Full opinion text
MEMORANDUM AND ORDER PER CURIAM: Plaintiffs, who are Latino and African-American, seek a declaratory judgment and a permanent injunction against the further use of the current configuration of New York State’s 12th Congressional District on the ground that it violates their constitutional rights under the Fourteenth and Fifteenth Amendments to the United States Constitution. Before the court is their motion for summary judgment and defendant-intervenor Puerto Rican Legal Defense and Education Fund’s cross-motion for summary judgment. Background (A) The Parties Plaintiffs are residents and registered voters of the 12th Congressional District (“12th CD”) of New York. See Second Amended Complaint (“Compl.”) ¶¶ 1-4. Plaintiffs Diaz and Coholo are Puerto Rican. Id. ¶ 56. Plaintiff Motley is African-American. Id. ¶ 60. Plaintiff Diaz ran for Congress in the 12th CD in the 1992 general election as a “Republican Conservative.” Diaz Decl. ¶ 3. Defendants, in their official capacities, are responsible for the enactment or enforcement of the legislation that created the congressional districts in New York. See Compl. ¶¶ 5-11. In addition, there are many intervenors in this suit. Delco Cornett is a pro se plaintiff-intervenor. Two Latino voters who live in the 12th CD, Margarita Lopez and Luis Garden Acosta, who are represented by the Puerto Rican Legal Defense and Education Fund (“PRLDEF”), have intervened on behalf of defendants. See PRLDEF Mem. Sup. Intervention at 1. Another group intervening on defendants’ behalf consists of: Congressional Representative Nydia Velazquez, who represents the 12th CD; Major R. Owens, who represents an adjoining district which is majority African-American; and voters in the 10th, 11th, and 12th CDs. See Wooten Mem. Sup. Intervention at 4-7. They are being represented by Paul Wooten, Esq. In addition, the Asian American Legal Defense and Education Fund (“AALDEF”) is representing defendant-intervenors Peter Lau and John Kuo Wei Tchen, residents of the 12th CD. See AALDEF Mem Sup. Intervention at 1. Finally, Congresswoman Carolyn B. Maloney has also intervened, pro se, to have her interests considered, as she the representative of the 14th CD, a tri-county district that adjoins the 12th CD. (B) The 1992 Redistricting Process (1) An Overview of the Redistricting Process Initial responsibility for congressional redistricting lies with the New York State Legislature. However, because Bronx, New York, and Kings Counties are “covered” jurisdictions under the Voting Rights Act, 79 Stat. 437, as amended, 42 U.S.C. § 1973 et seq. (“VRA”), any legislative alteration of voting procedures, including redistricting, required preclearance by the U.S. Department of Justice (“DOJ”) before its implementation. See Compl. ¶ 23. DOJ preclearance ensures that proposed redistricting complies with the provisions of the VRA, particularly § 2, which forbids the abridgement of voting rights “on account of race or color.” 42 U.S.C. § 1973 (Supp. 1994). Under the VRA, a redistricting plan that provides “less opportunity [to minorities] than other members of the electorate to participate in the political process and to elect representatives of their choice” abridges voting rights. Id. DOJ had interpreted this provision to require that a redistricting proposal maximize the number of majority-minority (i.e. non-Caucasian) districts. In 1995, the Supreme Court rejected the maximization interpretation of the VRA. See Miller v. Johnson, 515 U.S. 900, 923-28, 115 S.Ct. 2475, 2492-94, 132 L.Ed.2d 762 (1995) (rejecting DOJ’s maximization policy as “a shortsighted and unauthorized view of the Voting Rights Act”). The 1990 U.S. census revealed that New York’s population growth was slower than other states. Consequently, New York’s congressional delegation had to be reduced from 34 to 31 members. See Compl. ¶ 15. In 1991, the New York State Legislature established a task force to create a new congressional districting plan. See Compl. ¶ 16. Both the Senate and Assembly were fully cognizant of the Department of Justice’s modus operandi with regard to preclearance and VRA § 2. New York had previously encountered DOJ objections to the proposed redistricting of the New York City Council in 1991, as well as to the proposed redistricting of the State Senate and Assembly in 1992. See Ex. N of PRLDEF Opp. Prelim. Inj., Ltr. of U.S. Ass’t Atty. Gen’l, dated June 22, 1982 (finding that New York State’s 1982 Legislative plan discriminated against Latino voters); Ex. O of PRLDEF Opp. Prelim. Inj., Leg. History of 1982 VRA Amendments (finding that Latino voters were discriminated against in the redistricting of the New York City Council after the 1980 census); Ex. P of PRLDEF Opp. Prelim. Inj., DOJ Ltr. dated July 19, 1991 at 2 (explaining that Latinos were “unfairly underrepresented on the council. In one area, the proposed configuration of district boundary lines appears to have been drawn in such a way as to minimize Hispanic voting strength”); Ex. Q of PRLDEF Opp. Prelim. Inj., DOJ Ltr. dated June 24, 1992 at 2-3 (objecting to the proposed Assembly redistricting plan and noting that “[ajlthough incumbency protection is not in and of itself an inappropriate consideration, it may not be accomplished at the expense of minority voting potential”). By March of 1992 partisan politics had deadlocked the task force. See Compl. ¶ 17; Aff. of C. Daniel Chill, Esq., counsel for defendant Silver (“Chill Aff.”) ¶4. because New York law mandated that the candidate-petitioning process commence on June 9, 1992, a state court action, Reid v. Marino, No. 9567-92 (N.Y. Sup.Ct. Kings Cty.1992), was filed on March 26, 1992 “to compel the development of a satisfactory redistricting plan.” Compl. ¶¶ 17-18; see New York Election Law §§ 6-158(1), 6-134(b), 8-100. On March 31, 1992, a similar action was filed in federal court in the Eastern District of New York, PRLDEF v. Gantt, No. 92-CV-1521 (E.D.N.Y.1992). See Chill Aff. ¶11. This suit alleged “that New York’s then existing congressional map denied Latino voters their right to vote in violation of the Voting Rights Act of 1965, as amended, and the Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.” Affirmation of Arthur A. Baer, Esq., counsel for PRLDEF, (“Baer Affirm.”) ¶ 10. The Eastern District three-judge panel appointed Hon. Frederick B. Lacey (“Lacey”), a retired United States District Judge, as special master and ordered him to develop a redistricting plan that would comply with federal law. See PRLDEF v. Gantt, 796 F.Supp. 681, 684 (E.D.N.Y.1992). Lacey filed his plan with the court on May 26,1992. See id. The three-judge court adopted this plan in its entirety on June 26, 1992. See id. at 698. At about the same time, in Reid v. Marino, the state court appointed a panel of three referees to develop a plan that would comply with federal and state law. The state court adopted the referees’ plan on June 8, 1992. See Compl. ¶ 21. The special master’s plan differed from the referees’ plan in the number of majorityHispanie and African-American districts created. With a statewide Latino population of 12.31%, the special master’s plan provided for three majority-Latino districts out of thirty-one districts in New York (9.68%), while the referees’ plan proposed two such districts (6.45%). With a statewide African-American population of 15.9%, the special master’s plan created four majority-African-American districts (12.90%), while the referees’ plan provided five majority-african-american districts (16.12%). The New York State Legislature then had to decide whether to enact a bill that incorporated the referees’ redistricting plan. In the event that the Legislature failed to do so, the federal special master’s plan would take effect. The New York State Legislature enacted the bill incorporating the referees’ plan and the Governor signed it soon thereafter. See Compl. ¶ 22. On July 2, 1992, the U.S. Department of Justice precleared the plan, and it became law. See id. ¶ 25. (2) The Latino Population in New York City According to the 1990 census figures, “[tjhere are nearly two million Latinos in New York City, comprising 24.36% of New York City’s population.” Baer Affirm. ¶¶ 2, 25. In addition, Latinos represent 23.07% of New York City’s voting age population (“VAP”). See id. ¶ 26. Statewide, Latinos represent 12.31% of the total population and 11.20% of New York State’s voting age population. See id. ¶ 27. According to PRLDEF, Latino citizens of New York City “bear the effects of historic discrimination in the areas of voting, employment, education, and housing, suffer depressed socio-economic conditions, and have traditionally low voter registration and turn out.” Id. ¶ 41; see also Ex. R of PRLDEF Opp. Prelim. Inj., Order in Ortiz, et al. v. New York State Bd. of Elections, et al., No. 74-CV-455 (W.D.N.Y. July 10, 1975) (holding that New York’s English-only election violat.ed Latino voters’ voting rights and ordering remedial relief); Ex. U of PRLDEF Opp. Prelim. Inj., “A Call to Action III”; Ex. V of PRLDEF Opp. Prelim. Inj., “Poverty in New York City, 1991: A Research Bulletin”; Ex. W of PRLDEF Opp. Prelim. Inj., “OREA Report” (discussing high school dropout rates); PRLDEF Hem. Opp. Prelim. Inj. at 54-67 (documenting the history of social and economic discrimination of Latinos). PRLDEF argues that discrimination has impacted Latino participation in politics. As of 1990, Latinos constituted only 1 of 13 (7.7%) of New York City’s congressional delegation, 2 of 25(8%) of New York City’s State Senate delegation, 4 of 60 (6.7%) of New York City’s Assembly delegation, and 3 of 35 (8.6%) of New York City’s Council members. See Baer Affirm. ¶ 51; Ex. S of PRLDEF Opp. Prelim. Inj., Compendium of Latino Elected Officials in New York City. PRLDEF claims that “Latino electoral candidates in New York City have been historically negatively impacted by polarized bloc voting.” Baer Affirm. ¶ 33. Latino voter participation in elections in New York is depressed. See Baer Affirm. ¶ 56. Theodore S. Arrington, a Professor of Political Science at the University of North Carolina, has stated: [T]he social and economic position of African-American citizens and language minorities in New York, particularly those in New York City and surrounding counties, disadvantages them politically. They have had inferior opportunities to participate in the political process as a whole and to elect candidates of their choice. It also appears that compared to other citizens they have lower rates of voter registration and voter turnout, and are less likely to run for office or otherwise participate actively in the political process. When the effects of racially polarized voting are added to these factors, African-Americans, Hispanics, and Asians are confronted with an enormous barrier to equal participation and ability to elect candidates of their choice. Ex. K of PRLDEF Opp. Prelim. Inj., Arrington Aff. ¶ 26. The extent of Latino political cohesion is unclear. Professor Arrington noted the inherent difficulty of combining the many ethnicities that make up the Latino community: Puerto Ricans may have very different concerns and interests than Hispanics from Central or South American countries. There may be disputes and inter-ethnic conflict between these groups. This would suggest that community of interest principles should lead to the formation, if possible, of a Puerto Rican district distinct from a district dominated by Dominicans, Colombians, and other Central and South Americans. Id. ¶ 36. Professor Arrington further stated that the Latino community lacks cohesion. The Hispanic population is diverse ethnically and racially, and it sometimes lacks the degree of cohesion that is present in the African-American population. Therefore, it is wise to keep the percentage of Hispanic voting age population in a district relatively high. Id. ¶ 32. However, PRLDEF argues that the “Latino community in New York City is ... politically cohesive.” Baer Affirm. ¶ 38. Allan J. Lichtman, Professor of History at The American University, who was retained by defendant-intervenors PRLDEF in the federal action PRLDEF v. Gantt, No. 92-CV-1521 (E.D.N.Y.1992), also analyzed Latino voting patterns and found: The elections examined thus far show a pattern of polarized voting between Latinos and non-Latinos in elections with Latino and non-Latino candidates. The cohesion of Latino voters is extremely strong: almost invariably a substantial majority of Latino voters united behind Latino candidates. The pattern among non-Latino voters is more mixed given the multi-racial character of the non-Latino vote (blacks, Asians, and non-Hispanic whites). Still, a substantial majority of non-Latino voters typically lined up behind non-Latino candidates, especially in city council contests. Ex. I of PRLDEF Opp. Prelim. Inj., Liehtman Decl. ¶ 7. With respect to the 12th CD, Plaintiff Diaz claims that the district is “very diverse,” including “Dominicans, Ecuadorians, Panamanians, Mexicans, Cubans, Colombians, and others,” Diaz Decl. ¶ 5, and that “these groups tend to have different political concerns.” Id. ¶ 12; see also ¶¶ 13-20. Further, plaintiff Diaz states: “In my experience the 12th CD did not contain a single community of interest. The people in-Manhattan had obviously different local concerns than the people in Queens and Brooklyn. The voters did not seem to think the 12th CD was a community. Most were confused about whether they resided in the district or not.” Id. ¶ 25-26. (3) The Asian Population in New York City The 1990 census reported that there were 512,719 Asian Americans living in New York City, of whom 228,085 “did not speak English very well.” Affidavit of Michael Shen, President of the Board of Directors of AALDEF (“Shen Aff.”) ¶21. According to the New York City Voter Assistance Commission, only twenty-six percent of eligible Asian-Americans were registered to vote in 1994. See id. ¶ 20. Shen claims that “the lack of bilingual ballots and assistance has been a major impediment for Asian Americans seeking to participate in the political process.” Id. ¶ 19. In addition, AALDEF asserts that its monitoring of a variety of polling sites from 1991 to 1993 revealed that Asian-American voters were “harass[ed] by poll workers, haphazardly] distribut[ed] bilingual materials” and given inaccurate translations of materials. Id. ¶ 25. In 1994, DOJ, pursuant to § 5 of the VRA, required “machine ballots [to] be fully translated into Chinese, including the candidates’ names.” Id. 26. As with the Hispanic population, the degree of political cohesiveness within the Asian-American population is in question. AALDEF has conducted exit polls that “confirm that Asian Americans vote cohesively for Asian Americans when they are on the ballot.” Id. ¶7. Somewhat contradictorily, however, AALDEF claims that although Asian-Americans have become an “influential minority in New York,” id. ¶ 28, “[t]he arbitrary drawing of district lines ... has inhibited the Asian American community’s ability to organize and develop a strong political cohesiveness.” Id. ¶29. AALDEF has also submitted an affidavit from Peter Lau, a defendant-intervenor and President of the Chinatown Voter Education Alliance, stating that he has reviewed official election results and has -determined that Asian-American voters in Chinatown and Sunset Park are politically cohesive. See Lau Aff. ¶¶ 2, 45-51. Mr. Lau reports that in the November 1991 New York City Council general election in District 1, “76% of all Asian Americans voted for one of two Asian American candidates.” Id. ¶48. Mr. Lau suggests that “definitive election analysis would require accumulating additional data, in part because so few Asian Americans have run for elective office, and in part because of their low registration and voter turnout.” Id. ¶ 50. Mr. Lau also asserts that Chinatown and Sunset Park “are locked together as one community.” Id. ¶ 52. “Many cultural ties link the two neighborhoods together.” Id. ¶ 54. According to Mr. Lau: Sunset Park is the progeny of Chinatown. According to the 1990 census, although Sunset Park is relatively small, it is a growing community. The Asian-American population in Sunset Park has grown almost 200% since the 1980 Census. Historically, pragmatically, and culturally these two neighborhoods are interdependent. Asian Americans in Sunset Park and Chinatown form a single cohesive community.... Id. ¶ 55. John Kuo Wei Tchen, now Director of the Asian American Studies Program and Institute at New York University, agrees. He submits that “[l]abor force, limited English proficiency and shared community resources all tie these two neighborhoods together into one community.” Tchen Aff. ¶ 18. Many residents of Sunset Park work and shop in Chinatown. See id. ¶¶ 20-22, And, “many service industries and community organizations ... minister to both neighborhoods,” including Chinese daily newspapers, medical services and community agencies. Id. ¶¶ 25-30. Moreover, residents from both communities came from Hong Kong and Southern China and speak the Cantonese dialect of the Chinese language. See id. ¶ 24. (4) The Referees’ Plan According to plaintiffs: The Referees’ Report is the single most important document that explains that district plan. Made contemporaneously with the district plan by the very individuals who were charged with drawing it, the Referees’ Report clearly sets out the findings upon which the drafters relied, the interpretation of the Voting Rights Act that guided their thinking, and the methodology they used to configure New York’s congressional districts. Pltff Mem. for Prelim. Inj. at 12 (footnote omitted). In addition to the referees’ report and plan, plaintiffs rely upon the court hearings in Reid v. Marino. During these hearings, Professor Alan Gartner, whom the referees retained to draw the districts, “discussed the Referees’ Plan in almost exclusively racial terms.” Compl. ¶ 36. At the time, Dr. Gartner was Director of Research for the Graduate School and University Center of the City University of New York. (a) Racial Criteria in the Creation and Methodology of the Referees’ Plan According to the referees’ report, their redistricting plan incorporated the following criteria: “The one person, one vote standard of the United States Constitution; The Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, et seq.; Public interest criteria including contiguity, compactness, traditional boundaries in the State, communities of interest, and political fairness.” Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 15. The referees determined that “[fjederal law mandates that congressional redistrieting plans must meet two primary requirements: the one person, one vote standard and the racial fairness standard.” Id. at 17. They defined “racial fairness” as compliance with §§ 2 and 5 of the Voting Rights Act of 1965. Id. at 19-21. The referees explicitly state in their report that they utilized racial data in a computer program to generate the new districts: Based upon the Board of Elections registration list, using surname dictionaries to identify Hispanic and non-Hispanic Asians, and then census-based estimates to identify non-Hispanic blacks and whites, an estimate of registration by race for New York City was developed. This was loaded on the REAPS system. Using REAPS, the referees not only were able to see how various minority districts (and the various racial and language groups within the same district) compared at the total population and voting age population levels, but also at the estimated registered voter level. In this manner, the Referees could “compensate” those districts in which large numbers of protected minorities with low citizenship rates resided, such as ... Hispanies in Northern Manhattan and Central Queens. Id. at 33 n. 32. The referees first relied on the voting-age population (“VAP”) to gauge minority voting strength and then refined this analysis using the estimated voter registration by race data and surname analysis to measure voting strength more precisely. See id. at 33. During the court hearings in Reid v. Mari-no, Dr. Gartner described his use of the computer software: [O]ne of the things that the computer can do is it can produce maps which translate the Census numbers into geography, showing you, for example, concentrations of particular population groups. And so, we produced a set of maps that show the concentrations of the three so-called “protected classes” in New York City; in Census language: “Non-Hispanic blacks, non-Hispanic Asians,” and “Hispanics.” In effect, those concentrations tell you how to do the districting, per the Voting Rights Act. And, the order in which I will describe these districts, in effect, reflects our using those concentrations as the basis. Ex. 7 of Chill Aff. in Support of Silver Mot. to Dismiss (“Silver Mot. to Dismiss”), June 2 Tr. at 111. On June 5, 1992, Dr. Gartner testified that the computer was programmed to permit easy identification of racial concentrations: “[t]he richer the shade (indicating) ... the more intensive the [racial] population group.” Ex. 9 of Silver Mot. to Dismiss, June 5 Tr. at 236. He also described the method in which the districts were drawn: [W]e were concerned with the percent of non-Hispanic whites in a district. We were concerned ... to keep that percentage down so we do not, in effect, violate the opportunity of a so-called “protected class.” Or a group of protected classes in a district to have their rights violated by another group, who may tilt or switch the election. Id. 233-34. Professor Bernard Grofman, an expert who aided the referees, developed a four-step plan to ensure compliance with the VRA. One step entailed grouping “clusters of minority concentration” to maximize the number of districts having both the required population size to meet the “one person, one vote” standard and “effective minority voting equality.” Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 23-24 n. 19. Such a scheme maximized the number of new majority-minority districts. The referees themselves specifically asserted that “where the minority populations were large and compact enough, the maximum number of districts which achieve ‘effective minority voting equality’ have been created.” Id. at 3. With regard to the factor of compactness, however, the referees acknowledged: [O] ur Plan includes a newly created tricounty Hispanic district [the 12th CD] which, although not “aesthetically” compact, was drawn in a manner to ensure an effective concentration of Hispanic voters that can elect the candidate of their choice. Id. at 26. Moreover, Professor Gartner, discussing the 12th CD in particular, noted that “looking at the concentration maps, ... if you’re not bound by antiquated notions of compactness ... an additional Hispanic seat ... the so-called ‘Tri-County Seat’ ” may be developed. Ex. 7 of Silver Mot. to Dismiss, June 2 Tr. at 123 (emphasis added). A few days later he testified: “I believe it [the 12th CD] is the best Hispanic district you could draw, as well as also the best Asian district you can draw.... [However,] it is aesthetically unpleasing.” Ex. 9 of Silver Mot. to Dismiss, June 5 Tr. at 243. Finally, when the referees compared their plan to those submitted to them, they briefly discussed the population equality standard and then carefully described the plans’ racial characteristics. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 40-51. In their final report, the referees provided a compendium of the racial composition of the minority districts. See id. at 34-40. For each district, the only characteristic analyzed was voters’ race. See id.; see also Ex. 5 of Declaration of Robert D. Popper, Esq., counsel for Plaintiffs (“Popper Deel.”), chart entitled: “Congress Plan State Racial Breakdown.” (b) Secondary Criteria in the Referees’ Plan As previously mentioned, the referees considered the ‘one person, one vote’ standard and “racial fairness” primary to their redistricting efforts. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 17. Other factors are described as secondary criteria which “may” be considered: In addition to the two critical statutory and constitutional criteria, several other factors may be considered. These include contiguity, compactness, respect for traditional boundaries (such as county lines), communities of interest, and political fairness. Id. at 24. This summary, however, clearly does not tell the full story of all of the factors employed when developing the plan. For example, . incumbency per se is never explicitly mentioned; it appears only as the veiled term “displacefment]” of constituents. See id. at 51-52. Despite its conspicuous absence from any direct discussion, incumbency appears to have been the unacknowledged third-most-significant factor used when redistricting. It is not contested that the 12th CD was the only district created by the referees in which an incumbent did not reside. Incumbents were “protected” in 87% of the new districts: twenty-seven districts were created with incumbents and three had two incumbents. See State Mem. Opp. Prelim. Inj. at 28; Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 29. In addition, the lack of compactness of the new districts evidences that incumbency was the unspoken third criterion. Many of the congressional districts maintained the borders of prior districts and thus are not very compact. Two CDS conjoin non-adjacent communities separated by both land and water. The 5th CD connects northeast Queens with northern Nassau and Suffolk counties, via the Long Island Sound. See PRLDEF Mem. Opp. Sum. Judj. at 33. The 8th CD combines the Upper West Side, the West Village, Soho, Tribeca and Battery Park City of Manhattan with the southeastern parts of Brooklyn, including Brighton Beach and Coney Island, as well as Borough Park, in central Brooklyn. See id. at 34. Moreover, the 9th CD contains significant portions of Brooklyn and Queens including: Park Slope, Canarsie, Rockaways, Sheepshead Bay, Forest Hills, Howard Beach, Woodhaven, Forest Hills and Kew Gardens. Pieces of the 10th, 11th, and 12th CD intersperse the 9th CD. See id. The plan provides for two other tri-county districts in addition to the 12th CD. The 18th CD connects the Bronx, Queens and Westchester County beginning in southern West-Chester into the East Bronx and then crossing the East River into central Queens. See id. at 35. And the 14th CD combines parts of Brooklyn, Manhattan and Queens, including parts of the Upper East and West Sides and the Lower East Side, as well as Green-point in Brooklyn and Astoria in Queens. See id. at 34-35. Despite this disregard for compactness, the State Supreme Court found that the referees’ proposed plan was “complete and valid under the constitutions of the United States and the State of New York as well as the Federal Voting Rights Act.” Ex. X of PRLDEF Opp. Prelim. Inj., Order and Judgment in Reid v. Marino, No. 9567-92 (N.Y.Sup.Ct. Kings Cty.1992) at 3. According to the state court, the referees’ plan was also “the only one presently before any court that fully comports with these requirements and other applicable criteria as set forth in the referees’ report.” Id. at 4. (5) The Special Master’s Plan Like the referees, the special master considered the population equality and VRA mandates most crucial when creating his plan for the federal court. However, “[ajfter complying with constitutional and Voting Rights Act requirements, a redistricting plan may properly consider a ‘wide array of secondary or equitable criteria.’ ” Ex. B of PRLDEF Opp. Prelim. Inj., Special Master’s Report at 29 (citation omitted). For these criteria, the special master relied upon Good v. Austin, 800 F.Supp. 551, 554 (E. & W.D.Mich.1992), which states: “Federal courts have reeog.nized the following as relevant secondary criteria: compactness, contiguity, preservation of the integrity of county and municipal boundaries, maintenance of the cores ,of existing districts, preservation of cultural, social, and economic communities of interests, and political and racial fairness.” As did the referees, the special master maintained that he was required not to disperse minorities- into districts so that they would constitute an ineffective minority of voters; nor was he required to concentrate minorities into districts so that they would be an excessive majority. See Ex. B of PRLDEF Opp. Prelim. Inj., Special Master’s Report at 19. Additionally, although the special master did not explicitly state that he attempted to maximize the number of majority-minority districts, it appears that he did, since he created the same number of such districts as the referees, who specifically proffered maximization as a goal. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 3, 51. Most significantly, the special master and the referees used the same race-sensitive computer program, REAPS, to design their respective plans. See Ex. B of PRLDEF Opp. Prelim. Inj., Special Master’s Report at 5-6. This is strong evidence of majority-minority district maximization in the special master’s plan as well. The special master afforded least weight to the “public interest” factors. See id. at 29. These included the “community of interest,” which the special master defined as “ ‘distinctive units which share common concerns with respect to one or more identifiable features such as geography, demography, ethnicity, culture, socio-economic status or trade.’ ” Id. at 30 (quoting Carstens v. Lamm, 543 F.Supp. 68, 91 (D.Colo.1982)). In addition, the special master took into account political fairness, described as drawing district lines “so as not to disproportionately advantage or disadvantage one political party or another.” Id. at 31. Finally, he considered compactness and contiguity “[t]o the extent that these factors did not impair my ability to comply with constitutional and Voting Rights Act requirements____” Id. at 36. The special master explained that he created districts [t]hat are compact and contiguous where satisfaction of the provisions of the Voting Rights Act is not an issue. In New York City, where Voting Rights Act concerns dictated many of my districting decisions, the proposed districts are less compact but nonetheless compare favorably with the districts drawn for New York City by other plan proponents. Id. at 37 (citation omitted). Following the direction of the court, however, he did not consider protection of incumbents. See id. at 34. (6) The Referees’ and the Special Master’s Plans Compared The referees’ plan and the special master’s plan differ in two essential ways: the number of majority-Latino districts created and the inclusion of incumbency as a factor in redistricting. Importantly, however, both plans do envision a tri-county majority-Latino district. Both the special master’s and the referees’ plans created seven majority-minority districts. See Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 51. As previously noted, however, the referees’ plan, effectively created two Latino districts and five African-American districts, see id. at 34, while the special master’s plan created three Latino districts and four African-American districts. Ex. B of PRLDEF Opp. Prelim. Inj., Special Master’s Report at 37. With regard to the special master’s creation of the third majority-Latino district, the referees wrote: The Special Master draws a third Hispanic district in the Bronx and Manhattan; it is 59% Hispanic, and 40% Hispanic voter registration, including the Washington Heights Dominican community making this marginal Hispanic district less secure because of low citizenship rates. Our plan includes a Bronx/Westchester district, which is 36% African-American VAP [voter age population], 26% Hispanic VAP and 3% Asian VAP, for a total minority VAP, of 67%. Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 54. The special master’s plan described its creation of seven majority-minority districts: The plan creates seven districts affording majority control to racial and language minorities. Four are African-American districts and three are Hispanic districts. Each of these control districts contains at least 55 percent or more voting age population (“VAP”) for a protected minority. In the opinion of Professor Arrington, the Plan performs at least as well and usually better than other plans submitted to the Court in maximizing African-American and Hispanic voting power. Ex. B of PRLDEF Opp. Prelim. Inj., Special Master’s Report at 37 (citations omitted). The second major point of comparison between the two plans is the inclusion of incumbency as a redistricting criterion. Incumbency was the third-most-significant factor in the referees’ plan, whereas it played no role in the special master’s. This allowed the special master to draw a Latino district in the Bronx and Manhattan that was far more compact and cohesive than that drawn by the referees. The referees’ report noted the disparity in the number of voters who would be displaced, i.e. whose representative would change, between their plan and the special master’s: One of the most striking differences is that the Special Master’s Plan splits six of the seven minority district [sic] between two or more counties. Our plan proposes four of its seven minority districts within a single county.... The Master’s Plan, as compared to our plan, vastly changes the geography and, therefore, the constituencies of the five present minority districts in New York City.... ... On the average, the Master’s Final Plan ‘displaces’ 58% of the constituents, while the Referees’ Final Plan ‘displaces’ only 25%. Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 51. Additionally, the special master created a tri-county majority-Latino district that was very similar to the one drawn by the referees. The comparable referees’ district had additional curves, but the foundation of both plans was the same. Most importantly, as previously mentioned, the state referees and the federal special master used the same race-based computer program to determine the shape of the districts. (7) The New York State Legislature (a) Legislative Input in the Creation of the State and Federal court Plans The Senate and the Assembly submitted their own redistricting plans to both the special master and the referees. The referees noted: “[a]ll the proposed plans submitted to the Referees and to Special Master Lacey, include a similar tri-county Hispanic District.” Ex. C of PRLDEF Opp. Prelim. Inj., Referees’ Report at 26 n. 22. Legislators also voiced their opinions regarding the redistricting process at a hearing held by the special master. At this hearing, representatives from the Assembly and from the Senate were afforded the opportunity both to present their respective plans and to comment on each other’s plan. While the Assembly’s spokesperson, Dr. Roman Hedges, made a passing reference to incumbency, see Ex. L of Chill Aff. in Support of Silver Opp. Sum. Judg. (“Silver Opp. Sum. Judg.”), Special Master Hrg. Tr., he primarily discussed the creation of majority-minority districts. Comparing the Assembly’s plan to the Senate’s, he stated: [T]he big differences we think are in regards to treatment of the two Afro-American seats in Brooklyn where one of those two seats has a very substantial high turnout, white population that would significantly endanger the Afro-American seat currently held by Major Owens. We don’t see incumbency protection as an issue but we are very much concerned with retrogression____ ... [T]he rest of the differences between our plan and that proposed by the Senate are relatively small scale, and I would note a couple of things that seem to me to be in common with almost every plan, and that is there is the creation of a new Hispanic seat that goes from Brooklyn to Manhattan and to Queens which has a very consistent configuration of the Lower East Side, pieces of Jackson Heights and the Bushwick-East New York sections of Brooklyn. Id. at 16-17. The representative from the Senate, Mr. Michael Carvin, discussed the three majority-Latino districts it created, including its tricounty district. See id. at 88-92, 100-02. He explained: “What we do consistent with the Voting Rights Act is seek to group together concentrations of minority voters rather than split them apart, as is done certainly in the assembly plan and some of the others that have been presented.” Id. at 89-90. Although the Senate and Assembly versions differed in the extent to which they prioritized the creation of an Asian-American influence district and, perhaps, incumbency, the primary purpose of both the Assembly and the Senate was to devise a second majority-Latino district. See Ex. Q of Silver Opp. Sum. Judg., Assembly Tr. at 4, 12-20; Ex. R of Silver Opp. Sum. Judg., Senate Tr. at 36, 71-72, 80-82. Carvin explained why the Senate, unlike the Assembly, had not aggregated Asian-American voters: That is not in any sense disenfranchising or splitting Asian voters as we have heard here. What it does is allow them to continue in the district that they have participated in for years. Ex. L of Silver Opp. Sum. Judg., Special Master Hrg. Tr. at 107. (b) Legislative Enactment of the Referees’ Plan (1) The State Assembly When Assemblyman David F. Gantt introduced the referees’ plan to the Assembly, he began by describing the criteria used in its creation: The plan according to the referees complies with the one person/one vote requirement of the United States Constitution, the Equal Rights Protection Clause of the Fourteenth Amendment, and the federal Voting Rights Act. The maximum number of majority minority voting rights districts were created to ensure compliance with the Voting Rights Act. ... This plan creates an additional district that will help to ensure the election of the minority community’s candidate of its choice. Ex. Q of Silver Opp. Sum. Judg., Assembly Tr. at 3 (emphasis added). This statement serves as the backdrop for all further Assembly discussion. Assemblyman Gantt stated that it was not the plan that he or the Speaker of the Assembly would have created, but “we are stuck with a situation that this is the only game in town, and we must do that.” Id. He noted the importance of the Legislature acting affirmatively: “I don’t take pride of authorship [of the proposed plan], but the fact is I think the legislature should not abrogate its responsibility to pass a plan in the state.” Id. at 31. It was understood that if the Legislature failed to adopt the referees’ plan, then the special master’s incumbent-unfriendly plan would take effect. See, e.g., id. at 12; Ex. R of Silver Opp. Sum. Judg., Senate Tr. at 93, 95. The Assembly also noted that the federal special master’s plan created three majority-Latino districts, while the state plan by the referees created only two. Assemblyman Roberto Ramirez explicitly explained this principal difference between the two plans: It is interesting, political gerrymandering has been the traditional role of the state legislatures throughout this country. It is inconceivable that in 1992 the state court system of New York has now become a gerrymandering arm of the New York State Legislature. There is no question in my mind that the federal master’s map enhances the Puerto Rican-Hispanic community’s opportunity to elect three candidates of their choice. We should not accept anything less. That is why I will vote against this congressional districting bill. It has been said much more eloquently than I could ever say it, that it does not matter how you add it up, three is better than two. I know that in the business of politics, oftentimes, we manage to muddle the issue. This is a clear issue, three is better than two. Ex. Q of Silver Opp. Sum. Judg., Assembly Tr. at 26-27. Assemblyman Vito Lopez similarly railed against the bill because it proposed only two majority-Latino districts. He remarks, in a part of his almost seven pages of transcript: I think there’s three issues here: Equity, empowerment, and fairness. Equity and empowerment, I think you would have to ... vote no today____ It’s almost mathematically impossible [t]here are almost 2 million people in New York City, and you need about 300,000 people per Congressional district to constitute a Latino-Puerto Rican Congressional seat. It almost has to be planned to be exclusive of the Latino community. And do you know something? I know people will do their voting today, but if this was your group, if this was the farmers or if this was the African-American community, if this was a Republican community, people would be outraged. The Latino community is going to be a victim. Well, boy, oh, boy, there’s a barrier today. There’s an institutional barrier that says we’re not going to have three Latino members of Congress---- Then the other issue that I made reference to is fairness. And this is where we always lose. What is fair? So, on one hand, people will say, Well, look, ... we have to weigh the poor incumbents to the needs of the Latino community.’ Again, we lose.... ... When you vote for this plan, you’re voting against the Latino community. Id. at 41-43. Like Assemblymen Ramirez and Lopez, Assemblyman Angelo Del Toro argued that the referees’ plan failed to maximize Latino representation in New York City: I think we should not be passing this bill today.... I think that one thing is clear, that even the state order that Mr. Gantt has referred to has to go before the federal Voting Rights Act, and I will guarantee you, that this is not the end of this discussion. It is clear, by the numbers, that a third Hispanic seat, two of them in northern Manhattan and the Bronx, and one in the Brooklyn-Triborough District, Queens and Manhattan were possible, and, that our community in New York City is totally mobilized to ensure that we get a fan-reading. Id. at 17-18. Assemblyman Gantt had sought to preempt these criticisms, contending, as did the referees, that the plans creating three majority-Latino districts were not viable. He stated: “[T]here is an opinion by some people that those districts, some of which were drawn in the federal plan, were not necessarily winnable for minorities.” Id. at 16. Assemblyman Del Toro responded: [I]n a city where over 52 percent, and we know that that is an under-count of the minority population, is minority. We have to take every opportunity we can to fairly break up the number of minority Congressional seats to approximate what that percentage of the population should be. I don’t believe that this legislature should be a party to anything that smacks of racial and ethnic gerrymandering.... I don’t believe that we should necessarily draw these districts to protect incumbents whatever they may be. Id. at 18-19. Assemblyman Clarence Norman, Jr., however, explained why he supported the adoption of the referees’ plan rather than the special master’s plan. Hailing from Brooklyn, and contemplating the devastation on the possible retention of our Afro-American Congressman in Brooklyn, Major Owens, and their towns in particular, I realize that the only alternative we have is to support this plan. But, when I think of Congressman Owens’ district as proposed under the federal plan, his minority population would drop from 92 percent to 56 percent, thereby placing him in jeopardy. As well, Congressman Towns’ purported district would take him way into Queens, an area which has very little in common with his present political base. So, as such, these two Congressmen would.be in severe jeopardy of being reelected, and even if they were reelected, the possibility of the African-American communities to be able to elect succeeding African-Americans to those seats would be highly unlikely. So, in looking at the two plans and juxtaposing the two, I am, indeed, compelled to support the plan that is before us. Id. at 56. Assemblyman Albert Vann spoke similarly, recalling that “[ojver the years, I have ... earned a reputation for being for the empowerment of people of color [and support the Latino cause], ... I’m saddened that we cannot be together on this.... But the federal plan may create three districts for the Hispanic community in this state, but it jeopardizes three of the four seats that are held in New York City by African-Americans.” Id. at 47-49. In addition to the extensive discussion of the division of minority districts between Latino and African-American voters, the Assembly also acknowledged that protection of incumbents explained the shape of some of the districts in the referees’ plan. For example, Assemblywoman Deborah Glick stated: “There has been a clear attempt to gerrymander based on personalities, personalities and the intention to protect the incumbents.” Id. at 23. Some members of the Assembly seemed particularly concerned about the manner in which the plan divided communities to protect incumbents. Assemblyman Sullivan lambasted the plan’s division of communities: [T]here is another thing, a community, people move into a town presumably because they want to move and live together. They want to be part of a community, and they have a right to be represented as a community, unless they live in Manhattan, then they are all carved up like salami. We have a law in the state which says if you draw legislative lines, you must respect communities. Not in Manhattan, you can carve us up like we don’t care, it does not matter to us. Id. at 7-8. (2) The State Senate Although, as previously noted, incumbency as a redistricting criterion was not explicitly mentioned in the referees’ report, its significance in the development of the referees’ plan was openly acknowledged in the State Senate debate. Senator Dean G. Skelos, the proponent of the bill adopting the referees’ plan in the New -York State Senate, noted the state’s congressional delegation’s widespread support for it: The Federal Master’s Plan was overwhelmingly rejected by the New York congressional delegation, as the plan would have deprived many communities of the working relationship they have built up with their representatives. The legislation before us has received strong support from the congressional delegation both Republicans and Democrats. The plan preserves the area of the current districts for the five minority districts with incumbents. The plan preserves the cores of existing districts. Ex. R of Silver Opp. Sum. Judg., Senate Tr. at 36-37. The emphasis given incumbency was, however, strongly criticized. State Senator Martin Connor objected to the weight given to incumbency at the expense of community in the referees’ plan: We’ve now, to serve both the interests of incumbents, of constituency continuity— you know, part of preserving incumbents, if you read the cases, Mr. President, talks about preserving the continuity of constituencies. That was the nice way the courts used to talk about protecting incumbents, not by looking at the office holder but by saying to keep intact the basic confines of an existing district and maybe add onto it. While it resulted in the incumbent’s election or re-election, it preserved the continuity of the constituency. Because as I look at this plan, I mean it’s unfathomable to me that you can go from Westchester by a little one-block long thing into Queens and you can go from Sheepshead Bay all the way up the West-side of Manhattan. It may serve certain incumbents well, but it doesn’t serve, I think, the people in the neighborhoods____ I don’t think [the plan is] fair. I don’t think it does as good a job of giving representation to Hispanics as other proposals we saw earlier coming from legislative houses and there’s proposals that have come from the Federal Master’s Plan, and I think that’s a very, very serious fault in this plan. I don’t think we ought to adopt a plan whose architects obviously so protected incumbents that they denied Puerto Rican and Hispanic voters an opportunity for enhanced representation. So I intend to vote no. Id. at 88-89, 90, 92. State Senator Emanuel R. Gold also argued that the significance granted to incumbency in the plan was improper. He contended that one of the referees in the state case should have disqualified himself from the case because he “has ties to the Brooklyn Democratic organization. . There were chits to pay even to a Congressman partially from Queens____” Id. at 47. He continued: I spoke to people, and people say, well, you know there’s eighteen Congress people involved, and sixteen of them like it. Sixteen what like it? Sixteen selfish political people just like we are that look at their own little lines and say, “My God, my back side got saved.” To hell with the people. Under this plan, Queens County’s two million people will be broken up and have seven congressional pieces. Id. at 53-54. Senator Skelos, however, sought to justify the shape of the 12th CD with the need to comply with the perceived requirements of the VRA: I think you should also point out that sometimes that’s [extremely thin areas of districts] necessitated by the creation of minority districts in neighboring communities to satisfy the Voting Rights Act. Id. at 42. Jeremy S. Weinstein, a Senator from Queens, did not accept this explanation and objected to the shape of many districts, accusing the referees of unacceptably dividing communities. [I]t looks like for several miles, is set one block long, cutting right through ... Queens County ... so that it then spreads out like a spread of wings to pick up other communities. Do you think that’s an acceptable way? Id. at 68. He continued with the sarcastic comment: “It was not done for the Voting Rights Act. For what purpose was it done?” Id. at 70. Demanding that the Senate enact its own plan, he questioned Senator Skelos: “But it’s [the proposed bill] not as good as what you could accomplish?” Id. at 71. In responding to Senator Weinstein’s comments and questions, Senator Skelos answered: [T]here was an agreement [between the Assembly and Senate in March 1992] that was 90 percent complete, and what I believe happened ... here is that the Court and the referees took into account by looking at the various plans of the two houses and then resolved what may have been the outstanding issues between the two houses. Id. at 71. Senator Franz Leichter also opposed the proposed bill and concluded his remarks by stating: I hope that the courts will look at this, will look at the fact that they have this plan that is so terribly political and without having come through the proper political process, and I hope the courts or the Justice Department as they look at it will not view this as the Legislature’s plan, because it isn’t. Id. at 86. Senator Olga A. Mendez agreed with Senator Gold and also couched the Senate’s impending decision in racial terms, questioning whether it would adopt the referees’ plan, which created one new Latino district, or yield to the adoption of the special master’s plan, which created two. Senator Mendez contended that although the special master’s plan would increase Hispanic representation, it was being overlooked because it threatened incumbents. See id. at 61-63. She stated: All right. We know that the demography has changed, and we know that the State of New York must eliminate three congressional districts. Must it be done at the expense, Mr. President, of the Puerto Rican and the Hispanic community? Id. at 62-63. Several other senators similarly perceived the referees’ plan to be unfair to Latino voters because it failed to maximize the number of majority-Latino districts. See id. at 75-82. (c) Adoption of the Referees’ Plan Despite the protestations concerning the referees’ plan’s failings and unfairness, the Legislature passed the plan on June 10, 1992 and the Governor signed it almost immediately thereafter. The Governor took care to mention that he would have preferred a plan that created three majority-Latino districts: [T]he Legislature has now chosen simply to adopt in legislation the plan created by the state court saying it is close to what they might have done ... In my judgment, the failure of the state court plan to create three Latino districts ... violates the provisions of the Voting Rights Act. Ex. S of Silver Opp. Sum. Judg., Governor’s Statement Explaining Bill Signing. He explained, however, that he would not veto the legislation containing the referees’ plan because the special master’s plan “is even worse for representing our citizens, ignoring the cores of existing communities and applying a novel 55% majority standard for districts, which as it has been applied produces demonstrably weaker minority seats.” Id, (8) Department of Justice Pro-Clearance Section 5 of the VRA requires “the chief legal officer or other appropriate official” of a state to submit to the U.S. Attorney General any change in voting procedures in a “covered jurisdiction.” 42 U.S.C. § 1973 (Supp. 1994). Bronx, Kings and New York Counties were and are covered jurisdictions. Thus the proposed reapportionment scheme could become effective only if the U.S. Attorney General approved the plan. As required by § 5 of the VRA, the Legislature submitted the redistricting legislation to DOJ for pre-clearance. See Ex. DD of Silver Opp. Sum. Judg., DOJ Submission; Ex. 4 of Popper Decl., DOJ Submission. DOJ had adopted regulations implementing § 5 of the VRA. See 28 C.F.R. Chap. 1, Part 51. These regulations specify that “the chief legal officer or other appropriate official ... or by any other authorized person on behalf of the submitting authority” provide the necessary information to the Attorney General. 28 C.F.R. § 51.23(a). Section 51.27 describes the required information: paragraphs (a) and (b) require copies of the existing law and proposed changes; paragraph (c) requires the submitting party to explain the reasons for the change: (c) If the change affecting voting either is not readily apparent on the face of the documents provided under paragraphs (a) and (b) of this section or is not embodied in a document, [the submission must include] a clear statement of the change explaining the difference between the submitted change and the prior law or practice, or explanatory materials adequate to disclose to the Attorney General the difference between the prior and proposed situation with respect to voting. 28 C.F.R. § 51.27(c). Based on the submission, DOJ would assess whether the changes violate § 5 or § 2 of the VRA. Senator Dean G. Skelos, “[o]n behalf of the Senate,” and Assemblyman David F. Gantt, “[o]n behalf of the Assembly,” wrote to the Chief of the Voting Rights Section of DOJ, submitting the required information and requesting pre-clearance. In them submission, under the section “Analysis of Change to Previous Law (51.27)(c),” they emphasized the importance of the referees’ report, stating: “The Report of the Referees to Justice Shaw explains in detail the background leading up to the development of this plan by the referees for the State Supreme Court.... This law, incorporating the state court plan, is being submitted for preclearance. The Report of the Referees follows.” Ex. 4 of Popper Deck, DOJ Submission. Thus, the Referees’ Report, attached as necessary supporting information, was sent to DOJ in order to explain the proposed changes in the districting plan. Indeed, the referees’ report was the only explanation offered to describe the revisions. DOJ responded to the Legislature’s submission on July 2, 1992. See Ex. G of PRLDEF Opp. Prelim. Inj. In granting approval, the Acting U.S. Assistant Attorney General stated: The Attorney General does not interpose any objection to the congressional redistricting plan. Our review persuades us that, as required by Section 5, the state has demonstrated that this redistricting legislation was neither designed to discriminate against minority voters nor does it have a retrogressive effect on their voting rights. Id. (9) Latino Disapproval of the Referees’ Plan Latino members of the New York Legislature had unanimously voted against the legislation. See Ex. D of Graber Deck Opp. Prelim. Inj. In addition, the Puerto Rican/Hispanic Task Force of the New York State Assembly urged the Governor to veto the Legislature’s plan, claiming that it diminished Latino voting rights. See Ex. C of Graber Decl. Opp. Prelim. Inj. The Latino members of the New York Legislature instead advocated passage of the special master’s plan created in the federal court. See id. Once the plan was signed by the Governor and approved by DOJ, Latino legal advocates tried in two separate actions to block its implementation before the November 1992 elections. They argued that the plan violated § 2 of the VRA, maintaining that if an additional compact and cohesive majority-Latino district could be created, as it was in the special master’s plan, then the state plan’s failure to include this third Latino district must necessarily dilute Latino voting strength. See Torres v. Cuomo, No. 92-CV-5811, 1993 WL 33639 (S.D.N.Y., Feb.3,1993); PRLDEF v. Gantt, 796 F.Supp. 698, 700 (E.D.N.Y.1992). Plaintiffs’ motion for a preliminary injunction was denied in the Southern District of New York on August 13, 1992. See Ex. E of Graber Decl. Opp. Prelim. Inj. (C) Compactness of the 12th CD (1) Description of the 12th CD Plaintiffs contend that the 12th CD is “extraordinarily contorted, irregular, and bizarre.” Compl. ¶ 38. According to the plaintiffs, “[t]he 12th CD is an object of national ridicule because of its shape, and is derisively referred to in the national press as the ‘Bullwinkle’ district.” Compl. ¶ 39; see Appendix A, enlargement of an official congressional district map, entitled “New York State, 1992 Congressional Districts,” obtained from the New York State Board of Elections and marked to show the 12th CD. The 12th CD encompasses parts of three of the five boroughs of New York City and has approximately 813 sides, “usfing] about 75 miles of perimeter to enclose less than 14 square miles of area.” Id. ¶¶ 40-41, 45. This is one of the nine or ten least spatially compact districts in the United States. See id. ¶¶ 47-48. Daniel Polsby, Professor of Law at Northwestern University, explains in his declaration submitted on behalf of the plaintiffs here that the 12th CD is comparable in shape to the North Carolina district struck down in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), and the Georgia district struck down in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). See Polsby Decl. ¶ 14. He further explains that the 12th CD is “naturally drawn on a smaller scale because it is located in the center of one of the most populous cities in the world.” Id. In the state court hearings, Professor Gartner describes how the 12th CD was constructed: What you see when you look at the concentration maps is a band of Hispanics that come across Northern Brooklyn ... with a small incursion into Queens. And, if you forgot about the East River, it [the band of Hispanics] comes across Manhattan, into the Lower East Side. You then see a concentration of Hispanies in Sunset Park and a little bit in Red Hook, and you see a scattering of Hispanies, those Northern Queens Hispanics that I talked about, that we didn’t choose to bring up into the Serrano district but we use here (indicating). And so what we did, as everybody did, is we drew a district that basically looked like this (indicating), with the three legs. Ex. 7 of Silver Mot. to Dismiss, June 2 Tr. at 123-24. Three days later he continued: It’s no disrespect to the drafters of this district to say it is aesthetically unpleasing. ... Why do we drive down he