services are provided to all members of the Suffolk County community, including the Latino community, in a manner that complies with the Constitution and laws of the United States." Ex. 310 at 2. The DOJ investigation, which commenced in 2009 and culminated with the signing of the agreement, focused on allegations that the SCPD discouraged Latinos from filing complaints and failed to investigate criminal incidents involving Latinos. Over the last five years, the DOJ has issued seven reports assessing compliance with the agreement. By October 11, 2018, the DOJ certified that the SCPD was in substantial compliance in three categories (Hate Crimes and Hate Incidents, Allegations of Police Misconduct, and Policies and Training Generally) and in partial compliance in three categories (Bias-Free Policing, Language Assistance, and Community Engagement). The DOJ also stated that in those categories rated in partial compliance, the SCPD had made significant progress. Except as detailed above, the Court credits Dr. Logan's testimony regarding policing and public safety, but also notes the noteworthy progress over the years in improving the relationship between the SCPD and Suffolk County's Hispanic community.

In the final section of his expert report, Dr. Logan concludes that Islip's Latino community has been disproportionately subjected to significant environmental hazards. In this effort, he examines 14 hazardous waste sites in Islip, which he obtained from the New York State Department of Environmental Conservation. Only six of the 14 sites are located in census tracts that have greater than 10% Latinos. Two of the six are dry cleaners. Of the remaining four, one is located in a mostly non-residential, industrial area. Many of these sites were constructed and operated decades ago, long before the census tracts became predominantly Hispanic. Two of the sites that are in a majority-Hispanic census tract, MacKenzie Chemical Company and Sonia Road Landfill were in operation by 1948 and 1965 respectively. Based on this data, the Court does not credit Dr. Logan's conclusion that a disproportionately large share of hazardous waste sites are located in predominantly Hispanic areas.

Dr. Logan also examines the dumping at Roberto Clemente Park and its impact on the Brentwood community. In early 2014, it became public that a firm contracted by the Town to create two soccer fields at Roberto Clemente Park had dumped 40,000 tons of toxic debris from other construction sites in the construction area. The park remained closed until August 2017. Neighbors of the park were rightly concerned with the long-term health impacts of the dumping. Yet, this tragic incident does not imply a broader pattern of neglect, or that Brentwood has been disproportionately subjected to environmental hazards.

6. Racial Appeals in Political Campaigns

Over the past 20 years, the Hispanic community has continued to expand in Brentwood, Central Islip, and North Bay Shore (along with other neighborhoods in Nassau and Suffolk County). This has caused some well-documented racial tensions in communities across Long Island.

The Plaintiffs have introduced evidence regarding five instances that they contend are examples of overt or subtle racial appeals in local political campaigns. During O'Connor's 2017 campaign for Town Board, the New York State Republican State Committee paid for a town-wide mailer for O'Connor. Garbarino, the Chairman of the Islip Republican Committee, was shown the mailer but did not have substantive comments. On the front of the mailer, it read "WHY JIM O'CONNOR? BECAUSE HE'S ONE OF US!" and on the back read "Jim O'Connor is one of us who is experienced in both business and government.... I hope to earn your trust and vote because I will fight for you to preserve our quality of life in Islip." Ex. 10 (emphasis in original). Gonzalez believes that "us" refers to white residents of Islip rather than the Town as a whole. He found this mailer to be discriminatory. Carpenter did not find it discriminatory and contends that O'Connor is referring to all residents of Islip. There is no evidence that O'Connor's mailer was only sent to the predominantly white parts of the Town.

One of the current members of the Town Board, Bergin Weichbrodt, came under fire in 2009 for purportedly writing a post on her Facebook page that references El Salvador. This Facebook post was not admitted into evidence as it was not properly authenticated. It is not manifestly clear whether or not Bergin Weichbrodt authored this post. However, this post was authored after the 2017 Town Board elections and, therefore, was not connected to any election.

During the 2017 Town Board elections, Bergin Weichbrodt attended a "meet the candidates" campaign event in Sayville, along with the other three candidates. At some point in the night, when Gonzalez had left the room, she remarked the following about Gonzalez, "He lives in Central Islip. He's not from here. He doesn't understand what our concerns are in this part of the Town." Ex. 11. The video admitted into evidence does not provide any context for the comment and does not show any footage of before or after the quote. Gonzalez testified that he found the comments "very discriminatory." While Gonzalez's opinion is understandable, the Court does not credit this portion of his testimony. Gonzalez was not in the room at the time and was unable to provide any context for the remark. None of the other witnesses were present in the room for the remark and could comment on its context. Without more, the Court could only speculate as to the meaning of Bergin Weichbrodt's comments.

The Plaintiffs also point to a campaign mailer for Steve Flotterton's 2017 campaign for Suffolk County Legislature. On one side of the mailer, it lists three elements of his campaign platform: (1) "Federal Task Force actions to fight MS-13 and other Gangs throughout Suffolk County"; (2) "[t]ougher sentences for drug dealers to combat the Heroin epidemic and protect our families"; and (3) "[t]ighter control of our borders to stop the flow of Heroin and Gang members (MS-13) into our neighborhoods." Ex. 12. The other side features a picture of a Hispanic male with the letters "MS" tattooed on his forehead, and a picture of drug paraphernalia. Under the pictures, it states, "Under the Democrats Control, Suffolk County has been a 'Sanctuary County' and suffered the most MS-13 Gang Killings and highest Opioid Death Rate in New York State!" Id. This mailer was sent to residents of the 11th Legislative District, which includes all of West Islip, Brightwaters, most of Bay Shore and portions of Islip, Islip Terrace, and Deer Park.

Gonzalez testified that although each side of the mailer is not offensive when viewed in isolation, when read together it can be read to infer that all Hispanics are murderers, gang members or drug addicts. Ana testified that she was offended by the picture of the Hispanic male depicted in the flyer. She explained, "I fear ... that other people who are not ... familiar with my community would ... see this picture, as well as see my father, who is brown, and then put those two together and think that my father is a gang member by just the color of his skin." Transcript of Evidentiary Hearing ("Tr.") at 1519:12-20.

Carpenter also testified regarding this mailer. When asked on cross examination if she thought this mailer was "a good invitation to Latino people to join the Republican Party?", Carpenter replied, "I think if they're concerned about gangs, and this person is saying they're going to fight gangs, they probably would be happy to see that." Tr. at 2241:5-13. She also mentioned that the image of drug paraphernalia was offensive to her but did not indicate that her offense was connected to any purported portrayal of the Hispanic community. The Court credits the testimony of these three witnesses.

7. Minorities Elected to Public Office

Since 2005, Hispanics have not been elected to the Town Board. In that period, only three Latino candidates have attempted to do so and all three ran as Democrats. In 2005, Alvarez received 12,680 out of 41,459 votes. In 2011, Ortiz received 20,617 of 51,247 votes. Most recently, in 2017, Gonzalez received 23,302 of 62,893 votes, the highest number for any Hispanic candidate. It is unknown if a Latino candidate has ever been elected to the Town Board prior to 2005.

Hispanics have been appointed or elected to other local and state government positions with Islip constituents. Suffolk County's Legislative District Nine encompasses Central Islip, the eastern portion of Brentwood and a section of the Village of Islandia. It consists of 44 election districts and approximately 32,000 registered voters. The district was created in 2004 by Resolution 402-2003. Gonzalez is the current legislator. He was recently elected in 2018. From 2014 to 2018, the position was held by Martinez and Montano was the district's legislator from 2004 to 2013. All three are Hispanic.

New York Senate District Three encompasses portions of Brentwood, Bellport, Blue Point and Bayport. The district is currently represented by Monica R. Martinez, who was elected in 2018. New York State Assembly District Six is currently represented by Ramos, who was elected in 2012. Ramos's district encompasses Brentwood, Central Islip, and parts of North Bay Shore, Bay Shore and the Village of Islandia.